DUNLOP v. COLVIN

Filing 29

DECISION on Judicial Review: The Commissioner's decision that Ms. Dunlop is not disabled is REVERSED AND REMANDED under sentence four of 42 U.S.C. §405(g). See Decision for details. Signed by Magistrate Judge Debra McVicker Lynch on 3/25/2015.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SHEILA L. DUNLOP,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security,
Administration,
Defendant.

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Decision on Judicial Review
Plaintiff Sheila L. Dunlop applied in July 2010 for Disability Insurance
Benefits (DIB) and Supplemental Security Income disability benefits (SSI) under
Titles II and XVI, respectively, of the Social Security Act, alleging that she has been
disabled since June 1, 2008. Acting for the Commissioner of the Social Security
Administration following a hearing conducted by video conference on March 12,
2012, administrative law judge Janice M. Bruning issued a decision on August 18,
2012, finding that Ms. Dunlop is not disabled. The Appeals Council denied review
of the ALJ’s decision on November 21, 2013, rendering the ALJ’s decision for the
Commissioner final. Ms. Dunlop timely filed this civil action under 42 U.S.C. §
405(g) for review of the Commissioner’s decision.
Mr. Dunlop contends that the ALJ erred by (1) failing properly to evaluate
opinions by Dr. Chrystal Anderson, a treating physician and (2) unfairly
discounting her credibility.

Standard for Proving Disability
To prove disability, a claimant must show that she is unable to “engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 423(d)(1)(A) (DIB benefits); 42 U.S.C. § 1382c(a)(3)(A) (SSI benefits).1 Ms.
Dunlop is disabled if her impairments are of such severity that she is not able to
perform the work she previously engaged in and, if based on her age, education, and
work experience, she cannot engage in any other kind of substantial gainful work
that exists in significant numbers in the national economy. 42 U.S.C.
§ 423(d)(2)(A). The Social Security Administration (“SSA”) has implemented these
statutory standards by, in part, prescribing a five-step sequential evaluation
process for determining disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful
activity; if she is, then she is not disabled. Step two asks whether the claimant’s
impairments, singly or in combination, are severe; if they are not, then she is not
disabled. A severe impairment is one that “significantly limits [a claimant’s]

Two programs of disability benefits are available under the Social Security
Act: DIB under Title II for persons who have achieved insured status through
employment and withheld premiums, 42 U.S.C. § 423 et seq., and SSI disability
benefits under Title XVI for uninsured individuals who meet income and resources
criteria, 42 U.S.C. § 1381 et seq. The court’s citations to the Social Security Act and
regulations promulgated by the Social Security Administration are those applicable
to DIB benefits. For SSI benefits, materially identical provisions appear in Title
XVI and generally at 20 C.F.R. § 416.901 et seq.
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physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The
third step is an analysis of whether the claimant’s impairments, either singly or in
combination, meet or medically equal the criteria of any of the conditions in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of
Impairments includes medical conditions defined by criteria that the SSA has predetermined are disabling, so that if a claimant meets all of the criteria for a listed
impairment or presents medical findings equal in severity to the criteria for the
most similar listed impairment, then the claimant is presumptively disabled and
qualifies for benefits. Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002).
If the claimant’s impairments do not satisfy a listing, then her residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is
a claimant’s ability to do work on a regular and continuing basis despite her
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform her past relevant work, then she
is not disabled. The fifth step asks whether there is work in the relevant economy
that the claimant can perform, based on her vocational profile (age, work
experience, and education) and his RFC; if so, then she is not disabled.
The individual claiming disability bears the burden of proof at steps one
through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets
that burden, then the Commissioner has the burden at step five to show that work
exists in significant numbers in the national economy that the claimant can

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perform, given her age, education, work experience, and functional capacity. 20
C.F.R. § 404.1560(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is
deferential. A court must affirm if no error of law occurred and if the findings are
supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would
accept as adequate to support a conclusion. Id. The standard demands more than a
scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for
her decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence
in her decision, but she cannot ignore a line of evidence that undermines the
conclusions she made, and she must trace the path of her reasoning and connect the
evidence to her findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th
Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Analysis
I.

The ALJ’s Sequential Findings
Ms. Dunlop was born in 1964 and was 43 years old at the alleged onset of her

disability in June 2008. She was 48 years old at the time of the ALJ’s decision

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denying disability benefits. She had work experience as a cashier and as a
housekeeper, and had last worked in June 2008 at a fast food restaurant. R. 201.
At step one, the ALJ found that Ms. Dunlop had not engaged in substantial
gainful activity since her alleged onset date. At step two, she identified various
physical impairments as severe, including hypertension, obesity, mild degenerative
changes to the lumbar spine, fibromyalgia, trochanteritis of the hips, “status post
tear and surgery to the right knee with degenerative joint disease,” and “status post
carpal tunnel syndrome with surgery.” R. 51. She concluded there were no severe
mental impairments, a finding that Ms. Dunlop does not challenge. At step three,
the ALJ determined that no listings were met.
The ALJ next determined Ms. Dunlop’s residual functional capacity and
decided she was capable of only sedentary work—the ability to sit for six hours and
stand/walk for two hours and to lift/carry up to 10 pounds—with additional
restrictions. The ALJ prohibited climbing ropes, ladders, or scaffolding, permitted
only occasional climbing of ramps and stairs, balancing, stooping, crouching,
crawling, or kneeling, and permitted the use of a cane to ambulate to and from a
workstation. She found Ms. Dunlop could frequently use her hands for handling,
fingering, and feeling. She forbid uneven terrain and wet or slippery surfaces, and
imposed a sit/stand option, allowing Ms. Dunlop to sit for 45 minutes and to stand
for 1-2 minutes. R. 53.
With this RFC and based on the testimony of a vocational expert, the ALJ
found Ms. Dunlop could not perform her past work because it had required a light

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level of exertion, which generally requires the ability to stand or walk for six hours
of a work day. At step five, the ALJ determined that Ms. Dunlop is capable of
performing the requirements of jobs as an order clerk, telephone clerk, or account
clerk which, based on the VE’s testimony, fit Ms. Dunlop’s RFC and vocational
profile and are available in significant numbers in the State of Indiana.
Accordingly, the ALJ found that Ms. Dunlop was not disabled at any time from her
alleged onset date through the date of the ALJ’s decision.
II.

The ALJ did not properly weigh the opinions of Ms. Dunlop’s
treating physician.
A. SSA regulations require an evaluation of the weight given
medical opinions.
The weight an ALJ gives to medical opinions is guided by factors described in

20 C.F.R. § 404.1527(c). An opinion by a treating physician about the nature and
severity of a claimant’s impairments is entitled to “controlling weight” if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques”
and is “not inconsistent with the other substantial evidence” in the record. Id. §
404.1527(c)(2). The rationale for according controlling weight in these
circumstances is that a treating source may provide a longitudinal and detailed
picture of a claimant’s impairments and may bring a unique perspective to the
medical evidence that may not be shown by objective medical findings alone or
reports from individual examinations. Id. Controlling weight is never assigned,
however, to a treating physician’s opinion whether a listing is met or about the

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claimant’s residual functional capacity because “the final responsibility for deciding
these issues is reserved to the Commissioner.” Id. § 404.1527(d)(2).
If the ALJ reasonably determines the treating physician’s opinion does not
deserve controlling weight, she must determine what weight it deserves. The
regulation provides a list of factors to guide that evaluation. The same factors guide
the weighing of other medical opinions in the record, including those of state agency
physicians and other non-treating medical sources. The factors are the degree to
which the opinion (a) is supported by relevant evidence and explanations; (b)
considered all pertinent evidence; (c) is consistent with the record as a whole; and
(d) is supported or contradicted by other factors, such as the physician’s
understanding of SSA disability requirements. Id. § 404.1527(c)(3), (4), (6). The
physician’s field of specialty and the nature and extent of her treatment
relationship with the claimant are also considered. Id. § 404.1527(c)(1), (2), and (5).
B. The ALJ determined the treating physician’s opinions were not
entitled to controlling weight but did not indicate the weight she
otherwise thought appropriate.
Ms. Dunlop has a history of hip, knee, and back pain, and difficulties with
her hands. She underwent several MRIs, including an MRI of her right hip in
August 2008, an MRI of her right knee in April 2010, and an MRI of her lumbar
spine in October 2010. Her hip showed mild bursitis at the greater trochanter and
mild edema (swelling) at some junctions, her knee showed small tears in the
menisci, and her spine showed mild degenerative changes but was otherwise
unremarkable. In August 2011, Ms. Dunlop had an arthroscopy and medial

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meniscectomy on her right knee, and in early 2012, she had successive carpal
tunnel release surgeries on her left and right hands. Otherwise, she was treated
with pain medication, brief periods of physical therapy, and a home exercise
program.
The record contains two RFC questionnaire forms completed by Dr. Chrystal
Anderson, whom the ALJ characterized as a treating physician. The first one is
dated July 18, 2011. (R. 292-93). The second one is a copy of the first with
“updated” changes on March 13, 2012, to note limits in Ms. Dunlop’s hand
functioning. (R. 320-21). Dr. Anderson circled or checked boxes indicating, among
other things, that Ms. Dunlop (a) experiences pain that would “often” (as opposed to
never, seldom, frequently, or constantly) interfere with her attention and
concentration; (b) can sit only four hours and stand two hours in a workday; (c)
needs one or two unscheduled breaks in a workday and likely would miss work
more than four times per month; and (d) at least as of March 13, 2012, has limited
gross and fine finger manipulation abilities.
The ALJ decided these opinions were not entitled to controlling weight, and
she provided sufficient reasons for that decision by citing to objective medical
diagnostic evidence that was inconsistent with the severity in functioning Dr.
Anderson assigned. For example, the ALJ noted that the MRIs of Ms. Dunlop’s
lumbar spine and right hip showed only mild diagnostic findings and that she had
undergone surgery to address her knee and hand problems.

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But other than deciding that the opinions did not deserve controlling weight,
the ALJ did not address what other weight they deserved, if any. See SSR 96-2p
(“Adjudicators must remember that a finding that a treating source medical opinion
. . . is not entitled to ‘controlling weight’ [does not mean] that the opinion should be
rejected.”) Even if the court surmises that the ALJ thought Dr. Anderson’s opinions
deserved no weight at all, the court cannot discern from the ALJ’s decision her
evaluation of many of the factors germane to determining the weight to give. There
is no discussion of Dr. Anderson’s specialty and how her area of expertise does or
does not lend support to her findings. The ALJ did not discuss the consistency (or
lack thereof) of Dr. Anderson’s opinions with Dr. Anderson’s treatment and
examination notes, and she suggested Dr. Anderson was unfamiliar with only one
facet of Ms. Dunlop’s condition and treatment—her having undergone carpal tunnel
release surgeries that the orthopedic surgeon thought had terrific results. Further,
although the ALJ commented that Dr. Anderson had a two-year treating
relationship with Ms. Dunlop (which suggests a longitudinal history favoring some
weight to the opinion),2 she instead emphasized an examination finding by the state
agency doctor who saw Ms. Dunlop only once and nearly nine months before the
date of Dr. Anderson’s July 2011 opinion. The state agency doctor’s examination
was a basis for a medical opinion in the record that Ms. Dunlop had no severe

Although Ms. Dunlop apparently has been a patient of Dr. Anderson’s since
2009, Dr. Anderson may not always have been the primary care provider with
respect to musculoskeletal issues. It appears Ms. Dunlop was seen for a substantial
period of time by Dr. Renshaw for these matters.
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musculoskeletal impairments (See R. 281, 290), a conclusion the ALJ clearly
disagreed with.
In summary, because some of the guiding factors suggest Dr. Anderson’s
opinions may deserve some weight and because there are wide gaps in the ALJ’s
analysis of the weight to give Dr. Anderson’s opinions, the court cannot find
substantial evidence supporting the Commissioner’s decision. The court does not
suggest any particular weight the ALJ must give; it finds only a failure of
articulation in the ALJ’s decision.
C. The ALJ’s credibility assessment should be readdressed in light of
her decision on the weight to give Dr. Anderson’s opinions.
Because this case must be remanded for the ALJ to articulate the weight she
assigns to Dr. Anderson’s opinions and to provide supporting reasons, the court does
not reach the issue whether the ALJ’s credibility assessment was patently wrong.
The greater or lesser weight the ALJ gives Dr. Anderson’s opinions may well cause
her to view Ms. Dunlop’s subjective complaints about the limiting effects of her
impairments and resulting pains in a more favorable light than the current decision
reflects.

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Conclusion
For the foregoing reasons, the Commissioner’s decision that Ms. Dunlop is
not disabled is REVERSED AND REMANDED under sentence four of 42 U.S.C. §
405(g).
So ORDERED.
Dated: March 25, 2015
____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
All ECF-registered counsel of record by email through the court’s ECF system

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