BURDINE v. SOCIAL SECURITY ADMINISTRATION

Filing 22

ENTRY ON JUDICIAL REVIEW. The Commissioner's decision is REVERSED and this case is REMANDED for further proceedings consistent with this Entry. (See entry.) Signed by Judge William T. Lawrence on 3/7/2016. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARVIN LEE BURDINE,
Plaintiff,
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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) Cause No. 1:15-cv-345-WTL-MPB
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ENTRY ON JUDICIAL REVIEW
Plaintiff Marvin Lee Burdine requests judicial review of the final decision of Defendant
Carolyn Colvin, Commissioner of the Social Security Administration (“Commissioner”),
denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act (“the Act”). The Court rules as follows.

I. PROCEDURAL HISTORY
Burdine filed his application for DIB in July 2011, alleging disability beginning on
December 31, 2010. His application was denied initially and upon reconsideration, whereupon
he requested and was granted a hearing before an administrative law judge (“ALJ”). Burdine
was represented by counsel at the video hearing, which was held on July 17, 2012, before ALJ
Angela Miranda. Burdine and a vocational expert testified at the hearing. Thereafter, on
January 23, 2013, the ALJ rendered her decision in which she concluded that Burdine was not
disabled as defined by the Act. The Appeals Council reviewed the ALJ’s decision and issued an
affirmance on August 6, 2014. Burdine then filed this action for judicial review.

II. EVIDENCE OF RECORD
The relevant evidence of record is aptly set forth in the ALJ’s decision and Burdine’s
brief and need not be repeated here.
III. APPLICABLE STANDARD
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. ' 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment that exists in the national economy, considering
her age, education, and work experience. 42 U.S.C. ' 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity she is
not disabled, despite her medical condition and other factors. 20 C.F.R. ' 404.1520(b). At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits her
ability to perform basic work activities), she is not disabled. 20 C.F.R. ' 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. ' 404.1520(d).
At step four, if the claimant is able to perform her past relevant work, she is not disabled. 20
C.F.R. ' 404.1520(f). At step five, if the claimant can perform any other work in the national
economy, she is not disabled. 20 C.F.R. ' 404.1520(g).

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In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ is required to
articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be
affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not
required to address every piece of evidence or testimony,” she must “provide some glimpse into
her reasoning . . . [and] build an accurate and logical bridge from the evidence to her
conclusion.” Id.
IV. THE ALJ’S DECISION
The ALJ found at step one that Burdine had not engaged in substantial gainful activity
since his alleged onset date of December 31, 2010. At steps two and three, the ALJ found that
Burdine had the severe impairments of “(1) right hip dysfunction described as advanced
degenerative changes, hip space narrowing, enthesopathy of the iliac wings, ischial tuberosites,
and osteoarthritis; (2) back dysfunction described as mild lumbar spondylosis; (3) obesity; and
(4) a history of coronary artery disease with dyslipidemia, hypercholesterolemia, and
hypertension,” Record at 23, but that his impairments, singly or in combination, did not meet or
medically equal a listed impairment. At step four, the ALJ concluded that Burdine had the
residual functional capacity to perform light work with the following postural and environmental
limitations:

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[T]he claimant has the capacity to occasionally lift and carry 20 pounds and to
frequently lift and carry 10 pounds. The claimant has the unlimited capacity to
push and pull up to the weight capacity for lifting and carrying with the upper
extremities and has the capacity for occasional operation of foot controls with the
right leg/foot. The claimant has the capacity to stand and walk 6-8 hours in an 8hour workday. The claimant may require the ability to change position while at
work but this can be met with normal break and meal periods. The claimant has
the capacity to frequently balance and to occasionally stoop, kneel, crouch, and
climb stairs and ramps. The claimant should not crawl. The claimant has no
limitations in manipulative abilities. Environmentally the claimant should have
only occasional exposure to wetness, vibration, and dust/fumes/other pulmonary
irritants. The claimant should not have exposure to hazards such as uneven, steep
including [sic] surfaces or unprotected heights. Despite the claimant’s subjective
complaints related to concentration, mentally the claimant has the capacity to
understand, remember, and carry out multiple-step tasks. The claimant has the
capacity to appropriately interact with supervisors, coworkers, and the general
public. The claimant has the capacity to identify and avoid normal work place
hazards and to adapt to routine changes in the work place.
Id. at 25. Given this residual functional capacity (“RFC”), the ALJ determined that Burdine was
unable to perform his past relevant work as a journeyman roofer. At step 5, the ALJ determined
that Burdine was able to perform representative occupations such as food order clerk, sorting
machine operator, and polishing machine operator, and that those jobs existed in significant
numbers in the national economy. Accordingly, the ALJ concluded that Burdine was not
disabled as defined by the Act.
V. DISCUSSION
Burdine argues that the ALJ erred in several respects. Each of his arguments is
addressed, in turn, below.
A. Errors Relating to Chronic Myelogenous Leukemia
Burdine first argues that the ALJ erred in failing to consider whether Burdine met or
equaled Listing 13.06(B) 1 for chronic myelogenous leukemia (“CML”). Listing 13.06(B)(2)(a)

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All listings are found at 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
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applies to CML and provides that a person is “[c]onsider[ed] under a disability until at least 12
months from the date of bone marrow or stem cell transplantation. Thereafter, evaluate any
residual impairment(s) under the criteria for the affected body system.” Burdine did not undergo
a bone marrow or stem cell transplant; his CML was treated with Gleevec, a chemotherapy drug.
Burdine argues that the ALJ should have considered whether he nonetheless equaled Listing
13.06 because he experienced (and continues to experience) significant side effects from
Gleevec. However, the Listings further provide:
How do we evaluate cancer treated by bone marrow or stem cell transplantation,
including transplantation using stem cells from umbilical cord blood? Bone
marrow or stem cell transplantation is performed for a variety of cancers. We
require the transplantation to occur before we evaluate it under these listings. We
do not need to restrict our determination of the onset of disability to the date of
the transplantation (13.05, 13.06, or 13.07) or the date of first treatment under the
treatment plan that includes transplantation (13.28). We may be able to establish
an earlier onset date of disability due to your transplantation if the evidence in
your case record supports such a finding.
Listing 13.00(L) (emphasis added). Therefore, the ALJ was correct in not evaluating Burdine
under Listing 13.06 because it simply does not apply to a claimant who has not had a bone
marrow or stem cell transplant.
As discussed further below, the Court agrees with Burdine that the ALJ failed properly to
consider the side effects caused by his continued use of Gleevec. However, the Listings provide
that in cases in which the treatment is successful—which, thankfully, Burdine’s was—such side
effects are not properly considered under the Listing for the underlying cancer.
When the initial anticancer therapy is effective. We evaluate any post-therapeutic
residual impairment(s) not included in these listings under the criteria for the
affected body system. We must consider any complications of therapy. When the
residual impairment(s) does not meet or medically equal a listing, we must
consider its effect on your ability to do substantial gainful activity.
Listing 13.00(G)(4).

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B. Listing 1.02(A)
Burdine next argues that the ALJ erred in her consideration of Listing 1.02(A), which
provides:
Major dysfunction of a joint(s) (due to any cause): Characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of limitation of motion
or other abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b.
Listing 1.00(B)(2)(b), in turn, provides:
(1) Definition—Inability to ambulate effectively means an extreme limitation of
the ability to walk; i.e., an impairment(s) that interferes very seriously with the
individual’s ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities.
...
(2) To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry out activities
of daily living. They must have the ability to travel without companion assistance
to and from a place of employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk without the use of
a walker, two crutches or two canes, the inability to walk a block at a reasonable
pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk independently about one’s
home without the use of assistive devices does not, in and of itself, constitute
effective ambulation.
The ALJ’s entire analysis of whether Burdine meets or equals Listing 1.02(A) consists of
a summary of the Listing’s requirements and the following sentence: “The medical evidence of
the claimant’s conditions [sic] right hip dysfunction do [sic] not establish the required motion
limitations or an inability to ambulate effectively.” Record at 24. This is inadequate. In fact, the
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ALJ herself cites to numerous places in the record in which Burdine was found to have limited
range of motion in his right hip. Id. at 26, 27 (citing April 27, 2011, exam by Dr. Friedlander
finding “passive motion of the claimants right hip was limited compared to his left side”; Dr.
Friedlander noting in May 2011 “continued limited range of motion”; consultative examiner in
September 2011 observing “limited range of motion in the claimant’s lumbar spine and right
hip”; and Dr. Friedlander noting limitations with range of motion in November 2011).
Therefore, there is ample evidence that Burdine had “signs of limitation of motion” in his right
hip; if the ALJ believed those signs were not sufficient to satisfy the Listing, she should have
explained why. Similarly, there is evidence in the record that Burdine’s hip condition affected
his ability to walk; accordingly, the ALJ should have analyzed that evidence and explained why
she did not believe it satisfied the definition of the “inability to ambulate effectively.”
Accordingly, this case must be remanded for additional consideration of Listing 1.02(A).
C. Credibility Determination
Next, Burdine argues that the ALJ’s credibility determination is inadequate. The Court
agrees.
As the ALJ correctly acknowledged, with regard to subjective symptoms such as pain, if
a claimant has a medically determinable impairment that is reasonably expected to produce pain,
then the ALJ must evaluate the credibility of the claimant’s testimony regarding the extent of
that pain. “In determining credibility an ALJ must consider several factors, including the
claimant’s daily activities, her level of pain or symptoms, aggravating factors, medication,
treatment, and limitations,” see 20 C.F.R. ' 404.1529(c); S.S.R. 96-7p, and justify the finding
with specific reasons. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). The regulations
further provide that “we will not reject your statements about the intensity and persistence of

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your pain or other symptoms or about the effect your symptoms have on your ability to work
solely because the available objective medical evidence does not substantiate your statements.”
20 C.F.R. ' 404.1529(c)(2). Additionally, because the ALJ evaluates credibility by questioning
and observing a live witness, not simply a cold record, an ALJ=s credibility determination is
reviewed deferentially and should be overturned only if it is “patently wrong.” See Craft v.
Astrue, 539 F.3d 668, 678 (7th Cir. 2008). However, “[t]he determination of credibility must
contain specific reasons for the credibility finding” and “must be supported by the evidence and
must be specific enough to enable the claimant and a reviewing body to understand the
reasoning.” Id. (citing Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007)).
Burdine testified that he had disabling symptoms, including fatigue and weakness caused
by his chemotherapy medication and pain caused by his hip disorder. The ALJ recognized her
obligation to “make a finding on the credibility/persuasiveness of the statements based on the
consideration of the entire case record,” Record at 25, and concluded that Burdine’s “statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
persuasive for the reasons explained in this decision.” Id. at 26. The problem is that the ALJ
gave no specific reasons for finding Burdine’s testimony about his disabling symptoms not
credible. Instead, the ALJ summarized the medical evidence of record (which contains
substantial objective evidence regarding Burdine’s serious hip problem, including his treating
physician’s statement that he needs to undergo a hip replacement) and the various opinions in the
record regarding Burdine’s abilities; assigned Burdine’s wife’s statements “limited weight as the
statements are not entirely supported by the objective medical evidence”; and then concluded
that her own “residual functional capacity assessment is supported by the overall record.” Id. at
28-29.

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The problem with the ALJ’s approach is that Burdine “testified that [he] is more limited
[than the ALJ’s RFC finding], and [his] testimony cannot be disregarded simply because it is not
corroborated by objective medical evidence.” See Hill v. Colvin, 807 F.3d 862, 869 (7th Cir.
2015) (emphasis in original) (citations omitted). In this case, there is ample objective evidence
that Burdine’s hip condition is severe, so it is not clear why the ALJ believed his testimony about
his pain was inconsistent with that evidence. The only other statement by the ALJ that could be
construed as a reason for doubting Burdine’s credibility is her observation that he “reported to
treating physicians around the date of alleged onset of disability that his father’s roofing business
was closing for economic reasons, and he would thus be unemployed.” Record at 29. In fact,
Burdine testified that the business closed because “I got to where I couldn’t perform the way that
we needed to, to keep it going and then the economy was bad, too.” Id. at 52. To the extent that
the ALJ intended to imply that Burdine did not stop working because of his physical condition,
but rather because his employer shut down, this is plainly contradicted by the ALJ’s own
determination that as of the alleged onset date Burdine could not perform work as a roofer. In
other words, the ALJ herself found that Burdine’s condition had degenerated to the point where
he could no longer perform his job as a roofer, so the fact that he so testified cannot possibly be
evidence of his lack of credibility. 2
The ALJ did not give sufficient reason—indeed, any real reason—for discrediting
Burdine. She also failed to address the side effects from Burdine’s chemotherapy drugs and the
impact of them on his ability to work. This was error that must be corrected on remand. 3

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It is entirely plausible that Burdine’s father continued to employ him even after he was
no longer physically capable of performing the job, but then reached a point where he was
financially unable to continue doing so. In fact, such a scenario would not be at all surprising.
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Burdine makes an argument regarding the ALJ’s vocational analysis which he seems to
(correctly) abandon in his reply brief in favor of arguing (again, correctly) that if the ALJ’s
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V. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is REVERSED and this
case is REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 3/7/16

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

consideration of Burdine’s side effects and pain leads to a change in the ALJ’s RFC
determination, that will require a reevaluation at step five.
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