KING v. COLVIN

Filing 21

ENTRY on Judicial Review-The decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Entry. Signed by Judge William T. Lawrence on 3/10/2017.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MAX L. KING,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration, 1
Defendant.

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) Cause No. 1:15-cv-1408-WTL-DKL
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ENTRY ON JUDICIAL REVIEW
Plaintiff Max L. King requests judicial review of the final decision of the Defendant,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration
(“Commissioner”), denying King’s applications for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act (“the Act”) and Supplemental Security Income (“SSI”) under
Title XVI of the Act. The Court, having reviewed the record and the briefs of the parties, rules as
follows.
I.

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 his physical or mental limitations prevent him from doing not only his previous

1

Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill automatically
became the Defendant in this case when she succeeded Carolyn Colvin as the Acting
Commissioner of Social Security on January 23, 2017.

work, but any other kind of gainful employment which exists in the national economy,
considering his 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, he is
not disabled, despite his medical condition and other factors. 20 C.F.R. § 404.1520(b).2 At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits his
ability to perform basic work activities), he 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 his past relevant work, he 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,
he is not disabled. 20 C.F.R. § 404.1520(g).
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). In order to be affirmed, the
ALJ must articulate his analysis of the evidence in his decision; while he “is not required to

2

The Code of Federal Regulations contains separate sections relating to DIB and SSI that
are identical in all respects relevant to this case. For the sake of simplicity, this Entry contains
citations to DIB sections only.
2

address every piece of evidence or testimony presented,” he must “provide an accurate and
logical bridge between the evidence and [his] conclusion that a claimant is not disabled.”
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). “If a decision lacks evidentiary support or
is so poorly articulated as to prevent meaningful review, a remand is required.” Id. (citation
omitted).
II.

BACKGROUND

King protectively filed for DIB and SSI on April 12, 2012, alleging that he became
disabled on August 28, 2008, primarily due to degenerative joint disease, degenerative disc
disease, obstructive sleep apnea, deep vein thrombosis, obesity, depression, bipolar disorder,
anxiety and a panic disorder. King was born on December 3, 1964, and was 49 years old on the
date last insured. King has at least a high school education and has past relevant work as a semitruck driver and tank truck driver.
King’s application was denied initially on September 14, 2012, and upon reconsideration
on January 4, 2013.3 Thereafter, King requested and received a hearing before an Administrative
Law Judge (“ALJ”). A hearing, during which King was represented by counsel, was held by ALJ
Daniel J. Mages on March 4, 2014. An impartial vocational expert also appeared and testified at
the hearing. The ALJ issued his decision denying King’s claim on April 25, 2014. After the
Appeals Council denied his request for review, King filed this timely appeal.

3

King filed a prior application on November 14, 2008. An unfavorable hearing decision
was issued on January 24, 2011, by another ALJ. The Appeals Council denied review, and King
failed to file an action in District Court. Accordingly, the relevant period for adjudication of the
current claim begins on January 25, 2011.
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III.

THE ALJ’S DECISION

The ALJ determined that King had met the insured status requirements of the Social
Security Act through December 31, 2013; therefore, he had to establish disability on or before
that date to be entitled to a period of disability and disability insurance benefits. The ALJ
determined at step one that King had not engaged in substantial gainful activity during the period
from January 25, 2011, through his date last insured of December 31, 2013. At steps two and
three, the ALJ concluded that King had the severe impairments of “degenerative joint disease;
degenerative disc disease; obstructive sleep apnea; deep vein thrombosis; obesity; depression;
bipolar disorder; anxiety; and a panic disorder,” Record at 18, and that the impairments more
than minimally limited King’s ability to perform the full range of basic work activities and
therefore were severe within the meaning of the Regulations. The ALJ found that King did not
have an impairment or combination of impairments that met or medically equaled the severity of
any of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, and 404.1526). At step four, the ALJ determined that King had the
Residual Functional Capacity (“RFC”) to perform a range of sedentary work (20 C.F.R. §
404.1567(a)) defined as follows:
Sitting six hours during an eight-hour workday; standing and walking two
hours during an eight-hour workday, with the use of a cane for walking;
lifting, carrying, pushing and pulling ten pounds occasionally and five
pounds frequently; occasionally climbing ramps and stairs, balancing,
stooping and crouching; no kneeling or crawling; no climbing ladders, ropes
or scaffolds; no work around dangerous moving machinery or at unprotected
heights; no work involving a risk of deep cuts; no more than moderate
exposure to extreme heat, extreme cold, wetness, humidity, dusts, fumes,
gases or other respiratory irritants; no complex job tasks but capable of
unskilled and semiskilled work; no more than brief and superficial interaction
with the public, coworkers or supervisors.
R. at 21-22.

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Given this RFC, the ALJ determined that King was unable to perform any of his past
relevant work. The ALJ found that there were jobs that existed in significant numbers in the
national economy that King could have performed. The vocational expert testified that an
individual with King’s age, education, work experience, and RFC could perform the
requirements of representative unskilled sedentary occupations, including information clerk
(DOT #205.367-014); assembler (DOT #734.687-018); and hand packager (DOT #920.687-030).
Accordingly, the ALJ concluded that King was not disabled as defined by the Act.
IV.

EVIDENCE OF RECORD

The relevant medical evidence of record is aptly set forth in King’s brief (Dkt. No. 15)
and need not be recited here. Specific facts are set forth in the discussion section below where
relevant.
V.

DISCUSSION

In his brief in support of his complaint, King advances one primary argument: the ALJ
committed error when he concluded that King’s impairment did not meet or equal Listing 1.02 or
1.04. King focuses his argument on the ALJ’s failure to consider the examples provided in
Listing 100(B) of one’s inability to ambulate other than inability to walk without the use of a
walker, two crutches or two canes.
Social Security regulations require the ALJ to determine whether the claimant’s
impairment is of a severity to meet or medically equal the criteria of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). The
ALJ in King’s case considered whether King met the requirements of Listing 1.02 describing a
“Major Dysfunction of a Joint.” That listing provides, in relevant part:
Major dysfunction of a joint(s)...[is] [c]haracterized by gross anatomical
deformity (e.g., subluxation, contracture, bony or fibrous ankyloses, instability)
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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 ankyloses 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....
20 C.F.R. § Pt. 404, Subpt. P, App. 1, listing 1.02A.
An inability to ambulate is defined as 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... to permit independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper extremities.
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.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, listing 1.00B2b(1), (2).
The ALJ also considered whether King met the requirements of Listing 1.04. That listing
provides, in relevant part:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
or
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B. Spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in position
or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate effectively, as defined in
1.00B2b.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 1.04.
After finding that King did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments, the ALJ provided the
following analysis:
The claimant’s lumbar degenerative disc disease has not resulted in the
nerve root involvement, sensory or reflex loss, spinal arachnoiditis, or ambulatory
limitation required under Listing 1.04 Disorders of the Spine. The claimant uses a
cane. However, he is ambulatory without an assistive device. He has normal motor
strength, sensation, and reflexes throughout (Exhibit B4F). The record shows no
history of arachnoiditis.
With regard to degenerative joint disease, the evidence does not
demonstrate the gross anatomical deformity or ambulatory limitations required
under listing 1.02(A) Major Dysfunction of a Joint.
R. at 19.
The opinion also states:
The record also notes the claimant’s reports of bilateral knee pain left
greater than right (Exhibit 20F at 42). Diagnostic studies revealed lumbar
degenerative disc disease and osteoarthritis of the left knee (Exhibit B6F at 1-2;
Exhibit B20F at 46-47). The claimant’s treatment has consisted of prescribed
narcotics and epidural steroid injections (Exhibit 20F at 42-44).
R. at 19.
In explaining the RFC, the opinion states the following:

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This residual functional capacity is consistent with objective medical
evidence detailing the claimant’s physical capacities prior to the date last insured.
He utilizes a cane but is ambulatory without the use of an assistive device. The
claimant has full motor strength in the upper and lower extremities. He has
decreased range of motion throughout the lumbar spine with normal range of
motion in all other joints. No visual, manipulative, or communicative deficits are
noted in the record (Exhibit B4F at 1-6).
I impose a restriction to sedentary work activities to accommodate the
effects of the claimant’s musculoskeletal impairments (i.e. chronic pain in low
back and bilateral knees, decreased lumbar range of motion, use of cane). In
performing a function-by-function analysis, I find that the claimant’s normal upper
motor function allows him to lift, carry, push, and pull ten pounds occasionally and
five pounds frequently. His intact lower motor strength and ambulatory function
enables the claimant to stand and walk (with the use of a cane) for two hours in an
eight-hour workday. The record contains no evidence of any impairment
precluding the claimant’s capacity to sit for six hours of an eight-hour workday.
R. at 22.
The ALJ also considered King’s testimony at the hearing:
At the hearing, the claimant testified that he experiences chronic pain in
the low back, knees, and hips. As a result, he is reportedly unable to stand or walk
for extended periods. The claimant stated that treatment with oral medication and
a series of joint injections provide minimal relief. He further testified that lying
down is the only thing that alleviates his musculoskeletal pain. The claimant also
endorsed pain and numbness in the lower extremities associated with deep vein
thrombosis. He ambulates with a cane.
R. at 23.
The Seventh Circuit has held that the non-exhaustive list of examples of ineffective
ambulation set forth in Listing 1.00(B)(2) (b)(2) should be adequately considered in determining
whether a claimant can ambulate effectively. Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009).
In Moss, the Seventh Circuit found the ALJ’s treatment of the medical evidence was not
supported by substantial evidence. Id. at 560-62. The Seventh Circuit noted that in considering
whether the claimant could ambulate effectively as defined by 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 1.00(B), the ALJ determined that the claimant could effectively ambulate because the

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claimant “uses just one cane” and “the medical evidence does not point to ineffective
ambulation.” Moss, 555 F.3d at 562. However, given that the Seventh Circuit had already held
that “the ALJ’s determinations regarding the medical evidence [is] not supported by substantial
evidence,” the ALJ erred by failing to “adequately consider” the other examples of an inability to
ambulate found in Listing 1.00(B)(2)(b)(2). Id. at 562-63 (citing 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 1.00(B)).
Likewise, the ALJ in this case did not assess whether the other examples of ineffective
ambulation were met. As such, he did not “adequately consider whether [the claimant] in fact
meets [the listing] based on the provided examples such as an inability to walk a block at a
reasonable pace on rough or uneven surfaces, or the inability to carry out routine activities, like
shopping and banking.” Moss, 555 F.3d at 563.
This error, however, would be harmless if King did not point to evidence that would
support a finding that he met or equaled the listing. See Maggard v. Apfel, 167 F.3d 376, 380
(7th Cir. 1999) (plaintiff has burden of showing that his impairments meet a listing.) King has
not met this burden with regard to Listing 1.04. However, he does point to such evidence as to
1.02.
Specifically, King points to the following evidence to support his inability to ambulate
effectively:
The record documents King’s difficulty with ambulation throughout. King has
bilateral leg pain with burning especially when ambulating. [Dkt. 13-7 at p.45, R.
244]. He was noted to have an antalgic gait; reduced range of motion with
crepitus and joint line tenderness in the left knee. [Dkt. 13-8 at p.52, R. 372]. If he
stands for a long time then his leg may give out on him, otherwise he reports no
weakness of the lower extremities. [Dkt. 13-8 at p.4, R 324]. He ambulated with a
wide base stiff gait flattening the left foot and hyperpronating the right. Id. He
was able to ambulate on his heels for a few steps but could not maintain
dorsiflexion of the left foot and ‘slapped’ the left foot. Id. He was able to stand on
his toes for two seconds and could not ambulate on them and had to hold on to
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furniture. [Dkt. 13-8 at p.5, R. 325]. His activity is limited, [he] has mowed the
lawn on a riding mower and can go to the store but must use the electric cart.
[Dkt. 13-8 at p.2, R. 322]. On examination he is overweight, ambulates with a
wide-based and waddling gait, has tenderness of L4 and L5, and tenderness of the
left greater trochanteric bursa. Id. King attended a physical therapy initial
evaluation with problems including pain, difficulty with transfers, decreased
strength, decreased range of motion, decreased joint mobility, limited activities of
daily living, decreasing lifting mechanics, tenderness to palpation, and poor
biomechanical alignment/gait deviations. [Dkt. 13-8 at p.91, R. 411]. He reported
numbness in both feet after sitting for long as well. Id. His lower extremity
strength was assessed as being grossly 3+/5 and a patellofemoral grinding test is
positive. Id. His decreased range of motion and strength are limiting his function
significantly, and it was noted that he will not be able to tolerate land therapy. Id.
Instead it was recommended he start aquatic therapy to decrease compression on
his joints, facilitate treatment of multiple sites simultaneously, and utilizing the
thermal properties of water to decrease pain. Id. His level of functioning is
severely limited in that he is unable to bend over to pick things up off the floor; it
takes him ten minutes to put on and take off socks; he is unable to lie flat in the
bed; he sleeps in a recliner; he is unable to stand or walk more than three to five
minutes; and he is unable to sit in a chair for more than twenty minutes. [Dkt. 138 at p.93, R. 413]. His gait consists of short shuffling steps with waddling gait,
decreased cadence, and decreased knee flexion during swing phase. Id. At the
physical consultative examination it was noted that King walks at a slowed pace
with an assistive device for additional support and appears winded with exertion.
[Dkt. 13-8 at p.21, R. 341]. He could squat a quarter of the way down and stand
up from that squatted position. Id. He was unable to get on and off the
examination table without difficulty and the exam was performed in a chair. Id.
Clinical evidence does support the need for an ambulatory aid based on this
examination encounter to provide additional support and to relieve pressure from
the right lower extremity. [Dkt. 13-8 at p.22, R. 342]. King worked hard to
increase his activity level and at one point was able to walk at the hospital and
mall twice a week for one to one and a half hours with rests. [Dkt. 13-11 at p.35,
R. 586],
Dkt. Not. 15 at 17-18. Accordingly, the Court must remand the case so that the ALJ can
determine whether King meets or equals Listing 1.02 with the guidance provided by Moss and 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B). 4

4

Given that the Court has already determined that the ALJ’s Step Three decision was
erroneous, the Court need not address whether the ALJ should have obtained expert medical
testimony regarding whether King equaled Listing 1.02. On remand, however, the ALJ must
explain whether the evidence shows that King meets or equals Listing 1.02 or any other listing. If
necessary, the ALJ should obtain additional medical expert evidence to make these
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VI.

CONCLUSION

For the reasons set forth above, the decision of the Commissioner is REVERSED AND
REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 3/10/17

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

Copies to all counsel of record via electronic communication.

determinations. On remand, the ALJ should also keep in mind the Seventh Circuit’s admonition
that a “claimant with a good work record is entitled to substantial credibility when claiming an
inability to work because of a disability.” Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015)
(quotation and citation omitted).
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