BARTON v. COLVIN

Filing 28

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 Mr. Barton was not disabled. See Decision for details. Signed by Magistrate Judge Debra McVicker Lynch on 3/20/2018.(SWM)

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

)
)
)
)
) Case No.: 1:16-cv-03219-DML-TWP
)
)
)
)
)
)

Decision on Complaint for Judicial Review
Plaintiff Steven J. Barton applied in August 2012 for Supplemental Security
Income disability benefits (SSI) under Title XVI of the Social Security Act. His
application alleged a disability onset date from his date of birth in 1989. Acting for
the Commissioner of the Social Security Administration following a hearing held
May 11, 2015, administrative law judge Kimberly Sorg-Graves issued a decision on
June 23, 2015, finding that Mr. Barton is not disabled. The Appeals Council denied
review of the ALJ’s decision on September 22, 2016, rendering the ALJ’s decision for
the Commissioner final. Mr. Barton timely filed this civil action under 42 U.S.C. §
405(g) for review of the Commissioner’s decision. The parties consented to the
magistrate judge conducting all proceedings and ordering the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Mr. Barton contends the ALJ erred by (1) failing to address a medical opinion
that he medically equaled Listing 12.10, which an ALJ had relied on years earlier in

awarding benefits to Mr. Barton, (2) failing to address certain opinions by
vocational counselors who had worked with Mr. Barton, and (3) failing to account in
the RFC for his moderate difficulties with concentration, persistence, or pace.
The court will first describe the legal framework for analyzing disability
claims and the court’s standard of review, and then address Mr. Barton’s specific
assertions of error.
Standard for Proving Disability
To prove disability, a claimant must show he 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. § 1382c(a)(3)(A). Mr. Barton is disabled if his impairments are of such
severity that he is not able to perform the work he previously engaged in and, if
based on his age, education, and work experience, he cannot engage in any other
kind of substantial gainful work that exists in significant numbers in the national
economy. 42 U.S.C. § 1382c(3)(B). 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 he is, then he is not disabled. Step two asks whether the claimant’s
impairments, singly or in combination, are severe; if they are not, then he is not
disabled. A severe impairment is one that “significantly limits [a claimant’s]

2

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 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 his 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 his
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform his past relevant work, then he
is not disabled. The fifth step asks whether there is work in the relevant economy
that the claimant can perform, based on his vocational profile (age, work
experience, and education) and his RFC; if so, then he 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

3

perform, given his 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
her 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 her decision, but she cannot ignore a line of evidence that undermines the
conclusions she made, and she must trace the path of her reasoning and connect the
evidence to her 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.

Prior Award of Disability Benefits
The administrative record before the ALJ includes a decision issued by an

administrative law judge (Philip J. Simon) on September 1, 2009, that Mr. Barton
was disabled and entitled to disability benefits as of the date of his prior application

4

for SSI benefits on September 8, 2007. (R. 129-139). At that time, Mr. Barton was
a foster child and living in California. (See R. 132). These benefits were terminated
in 2012. The record does not reveal why; it is possible that the benefits had been
awarded under the child’s disability benefits program and they had “automatically”
terminated at that time.1
ALJ Simon had decided that Mr. Barton was presumptively disabled as
medically equaling Listing 12.10 based on the hearing testimony of a medical
doctor, Dr. Griffin. Dr. Griffin’s testimony about his opinions and the bases for
them are described in great detail in ALJ Simon’s decision.2 Dr. Griffin opined that
Mr. Barton suffered from autistic spectrum disorder, borderline intellectual
functioning, and learning disorders; he rendered opinions on the A and B factors of
Listing 12.10 and he explained why he determined that Listing 12.10 was medically
equaled, even though not met. ALJ Simon explained why he gave great weight to
Dr. Griffin’s opinions and why he gave less weight (and essentially rejected)
opinions in the record rendered by a treating psychologist (Dr. Rush), a consultative
examining psychologist (Dr. Krieg), and by a state agency reviewing psychologist.

SSI disability benefits to a child because of his own disability terminate when
the child turns 18 (because he is no longer deemed a “child”) or they can continue up
to age 22 if the child is in school. The date of termination of Mr. Barton’s benefits
seems to coincide with a change in age category over 22.
1

The transcript from the hearing before ALJ Simon is also in the
administrative record. See R. 80-128.
2

5

As addressed below in Section II, the ALJ here ignored the prior decision
awarding benefits and the opinions of Dr. Griffin that are described in great detail
in the prior decision and hearing transcript.
I.

The ALJ’s Sequential Findings
The application for benefits under review in this case was filed on August 30,

2012. Mr. Barton was born in 1989 and was 23 years old at the time of his SSI
application and 25 years old at the time of the ALJ’s decision.
At step one, the ALJ found that Mr. Barton had not engaged in substantial
gainful activity since he filed his application. Indeed, Mr. Barton has essentially no
work history.
At step two, the ALJ identified one severe impairment: “cognitive disorder,
with memory deficits.” (R. 22). At step three, he evaluated the impairment against
Listings 12.02 (organic mental disorders) and 12.10 (autistic disorder and other
pervasive developmental disorders) and found that neither was met or medically
equaled.
For purposes of applying steps four and five, the ALJ decided that Mr. Barton
has the following RFC. He can perform the full range of work at all exertional
levels, but his nonexertional limitations require work involving only “simple and
repetitive tasks, without a strict production rate” and “no more than occasional and
superficial interaction with the general public, coworkers, and supervisors.”
Mr. Barton had no past relevant work to evaluate at step four. Taking into
account this RFC and Mr. Barton’s vocational factors, the vocational expert testified

6

that Mr. Barton is capable of performing certain jobs that exist in significant
numbers in Indiana—medium level work as a dishwasher, laundry worker, or
dining room attendant. The ALJ credited the VE’s testimony and accordingly found
at step five that Mr. Barton is not disabled.
Analysis
As noted above, Mr. Barton makes three assertions of error: failing to
address the medical opinion from the earlier award of disability benefits; failing to
address important information provided by vocational counselors; and failing to
properly account in the RFC for his difficulties with concentration, persistence, or
pace.
The court finds that remand is required because the ALJ did not address the
medical opinion that led to an earlier award of benefits. The court need not and does
not resolve the other alleged errors.
I.

The ALJ was required to address all medical opinions in the record.
SSA regulations require an evaluation of all medical opinions in the record.

A medical opinion is a statement from an acceptable medical source that “reflect[s]
judgments about the nature and severity of [the claimant’s] impairment(s),
including [his] symptoms, diagnosis, and prognosis.” 20 C.F.R. § 416.927(a)(1). As
provided by 20 C.F.R. § 416.927(b), the Agency must “always consider the medical
opinions in [the claimant’s] case record together with the rest of the relevant
evidence we receive.” See also id. § 416.927(c) (“Regardless of its source, we will
evaluate every medical opinion we receive.”) The evaluation of a medical opinion

7

requires some discussion of the weight the ALJ gives to the opinion based on such
factors as 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 supported by other factors, such as the physician’s
understanding of SSA disability requirements. Id. § 416.927(c)(3), (4), (6). The
physician’s field of specialty is also considered. Id. § 416.927(c)(5).
Despite these clear regulatory requirements, ALJ Sorg-Graves never
mentioned Dr. Griffin’s medical opinion or even that Mr. Barton had received
disability benefits based on a prior decision that he was presumptively disabled
under Listing 12.10, a decision that was based primarily on Dr. Griffin’s medical
opinion. The court does not suggest that the ALJ was required to give any
particular weight to Dr. Griffin’s medical opinion; there are contradictory medical
opinions in the record that the ALJ did evaluate. But the ALJ cannot simply ignore
a line of evidence that undermines her conclusions. Scheck v. Barnhart, 357 F.3d
697, 700 (7th Cir. 2004).
The Commissioner’s argument that the ALJ was free to ignore Dr. Griffin’s
expert medical testimony from 2009 because it pre-dated Mr. Barton’s 2012
application for SSI benefits is rejected. The SSA regulations that require the
Agency to develop a medical history for a claimant for “at least the 12 months
preceding the month in which you file your application” does not allow the Agency
to ignore evidence in the record that precedes that 12-month period. The court is
aware of no authority for such a proposition (and the Commissioner does not cite

8

any); it is inconsistent with the SSA’s regulations; it is illogical; and it is contrary
to case law. See Eichstadt v. Astrue, 534 F.3d 663, 667 (7th Cir. 2008) (ALJ did not
refuse to consider evidence based on its date “but instead she examined it as
required”); Johnson v. Sullivan, 915 F.3d 1575 at *3 (7th Cir. 1990) (unpublished
decision) (“Johnson is correct that the ALJ should consider the record as a whole,
including pre-onset evidence (particularly relating to a degenerative condition) and
post-onset evidence.”); Halvorsen v. Heckler, 743 F.2d 1221, 1225-26 (7th Cir. 1984)
(finding that ALJ’s decision was not supported by substantial evidence in part
because he gave little, if any, consideration to medical records solely because of
their date—records post-dating the claimant’s date last insured—without regard to
whether the contents of the record shed light on the claimant’s disability at earlier
points in time). See also Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008)
(finding error in the ALJ’s failure to acknowledge medical evidence pre-dating the
claimant’s onset date because “the regulations require the ALJ to ‘consider all
evidence in [the] case record when [he] makes a determination or decision whether
[claimant is] disabled’”).
Because the ALJ ignored a medical opinion—and one that served as the
primary basis for a prior decision by the Agency that Mr. Barton was disabled—
reversal and remand is required.
II.

Other Alleged Errors
The court does not resolve the other errors alleged by Mr. Barton. On

remand, the ALJ should address the evaluations in the record provided by

9

vocational counselors and make clear the evidentiary bases upon which she found
that Mr. Barton’s particular difficulties with concentration, persistence, or pace
were appropriately accommodated by her RFC.
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 Mr. Barton was
not disabled.
So ORDERED.
Dated: March 20, 2018

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

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

10