AL AKEEL v. COLVIN
ENTRY on Judicial Review: The Commissioner's decision will be reversed and remanded for evaluation of Mr. Al Akeel's ability to communicate in English, consideration of the effect of his ability on the number of jobs that he can perform, and adequate articulation of that evaluation and consideration, including findings and reasons for resolutions of factual issues. See Entry for additional information. Signed by Magistrate Judge Debra McVicker Lynch on 8/25/2017.(SWM)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
ABDULAZEEZ AL AKEEL,
CAUSE NO. 1:16-cv-908-DML-WTL
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Entry on Judicial Review
The defendant Commissioner of Social Security denied plaintiff Abdulazeez
Al Akeel’s application for disability benefits under the Social Security Act, and Mr.
Al Akeel brought this suit for judicial review of that denial. The parties consented
to this magistrate judge conducting all proceedings in this case and ordering entry
of a final judgment, Notice, Consent, and Reference of a Civil Action to a Magistrate
Judge [dkt. 12], and the district judge referred the action accordingly, Order of
Reference [dkt. 15]. The parties have briefed their positions, and the court has fully
considered their arguments and the record. For the reasons explained below, the
Commissioner’s decision denying benefits is REVERSED and REMANDED.
Judicial review of the Commissioner’s factual findings is deferential: courts
must affirm if her findings are supported by substantial evidence in the record. 42
U.S.C. ' 405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v.
Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Substantial evidence is more than a
scintilla, but less than a preponderance of the evidence. Wood v. Thompson, 246
F.3d 1026, 1029 (7th Cir. 2001). If the evidence is sufficient for a reasonable person
to conclude that it adequately supports the Commissioner’s decision, then it is
substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758 (7th Cir. 2004). This
limited scope of judicial review derives from the principle that Congress has
designated the Commissioner, not the courts, to make disability determinations:
In reviewing the decision of the [administrative law judge], we cannot
engage in our own analysis of whether [the claimant] is severely
impaired as defined by the SSA regulations. Nor may we reweigh
evidence, resolve conflicts in the record, decide questions of credibility,
or, in general, substitute our own judgment for that of the
Commissioner. Our task is limited to determining whether the ALJ’s
factual findings are supported by substantial evidence.
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758.
While review of the Commissioner=s factual findings is deferential, review of her
legal conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability as the “inability 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 12 months . . . .” 42
U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R.
' 416.905(a). A person will be determined to be disabled only if his impairments
“are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be hired if he applied for
work.” 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). 20 C.F.R. §§ 404.1505,
404.1566, 416.905, and 416.966. The combined effect of all of an applicant’s
impairments must be considered throughout the disability determination process.
42 U.S.C. '§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523 and 416.923.
The Social Security Administration has implemented these statutory
standards in part by prescribing a “five-step sequential evaluation process” for
determining disability. If disability status can be determined at any step in the
sequence, an application will not be reviewed further. At the first step, if the
applicant is currently engaged in substantial gainful activity, then he is not
disabled. At the second step, if the applicant’s impairments are not severe, then he
is not disabled. A severe impairment is one that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” Third, if the applicant’s
impairments, either singly or in combination, meet or medically equal the criteria of
any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404,
Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of
Impairments are medical conditions defined by criteria that the Social Security
Administration has pre-determined are disabling. 20 C.F.R. ' 404.1525. If the
applicant’s impairments do not satisfy the criteria of a listing, then his residual
functional capacity (“RFC”) will be determined for the purposes of the next two
steps. RFC is an applicant’s ability to do work on a regular and continuing basis
despite his impairment-related physical and mental limitations and is categorized
as sedentary, light, medium, or heavy, together with any additional non-exertional
restrictions. At the fourth step, if the applicant has the RFC to perform his past
relevant work, then he is not disabled. Fifth, considering the applicant’s age, work
experience, and education (which are not considered at step four), and his RFC, the
Commissioner determines if he can perform any other work that exists in
significant numbers in the national economy. 42 U.S.C. ' 416.920(a)
The burden rests on the applicant to satisfy steps one through four. The
burden then shifts to the Commissioner at step five to establish that there are jobs
that the applicant can perform in the national economy. Young v. Barnhart, 362
F.3d 995, 1000 (7th Cir. 2004). If an applicant has only exertional limitations that
allow him to perform the full range of work at his assigned RFC level, then the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the
“grids”), may be used at step five to arrive at a disability determination. The grids
are tables that correlate an applicant’s age, work experience, education, and RFC
with predetermined findings of disabled or not disabled. If an applicant has nonexertional limitations or exertional limitations that limit the full range of
employment opportunities at his assigned work level, then the grids may not be
used to determine disability at that level. Instead, a vocational expert must testify
regarding the numbers of jobs existing in the economy for a person with the
applicant’s particular vocational and medical characteristics. Lee v. Sullivan, 988
F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an
advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the
applicant and obtained by the agency, undergoes initial review by a state agency
disability examiner and a physician or other medical specialist. If the application is
denied, the applicant may request reconsideration review, which is conducted by
different disability and medical experts. If denied again, the applicant may request
a hearing before an administrative law judge (“ALJ”).1 An applicant dissatisfied
with the decision of the ALJ may request the SSA’s Appeals Council to review the
decision. If the Appeals Council either affirms or declines to review the decision,
then the applicant may file an action in district court for judicial review. 42 U.S.C.
' 405(g). If the Appeals Council declines to review a decision, then the decision of
the ALJ becomes the final decision of the Commissioner for judicial review.
By agreement with the Social Security Administration, initial and
reconsideration reviews in Indiana are performed by an agency of state government,
the Disability Determination Bureau, a division of the Indiana Family and Social
Services Administration. 20 C.F.R. Part 404, Subpart Q (' 404.1601, et seq.).
Hearings before ALJs and subsequent proceedings are conducted by personnel of the
federal Social Security Administration.
Mr. Al Akeel applied for benefits under the supplemental security income
program in January 2013 (R. 157), alleging that he is disabled because of right-leg
amputation below the knee, arthritis in hands, and head pain (R. 174). In
subsequent reports to the state agency, he also reported back and neck pain. (R.
187.) At the hearing, he testified that he is unable to work because of his lack of
English proficiency, amputated leg, back, broken left arm, right shoulder, and
broken left leg. (R. 37.) He testified that his back, right leg, and right shoulder give
him the most pain. (R. 42.) He alleged lower back pain (R. 48, 51-52), severe
headaches (R. 50), an ill-fitting leg prosthetic that causes pain and makes walking
difficult (R. 48), winter/cold related pain from a broken hand or foot (R. 51),
shoulder pain (R. 52), and the need to use one or two canes to ambulate, depending
on the presence of right shoulder and back pain (R. 52-53). Mr. Al Akeel testified
that he can walk for 15 minutes (R. 44), stand for thirty minutes with the help of a
cane (id.), and sit for thirty minutes (R. 45). He alleges that his disability began on
January 1, 2003 (R. 157, 174).
Mr. Al Akeel’s claim was denied on initial and reconsideration reviews by the
state agency. (R. 68-90, 94-96.) He requested and received a hearing before an ALJ
in October 2014, during which he and a vocational expert testified. (R. 29, 97.) Mr.
Al Akeel was not represented by counsel when he submitted his application and
initial evidence or through the state agency’s initial and reconsideration reviews.
(R. 68, 77.) He did not obtain counsel until about eleven months before the hearing.
(R. 68, 77, 108, 109.) The ALJ issued his decision in December 2014.
The ALJ’s Findings and Subsequent Review
At step one of the sequential evaluation process, the ALJ found that Mr. Al
Akeel has not engaged in substantial gainful activity since his application date in
At step two, the ALJ found that Mr. Al Akeel has the severe impairments of
right leg amputation below the knee, degenerative disc disease of the lumbar spine,
and migraines. He found that the non-severe impairments of degenerative joint
disease of the right shoulder and obstructive sleep apnea are also present. He
further found that Mr. Al Akeel’s histories of the following conditions do not
constitute current impairments: polycythemia, gastritis, forearm fractures, high
blood pressure, diabetes, acute renal failure and various sinus conditions.
At step three, the ALJ found that Mr. Al Akeel does not have an impairment
or combination of impairments, severe and non-severe, that meet or medically equal
any of the conditions in the listing of impairments. He considered Mr. Al Akeel’s
right leg amputation under listing 1.05B (amputation, due to any cause, of one or
both lower extremities); his lumbar spine impairment under listing 1.04 (disorders
of the spine); and his migraines generally under listing categories 11 (neurological
disorders) and 12 (mental disorders).
For the purposes of steps four and five, the ALJ determined Mr. Al Akeel’s
residual functional capacity (“RFC”). He found that Mr. Al Akeel has the capacity
to perform sedentary level work with the following restrictions: use of a hand held
assistive device to ambulate and avoidance of concentrated exposure to extreme
cold, slippery or uneven surfaces, hazardous machinery, and unprotected heights.
Because Mr. Al Akeel has no past relevant work, the ALJ passed over step
At step five, the ALJ considered Mr. Al Akeel’s age (thirty-three, a “younger
individual”), education (at least high school and able to communicate in English),2
and RFC to find that a significant number of jobs that he can perform exist in the
national economy and, therefore, he is not disabled. In making this determination,
the ALJ relied on the testimony of the vocational expert at the hearing, who
identified the jobs of assembler-table worker (25,000 jobs nationally), surveillance
system monitor (13,200 jobs nationally), and document preparer (64,000 jobs
Mr. Al Akeel requested review by the Appeals Council in January 2015 (R. 7)
and submitted a letter identifying errors in the ALJ’s decision (R. 223). He argued
that he should have been found disabled at step three because he satisfied the
criteria of listing 1.05, amputation. He contended that the ALJ committed several
Because Mr. Al Akeel had no past relevant work, the ALJ found that the
vocational factor of transferability of job skills was not an issue. (R. 22.)
errors and identified three: (1) much of the evidence regarding the condition and
limitations on his amputation, ill-fitting prosthetic, need for assistive devices, lower
back condition, and right shoulder condition was submitted after the state agency
reviews and was not otherwise reviewed by a medical expert for an opinion on
whether all of his conditions in combination medically equal listing 1.05; (2) the
ALJ failed to discuss the issue of medical equivalence; and (3) the ALJ failed to
consider the limitations on Mr. Al Akeel’s ability to communicate in English.
The Appeals Council denied Mr. Al Akeel’s request for review, which
rendered the ALJ’s decision the final decision of the Commissioner on his claim for
benefits and the one that the court reviews.
Mr. Al Akeel argues that the ALJ committed eight errors in his decision. The
court will address each in turn.
1. Right shoulder impairment. Mr. Al Akeel argues that the ALJ erred at
step two when he found that Mr. Al Akeel’s right shoulder impairment is not severe.
He argues that the ALJ (1) failed to consider the contributory effect of this
impairment in combination with his other severe and non-severe impairments, (2)
improperly applied the twelve-month duration requirement individually to his
shoulder impairment, (3) erroneously found that the impairment did not satisfy the
duration requirement, and (4) erroneously found that the shoulder impairment was
caused by athletic weight lifting.
At step two, the ALJ found that Mr. Al Akeel’s degenerative joint disease of
the right shoulder is a non-severe impairment. (R. 13.) Although he specifically
found that a recent MRI, performed in September 2014,3 “would support a finding
that there is a medically determinable impairment that causes more than minimal
limitations” (R. 14), he also found that “there is insufficient evidence in the record to
establish the necessary durational requirements” and, therefore, the impairment
does not meet the criteria for severe impairment.” (Id.) Mr. Al Akeel argues that
the twelve-month duration requirement does not apply to each individual
impairment, “but rather, the durational requirement relates to the period of
disability.” Plaintiff’s Brief in Support of His Request for Review and Remand of the
Commissioner of Social Security’s Final Decision [dkt. 21] (“Plaintiff’s Brief”), at 2425, citing 20 C.F.R. § 404.1522 and S.S.R. 96-3p.
Mr. Al Akeel is wrong, because the regulations make clear that the duration
requirement applies to each individual impairment. A disability must be caused by
one or more “physical or mental impairment(s),” which are “anatomical,
physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 416.908. The
impairment(s) must be expected to result in death or “must have lasted or must be
expected to last for a continuous period of at least 12 months. We call this the
duration requirement.” 20 C.F.R. §§ 416.905(a), 416.909. At step two of the
The hearing occurred in October 2014 and the ALJ issued his decision in
sequential evaluation process, an ALJ considers the medical severity of a claimant’s
impairment(s): “If you do not have a severe medically determinable physical or
mental impairment that meets the duration requirement in §416.909, or a
combination of impairments that is severe and meets the duration requirement, we
will find that you are not disabled.” 20 C.F.R. § 416.920(a)(4)(ii). A “severe
impairment” or combination of impairments is one that “significantly limits your
physical or mental ability to do basic work activities . . . .” 20 C.F.R. § 416.920(c).
Thus, the duration requirement applies to the impairment(s), not to the period of
disability, except in a derivative sense because a disability must result from an
impairment or combination of impairments that satisfies the duration requirement.
While the ALJ found that Mr. Al Akeel’s right shoulder impairment is “severe”
because it significantly affects his ability to perform basic work activities, he also
found that it does not satisfy the duration requirement and, therefore, does not
satisfy step two. That finding, alone, is not erroneous because step two contains
both severity and duration criteria.
Mr. Al Akeel also contends that his right shoulder impairment does satisfy
the duration requirement because “if Plaintiff’s degenerative joint disease of the
right shoulder is expected to last ― and there is no indication from the medical
evidence that it will not ― for a continuous period of at least 12 months, then the
ALJ should have found it severe. Therefore, the ALJ’s reasoning that this was of
sudden acute onset and therefore does not meet the durational requirement (Tr. 14)
is not supported.” Plaintiff’s Brief, at 25. This is merely conclusory. The ALJ cited
and discussed the evidence of recent sudden onset corresponding with Mr. Al
Akeel’s lifting of weights, scant evidence preceding the MRI, lack of objective
findings on examination, and lack of significant and consistent subjective
complaints, all of which convinced him that the duration requirement was not met.
(R. 14.) Mr. Al Akeel’s failure to address this discussion and evidence, instead only
asserting the lack of evidence that the duration requirement is not met, fails to
show that the ALJ’s finding was erroneous. Undeveloped, perfunctory arguments
are forfeited. See Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016); Schomas v.
Colvin, 732 F.3d 702, 708 (7th Cir. 2013).
Mr. Al Akeel also disputes one of the ALJ’s statements regarding his
shoulder condition. Medical records of Mr. Al Akeel’s visit to an emergency room in
March 2014 and his visit to Dr. Sieber in June 2014 note that his shoulder
symptoms began after “lifting weights” (R. 482 (“right shoulder pain since yesterday
after lifting weights”) 468 (“heavy lifting”), 469 (“He does lift weights occasionally”)),
which the ALJ construed as lifting weights “at the gym” or “as in performed at a
gym” (R. 14, 19). Mr. Al Akeel is correct that none of these records (nor a third
similar notation in a 2012 medical record) indicate that the weight lifting was of an
athletic type, as done in a gym. He also cites a notation in the HPI (history of
present illness) section of the ER report that Mr. Al Akeel “was lifting a box
overhead to stack at home” when he felt pain at his right shoulder. (R. 479.)
The problem is that Mr. Al Akeel does not show the materiality of this
apparent error by the ALJ. Contrary to Mr. Al Akeel’s assertion that, by
characterizing the weight lifting as athletic-type lifting, the ALJ was attempting to
minimize the significance of the evidence of his shoulder condition, Plaintiff’s Brief,
at 25-26, or failed to consider it in context, id., at 26, the ALJ’s discussion
demonstrates that what was important to the ALJ was what this evidence showed
about Mr. Al Akeel’s symptoms having a “rather sudden acute onset” and “a more
recent onset” (R. 14), in the context of the duration requirement, not that the
condition did not exist or that the degree of Mr. Al Akeel’s reported symptoms was
not credible. Whether Mr. Al Akeel’s right shoulder symptoms manifested after
gym-related or activity-related weight lifting was unimportant to the ALJ’s
duration analysis. The ALJ cited the recent onset of symptoms (March 2014), the
scant evidence before the September 2014 MRI, the lack of objective findings, and
the lack of significant and consistent complaints as evidence that the condition did
not satisfy the duration requirement. (The ALJ later relied on his apparent
misinterpretation of the weight lifting references in support of his credibility
analysis finding, which is discussed below.) Mr. Al Akeel has not shown that the
ALJ’s mistake regarding the type of weight lifting involved was material to the
ALJ’s duration finding at step two.
Finally, Mr. Al Akeel argues that the ALJ failed to consider his right
shoulder impairment in combination with his other severe and non-severe
impairments. But he neither explains what additional limitations his shoulder
condition imposes in combination with his other impairments (for the required
duration) nor cites to supporting evidence. Simply asserting that the ALJ failed to
consider the impairment in combination is insufficient.
The court finds no error in the ALJ’s determination that Mr. Al Akeel’s right
shoulder impairment was not severe.
2. Mental impairment. In January 2013, Jana Treadway, a nurse
practitioner and Mr. Al Akeel’s primary care provider, examined him during an
office visit. Part of the examination included some type of mental status
component. Ms. Treadway briefly noted normal signs in four mental status
categories: (1) for “judgment, insight,” she wrote “intact”; (2) for orientation, she
wrote “oriented to time, place, and person”; (3) for memory, “intact for recent and
remote events”; and (4) for mood and affect, she wrote “no depression, anxiety, or
agitation but stressed.” (R. 311.) Three months later, in April 2013, the state
agency referred Mr. Al Akeel to Jason Hankee, Ph.D., for a consultative mental
status examination. (R. 334.) While Dr. Hankee reported many normal results, he
also diagnosed Mr. Al Akeel with adjustment disorder, not otherwise specified, and
assessed him with a Global Assessment of Functioning score of 50, indicating
“serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job, cannot work).” In April and June 2013, state
agency psychologists evaluated Mr. Al Akeel’s mental status following the
Commissioner’s prescribed psychiatric review technique. Reviewing the evidence of
record, including both Ms. Treadway’s and Dr. Hankee’s reports, both psychologists
found that a medically determinable mental impairment, “affective disorders,” is
present but that it does not satisfy the paragraph B or C severity criteria of the
listing of impairments and is not severe. (R. 71-72, 81-82.)
Mr. Al Akeel argues that the ALJ erred by not conducting any analysis of his
mental impairment and by failing to mention or discuss any of the relevant
psychological evidence, which is “direct evidence of a severe psychological
determinable impairment,” the ALJ should have considered. Plaintiff’s Brief, at 28.
He contends that the evidence shows that he has had traumatic events in his life,
understands very little English, made mistakes on certain tasks during his mental
status examinations, reported occasionally experiencing physical symptoms when
he is upset, reported memory and concentration problems to Ms. Treadway, and
complained of many stressors in his life.
In his decision, the ALJ included only two comments regarding Mr. Al Akeel’s
mental status: he wrote that Ms. Treadway’s mental status testing was normal and
that Dr. Hankee’s mental status examination was “unremarkable.” (R. 20.) In
addition to not mentioning the facts Mr. Al Akeel identifies above, the ALJ did not
mention, let alone adopt, the state agency psychologists’ opinions regarding Mr. Al
Akeel’s alleged mental impairment. While the court does not find that the ALJ was
required to mention every piece of evidence that Mr. Al Akeel contends is relevant
to his mental condition and it does not find that the unmentioned evidence shows a
severe psychological impairment, the court does find that the state agency
psychologists’ opinion that Mr. Al Akeel has a medically determinable impairment
of affective disorders and Dr. Hankee’s diagnosis of an adjustment disorder and
assessment of a severe G.A.F. of 50 are significant enough evidence that the ALJ
should have addressed them and articulated why he concluded that Mr. Al Akeel
does not have a mental impairment, that it was not severe, and/or that it did not
have any functionally limiting effects.
For this reason, the Commissioner’s decision will be reversed and remanded
for reconsideration of any mental impairment at steps two, three, and five.
3. Listing 1.05 B analysis. The ALJ considered Mr. Al Akeel’s right leg
amputation under listing 1.05B and found that it does not satisfy the criteria
because the evidence does not establish stump complications of the required
duration resulting in a medical inability to use a prosthetic device to ambulate
effectively. He found that the evidence demonstrates that Mr. Al Akeel is able to
use a prosthetic and to ambulate effectively. (R. 15.) His hypothetical to the
vocational expert defined the same restriction. (R. 56.) Mr. Al Akeel argues that
this finding is erroneous for three reasons.
First, he contends that the finding is inconsistent with the ALJ’s RFC
restricting Mr. Al Akeel to “work that allows him to use a hand held assistive device
to ambulate.” (R. 16.) Ineffective ambulation means “having insufficient lower
extremity functioning . . . to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities.”
20 C.F.R. Part 404, Subpt. P, App. 1, Part A, § 1.00B2b(1) (emphasis added).
Effective ambulation means sustaining a reasonable walking pace over a sufficient
distance to be able to carry out activities of daily living and traveling without
companion assistance to and from a place of employment or school. Id., §
1.00B2b(2). The regulation gives examples of ineffective ambulation, including “the
inability to walk without the use of a walker, two crutches or two canes . . . .” Id., §
1.00B2b(2). The ALJ’s restriction of Mr. Al Akeel to work allowing the use of “a
hand held assistive device,” without further qualification, contemplates the use of a
walker or other device that similarly could limit the functioning of both of Mr. Al
Akeel’s arms and, thus, is inconsistent with the ALJ’s step three finding that Mr. Al
Akeel is able to ambulate effectively (i.e., that he can ambulate with an assistive
device that limits the functioning of only one arm).
Second, Mr. Al Akeel argues that the ALJ failed to evaluate “the multitude of
evidence related to Plaintiff’s ambulation difficulties.” Mr. Al Akeel cites recorded
observations in the record of his limping, favoring his right leg, and using a cane,
and his testimony that he sometimes uses one cane and sometimes two canes.
However, the ALJ did discuss evidence showing, among other things, Mr. Al Akeel
walking and maneuvering with a prosthetic and without an assistive device,
medical opinion that he did not need any ambulatory aid but could perform normal
movements, and unremarkable examinations (R. 17), and he concluded that “[t]here
are few findings to support the claimant’s allegations of limitation in function
associated with the right leg amputation” and that “the examination findings do not
support the pain symptoms to the degree alleged . . . ” (Id.). An ALJ is not required
to mention every piece of evidence or all content of every piece of evidence. Because
the ALJ adequately explained his rationale and the court is able to trace his
reasoning, Mr. Al Akeel has not shown error in this regard.
Third, Mr. Al Akeel argues that the ALJ’s finding that “[t]he medical and
other evidence of record demonstrates that the claimant is able to use a prosthetic .
. .” (R. 15) is flawed and incomplete because it failed to address the evidence that
Mr. Al Akeel complained about problems with his prosthetic, that Dr. Sieber’s
examinations confirmed problems, and that Dr. Sieber recommended that Mr. Al
Akeel could benefit from a reexamination of the prosthetic to see if it could be
redesigned to provide a better fit. As noted above, the ALJ discussed evidence
showing Mr. Al Akeel’s unremarkable and successful use of the prosthetic without
assistance, and he specifically noted Dr. Sieber’s recommendation that he explore a
redesign for a better fit. (R. 17.) The ALJ concluded that the medical evidence does
not establish stump complications resulting in a medical inability to use a
prosthetic that has lasted or is expected to last at least twelve months. (R. 15.) Mr.
Al Akeel has not shown that the ALJ failed to articulate adequately his evaluation
of the evidence or his finding that any issues with the fit of his prosthetic has lasted
or is expected to last for at least twelve months.
Mr. Al Akeel has shown that the ALJ’s step three finding that he is able to
ambulate effectively with a prosthetic is inconsistent with his RFC determination
that restricts him to work that allows the use of an assistive device that might limit
the functioning of both arms. The Commissioner’s decision will be reversed and
remanded for reconsideration or clarification of the ALJ’s finding and/or RFC
4. Updated medical opinion regarding
medical equivalence. Mr. Al Akeel argues that the ALJ was required to obtain
an updated expert medical opinion on the issue of medical equivalence because
significant new evidence entered the record after the state agency experts had
rendered their opinions on initial and reconsideration review. 20 C.F.R. §
404.1526(e); S.S.R. 96-6p (“an administrative law judge . . . must obtain an updated
medical opinion from a medical expert . . . [w]hen additional medical evidence is
received that in the opinion of the administrative law judge . . . may change the
State agency medical or psychological consultant’s finding that the impairment(s) is
not equivalent in severity to any impairment in the Listing of Impairments”).
Mr. Al Akeel cites three relevant items of evidence that entered the record
after the state agency reviews: (1) the September 23, 2014 MRI of his right
shoulder; (2) the MRI of his lumbar spine of the same date; and (3) Dr. Sieber’s
notes of an August 2014 examination regarding Mr. Al Akeel’s concerns about his
stump, low back pain, and right shoulder pain. But Mr. Al Akeel does not put this
evidence in the context of the previous record nor show why the new evidence might
have changed the state agency medical experts’ opinions on medical equivalence.
Mr. Al Akeel has not shown that the ALJ erred by not calling for a
supplemental medical opinion on medical equivalence.
5. Lack of expert medical opinion on additional evidence. As noted
above, the two September MRIs (right shoulder and lumbar spine) and Dr. Sieber’s
August 2014 visit notes entered the record after the state agency experts had
conducted their reviews and rendered their expert opinions. Mr. Al Akeel argues
that the ALJ erred by interpreting this evidence on his own and concluding that it
is consistent with an RFC for sedentary work, rather than calling for a
supplemental medical expert review and opinion. However, again, Mr. Al Akeel
offers no explanation of what aspects of the MRIs or Dr. Sieber’s notes required
expert medical interpretation or their significance in the context of the ALJ’s
findings and conclusions. As discussed above, the ALJ found that Mr. Al Akeel’s
right shoulder impairment did not qualify as a severe impairment at step two
because it did not satisfy the duration requirement. (R. 14.) He also found that Dr.
Sieber’s recommendation in August 2014 was for Mr. Al Akeel to explore obtaining
a better fitting prosthetic and that, otherwise, his examination was unremarkable.
(R. 17.) The ALJ also noted that Dr. Sieber’s examination notes regarding Mr. Al
Akeel’s lower back pain were missing, that Dr. Sieber rendered no opinion
regarding a level of functional limitation resulting from Mr. Al Akeel’s back
condition, and that he drew no inference regarding duration of the condition or
resulting limitations. (R.19.) Mr. Al Akeel does not identify or explain which of
these findings or conclusions would be changed by which aspects of the new
evidence, and the court will not undertake that analysis on its own. Mr. Al Akeel
has not shown error.
6. Weight assigned to Dr. Ward’s opinion. Mr. Al Akeel describes John
B. Ward, M.D., as one of his primary care physicians, Plaintiff’s Brief, at 12, and the
attending physician during his physical therapy sessions in November and
December 2013, id., at 37. In November 2013, Dr. Ward completed a one-page
questionnaire, Statement of Medical Condition for Determination of Participation in
the IMPACT Program, for Indiana’s Family and Social Services Administration,
Division of Family Resources for the purpose of determining Mr. Al Akeel’s
eligibility for receiving job training and employment from the state. (R. 407.) On
this questionnaire, Dr. Ward gave diagnoses for Mr. Al Akeel of back pain, right leg
amputation, right knee instability, and arm fractures. For “General Strengths and
Capabilities,” Dr. Ward described quite severe limitations. He answered that Mr.
Al Akeel can sit for a maximum of one hour, stand for one-half to one hour, walk for
one-half hour, and lift five to ten pounds; he can grasp; and he is unable to
push/pull or bend. He also wrote that Mr. Al Akeel can work only twenty to thirty
hours per week. (R. 407.)
The ALJ gave “little weight” to Dr. Ward’s opinions on the questionnaire
because (1) there is little if any objective medical evidence in the record supporting
them, (2) no other treating or examining source endorsed such severe limitations,
(3) they are not supported by clinical findings in the record, (4) they are contrary to
the opinions of other examining and treating sources, and (5) they are inconsistent
with Mr. Al Akeel’s own statements and testimony. (R. 21.)
Generally, the Commissioner gives more weight to opinions from treating
sources, over only examining and non-examining sources. If a treating source’s
opinion on the nature and severity of a claimant’s impairments is well supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record, then the
Commissioner will give it controlling weight. 20 C.F.R. § 416.927(c)(2). If the
treating source opinion is not given controlling weight, the Commissioner considers
the following factors in determining the weight to assign the source’s opinion:
length of the treating relationship and the frequency of examination, nature and
extent of the treatment relationship, supportability (amount of relevant supporting
evidence (particularly medical signs and laboratory findings) and explanations the
source provides), consistency with the record as a whole, relevant specialization of
the source, and other factors (e.g., the source’s understanding of the standards
governing disability under the Social Security Act and the extent to which the
sources is familiar with the other evidence of record). 20 C.F.R. § 416.927(c)(2)(c)(6).
Mr. Al Akeel argues that granting Dr. Ward’s questionnaire opinions little
weight was erroneous because Dr. Ward was a treating physician, his opinions
related to the conditions for which he treated Mr. Al Akeel, he supported his opinion
with his diagnoses, his opinions are consistent with the 2014 MRIs, and the
opinions are consistent with Mr. Al Akeel’s own statements and testimony.
However, the ALJ was well aware that Dr. Ward was a treating source, but, as
noted above, he gave reasons for not granting his opinions controlling weight. That
Dr. Ward’s opinions relate to the conditions for which he was treating Mr. Al Akeel
simply shows relevance. It is not what the specialization factor considers: giving
more weight to the opinion of a specialist whose specialty directly pertains to the
subject of the opinion. There is no indication in the cited evidence what Dr. Ward’s
specialization is or how it relates to Mr. Al Akeel’s conditions or treatments.
Likewise, the supportability factor does not look for diagnoses; rather, it looks for
the evidence supporting the diagnoses and other medical opinions. Dr. Ward’s
diagnoses do not support his opinions about the severity of Mr. Al Akeel’s
impairments and their limiting effects. The medical signs, laboratory findings, and
explanations that underlay Dr. Ward’s opinions regarding the severity and limiting
effects of the conditions that he has diagnosed are the important factors, and Mr. Al
Akeel has not pointed to record evidence that tends to show the weight the ALJ
accorded Dr. Ward’s opinions was improper. Finally, Mr. Al Akeel fails to explain
how the 2014 MRIs support Dr. Ward’s opinions about the degree of functional
limitations that his conditions cause.
Mr. Al Akeel fails to address the ALJ’s reliance on the absence of supporting
objective evidence for Dr. Ward’s opinions, inconsistent treating and examining
opinions, and the lack of any indication by Dr. Ward of the medical bases for his
opinions. He has failed to show that the ALJ’s weighing of Dr. Ward’s opinions is
erroneous, and the court concludes that his determination in this regard is
supported by substantial evidence.
7. Credibility determination. Mr. Al Akeel argues that the ALJ’s
determination of the credibility of his statements describing the severity and
limiting effects of his symptoms is erroneous. He contends that the ALJ discredited
his statements because, first, Mr. Al Akeel had engaged in “athletic activity” which
was inconsistent with his allegations (R. 39-40) and, second, the objective medical
evidence doesn’t substantiate his allegations (R. 40). Mr. Al Akeel argues that the
first reason is incorrect because, as described above, the ALJ simply misunderstood
the record references to “weight lifting” and “lifting weights” to mean athletic
weightlifting, as in a gym, when, in fact, they mean simply lifting loads, as
indicated in the emergency room report regarding his strained shoulder after he
lifted a box for stacking. Second, he argues that, according to Social Security
regulation and policy, lack of confirmatory objective medical evidence for subjective
symptoms alone is insufficient to discount a claimant’s credibility.
Mr. Al Akeel does not specify the impairments or symptoms to which the
discredited statements related, but it is apparent that his argument is limited to the
ALJ’s credibility findings regarding his statements about his right shoulder and low
back pain because the ALJ did not mention Mr. Al Akeel’s weight lifting as reasons
to discredit his statements about ambulation or migraines.
Addressing Mr. Al Akeel’s low back pain, the ALJ found that he was not
entirely credible because his “allegations of pain and limitation are not in
proportion with the objective medical evidence throughout the period under review,”
he did not consistently complain of back pain and limitation, and he did not seek or
receive much treatment. (R. 17-18.) The ALJ cited the following facts in support:
(1) although he reported to Ms. Treadway in January 2013 that he had a history of
low back pain since 2006 and constant lower lumbar back pain that can radiate
down his left leg with left thigh muscle tightness, and although Ms. Treadway’s
examination revealed lumbar tenderness and a decreased range of lumbar motion,
her examination also demonstrated that he could walk unaided with his prosthetic,
he had normal left leg range of motion with good strength and stability, and she
only referred him to a physiatrist for further evaluation; (2) a March 2013 X-ray
study was unremarkable; (3) during an April 2013 examination by state agency
consultant Wallace Gasiewicz, M.D., Mr. Al Akeel reported severe limitations, but
Dr. Gasiewicz found a good range of lumbar motion, normal muscle strength in all
groups, no unsteadiness, negative straight leg testing, normal coordination, ability
to perform normal movements (walking, sitting, squatting, bending), no need for an
assistive device for ambulation, and he did not endorse any significant limitations of
work-related activities due to lumbar dysfunction; (4) reports of lumbar dysfunction
were noticeably absent from December 2013 to the end of June 2014; and (5) during
a June 2014 visit, Mr. Al Akeel reported getting little treatment for his back,
walked with a normal gait, and had normal range of motion, strength, sensation,
and reflexes. The ALJ concluded that Mr. Al Akeel’s statements were not fully
credible because (1) there was a lack of consistent subjective allegations and
treatment; (2) except for one course of physical therapy, he was not taking pain
medication or seeing a specialized treating source; (3) he was engaged in weight
lifting and working out in the gym; and (4) there was an absence of significant
opinions or findings up to late June 2014. (R. 18-19.)
As discussed above, the ALJ may have incorrectly inferred from the record
that Mr. Al Akeel did weight lifting. Because of this possible mistake, and the
evident weight that the ALJ laid upon it, his credibility determination is flawed.
On remand, the Commissioner must address whether a mistake was made and, if
so, must undertake the appropriate reassessment of Mr. Al Akeel’s credibility
regarding his right shoulder and lumbar impairments and limitations.
While Mr. Al Akeel is correct that lack of substantiating objective medical
evidence is not a legitimate reason for discrediting a claimant’s descriptions of
subjective symptoms, S.S.R. 96-7p, an ALJ can consider evidence that is
inconsistent with a claimant’s allegations when evaluating how credible those
allegations are. See Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013). As
summarized above, the ALJ cited normal lumbar and left leg ranges of motion,
muscle strength, sensation, and reflexes despite Mr. Al Akeel’s reports of severe
symptoms; expert medical opinion that he could perform normal walking, sitting,
squatting, and bending, and had no significant lumbar-related work limitations;
and inconsistent complaints and little treatment. This evidence tends to be
inconsistent with the extent of symptoms and limitations alleged by Mr. Al Akeel
and, therefore, was legitimately relied upon by the ALJ as a reason to find his
allegations to be not entirely credible.
Mr. Al Akeel has shown that the ALJ likely committed error when he relied
on Mr. Al Akeel’s perceived engagement in athletic weight lifting to discredit his
allegations about the severity of his right shoulder and lumbar symptoms and their
resulting functional limitations. On remand, this issue must be reconsidered.
8. Ability to communicate in English. In assessing Mr. Al Akeel’s
vocational profile for his step five determination, the ALJ simply stated that Mr. Al
Akeel is able to communicate in English. (R. 22.) There is significant evidence that
Mr. Akeel might have difficulties with communicating in English, see, e.g., R. 29
(use of an interpreter at the hearing, difficulty with answering questions), 335 (Dr.
Hankee’s report of his mental status examination, noting that Mr. Al Akeel “seemed
to understand very little English and generally did not respond in English”), 469
(Dr. Sieber noting that Mr. Al Akeel showed up with an interpreter and does not
speak English)), which the regulations recognize as a significant vocational factor
that can limit the number of existing jobs that a claimant can perform, 20 C.F.R. §
416.964(b)(5). But there is also evidence in the record tending to show that Mr. Al
Akeel can sufficiently communicate in English, and the Commissioner argues that
this contrary evidence is substantial evidence supporting the ALJ’s finding. The
problem, however, is that the ALJ did not address this issue and it is only his
rationale, not the Commissioner’s, that is relevant and reviewable. The absence of
any discussion in the ALJ’s decision not only prevents the court from reviewing the
ALJ’s finding but prevents the court from even assuming that the ALJ recognized
and resolved the evidentiary conflicts. Mr. Al Akeel has shown that two of the three
jobs identified by the ALJ that he can perform ― surveillance system monitor and
document preparer ― require levels of English proficiency that he might not be able
to meet. The vocational expert testified that an individual who cannot meet those
levels cannot perform the jobs. (R. 62-63.)
Therefore, the Commissioner’s decision will be reversed and remanded for
evaluation of Mr. Al Akeel’s ability to communicate in English, consideration of the
effect of his ability on the number of jobs that he can perform, and adequate
articulation of that evaluation and consideration, including findings and reasons for
resolutions of factual issues.
The Commissioner’s decision denying Mr. Al Akeel’s claim for S.S.I. disability
benefits is reversed and remanded. Consistent with the above discussion and
rulings, the Commissioner shall, on remand: (1) evaluate whether Mr. Al Akeel has
a mental impairment and, if so, assess its severity, resulting functional limitations,
and effects at steps two, three, and five; (2) address the apparent inconsistency
between the ALJ’s finding that Mr. Al Akeel can ambulate effectively and his RFC
limitation to jobs allowing use of an assistive device that could limit the functioning
of both arms; (3) consider whether the ALJ made a mistake regarding the nature of
record references to Mr. Al Akeel’s weight lifting and, if so, reassess the credibility
of Mr. Al Akeel’s statements regarding his lumbar and right shoulder impairments
and the effects of that reassessment on the disability determination; and (4)
evaluate Mr. Al Akeel’s ability to communicate in English and the effects of that
ability on the jobs he can perform.
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
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