BOWEN v. COLVIN

Filing 20

Order on Complaint for Judicial Review. 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. Bowen is not disabled. Signed by Magistrate Judge Debra McVicker Lynch on 9/29/2017.(KGK)

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

)
)
)
)
) Case No.: 1:16-cv-01877-DML-WTL
)
)
)
)
)
)

Decision on Complaint for Judicial Review
Plaintiff Laura L. Bowen applied in July 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 12, 2012. Acting for the Commissioner of the Social Security
Administration following a hearing held August 8, 2014, administrative law judge
Mario G. Silva issued a decision on November 19, 2014, finding that Ms. Bowen is
not disabled. The Appeals Council denied review of the ALJ’s decision on May 14,
2016, rendering the ALJ’s decision for the Commissioner final. Ms. Bowen timely
filed this civil action under 42 U.S.C. § 405(g) for review of the Commissioner’s
decision.
Ms. Bowen contends the Commissioner’s decision must be reversed and
remanded mainly because the Appeals Council did not articulate why new
evidence—in the form of functional limitations imposed by Ms. Bowen’s doctor

(Gary S. Ulrich, D.O.)—did not cause it to review Ms. Bowen’s claim. She also
contends that the ALJ’s credibility determination is patently wrong, although in
making this argument she relies in part on the functional limitations opinion of Dr.
Ulrich that the ALJ did not see.
The court will first describe the legal framework for analyzing disability
claims and the court’s standard of review and then address Ms. Bowen’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).1 Ms.
Bowen 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
that exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A).

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.
1

2

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
is not disabled. The fifth step asks whether there is work in the relevant economy

3

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

4

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. Bowen was born in 1964, was 47 years old at the alleged onset of her

disability in 2012 and 50 years old at the time of the ALJ’s decision. Ms. Bowen
completed the 11th grade. She has worked as a hand packager, store laborer, stock
clerk, cashier, and motor vehicle assembler. (R. 68-70). After her alleged onset date
in March 2012, Ms. Bowen began working part-time (about 20 to 25 hours per week)
in March 2014 in the laundry department of Turkey Run Inn. (R. 42-43). She
washes towels and sheets in commercial-sized appliances. Generally, she works four
hours per day, though sometimes six hours, and she is on her feet for about 50
minutes an hour and rests for 10 minutes. (R. 44). Ms. Bowen obtained this job
after having rehabilitated somewhat from a succession of surgeries to her right foot.
She had at least four successive surgeries.2

Ms. Bowen first had foot surgery in 2007, but was able to return to work. In
March 2012, however, foot surgery was required again. She had a third surgery on
July 3, 2012, because the implanted hardware from the March 2012 surgery was in
a “poor position” and was continuing to cause pain. After that surgery, she was still
in an air cast as of September 2012. When she continued to experience pain and
tenderness, she first underwent more conservative treatment, but then had another
foot surgery in December 2012. Ms. Bowen was placed in a cast, then a walking
boot, and underwent physical therapy and used a brace. Because she continued to
experience pain, she had another surgery on the same foot in September 2013. See
Dkt. 15 at pp. 5-10. Thus, between March 2012 and September 2013, Ms. Bowen
had four surgeries on the same foot. Because of the dates of the opinions of agency
reviewing physicians, they did not review documentation of Ms. Bowen’s December
2012 or September 2013 surgeries.
2

5

At step one, the ALJ found that Ms. Bowen had not engaged in substantial
gainful activity since her alleged onset date in March 2012. He found that her
earnings from the laundry job did not rise to the level of substantial gainful activity,
but stated that her “return to work was one of many factors used in assessing her
credibility.” (R. 22). At step two, he determined that her severe impairments were
obesity, degenerative joint disease of the right foot status post fusion, late effects of
an acute pulmonary embolism requiring Coumadin therapy, and hypertension.” (R.
23). He found no listings were met or medically equaled at step three.
In his RFC, the ALJ found Ms. Bowen can stand or walk or sit for up to four
hours each in an 8-hour work day, and cannot operate foot controls with the right
foot. He forbad her from climbing ladders, ropes, or scaffolds and from crawling,
and limited some of her postural activities (balancing, stooping, kneeling,
crouching) to an occasional level of frequency. He also forbad exposure to dangerous
activities and certain pulmonary irritants. (R. 25).
Based on the testimony of a vocational expert, the ALJ found at step four
that Ms. Bowen cannot perform her past relevant work. (R. 74). At step five, and
based on the testimony of the VE, the ALJ decided Ms. Bowen is capable of
performing the functions of three light-level, unskilled jobs (marker, mail clerk, and
routing clerk), which the VE described as jobs that are performed 50/50 between
sitting and walking/standing. (R. 74). The ALJ thus determined at step five that
she is not disabled. If Ms. Bowen needed to elevate her foot to waist level every hour

6

for about five minutes, she could not perform this work, according to the VE. (R.
76).
II.

Ms. Bowen’s Assertions of Error
Ms. Bowen makes two arguments for remand. First, she asserts that the

Appeals Council improperly concluded that evidence submitted to it was not new
and material to her claim for benefits. The subject evidence is a physical RFC
opinion by Dr. Gary Ulrich dated October 31, 2014. His opinion states that Ms.
Bowen can stand two hours during a typical 8-hour work day and needs a break at
that point. She also must elevate her foot to above waist level. (R. 572). Ms.
Bowen’s second assertion of error is that the ALJ’s credibility determination is
patently wrong. The court finds that the circumstances surrounding the Appeals
Council’s treatment of Dr. Ulrich’s opinion is sufficiently similar to the facts in
Stepp v. Colvin, 795 F.3d 711 (7th Cir. 2015), that a remand is required for the
Commissioner to evaluate Dr. Ulrich’s opinion. The court also emphasizes that the
Commissioner failed to specifically discuss the Stepp decision in its response brief
(choosing instead to focus on the Seventh Circuit’s discussion of these issues from
earlier cases), even though Ms. Bowen had argued in her opening brief that her fact
pattern was “nearly identical” to Stepp. The ALJ’s credibility determination should
also be reconsidered in light of that evidence.3

Moreover, the court notes that the ALJ did not consider Ms. Bowen’s
strong work history in assessing her credibility. See Hill v. Colvin, 807 F.3d 862,
868 (7th Cir. 2015) (claimant with solid work history is entitled to “substantial
credibility”). Further, the ALJ suggested that Ms. Bowen’s post-onset, part-time
work for the hotel laundry reflected negatively on her credibility (R. 22), but
3

7

III.

The Commissioner should review Dr. Ulrich’s opinion.
Social Security regulations permit a claimant to submit evidence to the

Appeals Council. Under 20 C.F.R. § 404.970(b), the Appeals Council can consider
evidence that is “new and material” and “relates to the period on or before the date
of the [ALJ’s] decision”:
If new and material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the period on
or before the date of the administrative law judge hearing decision.
The Appeals Council shall evaluate the entire record including the new
and material evidence submitted if it relates to the period on or before
the date of the administrative judge hearing decision. It will then
review the case if it finds that the administrative law judge’s action,
findings, or conclusion is contrary to the weight of the evidence
currently of record.
Under this regulation and the Appeals Council’s policies, it considers newlysubmitted evidence in two phases. At the first step, the Appeals Council determines
whether the evidence is new and material and relates to the proper time period. If
the Appeals Council decides that the evidence does not fit the required
qualifications, it denies review of the ALJ’s decision. The determinations whether
the evidence is new/material/relates to the proper time period are reviewable by a
court. At step two, after a determination that evidence is new/material/relates to

logically her work activity reflects positively on her credibility. See Stark v. Colvin,
813 F.3d 684, 689 (7th Cir. 2016) (among other problems with ALJ’s credibility
finding, the ALJ should have acknowledged the claimant’s efforts to continue
working while experiencing significant pain and treatments to relieve it). The ALJ
also, oddly, described that Ms. Bowen’s treatment of her foot orthopedic issues were
only “conservative” and suggested that she opted for surgery even though she did
not need it. (R. 27-28). Ms. Bowen had four surgeries within about 18 months,
which is hardly conservative treatment, and there is no indication that a doctor did
surgery even though he did not think it would provide relief.
8

the proper time period, the Appeals Council then decides whether in light of the
new evidence, the ALJ’s decision is “contrary to the weight of the evidence.” That
latter decision is discretionary and not reviewable by a court. See Stepp v. Colvin,
795 F.3d 711, 721 (7th Cir. 2015). If the Appeals Council reached step two but found
that the ALJ’s decision was not contrary to the weight of the evidence, it denies
review.
Because the Appeals Council takes similar action—denying review—when it
has made a negative determination at step one (the evidence is not new/material)
and when it makes a positive determination at step one (the evidence is
new/material) but also decides the ALJ’s decision is not contrary to the weight of
the evidence, it is difficult for a court to determine whether it can review what the
Appeals Council has done unless the Appeals Council’s documentation of its
decision-making makes clear what it has done. See Stepp, 795 F.3d at 721-725
(addressing these issues). Here, however, as in Stepp, the court cannot tell from the
administrative record whether the Appeals Council made a negative determination
at step one, which the court can review, or did not.
The court decides that the factual circumstances surrounding the “new”
evidence submitted to the Appeals Council are sufficiently like that in Stepp that it
can evaluate whether the evidence is new and material. There is no doubt that Dr.
Ulrich’s opinion is material (creating a reasonable probability that the
Commissioner would reach a different decision if the evidence was considered).
Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997). If Dr. Ulrich’s opinion were

9

credited, Ms. Bowen could not perform the duties of the three jobs about which the
VE testified.4 The opinion also relates to the period under review by the ALJ; it is
dated October 31, 2014, and the ALJ issued his decision on November 19, 2014.
The more thorny question is whether the opinion is “new.” Evidence is “new” if it
was not in existence or available to the claimant at the time of the administrative
proceeding. See Stepp, 795 F.3d at 725. In Stepp, the “new” evidence consisted of
treatment notes for medical visits that were created just prior to the ALJ’s denial of
the disability claim but the claimant had not been able to submit them to the ALJ
before the decision was rendered. Id. at 725. Similar facts are present here. Dr.
Ulrich’s opinion is dated October 31, 2014, and according to Ms. Bowen’s counsel,
she submitted the evidence before either she or her counsel had received the ALJ’s
decision and only one day after the decision was entered. Because of the similarity
of the fact pattern, the court reaches the same result as in Stepp.
The court remands for a re-evaluation of Ms. Bowen’s RFC in light of the
information provided by Dr. Ulrich.
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. Bowen is
not disabled.
So ORDERED.

The court does not suggest that Dr. Ulrich’s opinion must be credited. SSA
regulations prescribe factors that must be considered in deciding the weight to give
a medical opinion. The court does not make that analysis in the first instance.
4

10

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Dated: September 29, 2017

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

11