RICH v. COLVIN

Filing 24

DECISION on Complaint for Judicial Review: The court REVERSES AND REMANDS under sentence four of 42 U.S.C. § 405(g) the Commissioner's decision that Ms. Rich is not disabled. See Decision for details. Signed by Magistrate Judge Debra McVicker Lynch on 9/26/2017.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ALYSA A. RICH,
Plaintiff,
v.
NANCY A. BERRYHILL,1 Acting
Commissioner of the Social Security,
Administration,
Defendant.

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) Case No.: 1:16-cv-00335-DML-SEB
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Decision on Complaint for Judicial Review
Plaintiff Alysa A. Rich applied in November 2012 for Disability Insurance
Benefits (DIB) and Supplemental Security Income disability benefits (SSI) under
Titles II and XVI, respectively, of the Social Security Act, alleging that she has been
disabled since March 20, 2012. Acting for the Commissioner of the Social Security
Administration following a hearing held August 8, 2014, administrative law judge
Ronald T. Jordan issued a decision on September 12, 2014, finding that Ms. Rich is
not disabled. The Appeals Council denied review of the ALJ’s decision on December
21, 2015, rendering the ALJ’s decision for the Commissioner final. Ms. Rich timely
filed this civil action under 42 U.S.C. § 405(g) for review of the Commissioner’s
decision.

Nancy A. Berryhill is now the Acting Commissioner of the Social Security
Administration. As provided by Fed. R. Civ. P. 25(d), she is substituted for Carolyn
W. Colvin as the defendant.
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Ms. Rich contends the Commissioner’s decision must be reversed and
remanded because the ALJ’s credibility determination is patently erroneous and, in
determining the RFC, the ALJ failed to consider the long-standing edema (swelling)
in her legs and did not evaluate at all a functional capacity opinion provided by her
chiropractor.
The court will first describe the legal framework for analyzing disability
claims and the court’s standard of review and then address Ms. Rich’s specific
assertions of error.
Standard for Proving Disability
To prove disability, a claimant must show she is unable to “engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which 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) (DIB benefits); 42 U.S.C. § 1382c(a)(3)(A) (SSI benefits).2 Ms.
Rich is disabled if her impairments are of such severity that she is not able to
perform the work she previously engaged in and, if based on her age, education, and
work experience, she cannot engage in any other kind of substantial gainful work

Two programs of disability benefits are available under the Social Security
Act: DIB under Title II for persons who have achieved insured status through
employment and withheld premiums, 42 U.S.C. § 423 et seq., and SSI disability
benefits under Title XVI for uninsured individuals who meet income and resources
criteria, 42 U.S.C. § 1381 et seq. The court’s citations to the Social Security Act and
regulations promulgated by the Social Security Administration are those applicable
to DIB benefits. For SSI benefits, materially identical provisions appear in Title
XVI and generally at 20 C.F.R. § 416.901 et seq.
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that exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration (“SSA”) has implemented these statutory
standards by, in part, prescribing a five-step sequential evaluation process for
determining disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful
activity; if she is, then she is not disabled. Step two asks whether the claimant’s
impairments, singly or in combination, are severe; if they are not, then she is not
disabled. A severe impairment is one that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The
third step is an analysis of whether the claimant’s impairments, either singly or in
combination, meet or medically equal the criteria of any of the conditions in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of
Impairments includes medical conditions defined by criteria that the SSA has predetermined are disabling, so that if a claimant meets all of the criteria for a listed
impairment or presents medical findings equal in severity to the criteria for the
most similar listed impairment, then the claimant is presumptively disabled and
qualifies for benefits. Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002).
If the claimant’s impairments do not satisfy a listing, then her residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is
a claimant’s ability to do work on a regular and continuing basis despite her
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform her past relevant work, then she

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is not disabled. The fifth step asks whether there is work in the relevant economy
that the claimant can perform, based on her age, work experience, and education
(which are not considered at step four), and her RFC; if so, then she is not disabled.
The individual claiming disability bears the burden of proof at steps one
through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets
that burden, then the Commissioner has the burden at step five to show that work
exists in significant numbers in the national economy that the claimant can
perform, given her age, education, work experience, and functional capacity. 20
C.F.R. § 404.1560(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is
deferential. A court must affirm if no error of law occurred and if the findings are
supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would
accept as adequate to support a conclusion. Id. The standard demands more than a
scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for
his decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence
in his decision, but he cannot ignore a line of evidence that undermines the
conclusions he made, and he must trace the path of his reasoning and connect the

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evidence to his findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th
Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Analysis
I.

The ALJ’s Sequential Findings
Ms. Rich was born in 1965, was 46 years old at the alleged onset of her

disability in 2012 and 48 years old at the time of the ALJ’s decision. She worked for
nearly 20 years at a Wal-Mart, in varying capacities and departments, and her last
position was a cashier. (R. 38-39). She was fired because of attendance issues; she
had accumulated too many points after absences due to her medical problems
(problems with her feet, knees, shoulders, and hands) and because of “some other
family problems.” (R. 39).
At step one, the ALJ found that Ms. Rich had not engaged in substantial
gainful activity since her alleged onset date in March 2012. At step two, he
determined that her severe impairments were venous insufficiency, morbid obesity,
obstructive sleep apnea, osteoarthritis of the knee, cervical spine, and left shoulder,
and plantar fasciitis/right heel spur. He found no listings were met or medically
equaled at step three.
In his RFC, the ALJ limited Ms. Rich to a “range of light work.” He found
she is capable of standing and of walking up to two hours and sitting six hours in an
eight-hour work day, can lift/carry/push/pull 20 pounds occasionally and 10 pounds

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frequently,3 and can only occasionally stoop, balance, crouch, kneel, crawl, and
climb stairs or ramps. He forbad dangerous conditions of climbing ladders, ropes, or
scaffolds, and being around unprotected heights or unguarded moving machinery.
(R. 22). The ALJ found at step four that Ms. Rich cannot perform her past relevant
work because that required more standing and walking than her RFC permits. At
step five, and based on the testimony of a vocational expert, the ALJ decided Ms.
Rich is capable of performing the functions of three light-level, unskilled jobs. They
are bus monitor (DOT # 372.667-042, with 300 jobs available in Indiana, according
to the VE), collator operator (DOT # 208.685-010, with 672 jobs available in
Indiana), and information clerk (DOT # 237.367-018), with 1,600 jobs available in
Indiana). The VE testified that these are classified as light-level jobs because “of
the lifting primarily.” (R. 51).4

Even though the ALJ classified her RFC as involving a “range of light work,”
it has the characteristics of sedentary work, other than lifting/carrying. “Sedentary
work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. . . . Jobs are sedentary if
walking and standing are required only occasionally and other sedentary criteria
are met.” 20 C.F.R. § 404.1567(a). “Light work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in [the light]
category when it requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing or pulling of arm or leg controls.” 20
C.F.R. § 404.1567(b).
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The court notes that lifting demands at a light level (frequent lifting or
carrying of objects weighing up to 10 pounds) do not seem to be suggested by the
descriptions of these positions in the DOT, and that the descriptions of bus monitor
and collator operator appear to require frequent movement in standing or walking.
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Based on his reliance on the VE, the ALJ thus found at step five that Ms.
Rich is not disabled.
II.

Ms. Rich’s Assertions of Error
Ms. Rich contends that the ALJ’s RFC is erroneous, requiring remand

because the ALJ did not mention—let alone evaluate—the opinion of her
chiropractor about her functional capacity, and his credibility analysis is patently
erroneous. As addressed below, the first error requires remand. The court also
addresses the ALJ’s credibility evaluation.
A. The ALJ erred by failing to evaluate the opinion of
Ms. Rich’s chiropractor.
The ALJ’s decision omits any mention of the opinion by Ms. Rich’s
chiropractor about her functional abilities.
Although a chiropractor is not an “acceptable medical source” in the parlance
of Social Security regulations, that does not mean her opinion about the claimant’s
functioning can be ignored. It means only that a chiropractor cannot offer a
“medical opinion” and cannot be considered a “treating physician,” whose opinion
can be entitled to controlling weight. See 20 C.F.R. § 404.1513(a); SSR 06-3p. The
opinion of an “unacceptable” medical source still must be evaluated by an ALJ, and
the weight an ALJ gives it depends on the same types of factors that the ALJ
considers in evaluating medical opinions generally. 20 C.F.R. § 404.1527(f). That is,
the weight it deserves must be based on the degree to which the opinion (a) is
supported by relevant evidence and explanations; (b) considered all pertinent
evidence; (c) is consistent with the record as a whole; and (d) is grounded in the
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person’s field of specialty. The nature and extent of the treatment relationship with
the claimant is also considered. 20 C.F.R. § 404.1527(c)(1)-(6). See Pierce v. Colvin,
739 F.3d 1046, 1051 (7th Cir. 2014) (addressing the applicability of these factors to
an ALJ’s evaluation of the weight to give to the opinion of a disability claimant’s
chiropractor).
Ms. Rich’s chiropractor (Rita J. Steffey) completed a residual functional
capacity questionnaire dated December 2012 and a “case summary.” She stated
that Ms. Rich has painful, swollen feet and ankles, hip and leg pain, and pain in her
right shoulder and upper back. (R. 338). She began seeing Ms. Rich in July 2012.
In her opinion, Ms. Rich’s sitting and standing/walking abilities are very limited
due to her ailments, and she can sit four hours in a work day and stand/walk up to
one hour, with the need to shift at-will between positions of sitting, standing, and
walking. (R. 335).
The ALJ did not mention Steffey at all in his decision. He did not evaluate
her opinion about Ms. Rich’s functional capacity. In fact, it appears that the ALJ
never saw the opinion. He noted in his decision that, other than opinions by the
state agency reviewing physicians, there were no assessments of Ms. Rich’s
functional limitations by any “examining or treating health care professional.” (R.
27). That’s not true, since Steffey is at the very least a health care professional that
examined and treated Ms. Rich. The Commissioner’s attempt to excuse the ALJ’s
failure to even evaluate Steffey’ opinion falls short. She argues that because the
ALJ gave significant weight to the opinions of state reviewing physicians about Ms.

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Rich’s RFC and Steffey’s opinion was in the administrative record when they
reviewed the file, then necessarily any error in not evaluating the opinion is simply
harmless.
The court disagrees. First, the agency reviewing physicians mentioned
nothing about Steffey’s opinion, and thus one cannot conclude that the ALJ made
some assessment of Steffey’s opinion through his reliance on the reviewing
physicians’ documentation. Second, significant additional medical evidence was
added to the record after those physicians’ review of the record, and that additional
evidence could be evaluated as more consistent with Steffey’s opinion than with the
agency reviewing physicians’ opinions. Ms. Rich’s medical impairments, as the ALJ
found, include problems associated with the pain and swelling symptoms noted by
the chiropractor. The ALJ found her severe impairments include venous
insufficiency, morbid obesity, plantar fasciitis/right heel spur, and osteoarthritis of
the left knee, cervical spine, and left shoulder. The medical evidence reflects a
continuous history of severe swelling in her legs and feet, an ultimate diagnosis of
venous insufficiency, difficulties walking because of knee and foot pain and
swelling, and her attempts to relieve the problems through various medical
interventions. She underwent cortisone injections, had surgery on her knee, took
medication to help the swelling, wore a brace/splint, tried physical therapy, tried a
boot, took pain medication, used a cane sometimes, and tried compression stockings.
See description at Dkt. 20, pp. 7-10. The compression stockings were themselves
painful because they tended to roll down her leg and cut into her skin; the pain was

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great enough that she discontinued wearing them but has learned through the vein
clinic she visits that there is a type of glue that she can use to hold them in place.
(R. 46-47).
It was the ALJ’s job to evaluate Steffey’s opinion in light of all of the evidence
in the record, and his failure to do so cannot be excused as harmless. Remand is
required on this basis alone.
B. Other errors can be addressed on remand.
The court also agrees with Ms. Rich that the ALJ’s credibility determination
is problematic. The court highlights three matters here. First, despite all of the
medical evidence of severe swelling in the legs and feet and continuous treatment
over years by various doctors, the ALJ determined that the symptoms of that
swelling must not be as serious as Ms. Rich alleged because she was not compliant
with wearing the compression stockings that had lately been prescribed. The ALJ
did not acknowledge, however, Ms. Rich’s rational explanation that the stockings
roll down, cut into her legs, and cause severe pain. Second, the ALJ stated that Ms.
Rich’s medical treatment had been only conservative and routine, and not
something that a person with her allegedly disabling impairments would be
expected to have undergone. It is not clear to the court, however, what additional
treatment the ALJ had in mind. Ms. Rich has undergone knee surgery and
injections, has worn a splint/brace and a boot, used a cane, taken medication for her

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pain and her severe edema, has had physical therapy, and is under the care of a
vein clinic to address her chronic venous insufficiency.5
Third, the ALJ stated that Ms. Rich’s impairments were at approximately
the same level of severity after her alleged onset as they were before and since she
was not prevented from working before, she isn’t now. That’s a superficial, and
inaccurate, view of the record evidence, and does not take into account that the ALJ
himself found that Ms. Rich is not now physically capable of the demands of her
prior work.
These matters should be re-addressed on remand.
Conclusion
For the foregoing reasons, the court REVERSES AND REMANDS under
sentence four of 42 U.S.C. § 405(g) the Commissioner’s decision that Ms. Rich is not
disabled.
So ORDERED.
____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Dated: September 26, 2017

Particularly perplexing is the ALJ’s statement that Ms. Rich’s testimony
about her limited daily living activities are not believable because they cannot be
“objectively verified” and even if they are as limited as she says, “it is difficult to
attribute that degree of limitation to the claimant’s medical condition, as opposed to
other reasons, in view of the relatively weak medical evidence and other factors
discussed in this decision.” (R. 24). The court has seen this same phrasing in many
ALJ disability decisions and it provides no useful guide to the path of the ALJ’s
reasoning. See Moore v. Colvin, 743 F.3d 1118, 1125-26 (7th Cir. 2014) (criticizing
this phraseology). The court does not understand what the ALJ envisions as
“objective” verification of Ms. Rich’s daily living activities and cannot determine
what “other factors” in the decision detract from Ms. Rich’s reports. Nor is it at all
clear that the medical evidence is “relatively weak.”

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Distribution:
All ECF-registered counsel of record by email through the court’s ECF system

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