SHARP v. COLVIN
ENTRY ON JUDICIAL REVIEW - The Court concludes that Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, erred in finding that Sharp was not disabled under Title XVI of the Social Security Act, 42 U.S.C. § 1382(c) and REMANDS this matter for further proceedings pursuant to 42 U.S.C. § 1382(c). The Court will enter judgment accordingly. Signed by Judge Larry J. McKinney on 12/15/2016. (LDH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
WILLIAM E. SHARP,
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
ENTRY ON JUDICIAL REVIEW
Plaintiff William E. Sharp (“Sharp”) requests judicial review of the final decision of
Defendant Carolyn W. Colvin, Acting Commissioner of Social Security Administration (the
“Commissioner”), which denied Sharp’s applications for Supplemental Security Income
(“SSI”) benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1382(c). Sharp
asserts that the decision of the Administrative Law Judge (“ALJ”) was not supported by
substantial evidence because the ALJ failed to properly evaluate the opinion evidence of
various medial sources. The Commissioner contends that the ALJ properly distributed
weight to each of the medical opinions in the record.
A. PROCEDURAL HISTORY
On October 14, 2009, Sharp filed an application for SSI, alleging disability as of
December 31, 2001. R. at 376-379. Sharp’s application was denied initially on February
10, 2010, R. at 171, and upon reconsideration on May 10, 2010. R. at 172. Sharp timely
requested a hearing before the ALJ on June 2, 2010. R. at 236.
On May 4, 2011, the ALJ held a hearing, at which Sharp, who was represented by
counsel, and a vocational expert testified. R. at 132-166. On September 13, 2011, the
ALJ found that Sharp was not disabled. R. at 173-191.
Sharp timely filed a Request for Review of Hearing Decision on October 7, 2011,
R. at 270-271. On January 17, 2013, the Appeals Counsel granted Sharp’s Request for
Review, vacated the ALJ’s prior decision, and remanded the case for further
administrative proceedings. R. at 192-195. The ALJ held hearings on June 19, 2013,
and April 9, 2014, at which Sharp (represented by counsel), vocational expert Constance
Brown (“VE”), and medical expert Dr. James Brooks each testified. R. at 69-131. The
ALJ issued a decision on May 29, 2014, finding that Sharp was not disabled. R. at 4268. Sharp submitted a timely Request for Review of Hearing Decision to the Appeals
Council on June 6, 2014, R. at 16, and the Appeals Council denied Sharp’s Request for
Review on September 10, 2015, making the ALJ’s decision the final decision of the
Commissioner. R. at 1-7.
On November 13, 2015, Sharp filed the instant appeal pursuant to 42 U.S.C. §
B. RELEVANT MEDICAL EVIDENCE 1
1. Treatment Records
In 2006, Sharp began seeking treatment for back pain that he attributed to a
workplace accident that occurred in 1990. R. at 573, 592, 601. On April 24, 2006, Sharp
obtained a magnetic resonance imaging report (“MRI”) that “demonstrate[d] lumbar
degenerative disc disease at L4-5 and L5-S1.” R. at 601. The MRI showed moderate
left paracentral disc herniation with inferior extension at the L5-S1 level, which caused
impingement of the left S1 root. R. at 544-545, 582-583. Additionally, the MRI displayed
posterior annular fissure with disc protrusion that abutted but did not cause significant
displacement of the thecal sac, and mild foraminal narrowing at the L4 and L5 levels. Id.
On May 8, 2006, Sharp presented to Thomas M. Reilly, M.D. (“Dr. Reilly”) of the
Indiana Spine Group. Id. Dr. Reilly prescribed Lortab, a short course oral steroid, and
Naprosyn; outlined a home exercise program; and offered formalized physical therapy to
treat Sharp’s back pain.
Dr. Reilly further indicated that if Sharp continued to
experience pain, he would require nerve root injections. Id.
Sharp obtained an updated MRI of his lumbar spine on February 12, 2008. R. at
579, 647, 723-24, 793-94. The updated lumbar MRI revealed a slight decrease in the
size of the left central herniation at L5-S1 from the previous MRI on April 24, 2006. Id.
On February 20, 2008, Sharp again appeared for a spine consultation at the
Indiana Spine Group where he was diagnosed with lumbar degenerative disc disease,
In his application, Sharp alleged both mental and physical impairments. However, Sharp
did not address his mental impairments in his Brief, any arguments relating to his mental
impairments have been waived. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th
facet arthropathy, and lumbar spondylosis. R. at 589, 600, 607. He was referred for a
lumbar epidural injection and facet injection. Id.
On March 4, 2008, Sharp received lumbar epidural injections and bilateral L4-5
facet joint blocks at St. Joseph Hospital. R. at 548-549, 588, 598-599, 604-605, 654, 703704, 713-714, 727-728, 776-777, 797-798. On March 11, 2008, Sharp returned to the
Indiana Spine Group and described limited relief from the lumbar injections. R. at 585,
597. Repeat injections were postponed, and Sharp was instead prescribed Soma. Id.
Sharp again returned to the Indiana Spine Group on March 25, 2008, and similarly
described limited relief from his injections and persistent lumbar pain. R. at 596. Although
additional injections were recommended, Id., Sharp declined further injections and was
not authorized to obtain additional pain medications. R. at 611.
Sharp began treatment with Dr. Alnasir Virjee (“Dr. Virjee”) on July 15, 2008. R.
at 821. Dr. Virjee noted continued spinal tenderness in August 2008, R. at 820, and
prescribed refills for Sharp’s medications. R. at 803-819, 873.
On January 19, 2010, Sharp reported to Dr. Virjee that his back pain was getting
worse. R. at 867. Dr. Virjee noted that Sharp’s injections had been unsuccessful and
that Sharp was not a surgical candidate. Id. Dr. Virjee further noted that Sharp was
unable to sleep in a bed and could not sit or stand for prolonged periods. Id.
On May 5, 2010, Dr. Virjee completed a Statement of Medical Condition for the
Food Stamp and Temporary Assistance for Needy Families Programs form based on
Sharp’s medical condition. R. at 880. Dr. Virjee checked a box indicating that Sharp was
“unable to work” and wrote that Sharp could not walk for more than half a block and was
restricted to lifting ten pounds. Id. Dr. Virjee attributed these limitations to Sharp’s
degenerative disc disease. Id. Dr. Virjee assessed Sharp’s prognosis as fair to poor, and
further indicated that Sharp was not a candidate for a surgical spinal procedure. Id.
2. Social Security Administration Consultative Exams
On May 9, 2008, Dr. Shuyan Wang (“Dr. Wang”) 2 performed a consultative exam
on Sharp, at which Sharp described worsening back pain. R. 611-617. Sharp exhibited
a slow wide-based gait, successfully walked on his heels and toes for a couple of steps,
slowly tandem walked, showed the ability to stand on each individual leg independently,
and squatted one-third of the way down when holding on to an object. R. at 613-15, 617.
Sharp had no cervical tenderness but did have tenderness in his lumbar spine. R. at 614.
Sharp further showed a full range of motion in his elbows, wrists, knees, and ankles and
a limited range of motion in his cervical and lumbar spine, shoulders, and hips. R. at 614615, 617. Sharp was able to complete straight leg raises at ninety degrees. R. at 614.
Dr. Wang described Sharp’s effort as “questionable” during certain portions of the
Dr. Wang diagnosed chronic low back pain with leg pain, lumbar degenerative disc
disease and facet arthropathy with possible intermittent radiculopathy, a history of
bilateral elbow tendinitis, peptic ulcer disease, and a history of pneumonia. R. at 615616. Dr. Wang indicated that Sharp could work for four hours per day in a light duty job
with lifting and carrying of up to ten pounds, standing and walking for less than twenty
minutes per hour, and without bending or squatting. R. at 616. Dr. Wang also found that
In his Brief, Sharp referred to “Dr. Shuyan Yang,” rather than Dr. Wang. Based on
Sharp’s description of the consultative exam opinion of “Dr. Shuyan Yang” and the record
presenting Dr. Wang findings, the Court infers that Sharp intended to refer to Dr. Wang’s
opinions regarding Sharp’s medical condition.
Sharp could use his hands for fine manipulation and hand function work, could use his
right leg for operating foot controls in a position with intermittent sitting (but his left leg
was limited for operation of foot controls), and could work around machinery and drive
automotive equipment. Id. Dr. Wang stated that Sharp may not be able to perform
overhead lifting, climbing, and should probably avoid cold and damp environments as well
as exposure to dust. Id. Dr. Wang specifically noted that Sharp was not a candidate for
back surgery, was not taking any pain medications, and needed to follow up with
treatment. Id. Because of his lack of treatment, Dr. Wang wrote that Sharp “may need
to be reevaluated after additional treatment.” Id.
Sharp underwent a second consultative examination with Dr. Rupen Amin (“Dr.
Amin”) on June 18, 2009. R. at 706-709. Sharp reported that he could walk half of a
block at a time, stand ten minutes, climb five-to-six steps, and lift ten pounds in either
arm. R. at 706. On physical examination, Sharp exhibited a normal gait and a normal
tandem gait, as well as normal sensation, except for decreased sensation in his left lower
extremity. R. at 707-708. Dr. Amin also observed that Sharp’s range of motion for his
cervical spine, shoulders, elbows, wrists, knees, hips, and ankles was normal or near
normal. R. at 707-709. Sharp exhibited a limited range of motion in his lumbar spine but
without tenderness. Id. Dr. Amin concluded that Sharp suffered from low back pain. R.
Sharp appeared for a third consultative examination with Dr. Michael Johansen
(“Dr. Johansen”) on January 23, 2010. R. at 828-30. Sharp stated that he could walk
half of a city block, stand for ten minutes, and sit for up to sixty minutes. R. at 828. Upon
examination, Sharp appeared to be in no acute distress, exhibited a slow and deliberate
gait with normal station, could not squat fully, and walked in a slightly hunched posture
with shorter strides. R. at 829. Sharp was able to tandem, heel, and toe walk without
difficulty and could get on and off the examination table without difficulty, but he could not
complete a full squat. R. at 829. Sharp had full range of motion in his cervical spine,
shoulders, elbows, wrists, knees, and ankles, but his range of motion was limited in his
lumbar spine. R. at 830. Sharp’s straight leg raising was also negative. R. at 829.
Sharp’s extremities were normal with full strength and full ranges of motion, except for a
slightly diminished range of motion in hip flexion. R. at 829-30.
State agency medical consultant Dr. Fernando R. Montoya (“Dr. Montoya”)
reviewed all of the evidence available on June 2, 2008, and found that Sharp could lift
and carry twenty pounds occasionally and ten pounds frequently, could stand and/or walk
for two hours, and could sit for six hours in an eight-hour workday. R. at 618-625.
Additionally, Dr. Montoya opined that Sharp could never crawl or climb ladders, ropes,
and scaffolds but could perform all other postural activities on an occasional basis. R. at
Dr. Montoya described Sharp’s alleged limitations as disproportionate to his
treatment, particularly as surgery was never recommended and his doctors initially limited
injections. R. at 624. Dr. Montoya further noted Sharp’s questionable efforts with Dr.
Wang. R. at 623-624.
On July 8, 2009, State agency medical consultant Dr. J.V. Corcoran (“Dr.
Corcoran”) reviewed the evidence in the file, including the consultative examination
performed by Dr. Amin, on June 18, 2009, and opined that Sharp could perform light work
without climbing ladders, ropes, and scaffolds and could occasionally perform all other
postural activities. R. at 744-751. Dr. Corcoran indicated that Sharp should avoid
concentrated exposure to wetness and workplace hazards. R. at 748. Like Dr. Montoya,
Dr. Corcoran described Sharp’s allegations as disproportionate to the medical evidence.
R. at 749.
State agency medical consultant Dr. F. Lavallo (“Dr. Lavallo”) also reviewed
Sharp’s file on February 4, 2010, which included the latest consultative examination from
Dr. Johansen on January 23, 2010, and opined that Sharp could perform medium work
with occasional crawling and climbing of ladders, ropes and scaffolds, and frequent
performance of all other postural activities. R. at 831-838. A fourth State agency medical
consultant, Dr. J. Sands, reviewed the evidence in the file on May 10, 2010, and affirmed
Dr. Lavallo’s February 4, 2010, findings. R. at 878.
C. RELEVANT ASPECTS OF THE ALJ’S DECISION
The ALJ found that Sharp had not engaged in substantially gainful activity since
his application date of October 14, 2009. R. at 47. The ALJ also determined that Sharp
suffered from a severe impairment of degenerative disc disease of the lumbar spine. R.
at 48. The ALJ further found that Sharp suffered from a non-severe left knee injury that
would not impose more than a mild limitation on his ability to perform basic work functions.
The ALJ concluded that Sharp did not have an impairment or combination of
impairments that met or medically equaled the severity of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
Id. In making this conclusion, the ALJ considered Sharp’s condition under Listing 1.04,
Disorders of the Spine. Id. The ALJ found that Sharp’s impairments did not meet the
criteria of Listing 1.04 because they did not compromise a nerve root or the spinal cord
with evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis
that prevented him from ambulating effectively. R. at 49.
After considering the entire record, the ALJ determined that Sharp had the residual
functional capacity to perform light work, as defined in 20 C.F.R. § 416.967(b). R. at 51.
The ALJ found that Sharp could occasionally climb ramps and stairs; could never climb
ladders, ropes, or scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl;
and could have frequent exposure to wetness, moving mechanical parts, and high,
exposed places (as defined by the Selected Characteristics of Occupations). Id. The
ALJ also found that Sharp could understand, remember, and perform work tasks at a
GED Reasoning Level 02 (as defined in the Dictionary of Occupational Titles); could
perform work that occasionally requires reading and writing; and can have frequent
contact with the general public and coworkers. Id. The ALJ further found that Sharp
could perform productive work tasks for up to an average of 98-100% of an eight-hour
work day, not including typical morning, lunch, and afternoon breaks. Id.
In determining Sharp’s residual functional capacity, the ALJ deemed Sharp’s
testimony, and the third party testimony of Sharp’s wife, partially credible because his
alleged limited daily activities could not be objectively verified with a reasonable degree
of certainty and could not be objectively attributed to his medical condition. R. at 55. The
ALJ further reasoned that the extent of Sharp’s alleged symptoms are not supported by
the medical record. Id.
When reviewing Dr. Virjee’s medical records, the ALJ gave no weight to Dr. Virjee’s
opinion that Sharp was “unable to work” in Sharp’s Statement of Medical Condition for
the Food Stamp and Temporary Assistance for Needy Families Programs form because
the opinion was made through a check box format without further facts, analysis, or
rationale and because determinations as to one’s ability to work are reserved for the
The ALJ also gave little weight to Dr. Virjee’s other opinions
concerning Sharp’s functional limitations because his opinions were based solely on his
diagnosis of degenerative disc disease of the lumbar spine, without any supporting clinical
observations, analysis, or rationale. R. at 56. The ALJ also stated that Dr. Virjee’s
treatment notes “are largely unremarkable, recording symptoms but no meaningful clinical
The ALJ also distributed weight to the opinions of the state disability determination
medical professionals to define Sharp’s residual functional capacity. Id. The ALJ gave
only “[s]ome weight…to the state disability determination medical professionals’ physical
and mental assessments” because these doctors could not review Sharp’s full medical
record as it was presented at the hearing and could not discuss the impairments with
However, the ALJ gave “[s]ignificant weight…to the state disability
determination medical professionals’ physical assessments because their conclusions
regarding the nature and severity of [Sharp’s] impairments are deemed expert opinion
evidence from a non-examining source and their opinions are consistent with the
treatment record.” Id.
The ALJ adopted the VE’s opinion that Sharp could not perform his past relevant
work as a store laborer. R. at 57. The ALJ further adopted the VE’s opinion that a person
with Sharp’s residual functional capacity, age, education, and work experience could
perform jobs as a Housekeeping Cleaner, Electronic Assembler, and Hand Cutter and
Trimmer, all of which were available in significant numbers in the national economy. R.
at 58. Accordingly, the ALJ concluded that Sharp was not disabled at any time since
October 14, 2009. R. at 59-60.
To be eligible for Disability Insurance Benefits (“DIB”) or SSI, 3 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):
If the claimant is employed in substantial gainful activity, the claimant
is not disabled.
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.
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.
If the claimant can still perform the claimant’s past relevant work
given the claimant’s residual functional capacity, the claimant is not
If the claimant can perform other work given the claimant’s residual
functional capacity, age, education, and experience, the claimant is
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
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.
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
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.
Sharp asserts that the ALJ failed to give sufficient weight to the medical opinions
presented by Dr. Virjee and Dr. Wang. Dkt. No. 16 at 10-14. With respect to Dr. Virjee,
Sharp asserts that the ALJ did not provide enough reasoning for giving Dr. Virjee’s
treating source opinion little weight when such opinions are typically given special
consideration. Id. at 11-14. The Commissioner argues that the ALJ was entitled to
discredit Dr. Virjee’s treating source opinion because the ALJ articulated good reasons
for doing so, such as when the treating source’s opinion is not well-supported by the
medical record. Dkt. No. 19 at 14-17.
The Court agrees with Sharp that the ALJ failed to adequately explain his
reasoning for discounting Dr. Virjee’s treating source opinion. Treating source opinions
are generally entitled to greater weight than other medical opinions. See 20 C.F.R. §
404.1527(c). Although the Appeals Council previously required the ALJ to provide greater
explanation for his distribution of weight to Dr. Virjee when remanding this case on
January 17, 2013, R. at 193-194, the ALJ still did not provide a sufficient explanation to
allow the Court to trace the path of his reasoning for discrediting Dr. Virjee’s opinions.
The ALJ stated that he found Dr. Virjee’s opinions to be unreliable because they lacked
support from clinical observations, analysis, or rationale.
R. at 56.
He did not
demonstrate that Dr. Virjee’s opinions were inconsistent with the medical record; in fact,
Dr. Virjee’s diagnosis of degenerative disc disease appears to be consistent with other
aspects of the medical record. See R. at 600 (diagnosis of degenerative disc disease
made by Indiana Spine Group). Without further explanation, the ALJ failed to provide “an
‘accurate and logical bridge’ between the evidence and [his] conclusion” that Dr. Virjee’s
treating source opinion was entitled to only little weight. Craft, 539 F.3d at 673 (quoting
Young, 362 F.3d at 1002).
Sharp also argues that the ALJ failed to evaluate Dr. Wang’s opinion when
determining Sharp’s residual functional capacity.
Dkt. No. 16 at 10, 14.
Commissioner states that the ALJ properly chose to credit the opinions of the four State
agency medical consultants over the opinion of Dr. Wang, in part because Dr. Wang’s
examination of Sharp was completed on May 9, 2008, and because Dr. Wang noted that
Sharp “ʻmay need reevaluated after additional treatment.’” Dkt. No. 19 at 17-20 (quoting
R. at 616).
The Court concludes that the ALJ did not adequately explain the weight he
attributed to each of the State consultative examiners, including Dr. Wang, and State
agency medical consultants that evaluated Sharp’s medical condition.
presented internal inconsistencies in his opinion when describing the weights given to all
of the “state disability determination medical professionals.” The ALJ first stated that only
“[s]ome weight is accorded to the state disability determination medical professionals’
physical and mental assessments” because these doctors could not see Sharp’s full
medical record as it was presented at the hearing and could not discuss the impairments
R. at 56.
But in the very same paragraph, the ALJ also stated that
“[s]ignificant weight is accorded to the state disability determination medical professionals’
physical assessments because their conclusions regarding the nature and severity of
[Sharp’s] impairments are deemed expert opinion evidence from a non-examining source
and their opinions are consistent with the treatment record.” Id. It is unclear from these
two statements which, if any, of the consultative examiners’ and medical consultants’
opinions, including Dr. Wang’s opinion, were given greater weight than others. Therefore,
the Court is unable to trace the ALJ’s logic in his weight distributions to the various
consultative examiners and medical consultants that opined on Sharp’s medical
For the reasons stated herein, the Court concludes that Defendant Carolyn W.
Colvin, Acting Commissioner of Social Security, erred in finding that Sharp was not
disabled under Title XVI of the Social Security Act, 42 U.S.C. § 1382(c) and REMANDS
this matter for further proceedings pursuant to 42 U.S.C. § 1382(c). The Court will enter
IT IS SO ORDERED this 15th day of December, 2016.
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
Michael G. Myers
Kathryn E. Olivier
UNITED STATES ATTORNEY’S OFFICE
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