SNIPES v. COLVIN
ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL: The Court finds that the ALJ committed reversible error. The Court grants Snipes' brief in support of appeal [Filing No. 23] and remands this case to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). See Order for details. Signed by Magistrate Judge Tim A. Baker on 6/9/2017.(SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NANCY A. BERRYHILL Acting
Commissioner of the Social Security,
ORDER ON PLAINTIFF’S BRIEF IN SUPPORT OF APPEAL
The parties appeared by counsel on April 12, 2017, for an oral argument on Plaintiff
Magaleen Snipes’ brief in support of appeal. It is undisputed that Snipes is disabled; she was
awarded partial benefits. The issue is whether the Administrative Law Judge erred in his
conclusion that Snipes was not disabled before April 22, 2014. After taking the case under
advisement, the Court finds the ALJ erred. Snipes’ brief in support of appeal [Filing No. 15] is
granted, and the Commissioner’s decision is reversed and remanded.
Snipes applied for Disability Insurance Benefits and Supplemental Security Income on
March 8, 2011, alleging disability beginning on May 13, 2009. Snipes’ claims were denied
initially and upon reconsideration. On May 17, 2012, Snipes, represented by an attorney,
appeared and testified at a hearing before an ALJ. Snipes returned for another hearing before the
ALJ on November 6, 2012. On November 28, 2012, the ALJ issued his decision that Snipes is
not disabled. The Appeals Council denied Snipes’ request for review, and she sought judicial
At the District Court, the Commissioner stipulated to a joint remand. On March 24,
2015, the Appeals Council issued a remand order and Snipes appeared for another hearing before
the ALJ on January 6, 2016. The ALJ issued a partially favorable decision on March 23, 2016,
finding Snipes became disabled on April 22, 2014.
At step one, the ALJ found Snipes has not engaged in substantial gainful activity since
the alleged onset date. At step two, the ALJ found Snipes’ severe impairment is degenerative
disc disease. At step three, the ALJ found Snipes’ impairment does not meet or medically equal
a listing. At step four, the ALJ found that prior to April 22, 2014, Snipes had the Residual
Functional Capacity to perform light work, except
she could stand and walk for a total of six of eight hours and sit for six of eight
hours provided she had the option to alternate to a sitting or standing position for
one to two minutes each hour. She could not climb ropes, ladders, or scaffolds.
She could occasionally climb stairs or ramps. She could not kneel or crawl. She
should avoid work at unprotected heights, working around dangerous moving
machinery, operating a motor vehicle, or working around open flames or large
bodies of water.
[Filing No. 17-8, at ECF p. 12.] However, the ALJ found that after April 22, 2014, Snipes only
had the RFC to perform sedentary work, with
the option to alternate to a sitting or standing position for one to two minutes each
hour. She cannot climb ropes, ladders, or scaffolds. She can occasionally climb
stairs or ramps. She cannot kneel or crawl. She should avoid work at unprotected
heights, working around dangerous moving machinery, operating a motor vehicle,
or working around open flames or large bodies of water.
[Filing No. 17-8, at ECF p. 17.]
At step five, the ALJ relied on the testimony of a vocational expert to find that prior to
April 22, 2014, Snipes was capable of performing her past work as a hairstylist, as well as the
work of a cashier, mail clerk, or merchandise marker. However, beginning on April 22, 2014,
Snipes’ RFC prevented her from being able to perform her past work or any other jobs in the
national economy. As a result, Snipes was awarded SSI beginning April 22, 2014, but was
denied DIB because her date last insured was March 31, 2013. This appeal followed.
The Court must uphold the ALJ’s decision if substantial evidence supports his findings.
Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). The ALJ is obligated to consider all relevant
medical evidence and cannot simply cherry-pick facts that support a finding of nondisability
while ignoring evidence that points to a disability finding. Denton v. Astrue, 596 F.3d 419, 425
(7th Cir. 2010). If evidence contradicts the ALJ’s conclusions, the ALJ must confront that
evidence and explain why it was rejected. Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014).
The ALJ need not mention every piece of evidence so long as he builds a logical bridge from the
evidence to his conclusion. Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013).
This appeal rises and falls on the ALJ’s treatment of Dr. Brovender’s opinion. The ALJ
gave great weight to the opinion of Dr. Brovender, the medical expert who testified at the
January 2016 hearing. [Filing No. 17-8, at ECF p. 16.] Dr. Brovender opined that Snipes was
not disabled. However, as explained below, Dr. Brovender’s opinion is full of troubling errors
and his RFC is open to multiple interpretations. The ALJ cherry-picked Dr. Brovender’s opinion
and ignored evidence demonstrating that Snipes was disabled prior to April 22, 2014. Thus,
remand is appropriate.
Errors in Dr. Brovender’s testimony
Dr. Brovender testified to several facts that were manifestly untrue. Dr. Brovender
testified that Snipes’ degenerative disc disease did not meet or equal the listing for 1.04 because
“[s]he does not have—she didn’t have a neuro-anatomic distribution of pain. She had no motor
loss or atrophy associated with muscle weakness, and she has no sensory or reflex changes. And
she has negative straight leg raising.” [Filing No. 17-8, at ECF p. 51.]
Notably, Dr. Brovender did not examine Snipes—his testimony is based on his review of
her medical record. However, the medical record is at odds with Dr. Brovender’s testimony. To
begin, the record contains evidence of a neuro-anotomic distribution of pain. An August 20,
2010, EMG documents radiculopathy in the lower extremities with numbness, tingling, and pain
affecting her lower back and into her right leg. [Filing No. 17-7, at ECF p. 9.] This EMG is a
clinical finding relied on in Dr. Kuonen’s medical source statement. [Filing No. 17-7, at ECF p.
99.] On March 26, 2011, the consultative doctor observed Snipes “ambulates with a slow
limping gait which favors the right, which is unsteady” and that she “appears uncomfortable in
the seated and supine positions; she frequently repositioned herself and changed positions,” after
noting that her pain has “progressively worsened to a constant right sided pain radiating to her
right buttock, posterior thigh and calf to toes with weakness, numbness and tingling” that
“increased with walking, standing and sitting and changes of temperature.” [Filing No. 17-7, at
ECF p. 16-19.] On September 12, 2012, Snipes described shooting pains down her right leg, a
sensation of her leg feeling heavy when she walked, bad balance, and a burning sensation in her
bilateral ankles. [Filing No. 17-7, at ECF p. 83-84.]
Other medical evidence conflicts with Dr. Brovender’s testimony that she had no motor
loss or atrophy associated with muscle weakness. On April 5, 2010, Dr. Kuonen ordered an MRI
of Snipes’ lumbar spine due to “pain with weakness on right side.” [Filing No. 17-7, at ECF p.
12.] On March 26, 2011, Dr. Brater observed motor loss, including the inability to walk on the
heels or toes, tandem walk, or squat as well as “weakened lower extremities R>L” and “an
unsteady limping gait.” [Filing No. 17-7, at ECF p. 18.] On November 9, 2011, a physical
therapist observed weakness with regard to flexion, extension, abduction, adduction, internal
rotation, and external rotation, as well as lower joint tenderness R>L. [Filing No. 17-7, at ECF
p. 52.] The therapist indicated she “demonstrates lumbopelvic disfunction and weakness to
core.” [Filing No. 17-7, at ECF p. 52.]
Also, evidence of Snipes’ reduced sensory reflexes conflicts with Dr. Brovender’s
testimony that she has no reflex changes. On November 10, 2010, an attending physician
observed diminished reflexes in the lower extremities [Filing No. 17-7, at ECF p. 14], and
neurosurgeon Dr. Shapiro observed an “absent [A]chilles reflex on the left.” [Filing No. 17-7, at
ECF p. 8.] On March 26, 2011, Dr. Brater observed “abnormal patellar reflex on the right.”
[Filing No. 17-7, at ECF p. 18.] At an ER visit on September 6, 2011, the attending physician
observed a diminished Achilles reflex. [Filing No. 17-7, at ECF p. 58.] On April 29, 2014,
neurosurgeon Dr. Miller observed reduced reflexes “in the bilateral upper and lower
extremities.” [Filing No. 17-13, at ECF p. 30.]
Finally, the many medical observations of Snipes’ positive straight leg raises conflict
with Dr. Brovender’s testimony that she has negative straight leg raises. For example, in
November 2011, Snipes’ physical therapy sessions document positive straight leg raises. [Filing
No. 17-7, at ECF p. 51-52.] Overall, the record contains at least four instances of positive
straight-leg raising tests prior to April 22, 2014, including March 2011 [Filing No. 17-7, at ECF
p. 17], November 2011 [Filing No. 17-7, at ECF p. 52], November 2013 [Filing No. 17-19, at
ECF p. 6], and January 2014 [Filing No. 17-14, at ECF p. 30-31], and at least three instances
after April 22, 2014, including April 29, 2014 [Filing No. 17-13, at ECF p. 665], July 2014 [Id.
at 675], and August 2014 [Id. at 680]. Alarmingly, Dr. Brovender failed to acknowledge any of
Dr. Brovender’s testimony and the medical evidence cannot be reconciled. The ALJ
erred by heavily relying on Dr. Brovender’s testimony without recognizing these conspicuous
factual errors. Procedurally, the ALJ should have confronted the medical evidence that was
contrary to Dr. Brovender’s testimony. The medical expert’s testimony was erroneous, as was
the ALJ’s reliance on it. Remand is therefore appropriate for the ALJ to obtain a new expert
Dr. Brovender’s RFC
The ALJ also relied on Dr. Brovender’s opinion in his RFC determination to conclude
that Snipes “could sit six hours and stand or walk six hours.” [Filing No. 17-8, at ECF p. 14.]
However, Dr. Brovender’s actual testimony is not in line with this conclusion. In fact, his
testimony is not necessarily in line with itself. Dr. Brovender testified, “She can sit for six hours
and she can do a combination of both stand and walk for six hours or three and three, whichever
way she was more comfortable.” [Filing No. 17-8, at ECF p. 50.] He also testified “the
maximum amount of standing” would be three hours, and that the “maximum amount of
walking” would be three hours. [Filing No. 17-8, at ECF p. 51.] He then testified that it “may
be more comfortable four and two.” [Filing No. 17-8, at ECF p. 51.]
Ultimately, it is unclear whether Dr. Brovender found she could stand four and walk two,
stand three and sit three, or do a combination for less than six. Dr. Brovender’s testimony is
open to multiple interpretations. However, it is clear that the ALJ’s RFC finding that Snipes
The Court is concerned with the accuracy of Dr. Brovender’s testimony and his attitude toward
Snipes. The serious factual errors and sweeping conclusion that Snipes is not disabled suggests
Dr. Brovender may not be able to offer fair and accurate testimony. Keith v. Barnhart, 473 F.3d
782, 789 (7th Cir. 2007). On remand, the ALJ should consider designating another medical
expert to testify.
could sit, stand, or walk for six hours is not supported by Dr. Brovender’s testimony. Thus, the
ALJ’s RFC is not supported and is erroneous.
Furthermore, the hypothetical proposed to the VE is erroneous because it is based on the
unsupported RFC. The hypothetical individual described to the VE is able to “stand and/or walk
for a total of 6 of 8 hours, and sit for 6 of 8 hours, provided the individual has the option to
alternate to a sitting or standing positing at her option for 1 or 2 minutes each hour.” [Filing No.
17-8, at ECF p. 56.] Like the RFC, this hypothetical is not supported by the record. So too, the
VE’s finding is unsupported, that Snipes’ “past work would fit this hypothetical,” as well as a
cashier, mailroom clerk, and merchandise marker. [Filing No. 17-8, at ECF p. 56-57.] The ALJ
relied on a chain of errors to conclude Snipes is not disabled. In particular, the VE testimony is
based on an erroneous RFC. [Filing No. 17-8, at ECF p. 21.] Thus, remand is appropriate for
the ALJ to determine Snipes’ RFC based on the medical evidence in the record.
Snipes may medically equal the listing
Snipes points out that the record contains a significant amount of medical evidence that
shows she may medically equal the listing for degenerative disc disease before April 22, 2014.
The listing criteria are “compromise of a nerve root or the spinal cord, with evidence of nerve
root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in
pseudoclaudication.” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) (citing 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 1.04). Snipes’ argument appears well taken.
First, the record contains evidence that Snipes’ nerve roots are compromised. A 2010
MRI revealed Snipes has “[b]ilateral lateral recess stenosis with likely impinging on bilateral S1
nerve roots.” [Filing No. 17-7, at ECF p. 11.] A 2012 MRI revealed evidence of “subsequent
severe bilateral foraminal stenosis” as well as lateral recess stenosis at the same level. [Filing
No. 17-7, at ECF p. 74.] A January 30, 2014, MRI revealed disc material which “contacts the S1
nerve roots.” [Filing No. 17-13, at ECF p. 73.] During corrective surgery on October 8, 2014,
the surgeon reported that “disk fragments were removed, decompressing the S1 nerve root. We
did take out the ligament and medial facet joint that were hypertrophied over the lateral recess of
S1.” [Filing No. 17-13, at ECF p. 54.]
Second, the record contains evidence that Snipes experienced lumbar spinal stenosis
resulting in pseudoclaudication. On March 26, 2011, Dr. Brater observed a limited range of
motion of the lumbar spine in forward flexion, extension, and lateral bend. [Filing No. 17-7, at
ECF p. 17.] On November 6, 2013, Dr. Shukla observed a restricted lumbar range of motion.
[Filing No. 17-19, at ECF p. 6.] In October and November 2010, Dr. Kuonen indicated a gait
abnormality. [Filing No. 17-7, at ECF p. 8, 14.] In November 2011, Snipes’ physical therapy
sessions document reduced strength. [Filing No. 17-7, at ECF p. 51-52.] In November 2013,
Snipes experienced restricted lumbar range of motion. [Filing No. 17-19, at ECF p. 4-7.]
The ALJ’s analysis significantly ignored this evidence at step three. Rather, the ALJ
heavily relied on Dr. Brovender’s testimony that Snipes does not meet or medically equal the
listing. On remand, when the ALJ obtains new medical expert testimony and re-reviews the
medical record, he may find that Snipes meets the listing for degenerative disc disease.
Remand is appropriate because the ALJ cherry-picked Dr. Brovender’s opinion despite
clear factual errors, and the ALJ ignored evidence demonstrating that Snipes was disabled before
April 22, 2014. The ALJ’s reliance on Dr. Brovender’s problematic testimony caused both the
RFC and the VE’s testimony to be erroneous. On remand, the ALJ should review the evidence
to determine whether Snipes meets or medically equals the listing for degenerative disc disease. 2
For all these reasons, the Court finds that the ALJ committed reversible error. The Court
grants Snipes’ brief in support of appeal [Filing No. 23] and remands this case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g).
Joseph R. Wambach
KELLER & KELLER
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Nicholas Thomas Lavella
KELLER & KELLER
Matthew Frederick Richter
KELLER & KELLER LLP
Cristen Elizabeth Meadows
SOCIAL SECURITY ADMINISTRATION
Jill Z. Julian
UNITED STATES ATTORNEY'S OFFICE
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
This decision does not discuss Snipes’ credibility, as it was not the main issue in this appeal.
However, the ALJ should reassess this issue on remand.
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