ROSS v. COLVIN

Filing 32

ENTRY on Judicial Review - For the reasons set forth in this Entry, the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for further proceedings consistent with the Court's Entry. (See Entry). Signed by Judge William T. Lawrence on 3/28/2017.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BOBBY M. ROSS,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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ENTRY ON JUDICIAL REVIEW
Plaintiff Bobby Ross requests judicial review of the final decision of Defendant
Nancy A. Berryhill, Acting Commissioner of Social Security (“Commissioner”), denying his
application for a period of disability and Disability Insurance Benefits (“DIB”). The Court rules
as follows.
I. PROCEDURAL HISTORY
Ross protectively filed his application for DIB in October 2011, alleging onset of
disability on September 21, 2011. The Social Security Administration initially denied Ross’s
application on March 7, 2012. After Ross timely requested reconsideration, the Social Security
Administration again denied his claim on August 7, 2012. Thereafter, Ross requested a hearing
before an Administrative Law Judge (“ALJ”). The ALJ held a hearing on February 11, 2014, at
which Ross and a vocational expert testified. The ALJ issued his decision denying Ross’s DIB

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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.

application on March 14, 2014. After the Appeals Council denied Ross’s request for review, he
filed this action seeking judicial review.
II. 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
work, but any other kind of gainful employment that 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). 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
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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
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).
III. THE ALJ’S DECISION
The ALJ found at step one that Ross had not engaged in substantial gainful activity since
September 21, 2011, the alleged disability onset date. At step two, the ALJ determined that Ross
had the following severe impairments: cerebral palsy; degenerative disc disease; degenerative
joint disease in the left knee and left shoulder; periodic movement disorder; learning disability,
math; anxiety; and depression. The ALJ found at step three that these impairments did not,
individually or in combination, meet or equal the severity of one of the listed impairments. The
ALJ’s residual functional capacity (“RFC”) determination was as follows:
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant can lift and carry twenty
pounds occasionally and ten pounds frequently; stand and walk for six hours out
of eight hours; and sit for six of eight hours, provided the work permits him to
alternate to a sitting or standing position at his option for one to two minutes each
hour. He can occasionally climb ropes, ladders or scaffolds and occasionally
balance, stoop, or crouch but never kneel or crawl. He should avoid overhead
work with the left shoulder. The claimant should not work around unprotected
heights or around dangerous moving machinery, operate a motor vehicle, or work
around open bodies of water or open flames. He should avoid work around
concentrated exposure [to] extremes of temperatures and humidity. He should not
have work that requires mathematics above level 1 or that requires more than 2-3
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steps per task. Lastly, the work should not require more than superficial
interaction with the public, co-workers or supervisors.
Record at 21. The ALJ concluded at step four that Ross could not perform his past relevant work
as an electrician and dryer operator. At step five, the ALJ found that, considering his age,
education, work experience, and RFC, there were jobs that exist in significant numbers in the
national economy that he could perform, including hand packager, production worker, and
injection molding machine tender. Accordingly, the ALJ concluded that Ross was not disabled.
IV. DISCUSSION2
Ross argues that the ALJ erred in several respects, each of which is addressed, in turn,
below.
A. Failure to Address All Impairments and Symptoms
Ross first argues that the ALJ erred in failing to address the effects of all of Ross’s
medically determinable impairments and the symptoms he alleges are caused by them. When
Ross applied for benefits, he claimed that he was disabled due to the following impairments:
degenerative disc disease; bone spurs; cerebral palsy and resultant left-sided weakness;
cramping; legs, feet, and hand spasms; asthma; knee pain; swelling in feet and legs; sleep
Disorder-PMLD;3 severe anxiety and depression-paranoia. Dkt. No. 23 at 4-5 (citing two
Notices of Disapproved Claim which lists those claimed impairments). The ALJ found that Ross
had the following severe impairments: “cerebral palsy; degenerative disc disease; degenerative

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The Court notes that its review of the issues raised in this case was made more difficult
by the fact that Ross’s counsel failed to set forth the relevant facts, including a discussion of the
relevant medical records, in her brief. Instead she “incorporated by reference” portions of the
pre-hearing brief she submitted to the ALJ in which she simply lists, in bullet point and table
format, snippets from various medical records. It is far more effective to provide a narrative of
the relevant facts of record with citations to the relevant pages of the administrative record.
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The Court could not readily find an explanation of this abbreviation in the record. The
Court assumes it refers to the primary periodic limb disorder with which Ross was diagnosed as
a result of a sleep study he underwent in 2011.
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joint disease in the left knee and left shoulder; periodic movement disorder, learning disability,
math; anxiety and depression.” R. at 19. Ross argues that the ALJ failed to address the
remainder of his impairments, “most notably the left sided weakness, spasms, muscle cramping,
asthma, swelling in legs, and feet, and paranoia.”4 Dkt. No. 23 at 5.
The Court agrees that the ALJ’s failure to address some of the symptoms testified to by
Ross and explain why he did not find them disabling requires remand. As the ALJ
acknowledged in his decision, under the standard that was applicable at the time of the ALJ’s
decision, with regard to subjective symptoms such as pain, if a claimant had a medically
determinable impairment that was reasonably expected to produce pain, then the ALJ was
required to evaluate the credibility of the claimant’s testimony regarding the extent of that pain.
“In determining credibility an ALJ must consider several factors, including the claimant’s daily
activities, [his] level of pain or symptoms, aggravating factors, medication, treatment, and
limitations, see 20 C.F.R. § 404.1529(c); S.S.R. 96-7p,5 and justify the finding with specific
reasons.” Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). The regulations further provide
that “we will not reject your statements about the intensity and persistence of your pain or other
symptoms or about the effect your symptoms have on your ability to work solely because the
available objective medical evidence does not substantiate your statements.” 20 C.F.R. §
404.1529(c)(2). “The determination of credibility must contain specific reasons for the

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Ross actually lists over twenty impairments and symptoms that are mentioned in his
medical records that he says the ALJ should have considered. With regard to most of those
conditions (some of which appear to be symptoms, not impairments), he makes no effort to
explain how they affect his ability to work, and it is “the claimant's obligation to explain why
certain conditions are disabling.” Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014) (Pepper v.
Colvin, 712 F.3d 351, 367 (7th Cir. 2013)).
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S.S.R. 96-7p recently has been superseded by S.S.R. 16-3p, which the agency explained
“eliminate[ed] the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations
do not use this term” and “clarif[ied] that subjective symptom evaluation is not an examination
of an individual’s character.”
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credibility finding” and “must be supported by the evidence and must be specific enough to
enable the claimant and a reviewing body to understand the reasoning.” Craft v. Astrue, 539
F.3d 668, 678 (7th Cir. 2008) (citing Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007)). In
addition, “[a]lthough an ALJ’s credibility determinations are generally entitled to deference, this
Court has ‘greater freedom to review credibility determinations based upon objective factors or
fundamental implausibilities, rather than subjective considerations’ such as the claimant’s
demeanor.” Ghiselli v. Colvin, 837 F.3d 771, 778 (7th Cir. 2016) (quoting Briscoe ex rel. Taylor
v. Barnhart, 425 F.3d 345, 354 (7th Cir. 2005)).
Ross testified that he was unable to continue working due to back pain and his back
“locking up,” knee pain, muscle spasms in his hands, “horrible” muscle cramps and spasms in
his left calf, pain in his left shoulder, anxiety and depression, sleep problems, grogginess due to
medication, and a learning disability. The ALJ acknowledged that Ross
allege[d] disability due to conditions inclusive of degenerative disc disease,
cerebral palsy with left-sided weakness, cramping and spasms, knee pain, sleep
disorder, learning disability, anxiety and depression. He testified that he could
not work due to severe back, knee and shoulder pain and could stand or walk
about fifteen to thirty minutes, before needing to sit down and lift only about
fifteen to twenty pounds. Further, he alleged disability due to depression and a
learning disability, in addition to memory problems and difficulty being around
people.
R. at 22. However, he does not specifically identify which of these symptoms could reasonably
be expected to be produced by Ross’s impairments. Instead, he states only that the “[e]vidence of
record reveals the claimant’s physical impairments are not as limiting as he alleges,” id., and
states the same regarding his mental impairments, id. at 23. After summarizing some of the
medical evidence of record, he then states that he “ha[s] accounted for possible symptoms
associated with the claimant’s degenerative disc disease, degenerative joint disease and periodic
movement disorder” in his RFC, and that he also “ha[s] accounted for possible symptoms
associated with the claimant’s learning disorder, anxiety and depression” in his RFC. Id. But he
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fails to explain the extent to which he finds Ross’s allegations regarding his symptoms not
credible and why.6 As such, he failed to provide the required “accurate and logical bridge
between the evidence and [his] conclusion that a claimant is not disabled.” Kastner, 697 F.3d at
646. This failure requires remand. On remand, the ALJ shall address all of Ross’s testimony
regarding his symptoms and evaluate his alleged subjective symptoms as required by S.S.R. 163p. The ALJ also shall reexamine his explanation for rejecting the testimony and report of
Ross’s wife, as he fails to explain how this evidence is inconsistent with the objective evidence
of record. See SSR 96–8P, 1996 WL 374184 at *5 (observing that when considered in
combination with other impairments a non-severe impairment may become “critical” to the
outcome of a claim) (cited in Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014)).

B. Error at Step 3
Ross argues that the ALJ’s analysis regarding whether Ross’s impairments meet or equal
a listing is inadequate in several respects. First, he argues that the ALJ failed properly to
consider whether Ross met or equaled Listing 11.07, which, at the relevant time, required
cerebral palsy:
With:
A.
B.
C.
D.

IQ of 70 or less; or
Abnormal behavior patterns, such as destructiveness or emotional
instability; or
Significant interference in communication due to speech, hearing, or
visual defect; or
Disorganization of motor function as described in 11.04B.

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Particularly troubling is the ALJ’s failure to address Ross’s testimony regarding the
severe leg cramping he experiences several times a month, which he alleges cause him to scream
in pain and stop what he’s doing. See id. at 37. If this testimony is fully credited, this cramping
likely would have a significant impact on Ross’s ability to work full time. Because the ALJ does
not address the issue, there is no way of knowing whether the ALJ does not believe the testimony
or believes Ross is nonetheless not disabled. Further, the ALJ does not adequately address the
effects of Ross’s sleep issues on his ability to work.
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20 C.F.R. § Pt. 404, Subpt. P, App. 1 (2014). Ross argues that he satisfies 11.04D because he
satisfies 11.04B, which required “[s]ignificant and persistent disorganization of motor function
in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait
and station (see 11.00C).” Id. 11.00C, in turn, provided:
C. Persistent disorganization of motor function in the form of paresis or paralysis,
tremor or other involuntary movements, ataxia and sensory disturbances (any or
all of which may be due to cerebral, cerebellar, brain stem, spinal cord, or
peripheral nerve dysfunction) which occur singly or in various combinations,
frequently provides the sole or partial basis for decision in cases of neurological
impairment. The assessment of impairment depends on the degree of interference
with locomotion and/or interference with the use of fingers, hands, and arms.
Id. While Ross points to evidence in his medical records that shows that he had resting leg
tremors and some mild gait abnormalities, neither the records he points to nor the record as a
whole suggests that he experiences anything approaching “persistent disorganization of motor
function.” The ALJ did not err in his consideration of the Listings relating to cerebral palsy.
The same is true of the ALJ’s conclusion that Ross’s degenerative disc disease and
degenerative joint disease did not meet or equal a listing—again, Ross fails to point to evidence
of record that would support a finding that his impairments are of the severity required to satisfy
Listing 1.02 or 1.04. Contrary to Ross’s suggestion, the ALJ was not required to address every
notation in his medical records in arriving at his step 3 conclusion. See Curvin v. Colvin, 778
F.3d 645, 650 (7th Cir. 2015) (noting “repeated assertion that an ALJ’s adequate discussion of
the issues need not contain a complete written evaluation of every piece of evidence”) (citation
omitted).
Finally, with regard to his mental impairments, Ross argues that the ALJ erred by not
analyzing whether he met or equaled Listing 12.07. As the Commissioner correctly points out,
any such error is harmless, inasmuch as the ALJ’s reasoning for finding that Ross did not meet or

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equal Listing 12.02, 12.04, or 12.06—that he did not satisfy the “paragraph B” criteria—is
equally applicable to Listing 12.07, and Ross does not argue that that assessment was erroneous.
Ross has failed to demonstrate that the ALJ erred at step 3.
C. Failure to Account for Limitations in Concentration, Persistence, and Pace in RFC
Ross next argues that the ALJ failed properly to account for the moderate limitations with
respect to concentration, persistence, and pace that he found Ross had. The Court agrees. Once
the ALJ found that those limitations existed, he was required to account for them in his RFC and
in his hypothetical questions to the vocational expert. O’Connor-Spinner v. Astrue, 627 F.3d 619
(7th Cir. 2010) (“Among the limitations the VE must consider are deficiencies of concentration,
persistence and pace.”); Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009) (hypothetical
question “must account for documented limitations of ‘concentration, persistence, or pace’”)
(collecting cases) (cited in Yurt v. Colvin, 758 F.3d 850, 858–59 (7th Cir. 2014)). While the ALJ
did include in his RFC and hypothetical questions a limitation of no more than two or three steps
per task and only superficial interaction with the public, co-workers, and supervisors, and he did
ask the vocational expert what the effect of being off task for 5% of the time would be, he did
not explain why he believed the evidence indicated that those restrictions accounted for the
moderate difficulties of concentration, persistence, and pace that he found. This should be
corrected on remand. See Taylor v. Colvin, 829 F.3d 799, 801–02 (7th Cir. 2016) (noting
Seventh Circuit’s “rejection of the view that ‘confining the claimant to simple, routine tasks and
limited interactions with others adequately captures temperamental deficiencies and limitations
in concentration, persistence, and pace’”) (citing Yurt, 758 F.3d at 858-59).
D. Weight Given State Agency Medical Professionals
The ALJ’s explanation of the weight he gave to the state agency medical professionals’
opinions is as follows:
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Significant weight is accorded to the state disability determination medical
professionals because their conclusions regarding the nature and severity of the
claimant’s impairments are deemed expert opinion evidence from a nonexamining source. Generally, such opinions are entitled to considerable deference
when they are supported by the record. However, these doctors saw did not see
[sic] the full record received at the hearing level.
R. at 24. Ross argues that this explanation is deficient; it is more accurately characterized as
nonsensical. On remand, the ALJ shall explain what weight he gave to each of the state agency
medical professional’s opinions (individually, not as a group) and why he assigned that weight.
If, in fact, an opinion was not based on the entirety of the medical evidence of record, the ALJ
shall specifically explain what impact the omission had on the weight he gave to that opinion.
E. Vocational Expert’s Testimony
On remand, the ALJ also shall seek clarification of the vocational expert’s testimony
which, as Ross points out, does not appear to be entirely consistent with the Dictionary of
Occupational Titles.
V. CONCLUSION
For the reasons set forth above, the decision of the Commissioner is REVERSED and
this case is REMANDED to the Commissioner for further proceedings consistent with the
Court’s Entry.
SO ORDERED: 3/28/17
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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