BISHOP v. COLVIN

Filing 20

ENTRY ON JUDICIAL REVIEW - For the reasons set forth above, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings consistent with this Entry. ***SEE ENTRY*** Signed by Judge William T. Lawrence on 8/30/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL R. BISHOP,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

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) Cause No. 1:16-cv-613-WTL-TAB
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ENTRY ON JUDICIAL REVIEW
Plaintiff Michael R. Bishop requests judicial review of the final decision of Defendant
Carolyn Colvin, Acting Commissioner of the Social Security Administration (“Commissioner”),
denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Insurance
Benefits (“SSI”) under Titles II and XVI of the Social Security Act (“the Act”). The Court rules as

follows.
I. PROCEDURAL HISTORY
Bishop filed his application for DIB and SSI in January 2013, alleging disability
beginning on July 7, 2012, due to neck problems, back problems, arthritis, and tennis elbow. His
application was denied initially and upon reconsideration, whereupon he requested and was
granted a hearing before an administrative law judge (“ALJ”). Bishop was represented by
counsel at the hearing, which was held on October 23, 2014, before ALJ Julia D. Gibbs. Bishop
and a vocational expert testified at the hearing. Thereafter, on November 14, 2014, the ALJ

1

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

rendered her decision in which she concluded that Bishop was not disabled as defined by the
Act. After the Appeals Council denied Bishop’s request for review of the ALJ’s decision, he
filed this timely action for 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).2 At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits his
ability to perform basic work activities), he is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d).
At step four, if the claimant is able to perform his past relevant work, he is not disabled. 20

2

The Code of Federal Regulations contains separate sections relating to DIB and SSI that
are identical in all respects relevant to this case. For the sake of simplicity, this Entry contains
citations to DIB sections only.
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C.F.R. § 404.1520(f). At step five, if the claimant can perform any other work in the national
economy, he is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ is required to
articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be
affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not
required to address every piece of evidence or testimony,” she must “provide some glimpse into
her reasoning . . . [and] build an accurate and logical bridge from the evidence to her
conclusion.” Id.
III. THE ALJ’S DECISION
The ALJ found at step one that Bishop had not engaged in substantial gainful activity
since his alleged onset date of July 7, 2012. At steps two and three, the ALJ found that Bishop
had the severe impairments of degenerative disc disease with radiculopathy, generalized
osteoarthritis involving multiple sites, and tendonitis of the elbow, but that his impairments,
singly or in combination, did not meet or medically equal a listed impairment. At step four, the
ALJ concluded that Bishop had
the residual functional capacity to perform work at a light level of exertion (as
defined in 20 CFR 404.1567(b) and 416.967(b)) that can be done either sitting or
standing and thus allows the claimant to alternate between the two positions every
thirty minutes without leaving the work site or discontinuing work activity; and
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that does not require the following: working above shoulder level, or more than
frequent use of the hands for fingering and grasping.
R. at 21. Given this residual functional capacity (“RFC”), the ALJ determined that Bishop was
not able to perform his past relevant work as a manager, mechanic, or small engine mechanic.
At step five, the ALJ found that there were jobs that existed in significant numbers in the
national economy that Bishop could perform, including wiring assembler, electronics worker,
and counter clerk. Accordingly, the ALJ concluded that Bishop was not disabled as defined by
the Act.
IV. DISCUSSION
The evidence of record is aptly set forth in the ALJ’s decision and Bishop’s brief.
Specific facts are set forth below where relevant.
Bishop argues that the ALJ erred at step 3 by failing adequately to explain her finding
that his condition did not meet or equal Listing 1.04. The Court agrees.
If a claimant has an impairment that meets or equals an impairment found in the
Listing of Impairments, a claimant is presumptively eligible for benefits. 20
C.F.R. § 404.1520(d). “In considering whether a claimant’s condition meets or
equals a listed impairment, an ALJ must discuss the listing by name and offer
more than perfunctory analysis of the listing.” Barnett v. Barnhart, 381 F.3d 664,
668 (7th Cir.2004). The Listings specify the criteria for qualifying impairments.
Id. (citing 20 C.F.R. § 404.1525(a)). A claimant may also satisfy a Listing by
showing that his impairment is accompanied by symptoms that are equal in
severity to those described in the Listing. 20 C.F.R. § 404.1526. A finding of
medical equivalence requires an expert’s opinion on the issue. Barnett, 381 F.3d
at 670.
Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). The entirety of the ALJ’s discussion of
Listing 1.04 is as follows:
The undersigned has considered the requirements of listing sections 1.02, Major
dysfunction of a joint(s) (due to any cause) and 1.04, Disorders of the spine, but
the medical evidence is not at a level of severity that satisfies the requirements of
either of those listing sections. In particular, the undersigned does not find
evidence of ineffective ambulation, within the meaning of listing 1.00B2b.
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R. at 20. This might have been sufficient if Listing 1.04 required ineffective ambulation, but it
does not. Rather, Listing 1.04(A) can be satisfied without ineffective ambulation, and the ALJ
failed to give any other reason why she believed Listing 1.04 was not met. Therefore, “[t]his is
the very type of perfunctory analysis we have repeatedly found inadequate to dismiss an
impairment as not meeting or equaling a Listing.” Minnick, 775 F.3d at 935-36 (citations
omitted).
The Commissioner argues that “the ALJ relied on the conclusions of two state agency
medical consultants to reach her finding that Plaintiff did not meet or equal Listing 1.04 (Tr. 2526).” However, in Minnick, the district judge noted that
In support of his conclusion, the ALJ stated that he relied upon the findings of
“the medical consultants who reviewed the case at the initial and reconsideration
levels,” Dr. Sands and Montoya, both of whom concluded that Plaintiff did not
meet or medically equal any listing impairment.
Minnick v. Colvin, 2013 WL 5436863 at *6 (N.D. Ind. Sept. 27, 2013). The Seventh Circuit
nevertheless reversed and remanded, finding the ALJ’s “perfunctory” analysis to be insufficient.
The Commissioner’s argument conflates the requirement that there be medical opinion evidence
in the record to support a finding of non-equivalence and the requirement that the ALJ
adequately articulate her reasons for her step 3 finding. Because the latter did not occur in this
case, remand is required.3
Further, as Bishop notes, it is not at all clear from the record that the state agency doctors
reviewed the findings from his MRI when making their determinations, even though the MRI
was conducted prior to their review. The MRI results are not specifically listed as evidence

3

This error would be harmless if Bishop were unable to point to evidence that suggests
that his condition could meet or equal the listing. That is not the case, however.
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reviewed by the state agency doctors, and neither doctor references the results in his report.
Because the MRI results are crucial to a determination of whether Listing 1.04 is met or equaled,
it is not clear that the record contains the requisite medical expert opinion, based on all relevant
evidence, that Bishop’s condition does not equal a listing. This, too, must be corrected on
remand.
V. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is REVERSED and this
case is REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 8/30/17
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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