CROZIER v. COLVIN

Filing 30

DECISION on Judicial Review: The Commissioner's decision that Mr. Crozier was not disabled is REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g). See Decision. Signed by Magistrate Judge Debra McVicker Lynch on 3/13/2018.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID CROZIER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.

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No. 1:17-cv-00035-DML-TWP

Decision on Judicial Review
Mr. Crozier applied on January 21, 2013, for Disability Insurance Benefits
(DIB) under Title II of the Social Security Act, alleging that he has been disabled
since January 1, 2011. Acting for the Commissioner of the Social Security
Administration following a hearing on March 16, 2015, an administrative law judge
(ALJ) found that Mr. Crozier is not disabled. The Appeals Council denied review of
the ALJ’s decision on November 1, 2016, rendering the ALJ’s decision for the
Commissioner final. Mr. Crozier timely filed this civil action under 42 U.S.C. §
405(g) for review of the Commissioner’s decision. For the reasons set forth below,
this court REVERSES and REMANDS the Commissioner’s decision.
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. § 423(d)(1)(A). Mr. Crozier 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. § 423(d)(2)(A). 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]
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 his residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is

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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 age, work experience, and education
(which are not considered at step four), 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
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
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
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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
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).
The ALJ’s Sequential Findings
Mr. Crozier was born in 1953 and was 57 years old at the time of the alleged
onset date. Mr. Crozier and a vocational expert testified at the hearing.
At step one, the ALJ determined that Mr. Crozier had not engaged in
substantial gainful activity since January 1, 2011, the alleged onset date. At step
two, the ALJ found Mr. Crozier had the following severe impairment: degenerative
disc disease (spondylosis and stenosis at L4-L5). At step three, the ALJ concluded
that Mr. Crozier did not have an impairment or combination of impairments that
met or medically equaled one of the listed impairments. (R. 44-46).
Considering his impairments, the ALJ determined Mr. Crozier has the RFC
to perform light work as defined in the regulations, with the following limitations.
Mr. Crozier can never climb ladders, ropes, and scaffolds, but he can frequently
climb ramps and stairs. He can frequently balance, stoop, kneel, crouch, and crawl.
He must avoid concentrated exposure to vibrations and hazards. (Id. at 46).
With this RFC and based on the ALJ’s review of testimony of a vocational
expert (VE), the ALJ found at step four that Mr. Crozier was able to perform his
past relevant work as a production engineer. Therefore, the ALJ determined Mr.
Crozier has not been under a disability from January 1, 2011, through the date of
the ALJ’s decision. (Id. at 49-50). Mr. Crozier now challenges this outcome.
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Analysis
Mr. Crozier argues the following errors necessitate remand: (1) the ALJ failed
to articulate why Mr. Crozier’s severe impairment did not meet or equal a listing
and (2) the ALJ failed to account for all of the effects of Mr. Crozier’s impairments
when assessing the RFC, specifically the adverse effects of medication and
headaches. The court will address each of these arguments in turn.
A. The ALJ’s step three decision was supported by substantial
evidence.
Mr. Crozier’s step three argument is without merit. At the hearing, counsel
for Mr. Crozier – the same attorney representing Mr. Crozier in this appeal – told
the ALJ his theory of the case was as follows:
He doesn’t have the clinical findings that one would associate
with meeting 104a or 104c. But that kind of problem with
radiculopathy and going into his leg is certainly consistent
with a general limitation to at most light work. Even then,
the ability to sustain light work, I think, would be
questionable given what he’s talked about today.
(R. 35) (emphasis added). Mr. Crozier’s attorney ultimately maintained that Mr.
Crozier should be given a sedentary RFC, at which point he would grid out. (Id.)
But Mr. Crozier's argument to the Appeals Council with respect to Listing 1.04A,
although characterized as a deficiency of the ALJ’s listing analysis, was that the
medical evidence shows that Mr. Crozier equals the listing. (R. 201). Here, a
substantial portion of Mr. Crozier’s step three argument is devoted to arguing that
the criteria of Listing 1.04A has been met. (Br. at 15-17).
The problem for Mr. Crozier is that the ALJ agreed with his attorney
regarding the clinical findings. At step three, the ALJ found as follows:
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As presented in further detail with the claimant’s [RFC]
assessment, the record does not contain clinical findings or test
results that meet the level of severity required by any of the
musculoskeletal system listings. In addition, no medical expert
has mentioned findings that would equal the criteria for any of
the listed impairments. The undersigned has specifically
considered the requirements of listing 1.04 in making the
finding that the severity of the claimant’s impairment does not
meet or equal a listing.
(R. 46).
True to his word, the ALJ discussed Mr. Crozier’s medical records – including
much of the evidence cited in Mr. Crozier’s brief – in further detail in the RFC
assessment. (R. 47-49). Ultimately, the ALJ concluded:
The undersigned notes that the claimant’s representative
argued that the claimant’s lumbar MRI, which showed
nerve root impingement, would if capable of light work,
necessitate the claimant needing the option to sit or stand
at will, but such objective findings in his opinion should
limit the claimant to a sedentary exertional capacity
(Hearing Testimony). However, two medical doctors, after
reviewing the claimant’s medical records, came to the
same conclusion regarding the claimant’s capabilities of
performing light work and neither opined that the
claimant would need an option to sit or stand at will.
Furthermore, as noted above, evidence received at the
hearing level shows that the claimant was engaged in
activities that are inconsistent with sedentary work, and
the claimant’s limited treatment support no worsening of
the claimant’s limitations since the State agency medical
consultants rendered their opinions.
(Id. at 49). Cf. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006) (“What is
troubling is that the ALJ, in addition to not mentioning Listing 1.04A, did not
evaluate any of the evidence on its required criteria that is favorable to [the
claimant].”).

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The ALJ bears responsibility for deciding medical equivalence for cases at the
ALJ level. 20 C.F.R. § 404.1526(e). While “longstanding policy requires that the
judgment of a physician (or psychologist) designated by the Commissioner on the
issue of equivalence on the evidence before the [ALJ] or the Appeals Council must
be received into the record as expert opinion evidence and given appropriate weight”
(SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996)), Disability Determination and
Transmittal Forms “conclusively establish that ‘consideration by a physician . . .
designated by the Commissioner has been given to the question of medical
equivalence at the initial and reconsideration levels of administrative review.’”
Scheck, 357 F.3d at 700 (internal citations omitted); see also SSR 96-6p, 1996 WL
374180, at *3. “Other documents, including the Psychiatric Review Technique
Form and various other documents on which medical and psychological consultants
may record their findings, may also ensure that this opinion has been obtained at
the first two levels of administrative review.” SSR 96-6p, 1996 WL 374180, at *3.
As the ALJ explained in his opinion, the state agency medical consultants
specifically considered Mr. Crozier’s September 2012 lumbar MRI, his reduced
range of motion in his lumbar spine, and his limped gait. (R. 49); see also R. 60, 70.
However, they ultimately determined, as reflected in the DDT forms in the record,
that Mr. Crozier was not disabled. Cf. Wadsworth v. Astrue, No. 1:07-cv-0832, 2008
WL 2857326, at *7 (S.D. Ind. July 21, 2008) (“Here, no medical advisor designated
by the Commissioner has expressed an opinion as to whether [the claimant’s]
impairments equaled a listing.”)

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Mr. Crozier faults the state agency consultants’ Disability Determination
Explanations because they did not specifically mention “the findings of the
impinged nerve root at L4,” one treating physician’s “findings regarding weakness
and sensation loss,” and a single positive straight leg test in March of 2013.1 (Br. at
20). However, Mr. Crozier fails to identify how these omissions change the analysis
regarding whether Mr. Crozier met or medically equaled a listing – especially when
this medical evidence was before the state agency consultants and Mr. Crozier’s
own attorney admitted at the hearing that Mr. Crozier lacked the clinical evidence
one would associate with Listing 1.04A. In addition, Mr. Crozier identifies only one
medical record in support of this argument that post-dates the state agency
consultants’ review (Id. at 16), but he likewise fails to explain how that record
would change the ALJ’s step three analysis.
It is the claimant’s burden to prove that his condition meets or equals a listed
impairment. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999). Although the
ALJ “bear[s] some responsibility for developing the administrative record . . . [the
ALJ is] also free to assume that a claimant represented by counsel has presented
[his] strongest case for benefits . . . .” Buckhanon v. Astrue, 368 F. Appx. 674, 679
(7th Cir. 2010) (internal citations omitted). Mr. Crozier knew in 2013 that the
state-agency consultants did not think he was disabled. Mr. Crozier, represented by
counsel, never presented an opinion on whether he met or equaled a listing, nor did

The only other straight leg test identified by Mr. Crozier predated the alleged
onset date.

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he ask the ALJ to recontact the state agency consultants. At the same time,
however, Mr. Crozier was gathering other evidence for the record. In these
circumstances, the appropriate inference is that Mr. Crozier decided another expert
opinion would not help him. Id. (court could not conclude ALJ erred or “any
putative error was harmful;” ALJ expressly relied on medical judgment of state
agency consultants and claimant’s medical providers remained silent on question of
medical equivalence).
B. Remand is required because the ALJ failed to consider the
adverse side effects of Mr. Crozier’s pain medication.
Mr. Crozier argues that the ALJ erred by failing to mention or account for the
adverse side effects he suffered while taking narcotics for his back pain. Although
raised in the context of a challenge to the ALJ’s RFC analysis, Mr. Crozier’s
argument also appears to be an attack on the ALJ’s step four determination that
Mr. Crozier could return to his past work as a production engineer.
There are a number of references throughout the record to the side effects of
Mr. Crozier’s pain medication. (See, e.g., R. 18, 185, 193.) Mr. Crozier testified at
the hearing that he had tried a number of medications prescribed by his doctor,
including oxycontin and naproxen, for his back pain. (Id. at 18). He testified that
outside of ibuprofen, the medications interfered with his job function as they
“sedated [him] to the point where [he] couldn’t use those during the daytime hours.”
(Id.) Even taking the medication at night caused him to wake up drowsy. (Id.)
Once he stopped working, which included travelling and walking on concrete floors,
he was able to stop taking the narcotics. (Id.)
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The Seventh Circuit has indicated that an ALJ’s failure to consider the
adverse side effects of a claimant’s medication can constitute error. See Schomas v.
Colvin, 732 F.3d 702, 709 (7th Cir. 2013) (if the ALJ disbelieved claimant’s
testimony regarding side effects of medication, ALJ “needed to explain that finding
in order to build a logical bridge between the evidence and his conclusion,”
especially where VE testified that a person whose focus falls below 85% could not
maintain competitive employment).
Here, the ALJ found that Mr. Crozier could return to his past skilled work as
a production engineer, which necessitated some work at plants walking and
standing on concrete floors. Like the VE in Schomas, the VE in this case testified
that even at skilled work a person who is off task 15-20% of the time and cannot
work “harder, faster, smarter at other times” would not be able to maintain
employment. (R. 34). Significantly, a finding that Mr. Crozier cannot perform his
past work but is limited to light work may result in a finding of disability under the
grids. See 20 C.F.R. Pt. 404, Appx. 2. In light of these facts, the ALJ’s failure to
address the evidence in the record regarding the adverse effects of Mr. Crozier’s
medication was error and must be addressed on remand.

C. The court makes no determination regarding the ALJ’s failure
to mention Mr. Crozier’s headaches in his RFC analysis.
Mr. Crozier devotes a total of four sentences outside of reciting legal
principles to his argument that the ALJ erred in failing to mention his headaches in
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the RFC analysis. As the court has determined that the ALJ committed reversible
error regarding Mr. Crozier’s RFC and the ALJ’s step four determination, the court
makes no determination regarding the ALJ’s failure to discuss Mr. Crozier’s
headaches in his RFC analysis. However, the court notes that Mr. Crozier has not
identified how or why the ALJ’s limitations in the RFC did not sufficiently address
his headaches, nor has he offered any additional limitations that should have been
included in the RFC.
Conclusion
For the foregoing reasons, the Commissioner’s decision that Mr. Crozier was
not disabled is REVERSED and REMANDED under sentence four of 42 U.S.C. §
405(g).
So ORDERED.
Date: 3/13/2018
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Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

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