RICHMOND JR. v. BERRYHILL

Filing 22

ORDER on Complaint for Judicial Review-This court REVERSES the ALJ's decision denying Plaintiff benefits and REMANDS this matter for further proceedings pursuant to 42:405(g) as detailed above. Final judgment will issue accordingly. Signed by Magistrate Judge Doris L. Pryor on 8/12/2019.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WALTER R.,
Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the
Social Security Administration,
Defendant.

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No. 1:18-cv-01042-DLP-SEB

ORDER ON COMPLAINT FOR JUDICIAL REVIEW
Plaintiff Walter R. 1 seeks judicial review of the denial by the Commissioner
of the Social Security Administration (“Commissioner”) of his application for Social
Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security
Act (“the Act”). See 42 U.S.C. §§ 423(d), 405(g). For the reasons set forth below, this
Court hereby REVERSES the ALJ’s decision denying the Plaintiff benefits and
REMANDS this matter for further consideration.
I.

PROCEDURAL HISTORY
On October 8, 2014, Walter filed for disability and disability insurance

benefits, alleging that his disability began on April 15, 2014. Walter asserts that his
disability is caused by shoulder problems, gastroesophageal reflux disease (GERD) 2,

The Southern District of Indiana has adopted the recommendations put forth by the Court
Administration and Case Management Committee regarding the practice of using only the first
name and last initial of any non-government parties in Social Security opinions. The Undersigned
has elected to implement that practice in this Order.
2 GERD is chronic heartburn and acid reflux. Gastroesophageal reflux disease (GERD), Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/gerd/symptoms-causes/syc-20361940 (last visited
July 29, 2019).
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chronic venous insufficiency 3, non-insulin dependent type II diabetes, recurrent
cellulitis4 of the lower left leg, hypertension, headaches, insomnia, obesity, and
depression. Walter’s claim was denied initially and upon reconsideration. Walter
then filed a written request for a hearing on August 12, 2015, which was granted.
On May 1, 2017, Administrative Law Judge (“ALJ”) Albert J. Velasquez
conducted the hearing, where Walter and a vocational expert testified. On August
29, 2017, ALJ Velasquez issued an unfavorable decision finding that Walter was not
disabled as defined in the Act. On February 13, 2018, the Appeals Council denied
Walter’s request for review of this decision, making the ALJ’s decision final. Walter
now requests judicial review of the Commissioner’s decision. See 42 U.S.C. §
1383(c)(3). On August 7, 2019, the Court held oral argument.
II.

STANDARD OF REVIEW
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). To meet this definition, a claimant’s impairments must be of
such severity that he is not able to perform the work he previously engaged in and,

Chronic venous insufficiency occurs when the venous wall or valves in the leg veins are not working
effectively, making it difficult for blood to return to the heart from the legs. This can cause blood to
pool in these veins. Chronic Venous Insufficiency (CVI), Cleveland Clinic,
https://my.clevelandclinic.org/health/diseases/16872-chronic-venous-insufficiency-cvi (last visited
July 29, 2019).
4 Cellulitis is a common but potentially serious bacterial skin infection that usually affects the lower
legs. If untreated, the infection can spread to the lymph nodes and bloodstream, becoming lifethreatening. Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/cellulitis/symptomscauses/syc-20370762 (last visited July 22, 2019).
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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. The
ALJ must consider whether:
(1) the claimant is presently [un]employed; (2) the claimant has a
severe impairment or combination of impairments; (3) the claimant's
impairment meets or equals any impairment listed in the regulations
as being so severe as to preclude substantial gainful activity; (4) the
claimant's residual functional capacity leaves [him] unable to perform
[his] past relevant work; and (5) the claimant is unable to perform any
other work existing in significant numbers in the national economy.
Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005) (citation
omitted). An affirmative answer to each step leads either to the next step or, at
steps three and five, to a finding that the claimant is disabled. 20 C.F.R. § 404.1520;
Briscoe, 425 F.3d at 352. A negative answer at any point, other than step three,
terminates the inquiry and leads to a determination that the claimant is not
disabled. 20 C.F.R. § 404.1520. The claimant bears the burden of proof through step
four. Briscoe, 425 F.3d at 352. If the first four steps are met, the burden shifts to the
Commissioner at step five. Id. The Commissioner must then establish that the
claimant—in light of his age, education, job experience and residual functional
capacity to work—is capable of performing other work and that such work exists in
the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f).

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The Court reviews the Commissioner’s denial of benefits to determine
whether it was supported by substantial evidence or is the result of an error of law.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Evidence is substantial
when it is sufficient for a reasonable person to conclude that the evidence supports
the decision. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004). 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). Thus, the issue before the Court is not whether Walter is disabled, but,
rather, whether the ALJ’s findings were supported by substantial evidence. Diaz v.
Chater, 55 F.3d 300, 306 (7th Cir. 1995).
In this substantial-evidence determination, the Court must consider the
entire administrative record but not “reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgment for that of the
Commissioner.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). Nevertheless,
the Court must conduct a critical review of the evidence before affirming the
Commissioner's decision, and the decision cannot stand if it lacks evidentiary
support or an adequate discussion of the issues, Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003); see also Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.
2002).
When an ALJ denies benefits, he must build an “accurate and logical bridge
from the evidence to his conclusion,” Clifford, 227 F.3d at 872, articulating a

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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 evidence to his findings and
conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012); Clifford v. Apfel,
227 F.3d at 872.
III.

BACKGROUND
A. Factual Background

Walter was 42 years old at the time of the alleged onset date in 2014. [Dkt. 53 at 2 (R. 54).]. He obtained his General Educational Development (“GED”) in 2012
followed by eight months of college courses at Ivy Tech. [Dkt. 5-2 at 40-41 (R. 3940).] The Plaintiff last engaged in substantial gainful activity in April 2014 when he
worked as a mechanic for Pep Boys. [Dkt. 5-2 at 39 (R.38).].
B. Medical History
On March 1, 2012, Walter went to the emergency department at St. Vincent
hospital complaining of lower left leg cellulitis. While at the hospital, the medical
staff performed an ultrasound of the legs, which revealed no evidence of deep vein
thrombosis (“DVT”) 5 but some abnormality with a lymph node. The staff

DVT occurs when a blood clot forms in one or more deep veins in the body, most commonly in the
legs. DVT can cause leg pain or swelling or occur with no symptoms at all. Deep vein thrombosis
(DVT), Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/deep-vein-thrombosis/symptomscauses/syc-20352557 (last visited July 22, 2019).
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administered an IV for Walter and his condition improved. Walter was released
from St. Vincent the next day. 6 [Dkt. 5-10 at 58–78 (R. 496–521).]
On April 17, 2013, Walter visited IU Health Methodist Hospital emergency
room complaining of severe dental pain, including swelling, redness, and bleeding of
the mouth. The medical staff noted Walter reported having a headaches and his
history of hypertension. He was given over-the-counter pain medication and
instructions to visit a dentist. [Dkt. 5-8 at 11–13 (R. 285–87).]
On May 6, 2013, Walter visited Dr. Mark Freije at Westfield Primary Care.
Dr. Freije noted that Walter was not taking hypertension medication, that he
reported issues with daily fatigue and sleeping, and that he was experiencing
chronic joint pain in his shoulder. Dr. Freije also noted that Walter had developed a
skin rash. At the conclusion of the visit, Dr. Freije placed Walter on hypertension
medication and prescribed him testosterone for his fatigue and a topical cream for
his rash. [Dkt. 5-7 at 27–29 (R. 238–40).]
On August 12, 2014, Walter presented to IU Health Methodist Hospital
emergency department complaining of lower left extremity pain, erythema, 7 and
swelling. He stated that his pain was a 10 out of 10 and that he had a fever as high
as 103 degrees. Medical personnel noted that at the time of his visit Walter did not
have a fever and that his pain eventually subsided to a 3 or 4 out of 10. Walter

Based on St. Vincent’s record of this visit, Walter attempted to go to IU Health Methodist Hospital
emergency room first but there were no beds available there.
7 Erythema is skin redness and swelling that can last for weeks. Erythema Multiforme, Johns
Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/erythemamultiforme (last visited July 29, 2019).
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notified staff that he had visited the emergency room about 20 times in the last 15
years for the same symptoms. He was diagnosed with recurrent cellulitis and the
doctor noted a history of hypertension and GERD. [Dkt. 5-8 at 14–24 (R. 288–98).]
The next day, Walter had a venous duplex scan performed on his legs, which
indicated that there was no evidence of DVT in either leg. [Dkt. 5-8 at 41 (R. 315).]
There were some issues with the lymph nodes in his left leg, but the scan was
otherwise unremarkable and unchanged from scans performed in February 2012
and October 2011. [Id.] Walter was discharged the next day with antibiotics and a
recommendation to follow up with his primary care physician. [Dkt. 5-8 at 14–24 (R.
288–98).]
On September 6, 2014, Walter presented to the IU Health Methodist Hospital
emergency room complaining of shortness of breath and chest pain. His initial
examination was normal and showed no signs of abnormalities. [Dkt. 5-8 at 46 (R.
320).] Dr. Jeffrey Mossler performed an electrocardiogram (“EKG”), which was
normal, [Dkt. 5-8 at 42 (R. 316).] and Dr. Jessica Smith performed a chest x-ray,
which was also normal. [Dkt. 5-7 at 14 (R. 225).] Walter was later discharged. [Id.]
On September 17, 2014, Walter visited Dr. Keith Banks at Infectious Disease
of Indiana, P.S.C. because he was continuing to struggle with lower extremity
cellulitis. Dr. Banks noted Walter’s previous diagnoses of obesity, hypertension,
hyperlipidemia, 8 and borderline diabetes. Dr. Banks also noted that Walter suffered

“Hyperlipidemia is an umbrella term that refers to any of several acquired or genetic disorders that
result in a high level of lipids (fats, cholesterol and triglycerides) circulating in the blood.” Dr.
Gregory L. Moneta, Hyperlipidemia, Society for Vascular Surgery, https://vascular.org/patientresources/vascular-conditions/hyperlipidemia (last visited July 29, 2019).

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from lower leg edema 9 and that this likely contributed to his issues with cellulitis.
Dr. Banks suggested not using chronic suppressive antibiotics and instead focusing
on controlling Walter’s edema. Dr. Banks requested for Walter to return to the
clinic in a month. [Dkt. 5-7 at 3–4 (R. 214–15).]
In mid-September 2014, Walter visited Dr. Freije for an examination of his
legs. Contrary to Dr. Banks’s recommendation, Dr. Freije recommended putting
Walter on suppressive antibiotic therapy. Dr. Freije also provided Walter with
prescription grade medical compression stockings for below his knee. [Dkt. 5-8 at
33–40 (R. 307–14).]
A few days later, Walter participated in a treadmill stress test with Dr.
Harvey Feigenbaum at IU Health Methodist Hospital. The test consisted of incline
walking and was terminated after nine minutes due to leg fatigue. Dr. Feigenbaum
concluded that the stress test results were normal. [Dkt. 5-8 at 43–45 (R. 317–19).]
On October 16, 2014 Walter visited Dr. Freije for a routine checkup. This was
a quick visit, and Walter was directed to maintain his current treatment plan and
return to Dr. Freije on October 27, 2014. [Dkt. 5-7 at 20–22 (R. 231–33).] On
October 27, 2014, Walter returned to Dr. Freije reporting concerns with small sores
on the bottom of his left foot. According to Walter, in the past, similar sores had
turned into cellulitis. Dr. Freije noted that Walter continued to struggle with
hypertension, edema, skin rashes, GERD, shoulder pain, fatigue, and mild

Edema is swelling caused by excess fluid trapped in the body's tissues. Edema: Overview, Mayo
Clinic, https://www.mayoclinic.org/diseases-conditions/edema/symptoms-causes/syc-20366493 (last
visited July 29, 2019).
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depressive episodes. Dr. Freije gave Walter a new dosage for his heart medications,
new medication for his mild depression, and medication for the sores on his feet. His
edema was noted to be stable. [Dkt. 5-7 at 17–19 (R. 228–30).]
On November 22, 2014, Walter returned to Dr. Freije because the topical
cream prescribed to him in May for his skin rash was not working. Upon
examination, Dr. Freije determined that the rash was a reaction to grease that
Walter was encountering as a mechanic and altered Walter’s medication
accordingly. [Dkt. 5-7 at 27–29 (R. 238–240).]
On December 16, 2014, Walter returned to Dr. Freije because he was
experiencing chest pain. Dr. Freije diagnosed Walter’s pain as pleurisy 10 and gave
him medication to resolve this issue. Dr. Freije also noted Walter’s restless leg
syndrome and gave him medication for it. [Dkt. 5-7 at 55–58 (R. 266–69).]
On January 8, 2015, Walter visited Dr. Andrew Cunningham at IU Health
Family Medicine and Internal Medicine South because Dr. Freije was no longer
covered by Walter’s insurer. [Dkt. 5-8 at 33 (R. 307).] Dr. Cunningham diagnosed
Walter with hypertension, a ganglion cyst, obstructive sleep apnea, and chronic
insomnia. Walter was prescribed antibiotics and anti-anxiety medication. [Dkt. 5-8
at 28–32 (R. 302–06).]
In January 2015, Walter completed a headache questionnaire. [Dkt. 5-6 at 18
(R.166).] Walter claimed to have been suffering from migraine headaches since

Pleurisy occurs when tissue in the lungs becomes irritated and inflamed, which can cause sharp
chest pains. Pleurisy and Other Pleural Disorders, National Heart, Lung, and Blood Institute,
https://www.nhlbi.nih.gov/health-topics/pleurisy-and-other-pleural-disorders (last visited July 29,
2019).
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April 2012. He reported experiencing migraines approximately three times per
week, which would last anywhere from three hours to all day. He also represented
that during a headache he would lay down in a dark quiet room for a few hours, or
longer, if needed. [Dkt. 5-6 at 18 (R. 166).]
On January 27, 2015, Walter was examined by consultative examiner (“CE”)
Dr. Diane Elrod of the Indiana State Disability Determination Bureau. Dr. Elrod
noted that there were no rashes or other issues with Walter’s skin, his body systems
were normal, his lower extremities had good range of motion and were not swollen.
His gait was stable and within normal limits, but he was not able to walk on his
toes or on his heels or perform a squat without difficulty. [Dkt. 5-8 at 48–52 (R.
322–26).]
On February 10, 2015, state agency physician Dr. Brill reviewed Walter’s
medical history and Dr. Elrod’s CE report. Dr. Brill concluded that Walter was not
disabled and denied Walter’s application at the initial level. [Dkt. 5-3 at 2–10 (R.
54–62).]
On March 19, 2015, Walter returned to Dr. Freije for what appears to be a
follow up appointment after he had fallen off a ladder and fractured his ribs earlier
in the month. 11 His prescriptions for pain medications had expired, so he was given
new pain medications. Other than pain management, Walter was doing well overall
and his insomnia and restless leg syndrome had improved. [Dkt. 5-8 at 85–89 (R.
359–63.]
It is unclear if Walter returned to Dr. Freije because Dr. Freije was back in Walter’s insurance
network or if Walter was unhappy with Dr. Cunningham.
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On June 12, 2015, Walter returned to Dr. Freije for another checkup. At the
appointment, Walter noted that his rib pain was better, but that many of his other
chronic conditions were either the same or getting worse. Specifically, his shoulder
pain and restless leg syndrome had worsened. [Dkt. 5-9 at 24–28 (R. 392–96).]12
On August 7, 2015, Walter presented to the emergency department of IU
Health Methodist complaining of lower left extremity symptoms. He complained of
recurrent cellulitis with pain in his groin and swelling and redness in his left leg.
Dr. Jason Schaffer noted that Walter’s exam was “quite unremarkable,” and that
Walter had minimal redness and no swelling in his legs. Walter was discharged and
instructed to follow up with his primary care doctor in a few days. [Dkt. 5-10 at 52–
57 (R. 490–95).]
On February 23, 2016, Walter sought treatment from Dr. Freije because of
left hip pain that he experienced while walking. He indicated that he had no pain in
the past and nothing popped, but that the pain developed when he walked. Dr.
Freije noted that Walter had no swelling or bruising but that he did have decreased
range of motion in his left hip and was ambulating with a limp. [Dkt. 5-9 at 17–20
(R. 385–88).] An x-ray was performed on February 26, 2016, which found mild
degenerative joint disease of the hips. [Dkt. 5-9 at 28 (R. 396).]
On April 22, 2016, Walter returned to Dr. Freije for a checkup. Walter noted
having some hip pain, but there are no notes indicating that he had issues with hip
mobility or with walking. Walter was diagnosed with tennis elbow and rectal issues.
On October 13, 2015, Walter returned for another checkup and his conditions had not materially
changed. [Dkt. 5-9 at 20–24 (R. 388–92).]
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Dr. Freije prescribed Walter a topical pain medication for his elbow and developed a
treatment regimen for Walter’s rectal issues. Dr. Freije also noted that Walter was
no longer using his blood pressure medication. [Dkt. 5-9 at 9–13 (R. 377–81).]
On June 24, 2016 state agency physicians Dr. Maura Clark and Dr. David
Everetts reviewed Walter’s medical history and determined he was not disabled at
the reconsideration level. [Dkt. 5-3 at 13–23 (65–75).]
On September 26, 2016, Walter returned to Dr. Freije. Dr. Freije’s
musculoskeletal physical exam contained no indication of hip pain or walking issues
and also stated that Walter had no edema. Walter complained of elbow and
shoulder pain and insomnia. Because of the previous diagnosis of diabetes, Walter
was given information on diabetes management, a prescription for glucose testing
strips, and medication for his tennis elbow and insomnia. [Dkt. 5-9 at 6–9 (R. 374–
77).]
On April 4, 2017, Dr. Freije completed a Diabetes Mellitus Residual
Functional Capacity Questionnaire for Walter. Dr. Freije reasserted his previous
diagnoses of hypertension, diabetes, restless leg syndrome, and iliac vein
compression syndrome 13. Dr. Freije also indicated that Walter’s depression
contributed to the severity of his symptoms and functional limitations. Based on
Walter’s physical and emotional impairments, Dr. Freije opined that Walter was
incapable of even low stress jobs. [Dkt. 5-10 at 84–85 (R. 522–23).] Dr. Freije also

Iliac vein compression syndrome is caused by the compression of the left common iliac vein by the
right common iliac vein and can cause lower extremity pain, swelling, and deep vein thrombosis.
Katelyn N Brinegar et al., Iliac Vein Compression Syndrome, 7(11) World J. Radiology 375, (2015).
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indicated that Walter could walk one city block without severe pain and that he did
not require a cane or walking device. [Dkt. 5-10 at 85–86 (R. 523–24).] Dr. Freije
marked that Walter would need to alternate between sitting and standing during
the work day and would sometimes need to take unscheduled breaks. [Dkt. 5-10 at
86 (R. 524).] He also indicated that Walter would need to elevate his legs with
prolonged sitting. [Dkt. 5-10 at 86 (R. 524).] However, even though the
questionnaire included questions about how high and what percentage of time
during an 8-hour work day Walter’s legs should be elevated, Dr. Freije did not
answer these questions. [Dkt. 5-10 at 86 (R. 524).] Finally, Dr. Freije indicated that
Walter would have “good days” and “bad days” and that he would most likely miss
more than four days of work per month. [Dkt. 5-10 at 87 (R. 525).]
Dr. Freije also partially completed the Physical Residual Functional Capacity
Questionnaire, which directs the reader to consider “PT evaluation.” 14 The parts
that are completed mimic the findings of the diabetes questionnaire. [Dkt. 5-10 at
88–92 (R. 256–59).]
C. ALJ Decision
In determining whether Walter qualified for benefits under the Act, the ALJ
went through the five-step analysis required by 20 C.F.R. § 404.1520(a). At step
one, the ALJ found that Walter was insured through December 31, 2018 and had
not been engaged in substantial gainful activity since April 15, 2014. At step two,
the ALJ found that Walter’s severe impairments to include: “shoulder problems,

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It does not appear that the “PT evaluation” is included in the record.

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gastroesophageal reflux disease (“GERD”), chronic venous insufficiency, non-insulin
dependent diabetes mellitus type II, history of recurrent cellulitis of the left lower
extremity, hypertension, headaches, insomnia, and obesity. [Dkt. 5-2 at 18 (R. 17).]
At step three, the ALJ considered relevant listings for shoulder pain, chronic
venous insufficiency, hypertension, GERD, headaches, diabetes, neuropathy, and
obesity and determined that Walter did not meet or equal any of the listings. [Dkt.
5-2 at 20–21 (R. 19–20).] Next, the ALJ determined Walter had a residual
functional capacity (“RFC”) to perform light work with the following exceptions:
•

only lifting 20 pounds occasionally and 10 pounds frequently;

•

standing and/or walking or combination thereof for a total of 2 of 8
hours and sitting for 6 of 8 hours;

•

no climbing of ropes, ladders, or scaffolds; no more than occasional
climbing of stairs or ramps;

•

no more than occasional stooping or crouching;

•

no kneeling or crawling;

•

avoid work at unprotected heights, working around dangerous moving
machinery, operating a motor vehicle, or working around open flames
or large bodies of water;

•

no work above shoulder height; and

•

work what would allow Walter to alternate to a sitting or standing
position for 1 to 2 minutes each hour. [R. 21.]

The ALJ then determined, at step four, that Walter could not perform his
past work as a mechanic. At step five, based on the vocational expert’s testimony,
the ALJ found that Walter could perform the work of an Order Clerk, Charge

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Account Clerk, and Final Assembler. Accordingly, the ALJ determined that Walter
was not disabled under the Act.
IV.

Analysis
Walter asserts that substantial evidence fails to support the ALJ’s

determination that he was not disabled. He argues that the ALJ failed to account
for his need to elevate his legs throughout the workday. Additionally, Walter argues
that the ALJ’s RFC determination was unsupported because it did not account for
his headaches. Walter also argues that the ALJ erred at step three by finding that
he did not meet any of the listings in the Listing of Impairments. The Court will
address each challenge in turn.
A. Accommodation for Leg Elevation
The Plaintiff first argues that the ALJ’s RFC determination should have
included an accommodation for elevating his legs periodically throughout the day
or, at the very least, the ALJ should have explained why he discounted the treating
physician’s opinion that Walter needed to elevate his legs with prolonged sitting. In
support of his argument, Walter directs the Court to Dr. Freije’s April 4, 2017
Diabetes Mellitus Residual Functional Capacity Questionnaire, where Dr. Freije
checked the box indicating that Walter would need to elevate his legs with
prolonged sitting. [Dkt. 5-10 at 84–87 (R. 522-25).] The Plaintiff specifically states
that a “treating physician wrote a statement documenting that [Walter] must
elevate his legs with prolonged sitting . . . [and the] ALJ omitted this requirement
from his residual functional capacity without explanation or permissible reasoning.”

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[Dkt. 11 at 4.] The Plaintiff uses the remainder of this section in his brief to address
whether the ALJ should have recontacted Dr. Freije for a clarification of his
medical opinion on Walter’s need to elevate his legs throughout the day, but
clarified at the August 7, 2019 oral argument that the argument is more general,
focusing on whether the ALJ provided enough reasoning for discounting Dr. Freije’s
medical opinion as to leg elevation and for not including that medical opinion in his
RFC. In response, the Commissioner maintains that the ALJ appropriately
considered and provided the necessary articulation for giving partial weight to Dr.
Freije’s medical opinion. The Commissioner further argues that the ALJ had
sufficient evidence before him to make a disability determination and was,
therefore, not required to seek clarification from Dr. Freije regarding his opinion
about Plaintiff’s leg elevation.
i. Discounting Treating Physician
Based on the filing date of Walter’s application, the treating physician rule
applies. Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018) (noting that the
treating physician rule applies only to claims filed before March 27, 2017). In Scott
v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (quoting 20 C.F.R. § 404.1527(c)(2)6),
the Seventh Circuit held that a “treating doctor’s opinion receives controlling weight
if it is ‘well-supported’ and ‘not inconsistent with the other substantial evidence’ in
the record.” See Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Campbell v.
Astrue, 627 F.3d 299, 306 (7th Cir. 2010). “An ALJ must offer ‘good reasons’ for

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discounting the opinion of a treating physician.” Scott, 647 F.3d at 739 (citing
Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011); Campbell, 627 F.3d at 306).
“If an ALJ does not give a treating physician’s opinion controlling weight, the
regulations require the ALJ to consider the length, nature, and extent of the
treatment relationship, frequency of examination, the physician’s specialty, the
types of tests performed, and the consistency and supportability of the physician’s
opinion.” Scott, 647 F.3d at 740 (citing Moss v. Astrue, 555 F.3d 556, 561 (7th Cir.
2009)); see 20 C.F.R. § 416.927(c). However, so long as the ALJ “minimally
articulates” her reasoning for discounting a treating source opinion, the Court must
uphold the determination. See Elder v. Astrue, 529 F.3d 408, 415-16 (7th Cir. 2008)
(affirming denial of benefits where ALJ discussed only two of the relevant factors
laid out in 20 C.F.R. § 404.1527).
Here, the ALJ offers:
I give Dr. Freije’s opinion partial weight in that it supports a range of light
exertional work. However, his statements that the claimant’s impairments
would likely produce “good days” and ”bad days” and that he would miss
“more than four days per month” (Ex. 16F at 4) is speculative and not
dispositive of disability. Generally, more weight is given to the opinions of
treating sources because they are likely to be most able to provide a detailed,
longitudinal picture of the claimant’s impairments (20 CFR 404.1527(d0(2)
and Social Security Ruling 96-2p). However, the final responsibility for
deciding the issue of residual functional capacity and the ultimate issue of
disability is reserved to the Commissioner (20 CFR § 1527(e) and Social
Security Ruling 96-2p).
[Dkt. 5-2 at 29 (R. 27).] The ALJ makes a concerted effort to point out the two
portions of Dr. Freije’s opinion that bleed into the ALJ’s function of deciding the
issue of disability, but the ALJ offers no attempt to articulate how Dr. Freije’s

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opinion relates to the medical evidence, or even how it supports a range of light
exertional work.
In this case, the record contains multiple instances of Walter being diagnosed
with and treated for leg cellulitis and edema. To be sure, there are medical visits in
the record where the doctors note that Walter’s cellulitis and edema are stable or
well-managed with treatment, but those visits occur in 2014 and 2015. What the
Commissioner and the ALJ fail to confront is the medical evidence from Walter’s
longest treating physician, Dr. Freije, that was completed in April 2017, almost two
years after the diagnoses of stable and well-managed leg edema. Clearly, Dr. Freije,
the treating physician, determined that Walter in 2017 needed to elevate his legs
with prolonged sitting, thus that opinion must be confronted and analyzed by the
ALJ.
The Commissioner correctly pointed out at oral argument “that the Seventh
Circuit requires that we read the decision as a whole, rather than demand tidy
packaging with redundant analyses.” See Rice v. Barnhart, 384 F.3d 363, 370 n. 5
(7th Cir. 2004) (“it is proper to read the ALJ’s decision as a whole, and . . . it would
be a needless formality to have the ALJ repeat substantially similar factual
analyses.”)). However, the ALJ’s decision offers very little analysis even when taken
as a whole. The ALJ’s recitation of the medical evidence that contained Walter’s
diagnoses of edema and cellulitis does not provide a bridge to discount the specific
recommendation of leg elevation made by his treating physician, Dr. Freije, in April
2017.

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At oral argument, the Commissioner frequently directed the Court’s attention
to the minimal articulation standard as laid out in Elder v. Astrue, 529 F.3d 408
(7th Cir. 2008). In that case, the Court upheld an ALJ’s decision that discussed two
of the factors listed in 20 C.F.R. § 404.1627, finding the decision minimally
articulated the bases for the ALJ’s conclusions. Here, the ALJ discusses none of the
relevant factors. See Scott, 647 F.3d at 740 (citing Moss v. Astrue, 555 F.3d 556, 561
(7th Cir. 2009)); see 20 C.F.R. § 416.927(c). The ALJ only provides one reason for
discounting the entirety of Dr. Freije’s medical opinion: because two individual
conclusions about absenteeism and Walter having good days and bad days were
speculative. This does not qualify as minimal articulation; the ALJ does not attempt
to engage with any of the relevant factors.
This issue of leg elevation is particularly sensitive given the vocational
expert’s testimony that a claimant who needed to elevate his legs above his heart
for ten minutes of every hour would likely be precluded from work. Therefore, the
Court cannot consider the ALJ’s lack of discussion of leg elevation and Dr. Freije’s
medical opinion to be harmless error.
Accordingly, the Court determines that the ALJ did not provide a logical
bridge between the evidence and his conclusions. On remand, the ALJ must address
Walter’s need for leg elevation and, if the ALJ determines that a leg elevation
limitation is not warranted by the record, must provide adequate justification for
not including that limitation in his RFC.

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ii. Recontacting Treating Physician
The Plaintiff offers as a secondary argument that the ALJ should have
recontacted Dr. Freije for clarification as to how high and how long Walter should
elevate his legs, if that missing information influenced the ALJ’s decision not to
include a leg elevation limitation in Walter’s RFC.
An ALJ may recontact a treating physician to help resolve insufficiencies or
inconsistencies if the medical record is insufficient or inadequate. 20 C.F.R. §
404.1520b. Evidence is insufficient if it “does not contain all of the information that
[the Administration] need[s] to make [its] determination or decision.” 20 C.F.R. §
404.1520b(b). Evidence is inconsistent if it “conflicts with other evidence, contains
an internal conflict, is ambiguous, or when the medical evidence does not appear to
be based on medically acceptable clinical or laboratory diagnostic techniques.” Id. In
both scenarios, the agency will attempt to make a disability determination based on
the information it has. See id. at (b)(1)(2). Thus, an ALJ will only recontact a
treating source if he or she cannot make a disability determination based on the
evidence already before him or her. See Skinner v. Astrue, 478 F.3d 836, 843 (7th
Cir. 2007); 20 C.F.R. § 404.1520b; see also Skarbek v. Barnhart, 390 F.3d 500, 504
(7th Cir. 2004) (“An ALJ need recontact medical sources only when the evidence
received is inadequate to determine whether the claimant is disabled.”).
The ALJ here made a disability determination and never indicated that the
record was inadequate to make that determination. Moreover, Walter does not

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explain why the ALJ should have determined the evidence in the record to be so
insufficient or inconsistent as to render him unable to make a disability
determination. Instead, Walter cites a collection of authorities giving the ALJ the
ability to collect more information, but does not provide any analysis as to how that
legal authority applies to this case. Without any analysis from Walter about why
the ALJ should have exercised this option, the Court is not persuaded that the ALJ
should have recontacted Dr. Freije for clarification.
Accordingly, the ALJ’s decision not to seek clarification from Dr. Freije is
supported by substantial evidence.
B. Accommodation for Headaches
Next, Walter claims that the ALJ’s failure to account for his headaches in the
RFC requires this Court to remand the ALJ’s decision. The Commissioner argues
that the ALJ’s discussion of Walter’s headaches was adequate because there was no
evidence in the record, other than Walter’s own disability report, that demonstrated
Walter suffered from headaches.
At step two of his analysis, the ALJ determined that Walter’s headaches were
a severe impairment. [Dkt. 5-2 at 18 (R. 17).] At step three, the ALJ found that
Walter’s headaches did not meet a listing. [Dkt. 5-2 at 21 (R. 20).] Then, at step
four, the ALJ summarized the headaches questionnaire Walter completed in
January 2015. [Dkt. 5-2 at 23 (R. 22).] Ultimately, the ALJ determined that the
objective medical evidence did not support Walter’s alleged symptoms. [Dkt. 5-2 at
26 (R. 25).]
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The ALJ must consider all medically determinable impairments when
assessing a claimant’s RFC. 20 C.F.R. § 404.1545(a)(2); see also Yurt v. Colvin, 758
F.3d 850, 857 (7th Cir. 2014) (“As a general rule, . . . the ALJ's RFC assessment
must incorporate all of the claimant's limitations supported by the medical
record.”). A claimant’s symptoms, such as pain, fatigue, shortness of breath,
weakness, or nervousness, will not be found to affect his ability to do basic work
activities unless medical signs or laboratory findings show that a medically
determinable impairment is present. 20 C.F.R. § 404.1529(b). A claimant’s
statement as to pain or other symptoms shall not alone be conclusive evidence of
disability; there must be medical signs and findings that show the existence of a
medical impairment. 42 U.S.C. § 423(d)(5). The claimant must provide the ALJ with
medical evidence that the ALJ can use to reach a conclusion about medical
impairments and the claimant’s ability to work on a sustained basis. See Denton v.
Astrue, 596 F.3d 419, 426 (7th Cir. 2010) (citing Luna v. Shalala, 22 F.3d 687, 693
(7th Cir. 1994)). If the record lacks evidence demonstrating that the impairment
affects the claimant’s ability to work, then the ALJ may properly conclude the
impairment, even if it is severe, does not affect the claimant’s ability to work. See
Id. at 425–26.
Here, the ALJ discussed Walter’s headache questionnaire and, ultimately,
determined that Walter’s headaches did not present any functional limitations. The
medical record contains only one reference to headaches, and that is Walter’s selfreported headache questionnaire. Like the ALJ in Denton, the ALJ here fully

22

considered all the evidence, and because the record lacked additional support for
functional limitations due to headaches, the ALJ concluded there were no such
limitations.
Furthermore, Walter’s reliance on Moon v. Colvin, Yurt v. Colvin, and Moore
v. Colvin is misguided. In each of those cases, claimants produced substantial
documentation indicating that they suffered from headaches, and the ALJ either
ignored or skewed the evidence. Moon v. Colvin, 763 F.3d 718, 721–22 (7th Cir.
2014) (finding the ALJ incorrectly evaluated a claimant’s allegation of headaches
“despite the undisputed record of years of treatment for migraines”); Yurt v. Colvin,
758 F.3d 850, 860 (7th Cir. 2014) (“We are also troubled by the ALJ's failure to
mention Yurt's bifrontal tension headaches.”); Moore v. Colvin, 743 F.3d 1118, 1123
(7th Cir. 2014) (“[T]he ALJ's recitation of the medical evidence fails to recognize the
years of records, from at least 2003 onward, by her treating physicians relating
Moore's chronic painful migraines . . . .”). Here, the record does not include
documentation of complaints of or years of treatment for headaches, so the ALJ
cannot be said to have ignored evidence in the record. Thus, these cases are
inapplicable to the scenario here.
Accordingly, the Court finds that the ALJ’s did not need to include RFC
limitations regarding headaches and his RFC determination is supported by
substantial evidence. See Denton, 596 F.3d at 426.

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C. Challenge to the Listings Determinations
In challenging the ALJ’s listings determinations, Walter argues 1) that the
ALJ’s analysis and discussion of many of the listings was perfunctory, 2) that the
ALJ failed to adequately consider Listing 1.00, and 3) that the ALJ should have
sought an updated opinion from a medical examiner (“ME”). Each argument will be
addressed accordingly.
i. ALJ’s Listings Analysis
As noted above, at step three of the disability determination the ALJ
considered relevant listings for shoulder pain, chronic venous insufficiency,
hypertension, GERD, diabetes, neuropathy, and obesity, and determined that
Walter did not meet or equal any of the listings. [Dkt. 5-2 at 20–21 (R. 19–20).]
Walter argues that the ALJ failed to provide an adequate explanation for why his
impairments did not meet a listing. [Dkt. 11 at 21.] Walter argues that the ALJ
simply offered perfunctory reasons and then concluded that the evidence did not
demonstrate that the listing was met. If a claimant has an impairment that meets
or equals an impairment found in the Listing of Impairments, a claimant is
presumptively eligible for benefits. Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir.
2015) (citing 20 C.F.R. § 404.1520(d)).
In considering whether a claimant's condition meets or
equals a listed impairment, an ALJ must discuss the listing
by name and offer more than perfunctory analysis of the
listing.’ Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
2004). The Listings specify the criteria for qualifying
impairments. Id. (citing 20 C.F.R. § 404.1525(a)). A
claimant may also satisfy a Listing by showing that his
impairment is accompanied by symptoms that are equal in
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severity to those described in the Listing. 20 C.F.R. §
404.1526.
Id.
The Commissioner rebuts Walter’s argument, arguing that the ALJ properly
considered the evidence regarding all of the listings. [Dkt. 16 at 6–8.] The
Commissioner also argues that because Walter’s challenge to the ALJ’s listing
analysis focuses only on the ALJ’s analysis of Listing 1.00, Walter has waived any
arguments with regard to the other listings.
The Seventh Circuit maintains that if there is no substantial evidence that
would support a finding that a listing is met, then the ALJ may rely on a state
agency physicians’ determination that the claimant is not disabled and it is
“unnecessary for the ALJ to articulate [his] reasons for accepting the state agency
physicians’ determination of not disabled.” Scheck v. Barnhart, 357 F.3d 697, 700–
01 (7th Cir. 2004). Thus, if a state agency physician determines that a listing is not
met, an ALJ’s opinion does not have to specifically explain why a listing was not
met, unless the claimant brings forward evidence that contradicts the state
physician’s findings. See id.; Sims v. Barnhart, 309 F.3d 424, 429–30 (7th Cir.
2002).
Here, the state agency physicians found that Walter did not meet any of the
listings in the Listing of Impairments. [Dkt. 5-3 at 2–10; Dkt. 5-3 at 13–23.] Walter
has failed to provide the Court with substantial evidence that contradicts this
finding. See Scheck, 357 F.3d at 700–01; Sims, 309 F.3d at 429–30. Instead, Walter
merely claims that the ALJ’s analysis was perfunctory and, except for Listing 1.00,
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he does not direct the Court to any evidence in the record that might contradict the
state agency physicians’ findings. Because the ALJ properly relied on the state
physicians’ findings, the ALJ was not required to elaborate on why Walter did not
meet or equal those impairments.
ii. Listing 1.00
Next, Walter claims that the ALJ did not adequately discuss certain evidence
in the record pertaining to his ability to ambulate and did not appropriately
consider the non-exhaustive list of examples set forth in Listing 1.00(B)(2)(b)(2).
Specifically, Walter argues that the ALJ did not consider whether he could walk a
block at a reasonable pace on rough or uneven surfaces or carry out routine
activities like shopping and banking.
The Commissioner argues that it is Walter’s duty to establish that he meets
or equals a listing and that he cannot meet this burden because no medical source
opined that he met or equaled a listing. [Dkt. 16 at 7.]
Listing 1.00(B) concerns musculoskeletal disorders and requires that an
individual’s impairment of combination of impairments causes the inability to
ambulate effectively. 20 C.F.R. Pt. 404, Subpart. P, App. 1, § 1.00(B). “Inability to
ambulate effectively means an extreme limitation of the ability to walk; i.e., an
impairment(s) that interferes very seriously with the individual's ability to
independently initiate, sustain, or complete activities.” Id. at (B)(2)(b).
To demonstrate that an ALJ’s listing conclusion is not supported by
substantial evidence, the claimant must identify evidence in record that was

26

misstated or ignored and demonstrates that a listing is met or equaled. See Sims v.
Barnhart, 309 F.3d 424, 429–30 (7th Cir. 2002). There is no evidence to support the
finding that Walter met Listing 1.00(B). The evidence Walter points to—multiple
hospitalizations for cellulitis, chronic edema, and skin rashes; Dr. Elrod’s
assessment that he could not walk on bilateral heels and bilateral toes; and Dr.
Freije’s February 23, 2016 assessment that Walter was ambulating with a limp and
had reduced range of motion in his left hip—was in the record and considered by the
state agency physicians, Dr. Clark and Dr. Everetts. Walter has failed to present
evidence that contradicts the state agency physicians’ findings, and their
determination that Walter did not meet or equal any listings. Thus, Walter has not
directed the Court to any additional evidence that the ALJ ignored or misstated.
Moreover, Walter does not explain how the evidence he cites establishes that he
cannot walk a block at a reasonable pace on rough or uneven surfaces or carry out
routine activities. Because Walter does not point to any evidence that demonstrates
a Listing was met or equaled, or to any evidence that was misstated or ignored, the
Court upholds the ALJ’s decision regarding Listing 1.00.
iii. Need for Medical Evidence Regarding Equivalence
Finally, Walter asserts that the ALJ’s listings analysis violated Social
Security Ruling 96-6p because he did not obtain an updated opinion from a medical
examiner (“ME”) regarding whether Walter’s impairments met or equaled a listing.
SSR 96-6p was rescinded on March 27, 2017, and replaced with Social Security

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Ruling 17-2p. SSR 17-2p (S.S.A.), 2017 WL 3928306 at *1. The ALJ’s decision was
rendered a few months later, on August 29, 2017, thus, it is guided by SSR 17-2p.
SSR 17-2p states that in order for an ALJ to find that a claimant’s
impairments equal a listing, that ALJ must rely on either: (1) a prior administrative
medical finding from a medical consultant or psychological consultant at the initial
or reconsideration adjudication levels that supports a medical equivalence finding,
(2) ME evidence, which may include testimony or written responses to
interrogatories, obtained at the hearings level supporting the medical equivalence
finding, or (3) a report from the Appeals Council's medical support staff supporting
the medical equivalence finding. Id. at *3. If, however, the ALJ believes that the
evidence does not reasonably support a finding that the individual’s impairment(s)
medically equals a listed impairment,” then the ALJ is not required “to obtain ME
evidence or medical support staff input prior to making a step 3 finding that the
individual's impairment(s) does not medically equal a listed impairment.” Id. at *3–
4.
Here, the ALJ relied on the opinions of two medical consultants, both of
whom found that no listings were met. Walter’s challenge to the ALJ’s decision does
not present any new evidence that these consultants did not consider. Therefore,
the ALJ properly relied on the medical consultants’ findings to form his belief that
the record did not reasonably support an equivalency finding and that he did not
need to articulate specific evidence supporting his finding.

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Additionally, Walter argues that the agency’s Hearing, Appeals and
Litigation Law Manual (“HALLEX”) required the ALJ to obtain a medical
examiner’s opinion to determine whether Walter’s impairments equal a Listing.
However, HALLEX only requires the ALJ to elicit a medical examiner’s opinion
when (1) “The Appeals Council or Federal court ordered an ME opinion,” (2) “[t]here
is a question about the accuracy of medical test results reported, requiring
evaluation of background medical test data,” or (3) “the ALJ is considering finding
that the claimant's impairment(s) medically equals a listing.” HALLEX I-2-5-34
(S.S.A.), 1994 WL 637370 (last updated Apr. 1, 2016). Because none of these three
scenarios exist here, there was no need for the ALJ to call an ME pursuant to
HALLEX I-2-5-34.
V.

CONCLUSION
For the reasons detailed herein, this court REVERSES the ALJ’s decision

denying Plaintiff benefits and REMANDS this matter for further proceedings
pursuant to 42 U.S.C. § 405(g) (sentence 4) as detailed above. Final judgment will
issue accordingly.
So ORDERED.
Date: 8/12/2019

Distribution:
All ECF-registered counsel of record.

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