GRAHAM v. COLVIN

Filing 22

ENTRY ON JUDICIAL REVIEW - The Court concludes that Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, did not err in her decision to deny Plaintiff James Graham's applications for Disability Insurance Benefits and Supplementa l Security benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416, 423, & 1382c. Accordingly, this Court AFFIRMS the Commissioner's decision. The Court will enter judgment accordingly. Signed by Judge Larry J. McKinney on 11/22/2016.(LDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JAMES B. GRAHAM,
Plaintiff,
vs.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 1:15-cv-01594-LJM-DML

ENTRY ON JUDICIAL REVIEW
Plaintiff James B. Graham

requests judicial review of the final decision of

Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (the
“Commissioner”), which denied Graham’s applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) benefits under titles II and XVI of the
Social Security Act, 42 U.S.C. §§ 416, 423, & 1382c.

Graham contends that the

Administrative Law Judge (“ALJ”) failed to properly consider his left leg wound with
respect to his residual functional capacity when the ALJ deemed the wound non-severe.
Graham further alleges that the ALJ did not adequately account for Graham’s social
limitations in determining his residual functional capacity. For the reasons set forth below,
the Commissioner’s decision is AFFIRMED.

I. BACKGROUND
A. PROCEDURAL HISTORY
On July 24, 2012, Graham filed applications for DIB and SSI, alleging disability
beginning July 15, 2008. R. at 184-91. Graham alleges disability due to symptoms
associated with personality disorder with avoidant and paranoid features, dysthymic
disorder, generalized anxiety disorder, lumbar degenerative disease, left leg peripheral
neuropathy, bilateral peripheral artery disease, and a left leg non-healing wound. R. 277,
281. Graham’s applications were initially denied and upon reconsideration, at which point
he requested a hearing before an ALJ. R. at 115-22, 126-43.
The hearing before the ALJ took place on February 26, 2014, at which Graham,
who was represented by counsel, and a vocational expert testified. R. at 42-68. On May
23, 2014, the ALJ issued a decision finding Graham was not disabled. R. at 19-41. The
Appeals Council denied Graham’s request for review, making the ALJ’s determination the
final decision of the Commissioner. R. at 5-10; 20 C.F.R. §§ 404.955, 404.981, 416.1455,
& 416.1481.
On October 9, 2015, Graham filed the instant appeal pursuant to 42 U.S.C. §§
405(g) & 1383(c)(3).

2

B. AGE, EDUCATION, WORK HISTORY &
GRAHAM’S PERCEPTION OF HIS IMPAIRMENTS 1
Graham was fifty-one years old at the time of the alleged onset date of July 15,
2008. Graham has a GED and has past relevant work as an auto mechanic. R. at 48.
Graham testified at the hearing that the primary reason he was not able to work was due
to depression. Id. He described the severity of his depression as an eight out of ten and
testified that it was the same in 2008. R. at 48-49. Since 2010, Graham has taken
medication to relieve his depression, which has resulted in some improvement. R. at 4950. Graham testified that his depression medications affect his memory and causes his
mind to wander. R. at 51. He also stated that he was seeing a medical doctor every two
months, but had never received mental health therapy with a counselor or therapist. R. at
50.
Graham indicated that, because of the depression, he does not set goals or look
forward to or feel anything. R. at 52. He also stated that he does not “do crowds” and has
difficulty trusting people he is not acquainted with. Id. Graham stated that he gets
uncomfortable when six or seven people are around him. Id. Graham admitted that he
has had prior altercations with strangers, but none have resulted in physical “blows” since

1

The Court admonishes both parties for their recitation of facts, or lack thereof, provided
to the Court. Graham’s brief describes his lengthy medical history, but, despite the six
year period from the alleged onset date to the hearing in front of the ALJ, fails to set forth
dates or context that would assist the Court in assessing the ALJ’s opinion – which is in
part decided on an issue of timeliness. The Commissioner, on the other hand, simply
incorporated the facts set forth by the ALJ. This resulted in a significant amount of wading
through the record to ensure that this Court had an objective basis for its decision. Future
briefs utilizing this method will be struck and the offending party will be asked to file a
revised brief in short order.
3

high school. R. at 53. He also testified that he has had trouble with authority in the past,
which has resulted in the loss of many jobs. R. at 53-54.
Graham stated that, since approximately June 2013, he quit drinking alcohol
entirely. R. at 54.
Graham further testified about problems he had with his left leg, following a surgery
in 2013. R. at 57. On the day of the hearing, Graham was wearing a wound vac to assist
with circulation. R. at 55. He received various treatments for the leg in addition to
antibiotics, including debriding. Id. Graham initially had an operation on the leg, which
resulted in an infection. R. at 56. He was assigned a wound specialist, who he had seen
every two weeks since receiving the wound, but had not seen her in “about a month.” Id.
Graham also received a visiting nurse three times a week in order to change the bandage,
take vitals, and ensure that the wound did not become infected. Id.
Graham testified that since November 2011, 2 when he had his first surgery on his
right leg – which is not at issue in this case – that standing for twenty minutes “is pushing
it” but that he can sit without affect, except for his foot falling asleep. R. at 57-58. Prior to
November 2011, he could stand for “[p]robably 20 minutes or so.” Id. Graham also
testified that, before his most recent surgery he would only be able to lift approximately
twenty pounds because of his legs and because he is not as strong as he used to be. R.
at 60-61.

2

There was evidence mentioned by Graham’s attorney that two leg surgeries occurred
on each leg, the first of which was stenting to the right leg, lower extremity. R. at 57. The
second surgery was performed in 2013. Id. The ALJ did not distinguish between the two
surgeries or legs, and relied on the dates that the surgeries occurred to question Graham
about his physical abilities post-November 2011 when the first surgery occurred on the
right leg. R. at 57-58.
4

Graham testified that his pain was a five out of ten with medications. R. at 58-59.
He claimed that moving increases his pain. R. at 59. Graham stated that the current
wound problem resulted from his last surgery. Id. He indicated that, prior to the surgery,
his foot would fall asleep for long periods or his whole leg would fall asleep if he laid down,
which forced him to sleep upright in a chair. Id. Graham stated that following the surgery,
his leg was swollen and twice as large. R. at 60. He also testified that he has had stints
placed in both of his legs, and multiple operations performed on his left leg. Id.
C. RELEVANT MEDICAL EVIDENCE
1. Treatment Records – Physical Impairments
Graham had right and left SFA recanalization and stenting in November 2011 due
to claudication and bilateral peripheral artery disease. R. at 375-416.
On January 30, 2013, Graham underwent a CT angiogram after a Doppler report
showed a decrease in ABI (ankle brachial index), which was reduced to 0.19 on the left.
R. at 506. Findings showed status post stenting of the entire left SFA with complete
occlusion throughout the stented portion and progressive mild to moderate multifocal
stenosis of the popliteal artery, reconstitution of the distal SFA above the knee with
essentially three-vessel runoff to the left foot, status post stenting of the entire right SFA
which is widely patent with three-vessel runoff to the right foot, and a stable indeterminate
1.5 cm left adrenal nodule. R. at 507.
From March 29, to April 1, 2013, due to the occlusion, Graham was admitted to
the VA clinic and underwent a surgical bypass graft. R. at 73, 539. He was then referred
to physical therapy for evaluation and treatment of his strength and mobility. R. at 555.
Graham was able to perform functional mobility at a moderate independent level with a

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front wheeled walker and had a slow gait secondary to pain. R. at 556. He was not
assigned to continue physical therapy and was discharged with a front wheeled walker
for ambulation. Id. The following month it was noted that his ABI had improved to 0.81 on
the right and 0.66 on the left, and he was noted to have trifurcation disease by pressures
only with mild distal ischemia at rest. R. at 568. On June 4, 2013, Graham presented with
left lower extremity edema and the incision made in the prior surgery remained open in
his groin. R. at 565.
On August 20, 2013, Graham was admitted for wound healing difficulty in the left
leg. R. at 706. Blood flow in the left leg was diminished. Id. The graft was opened up
and resulted in improved blood flow. Id. Graham was released from the hospital on
August 24, 2013. Id.
On December 11, 2013, approximately nine months after the original surgery,
Graham was again hospitalized for a chronic non-healing incision of the left leg and
swelling. R. at 1018-19. Graham stated that he had had the chronic left total leg edema
since March 2013. R. at 1018. An EMG was performed which revealed the left tibial and
peroneal motor nerves were nonresponsive, a great deal of edema was present distally
in the left lower extremity from the site of the open wound, and the right peroneal motor
nerve was very low in amplitude and slowed in conduction velocity. R. at 1034. Graham’s
leg was very taught and swollen, with limited bending at the knee and mobility limitation,
and a great deal of pain. R. at 1035, 1071. Graham stated that his pain is worse in the
supine position or when elevating it. R. 1075.
In January 2014, Graham underwent surgical debridement of the wound. R. at
1125. Graham indicated that he did not believe that the wound was getting any worse.

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Id. On February 7, 2014, the home care nurse stated that she observed that the wound
was no longer infected as of February 7, 2014. R. at 1126.
2. Treatment Records – Mental Impairments
Graham was seen for an initial psychiatric evaluation with Dr. Mary Weber on June
30, 2012. R. at 300. Regarding medication, Graham had started on Celexa but it made
him jittery and caused nightmares. Id. He was then switched to Zoloft which caused other
negative side effects but did help him to feel “on an even keel.” R. at 301. It was noted
that he has been diagnosed with a delusional system as well as paranoid personality
disorder and felt that Risperdal had helped him feel more at ease. Id. He experienced
periods of difficulty sleeping, but Trazodone helps his sleep some. Id. He reported a
chronic feeling of emptiness and detachment from others, and had a hard time feeling
emotion. Id. Graham turned to alcohol to “let it all go and relax.” Id. Graham reports that
short term memory loss had been an issue which he thinks might be related to medication
side effects. Id. Graham also mentioned chronic interpersonal conflicts in the workplace
leading to many jobs over the years. R. at 303. Graham was diagnosed with dysthymia,
alcohol abuse, nicotine and caffeine dependence, paranoid personality disorder, and
assigned a GAF of 55. 3 R. at 305.

3

For ease of reference, the Court incorporates the ALJ’s explanation of the GAF score,
R. at 31: Official notice is taken that global assessment of global assessment of
functioning, the Axis V diagnosis of the Diagnostic Statistical Manual of Mental Disorders,
4th Edition, Text Revision (DSM-IV-TR (2000), is a clinician’s subjective opinion of the
psychological, social, and occupational functioning of adults. GAF is divided into 10
ranges of functioning on a descending scale from 100 (no functional problems or superior
functioning in several areas) to 1 (Persistent danger of severely hurting self or others OR
persistent inability to maintain minimum personal hygiene OR serious suicidal act with
clear expectation of death). The ranges pertinent to this decision are: 51 to 60: Moderate
symptoms OR any moderate difficulty in social, occupational, or school functioning. 41
to 50: Serious symptoms OR any serious impairment in social, occupational, or school
7

Graham sought treatment for mental impairment at the Indianapolis VA clinic
throughout 2012 and 2013, as well as in January 2014. See generally R. at 434-642, 9781113.
In a follow-up examination with Dr. Weber on June 18, 2013, Graham reported
being “on a nice even keel” and that he was sleeping approximately seven hours per
night. R. at 572. He was noted make better eye contact, to have soft speech, to have a
slightly brighter affect, a depressed mood, better judgment, poor insight, and to maybe
be a little more conversant. R. at 573. Graham’s GAF score was a 58. R. at 572.
Graham’s last psychiatric visit to Dr. Weber occurred on January 10, 2014. R. at
1071. His last review took place on June 18, 2014. R. at 1070. Dr. Weber noted that
Graham was “doing quite well” from a mood standpoint and that his depression and
anxiety were well managed. Id. Graham indicated that he was sleeping better and woke
up feeling rested. R. at 1072. Dr. Weber gave Graham an improved GAF score of 60. R.
at 1070.

functioning. 31 to 40: Some impairment in reality testing or communication OR major
impairment in several areas, such as work or school, family relations, judgment, thinking,
or mood.
GAF scores are a “snapshot” in time. Anderson v. Astrue, 2010 WL 3522574, at *8 (N.D.
Ind. 2010). They “are ‘useful for planning treatment,’ and are measures of both severity
of symptoms and functional level.” Denton v. Astrue, 596 F. 3d 419, 425 (7th Cir. 2010)
(citing DSM-IV-TR 32). However, the GAF score “does not reflect the clinician’s opinion
of functional capacity. Id. at 425. “Accordingly, ‘nowhere do the Social Security
regulations or case law require an ALJ to determine the extent of an individual’s disability
based entirely on his GAF score.’” Id. at 425 (citing Wilkins v. Barnhart, 69 Fed. Appx.
775, 780 (7th Cri. 2003)); Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir.
2002)).
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3. Social Security Administration Consultative Exams
As part of his application for disability, Graham underwent a consultative physical
examination on November 2, 2010. R. at 277. Graham was claiming disability due to
COPD, peripheral arterial disease, and depression. Id. He complained of “leg swelling,
pain in legs with walking, shortness of breath and dyspnea exertion, coughing and
wheezing.” Id. Graham stated that he had not seen a physician since 2001. Id. He stated
that he can only walk half a block before he experiences leg pain and shortness of breath.
Id. Graham could stand for thirty minutes at a time and lift ten to fifteen pounds with each
arm. Id. Graham had a history of smoking two packs a day for forty years and consumes
ten to twelve drinks per week. Id. The examiner found symptoms of “hypertension,
varicose veins, decreased breath sounds in the lung fields, shortness of breath at the end
of the exam and displaced PMI.” R. at 279. The examiner also concluded that Graham
“likely has hypertensive cardiomyopathy, COPD, peripheral arterial disease that may be
leading to varicose veins, and claudication.” Id. He believed that Graham might have
difficulty working a job that required walking, strenuous activity, or standing on his feet for
long periods. Id.
On November 11, 2010, Graham also underwent a mental status examination as
part of his application for disability. R. at 280. At the examination, Graham indicated that
he cannot properly function anymore or keep a job over a year. Id. Graham reported a
history of current and past alcohol dependence. Id. The examiner diagnosed Graham
with DSM-IV diagnoses of alcohol dependence, rule out alcohol induced mood disorder
v. dysthymia, as well as rule out personality disorder, NOS, cluster A features. R. at 284.
The examiner gave Graham a GAF score of 60. Id.

9

On August 27, 2012, Graham was referred for another consultative mental status
examination in partial fulfillment of his application for benefits. R. at 422.

Graham

indicated that he had difficulty trusting others, which was the result of fighting during his
childhood. R. at 422-23. He stated that he was depressed for much of his life and found
difficulty enjoying himself. R. at 423. Graham mentioned that his sleep has improved with
medication. Id. He also noted anxiety, worry, and self-esteem issues. Id. The examiner
noted Graham’s alcohol history and that Graham only drank “about once a week.” R. at
426.
The examiner found that Graham “carries a diagnosis of Personality Disorder with
Avoidant and Paranoid Features as well as Dysthymic Disorder and Generalized Anxiety
Disorder.” R. at 431. He concluded that Graham had no issues with his memory and
could learn, remember, and comprehend simple instructions. R. at 431-32. Throughout
the examination, Graham was able to attend to conversation and appropriately and timely
respond when prompted. R. at 432. The examiner also found that Graham’s “main source
of dysfunction lies in his profound social detachment. His guarded and detached nature
would make it difficult for him to appropriately manage relationships with coworkers and
clients.” Id.

The examiner suggested that Graham “appears capable of adequate

functioning in typical work environments, doing better in positions that require less
interpersonal interaction.” Id. Finally, the examiner gave Graham a GAF score of 58.
Also on August 27, 2012, Graham underwent another consultative physical exam
for his disability application. R. at 417. At the examination, however, the majority of
Graham’s complaints were mental in nature. R. at 417-20. The examiner noted that

10

Graham had a major surgery for “vein stripping of legs.” R. at 417. He also noted a past
medical history of hypertension. Id.
D. VOCATIONAL EXPERT TESTIMONY
Vocational expert (“VE”) Ray Burger testified at the February 26, 2014 hearing. R.
at 61-66. The VE testified that he had reviewed Graham’s past relevant work as an auto
mechanic, which he classified as DOT 620.261-010, medium, SVP-7. R. at 62. The VE
stated that the mechanical skills were transferable at the medium level. Id.
The ALJ posed various hypotheticals to the VE in accordance with the exertional
levels, postural activities, as well as the words frequently and occasionally as used in
accordance with the Social Security regulations. R. at 62-63. The ALJ first inquired
whether a person with a high school education, who could perform work at the medium
exertional level, who could have occasional contact with the general public and
coworkers, and possessed the requisite skills could perform work as an auto mechanic.
R. at 63. The VE affirmed that such a person would be capable of performing that work.
Id. The VE then stated that this hypothetical person could be one of the following: (1) a
janitor, with 38,540 jobs available in Indiana and 1.4 million available nationwide; (2) an
order filler, with 1,190 jobs available in Indiana and 165,180 available nationwide; or (3)
dishwasher, with 2,960 jobs available in Indiana and 221,483. Id.
The V.E. further stated that even if the hypothetical person could have only
inconsequential or superficial contact with the public, meaning sustained conversations,
i.e. a ticket taker, it would not affect the jobs identified. R. at 63-64.
The V.E. also testified that if the hypothetical person could only can stand or walk
for up to four hours in an eight-hour workday and can sit for up to a total of six hours in

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an eight-hour workday, he would not be able to be an auto mechanic or any of the other
jobs listed above. R. at 64. The V.E. stated that because of the four-hour limit on standing
and walking, the whole light exertional level – including the entire mechanic field – was
precluded. Id.
The V.E. also testified that, as for supervision, an auto mechanic might only need
a checkup in the morning and afternoon, but in general there is “not going to be a lot of
interaction.” R. at 63-64. With unskilled work, the supervision increased and would occur
a couple times in the morning and afternoon. R. at 65.
Finally, the V.E. concluded that in order to engage in full-time competitive work, a
person must be able to perform at least at ninety-five percent productivity during an eighthour workday, not including the typical morning, lunch, and afternoon breaks. Id.
E. RELEVANT ASPECTS OF THE ALJ’S DECISION
The ALJ found that Graham met the disability insured status requirements through
December 31, 2013, and that Graham had not engaged in substantial gainful activity
since July 15, 2008, the alleged onset date. R. at 24. The ALJ then determined that
Graham’s personality disorder with avoidant paranoid features, dysthymic disorder,
generalized anxiety disorder, history of alcohol abuse, and lumbar degenerative disease
were severe as defined in 20 C.F.R. 404.1520(c) and 416.920(c). R. at 24-25. The ALJ
deemed Graham’s left leg condition and wound non-severe. R. at 25.
1. Graham’s Left Leg Condition and Wound are Non-Severe
The ALJ concluded that Graham’s left leg peripheral neuropathy, bilateral
peripheral artery disease, and left leg non-healing wound, however, were non-severe
medically determinable impairments. Id. Graham had SFA recanalization and stenting

12

on both legs in November 2011 due to claudication and bilateral peripheral artery disease.
Id. Nonetheless, Graham reported complete resolution of his bilateral lower extremity
claudication pain in December 2011 and June 2012. Id. The ALJ determined that even
though Graham complained of left leg pain in January 2013, a scan of which revealed
complete occlusion, he was not admitted to the VA clinic until March 29, 2013 for
treatment. Id.

Follow-up testing in May 2013 illustrated that Graham’s leg had no

evidence of stenosis in the area visualized and significant improvement in ABI. Id.
Graham did begin to experience problems with the left leg non-healing wound and was
admitted to the VA clinic in August 2013 for a left lower extremity bypass graft angioplasty
and left lower extremity wound biopsy. Id. Following this intervention, Graham’s ABI
significantly improved. Id. In a November 2013 follow-up, Graham reported that mefanide
and aspirin controlled his pain.
From December 11 to 12, 2013, Graham was admitted to the VA clinic for
administration of antibiotics due to left leg swelling and for his non-healing surgical wound.
Id. A December 11, 2013, EMG revealed evidence of an axonal sensorimotor peripheral
neuropathy. The ALJ concluded, however, that the “peripheral neuropathy does not
satisfy the 12-month durational requirement to constitute a severe impairment, and
overall, the claimant’s peripheral artery disease has been well-maintained with his
stenting procedures.” Id. The ALJ found that, although some issues with healing of the
left leg existed, “this has been only after his March 2013 surgery, which also did not satisfy
the 12-month durational requirement as of the date of the hearing.” Id.

The ALJ

determined that the impairments were non-severe and had no more than a minimal
impact on his ability to perform basic work activities. Id. The ALJ concluded that “[w]hile

13

the claimant has had some issues with his non-healing left leg surgical wound, this has
been only after his March 2013 surgery, which also did not satisfy the 12-month durational
requirement as of the date of the hearing.” Id. Moreover, provided the most recent
medical records from February 2014, “indicate that there was no evidence of infection in
his left leg.” Id. Thus, the ALJ deemed the left leg impairments non-severe, as they have
no more than a minimal impact on Graham’s ability to perform basic work activities Id.
2. Residual Function Capacity – Medium Exertional Level
The ALJ found that Graham had the residual functional capacity to work at the
medium exertional level. He concluded that Graham could have inconsequential or
superficial contact with the general public and could perform productive work tasks for up
to an average of 98 to 100% of an eight-hour work day, excluding typical breaks. R. at
26. In making this determination, Graham considered both the physical and mental
impairments alleged by Graham. As already noted, the ALJ found the non-healing left
leg wound and use of a wound VAC as non-severe impairments. R. at 27. The ALJ also
considered Graham’s poor memory, dislike of strangers and crowds, as well as issues
with trusting others. Id.

Graham also testified that he is on three medications for

depression, which he rated as an eight out of ten. R. at 27, 29. 4 Nonetheless, the ALJ
noted that the most recent medical records indicated that his mood and concentration
had significantly improved and the medications kept him on “an even keel.” R. at 29.
Moreover, Graham’s alcohol dependence had drastically improved as he quit cold turkey
in June 2013. Id.

4

The bates stamped page numbers 27 and 28 were provided in the incorrect order,
resulting in the following sequential pages: 26, 28, 27, and 29.
14

The ALJ also considered Graham’s physical abilities in making his assessment,
noting that prior to his leg surgeries in 2011, Graham could walk three-quarters of a block,
stand for twenty minutes, and lift twenty pounds. Id. As of the date of the hearing, Graham
could only walk fifty feet, could not stand for twenty minutes, and could sit variably
between ten minutes and an hour. Id. Graham also stated that his pain level is at a five
with medications and that he has side effects of constipation and lack of appetite. Id. And
while Graham indicated that he could no longer perform automobile work, the ALJ noted
that he performed such work after the alleged onset date as well as work at the Moose
Lodge. Id.
The ALJ believed Graham was partially credible. Id. He believed that two factors
weighed against considering the allegations to be strong evidence favoring a finding of
severely limited functioning. Id. He stated, “First, allegedly limited daily activities cannot
be objectively verified with any reasonable degree of certainty.” Id.

He continued,

“Secondly, even if the claimant’s daily activities are as limited as alleged, it is difficult to
attribute that degree of limitation to the claimant’s medical condition, as opposed to other
reasons, in view of the medical evidence and other factors discussed in this decision.” Id.
The ALJ determined that the extent of Graham’s symptoms and limitations were
not supported by medically acceptable clinic and diagnostic techniques. Id. The ALJ also
concluded that the symptoms and limitations could not be reinforced by the records of the
treating and examining healthcare professionals. Id. Furthermore, the ALJ held, there
was insufficient objective medical evidence to establish that the impairments “are of such
severity that they can reasonably be expected to give rise of the alleged limitations.” Id.

15

In reviewing Graham’s physical condition, the ALJ found that his records show that
he did not seek any ongoing treatment for physical conditions other than his non-severe
impairments and some routine health concerns. R. at 30. He noted that the first physical
consultative examination was on November 2010, more than two years after the July 15,
2008 onset date. Id. And while the examiner at the November 2010 consult believed
Graham may have difficulty performing at a job that required walking, strenuous activity,
or standing for long periods of time, the ALJ gave “this medical source statement little
weight, as the exam was generally unremarkable.” Id. The ALJ found that the physical
consultative examination in August 2012 was also unremarkable, as the majority of the
allegations were mental in nature. Id. And though a January 2013 x-ray revealed mild
multilevel degenerative changes of the lumbar spine most pronounced at L1-L2 and L2L3, there was no evidence that Graham sought any medical treatment for this condition.
The ALJ viewed the lack of treatment for his back was indicative of how it affected
Graham’s functioning. Id. Accordingly, the ALJ found that Graham was capable of
medium exertional work. Id.
The ALJ next examined Graham’s medical records with respect to his mental
impairments. R. at 30. The mental impairments included personality disorder with
avoidant and paranoid features, dysthymic disorder, generalized anxiety disorder, and a
history of alcohol abuse. Id. The first documented record involving Graham’s mental
impairments was his psychological consultative examination in November 2010, which
was more than two years after his alleged onset date. Id. The ALJ noted the heavy
drinking as well as the depression and paranoia Graham experienced, but also noted that
he had not been seeking any psychiatric treatment for these problems. R. at 30-31. The

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examiner found that Graham was capable of performing self-care activities. R. at 31. The
examiner gave Graham a GAF score of 60. Id. The ALJ noted “that the claimant’s
longitudinal GAF scores range from 45 to 55 and then up to an improved GAF score of
58 to 60 with continuous mental health treatment after he began treatment through the
Department of Veterans Affairs.” Id.
The ALJ next reviewed records from the Indianapolis VA clinic, starting with a
November 2011 medication management with psychiatrists as well as therapy. Id. The
ALJ stated that the records show a progression of improvement with psychotropic
medication. Id. In January 2012, Graham believed everything was better and that his
medication was effective. Id. He also indicated that his paranoia was improving when he
utilized various medications. In July 2012, Graham informed that “Zoloft put him on an
even keel and that irritability was not an issue.” Id. The ALJ also noted that Graham was
diagnosed with Axis I dysthymia, alcohol abuse, nicotine dependence, and caffeine
dependence, as well as an Axis II diagnosis of paranoid personality disorder and a GAF
of 55. Id. Nonetheless, the ALJ concluded that while “the claimant continued to have
some ongoing complaints, psychiatrist records show improvement of symptoms overall.”
Id. Therapy notes also indicated improvement, with a reduction in alcohol consumption
and less anger, volatility, and paranoia. R. at 31-32. The ALJ also considered Graham’s
part-time work repairing cars and working at the Moose Lodge, for which he concluded
that “[t]his work suggests that the claimant was not as limited as alleged during this
timeframe, and the evidence of record reveals that he had some improvement in his
mental symptoms with treatment.” R. at 32.

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The ALJ then reviewed records from Graham’s August 2012, psychological
consultative examination. Id. During the examination, Graham indicated that he never
had friends, does not let people get close to him, and that he has an ongoing depressed
mood and difficulty enjoying himself. Id. He also exhibited symptoms of psychomotor
retardation, but stated that his sleep had improved with medication. Id. His memory was
within the average range. Id. The ALJ noted that Graham reported only drinking once per
week, which is in “direct contradiction to his prior consultative examination.” Id. The
examiner gave Graham DSM-IV diagnoses of personality disorder with avoidant and
paranoid features, dysthymic disorder, generalized anxiety disorder, and a history of
alcohol abuse as well as a GAF score of 58. Id. The examiner indicated that Graham “is
able to learn, remember, and comprehend simple instructions; to attend to conversation
and respond appropriately and timely, with concentration remaining intact during more
cognitively demanding tasks; and that he would not experience difficulty handling routine
changes at work.” Id. He concluded that Graham’s main source of dysfunction was his
profound social detachment, which would make it difficult to manage relationships with
coworkers and clients. Id.

The ALJ provided significant weight to this examiner’s

“assessments regarding the GAF score and medical source statement, as they are
generally consistent with the claimant’s longitudinal mental health records.” Id.
The ALJ noted that Graham continued to seek treatment of his mental impairments
with the VA clinic throughout 2012 and 2013, and into January 2014. Id. During this time
he exhibited a reduced desire to drink and stated that Risperdal kept his auditory and
visual hallucinations at bay. Id. In March 2013, “he was noted to be logical and a little
more conversant, an in June 2013, his GAF score improved to 58.” Id. Also in June,

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Graham described being “on a nice even keel,” stated that he slept seven hours a night,
his judgment had improved since reduction in smoking and drinking, and indicated some
improvement on Wellbutrin and Remeron. Id. Graham testified at the hearing that he quit
“cold turkey” in June 2013, which was confirmed in a January 2014 therapy note. Id.
Finally, the ALJ examined the records for Graham’s January 2014 psychiatric visit. R. at
32-33. The examiner provided him an improved GAF score of 60 and noted that Graham
was doing quite well from a mood standpoint. Id. The examiner also stated that his
depression and anxiety were both well managed. R. at 33. She noted that Graham
reported that his concentration was good when he was not in pain from his leg and that
he wakes up feeling refreshed. Id.

The examiner believed claimant’s affect was

noticeably brighter, that he was much more conversant and spontaneous, and that he
exhibited fair judgment. Id.
Following review of the medical records, the ALJ concluded that Graham’s “mental
symptoms and limitations improved significantly with psychotropic medications and
therapy.” Id. Nonetheless, “in light of the record as a whole, the [ALJ] accommodated the
claimant’s severe mental impairments, in particular his paranoid features, by finding that
he can have inconsequential or superficial contact with the general public (i.e., no
sustained conversations, e.g. ticket takers).” Id. Accordingly, the ALJ found that Graham
could perform productive work tasks for up to an average of 98 to 100% of an eight-hour
workday, not including typical breaks. Id.
The ALJ then noted that he accorded significant weight to the mental assessments
provided by the state disability determination medical professionals. Id. In doing so, he
found that their conclusions regarding the nature and severity of Graham’s mental

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impairments were deemed expert opinion evidence from a non-examining source and
their opinions were consistent with the treatment records. Id.
Finally, the ALJ explained his rationale for determining the residual functional
capacity, stating that the exertional level was based on the mild lumbar degenerative disc
disease. He referenced the fact that Graham never sought treatment for this issue, which
he found to be indicative of the extent that it affects his functioning. R. at 34. The ALJ
also concluded that Graham’s “statements regarding the intensity, persistence and
limiting effects of his symptoms are not fully credible, especially in light of the medical
records that show only mild lumbar spine degenerative disc disease with no treatment
and significant improvement in his mental impairments with mental health treatment.” Id.
The ALJ opined that Graham’s allegations regarding difficulty with daily activities are
“simply not fully supported by the evidence of record as a whole.” Id.
II. STANDARD
To be eligible for DIB or SSI, 5 a claimant must have a disability
under 42 U.S.C. § 423.

“Disability” means the inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment
that 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). To determine whether or not a claimant is disabled,
the ALJ applies a five-step process set forth in 20 C.F.R. § 404.1520(a)(4):
I.

If the claimant is employed in substantial gainful activity, the claimant
is not disabled.

5

The regulations governing the determination of disability for DIB are found at 20 C.F.R.
§ 404.1505 et seq. The SSI regulations are substantially identical to the DIB regulations
and are set forth at 20 C.F.R. § 416.901 et seq. For convenience, only the DIB regulations
are set forth herein.
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II.

If the claimant does not have a severe medically determinable
physical or mental impairment or combination of impairments that
meets the duration requirement, the claimant is not disabled.

III.

If the claimant has an impairment that meets or is equal to an
impairment listed in the appendix to this section and satisfies the
duration requirement, the claimant is disabled.

IV.

If the claimant can still perform the claimant’s past relevant work
given the claimant’s residual functional capacity, the claimant is not
disabled.

V.

If the claimant can perform other work given the claimant’s residual
functional capacity, age, education, and experience, the claimant is
not disabled.

The burden of proof is on the claimant for the first four steps, but then it shifts to the
Commissioner at the fifth step. See Young v. Sec’y of Health & Human Servs., 957 F.2d
386, 389 (7th Cir. 1992).
The Social Security Act, specifically 42 U.S.C. § 405(g), provides for judicial review
of the Commissioner’s denial of benefits. When the Appeals Council denies review of the
ALJ’s findings, the ALJ’s findings become findings of the Commissioner. See Craft v.
Astrue, 539 F.3d 668, 673 (7th Cir. 2008); Hendersen v. Apfel, 179 F.3d 507, 512 (7th
Cir. 1999). This Court will sustain the ALJ’s findings if they are supported by substantial
evidence. 42 U.S.C. § 405(g); Craft, 539 F.3d at 673; Nelson v. Apfel, 131 F.3d 1228,
1234 (7th Cir. 1999). “Substantial evidence is ‘such evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Craft, 539 F.3d at 673 (quoting Barnett v.
Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). In reviewing the ALJ’s findings, the Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the ALJ. Nelson, 131 F.3d at 1234.
The ALJ “need not evaluate in writing every piece of testimony and evidence

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submitted.” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the “ALJ’s
decision must be based upon consideration of all the relevant evidence.” Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994). See also, Craft, 539 F.3d at 673. Further, “[a]n
ALJ may not discuss only that evidence that favors his ultimate conclusion, but must
articulate, at some minimum level, his analysis of the evidence to allow the [Court] to trace
the path of his reasoning.” Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995). See also,
Craft, 539 F.3d at 673 (stating that not all evidence needs to be mentioned, but the ALJ
“must provide an ‘accurate and logical bridge’ between the evidence and the conclusion”
(quoting Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004))). An ALJ’s articulation
of his analysis enables the Court to “assess the validity of the agency’s ultimate findings
and afford [the] claimant meaningful judicial review.” Craft, 539 F.3d at 673.
III. ANALYSIS
1. Consideration of Graham’s Left-Leg Symptoms
Graham first contends that the ALJ erred in concluding that his peripheral artery
disease, peripheral neuropathy, and non-healing left leg wound were not severe
impairments. Dkt. 16 at 12. 6 The ALJ concluded that at the time of the hearing, Graham’s
left leg wound did not qualify as severe BECAUSE it did not satisfy the twelve month
durational requirement as of the date of the February 2014, at which time the wound
would have been present for approximately eleven months. R. at 25. Graham maintains
that the ALJ failed to consider whether the left leg wound could be expected to last for
the twelve month requirement period. Dkt. 16 at 12. Graham states that the records

6

All page numbers cited herein refer to the ECF page number, which appears at the top
of each document filed; the page number may or not correspond to the page number
supplied by the filing party.
22

indicate that as of the most recent record from February 11, 2014, Graham’s leg wound
had not at all improved. Id. at 13. Graham further argues that it would be “entirely
reasonable to believe that his condition would likely remain for the four mere weeks that
would be necessary to meet the 12-month durational requirement.” Id. He also notes that
the ALJ’s decision was issued on May 23, 2014, and that no record of improvement had
been made during that time. Id. Finally, Graham asserts that the ALJ failed to consider
the combined effects of Graham’s numerous impairments in determining his residual
functional capacity. Id. at 17.
None of Graham’s arguments have merit. An impairment is deemed “severe”
when such impairment “significantly limit[s] [the claimant’s] physical or mental ability to
do basic work activities.” 20 C.F.R. § 404.1521. As noted above, such an impairment
must have lasted or can be expected to last for a continuous period of not less twelve
months. 42 U.S.C. § 423 (d)(1)(A). This determination is made at step-two in the process,
at which stage the claimant bears the burden of proof. See Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
Graham argues that the ALJ failed to adequately consider whether the left leg
wound could be expected to last for an additional four weeks to qualify under the twelve
month threshold. But such an inquiry fails to recognize that it is the claimant’s burden to
prove this step (step two) of the process. See Id. (“The claimant bears the burden of proof
at steps one through four.”). Yet even if the burden was on the Commissioner to make
such a determination, it would amount to nothing more than mere speculation. Graham
has cited to no evidence in the record that would affirmatively establish that the wound
was still an impairment through March 2014.

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Nor has he sought to introduce any

additional material evidence that would inform the Court of the condition of the leg as of
March 2014. Cf. Farrell v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012) (42 U.S.C. § 405(g)
provides that a reviewing court may consider additional evidence “only upon a showing
that there is new evidence which is material.”). The ALJ went so far as to warn Graham
and his counsel at the hearing that “My problem is the duration requirements. He has
had ongoing treatment. He hasn’t passed the twelve months yet from what I’ve seen.” R.
at 46. Nonetheless, Graham’s attorney failed to present evidence that would indicate this
wound was likely to subsist through March in order to qualify under the twelve month
durational requirement. See R. at 60. Graham even admitted that he did not know the
date of his next appointment with respect to the leg. Id.
Graham also claims that there is “no indication anywhere in the record that there
was any improvement or even signs of potential improvement before the ALJ’s decision
was issued.” Dkt. 16 at 17. The record reflects otherwise. The ALJ found that the
peripheral artery disease was well-maintained through stenting procedures. R. at 25. He
also noted that the latest medical record from February 2014 indicated that there was no
evidence of infection in the left leg, which could certainly be construed as an improvement
on the leg’s condition. Id. Clearly, the ALJ considered the condition of the left leg in
making his determination and stated as much in his opinion.
Finally, Graham argues that the ALJ failed to consider the peripheral artery
disease, peripheral neuropathy, and non-healing left leg wound in determining his
residual functional capacity. Dkt. 16 at 18. The record once again reveals otherwise. The
ALJ, in making his determination for the residual functional capacity, found that the issues
with Graham’s lower extremities were non-severe and had no more than a minimal impact

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of Graham’s ability to work. R. at 30. He previously considered the extent of Graham’s
left let in determining its severity and found it non-severe, a finding that was not solely
made on the basis of the durational requirement. R. at 25.

The ALJ essentially

incorporated his findings at step two into his findings with respect to the residual functional
capacity. He stated in his findings for residual functional capacity that “[w]hile [Graham]
reported some issues with his lower extremities, as noted above, these impairments are
non-severe and have no more than a minimal impact on the claimant’s ability to perform
basic work activities.” R. at 30. The ALJ’s incorporation of his previous analysis regarding
Graham’s leg issues is sufficient to support the ALJ’s conclusion regarding Graham’s
residual functional capacity. See Rice v. Barnhart, 384 F.3d 363, 370 n. 5 (7th Cir. 2004)
(“it is proper to read the ALJ’s decision as a whole, and … it would be a needless formality
to have the ALJ repeat substantially similar factual analyses at both steps three and five”).
2. Mental Residual Functional Capacity
The ALJ found that Graham “has the residual functional capacity to work at the
medium exertional level. He can have inconsequential or superficial contact with the
general public (i.e., no sustained conversations, e.g. ticket taker).

He can perform

productive work tasks for up to an average of 98 to 100% of an 8-hour workday, not
including the typical morning, lunch, and afternoon breaks.” R. at 27. The ALJ concluded
that Graham exhibited moderate limitations in social functioning and therefore found that
he could have inconsequential or superficial contact with the general public. R. at 33.
There is substantial evidence in the record to support the ALJ’s finding.
Graham argues that the limitations set forth in the ALJ’s findings are not supported
by the evidence and findings of the medical experts to whom he provided significant

25

weight. Dkt. 16 at 19. Graham further asserts that the ALJ failed to adequately assess
his social limitations and incorporate them into the residual functional capacity finding. Id.
Moreover, Graham contends that the ALJ failed to consider Graham’s difficulty interacting
with others, including authority figures and coworkers.” Id. at 19-20.
The ALJ afforded significant weight to the August 2012 examiner’s opinion and
noted both the strengths and weaknesses of Graham’s condition. R. at 26. He noted that
the examiner found Graham’s “main source of dysfunction lies in his profound social
detachment, which would make it difficult to appropriately manage relationships with
coworkers and clients. Id.
The ALJ found that, despite these limitations, Graham’s mental impairments had
generally improved since he began seeking treatment and taking medication. R. at 3233. Since undergoing treatment, his mental impairments improved, resulting in seven
hours of sleep each night as well as a decrease in cigarette and alcohol consumption. R.
at 32. He also noted that Graham reported in June 2013 that he was “on a nice even
keel.” Id. Finally, in his most recent mental health record from February 2014, Graham
received an improved GAF score of 60, was doing quite well from a mood standpoint, and
had properly managed his depression and anxiety. R. at 32-33. The doctor also noted
that Graham’s “affect was noticeably brighter, he was much more conversant and
spontaneous, and he was noted to have fair judgment.” R. at 33. The ALJ concluded that
the “objective records reveal that the claimant[‘s] mental symptoms and limitations
improved significantly with psychotropic medications and therapy.” Id.
Although the ALJ did not verbatim adopt the residual functional capacity limitations
set forth by the consultative psychologist, he nonetheless supported his reasoning with

26

substantial evidence. Moreover, the determination of the residual functional capacity is
within the sole province of the ALJ. 20 C.F.R. § 404.1527(d)(2). In doing so, he must
consider the entire record to determine what the claimant is capable of performing and
the ALJ did so here. 29 C.F.R. § 404.1527(a). Furthermore, it is the duty of the ALJ, not
the Court, to weigh evidence, resolve material conflicts, make independent findings of
fact, and determine the outcome of the claimant’s case. See Richardson v. Perales, 402
U.S. 389, 399 (1971); Ehrhart v. Sec’y of HHS, 969 F.2d 534, 541 (7th Cir. 1992)
(“resolution of evidence conflicts lies within the exclusive domain of the ALJ”). In the
instant case, the ALJ considered substantial evidence in determining Graham’s residual
functioning capacity.
IV. CONCLUSION
For the reasons stated herein, the Court concludes that Defendant Carolyn W.
Colvin, Acting Commissioner of Social Security, did not err in her decision to deny Plaintiff
James Graham’s applications for Disability Insurance Benefits and Supplemental
Security benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416, 423,
& 1382c. Accordingly, this Court AFFIRMS the Commissioner’s decision. The Court will
enter judgment accordingly.
IT IS SO ORDERED this 22d day of November, 2016

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Charles D. Hankey
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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