FLORES v. BERRYHILL

Filing 30

ORDER: 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 four) as detailed above (see Order for details) Final judgment will issue accordingly. Signed by Magistrate Judge Doris L. Pryor on 12/16/2019.(SWM)

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

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No. 1:18-cv-01072-DLP-TWP

ORDER
Plaintiff Jesus F. 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 and for Supplemental
Security Income (“SSI”) under Title XVI 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 June 10, 2008, Jesus filed his initial application for Title II and Title XVI

applications for a period of disability and disability insurance benefits. [Dkt. 29 at
156-157 (R. 157-58).] On February 14, 2011, the Social Security Administration

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.
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(“SSA”) issued a preliminary determination that Jesus was not eligible for SSI
benefits because of his monthly income of $1,200. [Dkt. 29 at 169 (R. 170).]
On March 1, 2011, Jesus filed a second application for Title II Disability
Insurance Benefits (“Second Application). [Dkt. 29 at 159-160 (R. 160-61).] On
March 1, 2011, the SSA again issued a preliminary determination stating Jesus was
not eligible for SSI benefits based on his monthly income of $1,200. [Dkt. 29 at 166
(R. 167).] On April 12, 2011, Jesus received a letter denying his application for Title
II benefits because his physical impairments did not prevent him from working.
[Dkt. 29-1 at 1-3 (R. 174-76).] Jesus did not request reconsideration of this decision.
On July 20, 2012, Jesus filed a third application for Title II disability
insurance benefits and for Title XVI SSI benefits, collectively (“Third Application”).
[Dkt. 29-1 at 4-13 (R. 177-186).] On September 27, 2012, the SSA denied Jesus’s
application for Title XVI SSI benefits based on income. [Dkt. 29-1 at 62 (R. 230).]
On November 28, 2012, Jesus filed a request for reconsideration of his Third
Application because he believed the SSA had incorrect information regarding his
monthly income. [Dkt. 29-1 at 75 (R. 243).] On January 16, 2013, the SSA found
that their initial decision denying Title XVI SSI benefits was correct. [Dkt. 29-1 at
82-84 (R. 250-52).] On March 8, 2013, Jesus filed a request for a hearing before an
Administrative Law Judge. [Dkt. 29-1 at 94 (R. 262).] On July 11, 2013, Plaintiff’s
counsel submitted a letter to the SSA requesting to reopen Jesus’s Second
Application regarding his Title II application. [Dkt. 29-1 at 101-102 (R. 269-270).]
On July 16, 2013, the SSA sent a letter to Jesus’s counsel stating that he was

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medically denied for Title II benefits in his Third Application, and all subsequent
Title II applications would be automatic technical denials based on res judicata.
[Dkt. 29-1 at 135 (R. 303).] Moreover, the SSA concluded that “[a] new medical
decision will never be made for Title II.” [Id.]
On September 30, 2014, Jesus filed an application for Title II and Title XVI
benefits with the SSA, and again requested reopening and consolidation of prior
claims (“Fourth Application”). [Dkt. 29-1 at 142, 173 (R. 310, 336).]
On June 6, 2016, ALJ Albert J. Velasquez conducted a hearing, where Jesus
testified. The ALJ determined that a supplemental hearing was necessary, where
medical experts would be required to appear and testify. [Dkt. 29-11 at 50-51 (R. 197677).] The ALJ also gave Plaintiff’s counsel an opportunity to provide a brief on why the
ALJ should reopen and consolidate the previous cases, why no medical determination
had been made previously, and the effect of Plaintiff’s personal injury settlement. [Id.]
On September 16, 2016, the ALJ conducted a supplemental hearing, where Jesus,
vocational expert Dewey Franklin, and medical expert Dr. James Wargel testified.
On May 1, 2017, ALJ Velasquez issued a partially favorable decision finding
that Jesus was disabled as of January 7, 2016 for purposes of SSI on his Fourth
Application. [Dkt. 29 at 30 (R. 30).] The ALJ stated that he would not reopen
Jesus’s initial application for Title II and Title XVI benefits filed on May 30, 2008,
nor would he reopen the Second Application requesting Title II benefits, filed on
March 1, 2011. [Id.] In assessing Jesus’s Title II claim in the Fourth Application,
the ALJ found that Jesus was not disabled through the date last insured of

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December 31, 2010. [Id.] On February 6, 2018, the Appeals Council issued an order
denying Plaintiff’s Request for Review of the ALJ’s decision. Jesus now requests
judicial review of the Commissioner’s decision. See 42 U.S.C. § 1383(c)(3).
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,
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
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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).
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 Jesus 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

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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
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

Jesus was 44 years old as of his date last insured in December 2010 and is 53
now. [Dkt. 29-1 at 20 (R. 189).] He obtained his General Educational Development
(“GED”) certification. [Dkt. 29-11 at 32-33 (R. 1958-959).] He has past relevant work
history as a forklift driver, tree trimmer, roofer, construction laborer, and materials
handler. [Dkt. 29 at 27 (R. 27).]
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B. ALJ Decision
In determining whether Jesus 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 Jesus was insured through December 31, 2010 and had not
been engaged in substantial gainful activity since his alleged onset date of
disability. [Dkt. 29 at 22 (R. 22).] At step two, the ALJ found that Jesus had severe
impairments of degenerative disc disease of the lumbar spine, general anxiety
disorder, and adjustment disorder and nonsevere impairments of a history of
substance abuse and bowel and bladder dysfunction. [Id.]
At step three, the ALJ considered Jesus’s spinal disorder under Listing 1.04
and determined that Jesus did not meet or medically equal any listing. [Dkt. 29 at
22-23 (R. 22-23).] Next, the ALJ determined that since September 26, 2007 2, Jesus
has had an RFC to perform a limited range of sedentary work, with the following
requirements: lifting and carrying 10 pounds occasionally and 5 pounds frequently;
could sit for 6 hours of the work day if permitted to alternate to a standing position
for 1-2 minutes of each hour and stand/walk for 4 hours of the work day if no
standing period exceeded 30 minutes; occasionally climb ramps and stairs; avoid
work at unprotected heights, around dangerous moving machinery, or around open
flames or large bodies of water; work should be able to be learned in 30 days or less
by demonstrations and should not require more than superficial interaction with

The ALJ incorrectly notes that the claimant’s alleged onset date of disability is September 26, 2007.
The claimant’s Title II application lists an alleged onset date of disability of September 26, 2006.
[Dkt. 29-1 at 143 (R. 311).]
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the public and coworkers; work should have no requirement for production-like
quotas; no requirement for frequent and rapid changes of work settings or type of
work; and the work should not be performed where alcoholic beverages or
prescription medications are manufactured, transported, sold, or consumed. [Dkt.
29 at 23-24 (R. 23-24).] As to mental limitations, the ALJ determined that Jesus
had moderate limitations in understanding, remembering, or applying information;
interacting with others; and concentrating, persisting, or maintaining pace; the ALJ
determined that Jesus had mild limitations with adapting or managing himself.
[Id.]
At step four, the ALJ then determined that Jesus could not perform his past
work as a fork lift driver, tree trimmer, roofer, construction laborer, or small
material handler. [Dkt. 29 at 27 (R. 27).] At step five, the ALJ determined that
considering Jesus’s age, education, work experience, and RFC, he could perform the
job of dowel inspector. [Dkt. 29 at 28 (R. 28).] Accordingly, the ALJ determined that
Jesus was not disabled.
IV.

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

determination that he was not disabled, but makes four general arguments. First,
Jesus argues that the ALJ erred at Steps Two and Four of the sequential analysis
by failing to identify and incorporate all of his medically determinable severe and
nonsevere impairments. Secondly, he asserts that the ALJ failed to meet the burden
at Step Five by not establishing the existence of a significant number of jobs in the

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general economy that Jesus could perform. Third, Jesus argues that the ALJ erred
in assigning great weight to the opinion of medical expert, Dr. Wargel. Fourth,
Jesus asserts that the ALJ erred by refusing to reopen prior applications. The
Court will address each challenge in turn.
A. Residual Functional Capacity
First, the Plaintiff argues that the ALJ erred at Steps 2 and 4 of the five-step
analysis by failing to consider all of his medically determinable impairments at Step
2 and by failing to include the limitations of any such impairments in his RFC at
Step 4. [Dkt. 15 at 20.]
In response, the Defendant claims that the ALJ created a logical bridge
between the evidence and his conclusions. [Dkt. 21 at 12.] Defendant further
argues that the Plaintiff did not provide any persuasive record evidence, such as a
physician opinion, that the Plaintiff experienced any additional physical or mental
functional limitations not already accommodated by the ALJ in his RFC findings.
[Id.]
Plaintiff notes in his reply that the Defendant does not refute either the
contention that the ALJ failed to mention or discuss all of Plaintiff’s medically
determinable impairments or that the ALJ failed to discuss the impact of those
impairments on the RFC. [Dkt. 27 at 4.] Plaintiff repeats his argument that the
ALJ failed to consider all of his medically determinable impairments found in the
record and in turn failed to provide accommodation for those impairments in the
RFC. [Id.] Additionally, Plaintiff reiterates his argument that although the ALJ
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found Jesus’s bowel and bladder dysfunction to be a nonsevere impairment in step
2, the ALJ did not provide any functional limitations in the RFC (or provide any
analysis at all as to why no such limitations were included). [Id.]
At Step 2 of the five-step analysis, the ALJ must evaluate whether the
claimant in fact has an impairment 3 or combinations of impairment that is severe.
20 C.F.R. § 404.1520(a)(4)(ii). If there are no medically determinable severe
impairments, the claimant is not found to be disabled. 20 C.F.R. § 404.1520(a)(4)(ii).
The burden is on the claimant to prove that the impairment is severe. Zurawski v.
Halter, 245 F.3d 881, 885-86 (7th Cir. 2001).
When considering whether an impairment is severe, the ALJ is to consider
whether the impairment significantly limits one’s physical or mental ability to do
basic work activities, such as walking, standing, sitting, pushing, pulling; use of
judgment; or dealing with changes in a routine work setting. 20 C.F.R. § 404.1522.
Impairments are found to be “not severe” when the medical evidence establishes
only a slight abnormality which would have no more than a minimal effect on an
individual’s ability to work even if the individual’s age, education, or work
experience were specifically considered. Social Security Ruling 85-28 (S.S.A. 1985).
If the ALJ finds that the claimant has one or more severe impairments, the
ALJ will proceed to the remaining steps in the evaluation process, considering the
“aggregate effect of [the] entire constellation of ailments-including those

A claimant’s medically determinable impairments must result from anatomical, physiological, or
psychological abnormalities that can be shown by medically acceptable clinical and laboratory
diagnostic techniques. 20 C.F.R. § 404.1521.
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impairments that in isolation are not severe. Golembiewski v. Barnhart, 322 F.3d
912, 918 (7th Cir. 2003); see also 20 C.F.R. § 404.1523.
In this case, Jesus claimed on his Fourth Application for benefits that posttraumatic stress disorder, neuropathy in both legs with resulting gait difficulties,
and panic disorder, among others, were impairments that prevented him from
working. [Dkt. 29-1 at 146 (R. 178).] He continually testified to those impairments
throughout the course of his treatment, both with the consultative examiners and at
the June 2016 and September 2016 hearings with the ALJ. [Dkts. 29-8 at 28-30 (R.
1478-480); 29-11 at 17-18 (R. 1943-944).]
The Plaintiff identified fourteen medically determinable impairments with
medical diagnoses throughout the record. [Dkt. 15 at 20.] A cursory review of the
record confirmed the existence of those diagnosed impairments, none of which were
mentioned by the ALJ. For instance, consultative examiner Dr. Greene concluded in
2014 that Jesus had post-traumatic stress disorder and panic disorder, both of
which could be attributed to his September 2006 accident and had been steadily
increasing in severity over the last eight years. [Dkt. 29-5 at 132 (R. 999).]
Additionally, Jesus reported difficulties with neuropathy and gait disturbances, as
early as February 2007 and as late as December 2014. [Dkts. 29-3 at 61-62 (R. 59596); 29-6 at 53-55 (R. 1138-140).]
In Blackburn v. Berryhill, 2018 WL 6204115 (S.D. Ind. Mar. 15, 2018), the
Court concluded:
“Blackburn posits that her eyelid fasciculations (twitching) could cause
problems with her near and far visual acuity. However, she failed to allege a
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visual impairment when making her benefits claim, did not alert the ALJ to
the issue at her hearing, and failed to provide any evidence that the condition
actually caused any visual limitations. Without any evidence that her eyelid
fasciculations affected her RFC, any error in failing to note the condition in
the RFC analysis was harmless.”
This is not the case here. Jesus provided more than enough information to
the ALJ that neuropathy and post-traumatic stress disorder were impairments that
caused him limitations and should be considered during the five-step analysis.
[Dkts. 29-5 at 131-32 (R. 998-99); 29-8 at 30, 107-108 (R. 1480, 1557-558); 29-9 at 76
(R. 1673).]
The ALJ’s failure to consider these medically determinable impairments
constitutes error. Williams v. Berryhill, 2017 WL 3062403, at *6 (N.D. Ind. June 21,
2018); Giles v. Berryhill, 1:17-cv-02339-SEB-MJD, 2018 WL 4863645, at *3-4 (S.D.
Ind. June 28, 2018). Not only does the ALJ here fail to discuss whether these other
alleged impairments are severe, the ALJ’s opinion provides no discussion of these
other impairments and their impact on the Plaintiff’s RFC at all, an undertaking
which constitutes clear error. If a claimant has established a medically determined
impairment that could reasonably be expected to produce pain or limitations, the
ALJ must consider those subjective complaints. Moore v. Colvin, 743 F.3d 1118,
1125 (7th Cir. 2014). 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.”).

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In addition to failing to consider all medically determinable impairments in
his RFC analysis, the ALJ uses three pieces of information to conclude that Jesus’s
spinal condition was not disabling: the fact that he could commit crimes; a
statement made by the claimant indicating that he was riding a bike, walking, and
climbing stairs; and the consultative exam with Dr. Koerber where Jesus was
neurologically intact, with 5/5 muscle strength, and able to ambulate around the
room without an assistive device. [Dkt. 29-6 at 51-55 (R. 1136-140.]
The ALJ fails to engage in a proper credibility analysis in evaluating Jesus’s
complaints of pain. Martinez v. Astrue, 630 F.3d 693, 696 (7th Cir. 2011) (ALJs
must explain which of the claimant’s statements are not credible); Hall v. Colvin,
778 F.3d 688, 691 (7th Cir. 2015) (noting that an ALJ erred in her “belief that
complaints of pain, to be credible, must be confirmed by diagnostic tests.”).
Although the ALJ points to some instances in the record to support his
conclusion, the ALJ does not engage with any of the medical evidence that
demonstrates Jesus’s spinal condition to be disabling, such as the records from
Plaintiff’s subsequent medical appointments where he reports continued back pain
and his testimony at both hearings where he reports difficulties with bending and
twisting and continued problems with standing and walking for periods of time.
[Dkt. 29-11 at 17-18 (R. 1943-944).] It is improper for an ALJ to only engage with
evidence that supports his ultimate conclusion without confronting evidence that
goes to support the Plaintiff’s complaints of pain. Arnett v. Astrue, 676 F.3d 586, 592
(7th Cir. 2012).

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On this point, the ALJ failed to meet his burden to consider all medically
determinable impairments in Step 2 of the analysis and then to consider all
limitations from those impairments in Step 4 of the analysis. Accordingly, the Court
remands the case on this issue.
B. Jobs in the National Economy
Once the ALJ determined that Jesus could not perform his prior work, the
burden shifted to the Commissioner to show that Jesus could engage in some other
type of substantial gainful employment. Young v. Barnhart, 362 F.3d 995, 1000 (7th
Cir. 2004). At Step 5 of the five-step analysis, an ALJ must determine whether the
person can do any other work that exists in the national or regional economy. See
20 C.F.R. § 404.1520(a)(4)(v), (e), (f). The Social Security Act defines “work which
exists in the national economy” as “work which exists in significant numbers either
in the region where such individual lives or in several regions of the country.” 20
C.F.R. § 404.1566; 42 U.S.C. § 423(d)(2). “Neither the Act nor the Commissioner's
regulations or rulings (so far as the Court has been advised) define the terms
“region” or “several regions.” Schadenfroh v. Colvin, No. 1:13-CV-00223-SEB, 2014
WL 1260123, at *11 (S.D. Ind. Mar. 27, 2014).
To this end, when a claimant for disability benefits cannot be found disabled
based upon medical considerations alone, the Social Security Administration has
established the Medical–Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,
Appendix 2 (the “grids”), in order to assess a claimant's ability to engage in
substantial gainful activity. Lee v. Sullivan, 988 F.2d 789, 792–93 (7th Cir. 1993).
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An ALJ may use the grids to determine whether other jobs exist in the national or
regional economy that a claimant can perform. The grids generally take account
only of exertional impairments. 4 Thus, when a nonexertional impairment – such as
depression, anxiety, or difficulty concentrating or remembering – substantially
reduces the employment opportunities an individual can perform, use of the grids is
inappropriate and the ALJ must consult a vocational expert to prove the claimant’s
employment opportunities are not significantly diminished. Fast v. Barnhart, 397
F.3d 468, 470 (7th Cir. 2005); see also 20 C.F.R. § 404.1569a(c)(1).
The vocational expert is required to estimate the number of jobs the claimant
with his impairments can do that exist in the local, regional, and national economy.
If there is a large number of such jobs in any of these three areas, the claimant is
not disabled and loses. Browning v. Colvin, 766 F.3d 702, 708 (7th Cir. 2014).
In this case, the ALJ, after eliciting testimony from the vocational expert,
determined that Jesus could perform the job of dowel inspector. The ALJ found that
that there are 60,000 jobs existing nationwide for dowel inspectors. [Dkt. 29 at 28
(R. 28).] This recitation misstates the vocational expert’s testimony, who indicated
at the September 2016 hearing that 14,000 dowel inspector positions existed
nationally. [Dkt. 29-11 at 119 (R. 2045).] The ALJ provides no explanation for his
misstatement of the vocational expert’s testimony, but concludes based on the
60,000 nationwide job figure that a significant number of jobs exists for Jesus to
perform, and thus he is not disabled. The deference for the ALJ’s decision is
Exertional impairments are those that affect the claimant's “ability to meet the strength demands
of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling).” 20 C.F.R. § 404.1569a(b).

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lessened where the ALJ’s findings contain errors of fact or logic. Schomas v. Colvin,
732 F.3d 702, 709 (7th Cir. 2013).
Jesus first argues that the ALJ erred in his Step 5 analysis when
determining the existence of a significant number of jobs in the national economy
that Jesus could perform. [Dkt. 15 at 14.] Plaintiff further argues that
notwithstanding the ALJ’s presumably clerical error in noting that 60,000 national
jobs exist, the ALJ’s contention that there are a significant number of jobs is not
supported by the record. [Dkt. 15 at 15.] Additionally, Plaintiff argues that the ALJ
failed to meet his burden at Step 5 of the inquiry by failing to include local or
regional numbers of jobs available. [Id.]
The Defendant responds that the ALJ’s inadvertent misstatement regarding
the number of jobs available is harmless error. [Dkt. 21 at 14.] Defendant supports
his contention that the ALJ’s error was harmless by citing a Seventh Circuit case
that concluded 4,000 jobs to be significant. See Liskowitz v. Astrue, 559 F.3d 736,
742 (7th Cir. 2009). The Defendant, however, left out the context for Liskowitz: the
Seventh Circuit determined 4,000 to be a significant number of jobs for the
Milwaukee metropolitan area, not nationally. Id. Liskowiz cites to several other
cases, all of which determined that 1,000—1,350 jobs in the local economy were
significant. See 559 F.3d at 742 (citing cases).
Here, where it is the ALJ’s determination of the existence of a significant
number of jobs in the national economy that is the linchpin by which the SSA
determines Jesus not to be disabled, the error cannot be considered harmless. See

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Villano v. Astrue, 556 F.3d 558, 564 (7th Cir. 2009) (ALJ’s conclusion that claimant
could perform 15,400 jobs when VE had identified 1,549 jobs could not be considered
harmless).
Plaintiff also argues that the vocational expert was required to introduce
numbers of jobs in the local or regional economy, rather than only listing jobs in the
national economy. The Defendant, relying on Alaura v. Colvin, 797 F.3d 503, 507
(7th Cir. 2015), argues that local and regional statistics do not necessarily need to
be included if the nationwide number of jobs is significant. [Id. at 14-15.]
The Defendant cites Alaura for a particular quote: “Why local and state
statistics are included is unclear, since if there is a significant number of jobs that
the applicant for benefits can perform anywhere in the United States he is deemed
not disabled . . . .” 797 F.3d at 507. The Defendant, however, does not provide any
context to that quote: it is dicta, and the vocational expert in that case provided an
estimate of 300,000 nationwide jobs. Undoubtedly, 300,000 jobs in the national
economy is going to be a significant number; it is less settled in the Seventh Circuit
whether 14,000 national jobs constitutes a significant number. See Barrett v.
Barnhart, 368 F.3d 691 (7th Cir. 2004) (citing cases). If 14,000 is divided evenly
among the 50 states, there would be 280 jobs per state, which is likely not a
significant number; if that national number, however, is concentrated solely in
Indiana or in several regions of the country, that would probably be a significant
number. The vocational expert does not provide any additional numbers or context

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by which to support her contention about the number of jobs existing in the
economy that Jesus could perform.
One case has evaluated what “significant” means to the Seventh Circuit:
Schadenfroh v. Colvin, No. 1:13-cv-00223-SEB-DKL, 2014 WL 1260123 (S.D. Ind.
Mar. 27, 2014). In that case, the vocational expert testified that there were 242 jobs
in Indiana and 16,424 jobs nationally for an usher and children’s attendant. The
Court ultimately concluded that there is no logical, principled standard by which to
judge whether numbers of jobs are significant and that “courts are left with hunches
that are constrained only by the numbers that are held significant in precedential
decisions.” Id. at *12. Because the Commissioner did not meet his burden at step 5
of presenting clear precedent on what constitutes significant, the Court found that
242 jobs in Indiana was not a significant number. Id.
The Court reaffirms its analysis in Schadenfroh: here, the Commissioner did
not present any clear precedent on what constitutes a significant number of jobs.
Because the vocational expert provided only national numbers—no “regional”
numbers—and the Act and § 404.1566(a) clearly provide that the significance of job
numbers shall be judged based on less than the national totals, the Commissioner
did not meet his burden and the case must be remanded on this issue.
C. Weight of Medical Expert Dr. Wargel’s Opinion
The Plaintiff’s third argument is that the ALJ improperly gave great weight
to the opinion of testifying medical expert (“ME”), Dr. James Wargel. [Dkt. 15 at
18.] Plaintiff’s argument centers on the ALJ’s alleged failure to follow the Social
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Security Administration’s Hearings, Appeals, and Litigation Law Manual
(“HALLEX”) in assessing the testimony of Dr. Wargel. [Id. at 19.] While recognizing
that the HALLEX guidelines do not create enforceable rights, the Plaintiff
maintains that the ALJ’s failure to follow these guidelines “calls into question
whether the ALJ’s decision is supported by substantial evidence.” [Id.] Pursuant to
HALLEX I-2-6-70(B):
“All ME testimony must be on the record. After administering the
oath or affirmation, the ALJ must: 1) Ask the ME to confirm his or
her impartiality, expertise, and professional qualifications; 2) verify
the ME has examined all medical and other relevant evidence of
record; and 3) ask the claimant and the representative whether they
have any objections to the ME testifying.”
HALLEX I-2-6-70(B).
Here, the Plaintiff argues that the ALJ failed to confirm the impartiality of
the ME and failed to confirm which portions of the file the ME actually reviewed.
[Dkt. 15 at 18.] While the Plaintiff acknowledges that HALLEX provisions do not
create enforceable rights, he argues that the ALJ’s decision to give great weight to
Dr. Wargel’s opinion is not supported by substantial evidence if it cannot be
determined that Dr. Wargel actually reviewed the entirety of the medical record. [Id
at 19.]
The Defendant argues in response that the ALJ’s failure to follow the
HALLEX was not an error; if it was error, that error was harmless. [Dkt. 21 at 11.]
Defendant notes that the ALJ confirmed that Dr. Wargel received the claimant’s
paper file and that, upon cross-examination, Dr. Wargel confirmed that while he did
not hear the Plaintiff’ testimony at the hearing, he based his opinion on the record
19

evidence. [Id.] Furthermore, because there is no indication that the ME was not
impartial, Defendant argues, there was no error in the ALJ giving great weight to
ME Wargel’s medical opinion. [Id.]
The Seventh Circuit has not directly addressed the issue of whether the
HALLEX creates an individual right for claimants; the district courts, however,
have held that “because the instructions in the HALLEX have not been formally
promulgated as rules or regulations, they are not legally enforceable by claimants
against the Commissioner.” Mitchell v. Berryhill, No. 17 C 6241, 2019 WL 426149,
at n.7 (N.D. Ill. Feb. 4, 2019) (citing Jessee v. Berryhill, No. 1:16-cv-3188-SEB-MJD,
2018 WL 797393, at *4 (S.D. Ind. Feb. 9, 2018) (citing cases). Thus, an ALJ’s failure
to follow instructions in the HALLEX does not show reversible error. Jessee v.
Berryhill, 2018 WL 797393, at *4.
A violation of the HALLEX instructions does not, on its own, constitute a
reversible error. However, other portions of Plaintiff’s allegation separate from an
ability to follow the HALLEX instructions might.
In this case, the ALJ gives great weight to Dr. Wargel’s medical opinion
regarding Plaintiff’s psychological impairments for the following reasons:
He has an applicable medical specialtie [sic]: Dr. Wargel is a Board
Clinical Psychologist. He has a specialized knowledge of the Social
Security disability program and lengthy experience serving as
independent, objective, neutral and impartial medical expert
evaluating Social Security disability cases. He personally reviewed
the entire medical record including the most up to date medical
exhibits and offered a thorough analysis of the medical evidence
pertinent to his medical expertise. He offered an insightful and
persuasive explanation in support of his medical opinion. Lastly, his
medical opinion [sic] are consistent with the record as a whole.
20

[Dkt. 29 at 26 (R. 26).]
The weight an ALJ gives to medical opinions is guided by the factors
described in 20 C.F.R. § 404.1527(c). If the ALJ determines that no medical opinion
in the record deserves controlling weight, as happened in this case, the ALJ must
consider every opinion in the record according to those factors, which include
whether the physician: examined the claimant; treated the claimant frequently or
for an extended period of time; specialized in treating the claimant’s condition;
performed appropriate diagnostic tests; or offered opinions consistent with the
objective medical evidence and the record as a whole. 20 C.F.R. § 404.1527(c).
Here, the ALJ ultimately gave great weight to Dr. Wargel because he,
according to the ALJ, was a board-certified psychologist, had a specialized
knowledge of social security disability programs, reviewed the entire record,
provided an impartial opinion, and his opinion was consistent with the record as a
whole.
As stated previously, the ALJ must build an accurate and logical bridge
between the evidence and his conclusion, and may not cherry-pick only the evidence
that supports his conclusion. Cooper v. Berryhill, 244 F. Supp. 3d 824, 831 (S.D. Ind.
2017) (citing Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014). Here, Dr. Wargel
testified that if an employee had panic attacks, he would need breaks or time off
task to handle those symptoms on his own. Even though Dr. Wargel indicated that
there was not a significant reference to panic attacks in the record, Jesus testified
that he still experienced panic attacks a few times per week. [Dkt. 29-11 at 114-14
21

(R. 2040-41).] Because Dr. Wargel was not present for Jesus’s testimony at the
hearing, it was imperative for the ALJ to have updated the ME regarding Jesus’s
earlier testimony. Moreover, Jesus’s testimony regarding his panic attacks was
provided to the consultative examiner in June 2014, and included in the record.
[Dkt. 29-5 at 126, 130 (R. 993, 997).] The ALJ does not mention panic attacks at any
point in his opinion. It appears the ALJ took Dr. Wargel’s conclusions verbatim
without any regard for other symptoms or impairments found in the record or in
Jesus’s testimony.
Jesus testified at the hearing that he still experienced considerable anxiety,
an assertion supported by his treatment notes and the June 2014 consultative
examiner’s conclusion. Dr. Greene, the consultative examiner, concluded that as a
direct result of his 2006 accident, Jesus:
“suffers from PTSD, primarily repetitive nightmares re-living the
accident all night every night, interrupting his sleep and causing
chronic exhaustion. He suffers from Panic, which occurs without
known triggers, and which may be due to a pervasive feeling of being
vulnerable and unable to defend or care for himself. He has been
developing increasingly severe Social Anxiety based on the actual fact
that people stare at him due to his gait problems.”
[Dkt. 29-5 at 132 (R. 999).] Dr. Wargel, however, indicated that anxiety was
not really an issue for Jesus anymore. [Dkt. 29-11 at 113 (R. 2039).] As mentioned
previously, the ALJ did not provide even a cursory medical history for Jesus, so just
as it was impossible to determine what medical records the ALJ was relying on in
determining which of Jesus’s conditions were medically determinable impairments
and which needed to be included in Jesus’s RFC analysis, it is similarly impossible

22

to determine how the ALJ concluded that Dr. Wargel’s medical opinion was
consistent with the record.
As to the other regulatory factors, the ALJ only seems to have considered
whether Dr. Wargel has an appropriate specialty. He does, in that he is a clinical
psychologist. But the ALJ credits Dr. Wargel’s opinion, who never examined Jesus
or listened to his testimony at the hearing, above all other physicians in the record
who actually evaluated Jesus in person (who were also clinical psychologists) and
even above those who treated Jesus on an on-going basis. [Dkt. 29 at 26-27 (R. 2627).] It is not enough for the ALJ to include a conclusory statement that Dr.
Wargel’s medical opinion is consistent with the medical record and to only engage
with evidence that supports that conclusion – the ALJ must show his work. Arnett
v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012). While the ALJ need not specifically
address every piece of evidence in the record to present the requisite “logical bridge”
from the evidence to his conclusions, the ALJ must at least provide a glimpse into
the reasoning behind his analysis and the decision to deny benefits. O’ConnorSpinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); see also Minnick v. Colvin, 775
F.3d 929, 935 (7th Cir. 2015). In summary, because some of the guiding regulatory
factors suggest Dr. Wargel’s medical expert opinion may deserve less weight and
because there are wide gaps in the ALJ’s analysis of the great weight given to Dr.
Wargel’s opinion, the Court is unable to find substantial evidence supporting the
Commissioner’s decision.

23

D. Reopening Prior Applications
Plaintiff’s final argument is that the ALJ erred in his refusal to reopen his
Second and Third applications, even though he had shown good cause for why those
applications should be reopened. [Dkt. 15 at 25-32.] The Defendant argues that the
ALJ’s decision not to reopen a previous claim is not judicially reviewable. [Dkt. 21
at 7.] A brief recap of the procedural history of this matter is necessary before
proceeding to discussion of the parties’ arguments.
On March 1, 2011, Jesus filed his Second Application for Title II benefits
where he alleged an onset date of September 26, 2006. [Dkt. 29 at 159-60 (R. 16061).] In a letter dated March 1, 2011, the SSA determined that Jesus was not
eligible for Title XVI SSI benefits because he was receiving an annuity of $1,200 per
months. [Dkt. 29 at 166 (R. 167).] On April 12, 2011, a Notice of Disapproved Claim
was issued as to Jesus’s Title II claim, concluding that Jesus was not entitled to
benefits because his physical impairments, specifically his spinal condition, were
not disabling. [Dkt. 29-1 at 1-3 (R. 174-76).] On July 11, 2013, Plaintiff requested
reopening of the Second Application for good cause shown. [Dkt. 29-1 at 101-102 (R.
269-70).]
On July 20, 2012, Jesus filed a third application for Title II disability
insurance benefits and for Title XVI SSI benefits, collectively (“Third Application”).
[Dkt. 29-1 at 4-13 (R. 177-186).] On September 27, 2012, Plaintiff received a notice
of denial of claim that indicated he was ineligible to receive SSI because he received
too much income. [Dkt. 29-1 at 62 (R. 230).] On November 28, 2012, Jesus timely

24

filed a request for reconsideration for both his Title II and Title XVI claims. [Dkt.
29-1 at 75 (R. 243).] On January 16, 2013, Plaintiff received a technical denial of his
Title XVI claim because he received too much income. [Dkt. 29-1 at 82-84 (R. 25052).] On March 8, 2013, Jesus filed a request for hearing before an administrative
law judge, because he believed that his Third Application was still pending. [Dkt.
29-1 at 94 (R. 262).] On March 11, 2013, Plaintiff’s counsel spoke with a
representative in the Crawfordsville, Indiana Social Security Local Office, who
confirmed that Jesus’s Title II claim was barred due to res judicata because his
physical impairment had previously been denied on April 12, 2011. [Dkt. 29-3 at 8
(R. 542).]
On July 11, 2013, Plaintiff requested reopening of the Title II claim of his
Second Application. [Dkt. 29-1 at 101-02 (R. 269-70).] Plaintiff indicated that
pursuant to 20 C.F.R. § 404.988, good cause, in the form of new and material
evidence, existed that would permit his previous claims to be reopened. [Id.]
Additionally, Plaintiff requested confirmation that his Title XVI claim of the Third
Application was currently pending and would be set for a hearing, based on his
request for a hearing filed on March 8, 2013. [Id.] On July 16, 2013, the SSA sent a
letter indicating that Jesus’s Title II claim from the Third Application was
automatically denied because he had been medically denied for Title II benefits on
April 12, 2011 and that all claims after that date would be denied on the basis of res
judicata and that “a new medical decision will never be made for Title II.” [Dkt. 29-1

25

at 135 (R. 303).] Jesus’s Title XVI claim of the Third Application was not addressed

in this letter.
On July 18, 2013, Plaintiff’s counsel sent another letter to the SSA, noting
that the July 16th letter was non-responsive to two questions: 1) whether the
request to reopen the Second Application pursuant to 20 C.F.R. § 404.988 had been
denied; and 2) the status of Plaintiff’s Title XVI claim of the Third Application filemarked September 19, 2012 with a protective filing date of July 20, 2012. [Dkt. 29-1
at 137 (R. 305).] Counsel did not receive a response to this letter. [Dkt. 29-3 at 9 (R.
543).]
Plaintiff protectively filed for Title II and Title XVI benefits in his Fourth
Application on September 30, 2014. [Dkt. 29-1 at 142, 173 (R. 310, 336).] Plaintiff
filed the Fourth Application because his Title XVI claim in the Third Application
was never set for hearing and he was never informed if his request to reopen the
Title II claim from the Second Application was approved. [Dkt. 29-3 at 9 (R. 543).]
In addition to the Fourth Application, Jesus filed another request to reopen the
Title II claim of the Second Application and he also filed a request to consolidate the
Third and Fourth applications. These requests were reiterated at the June 2016
hearing. [Dkts. 29-3 at 6-15 (R. 540-549); 29-11 at 20 (R. 1946); 29-1 at 138-40 (R.
306-08).] In his opinion issued on May 1, 2017, ALJ Velasquez denied Plaintiff’s
requests to reopen his First and Second Applications, but did not address the Third
Application. [Dkt. 29 at 19 (R. 19).]

26

Plaintiff argues that the ALJ erred by refusing to reopen the Title II claim of
his Second Application, which was denied on April 12, 2011, even though he had
submitted new and material evidence. [Dkt. 15 at 25-32.] Additionally, Plaintiff
argues that the Title XVI claim from Plaintiff’s Third Application was not set for a
hearing, despite a timely request for hearing being filed. [Id.] Alternatively,
Plaintiff argues that the ALJ constructively reopened his First, Second, and Third
Applications, despite an express refusal to reopen them, by reconsidering the prior
claims on the merits. [Id. at 32.]
Defendant responds that the ALJ’s refusal to reopen Jesus’s prior
applications is not reviewable by the district court. [Dkt. 21 at 7.] While the
Defendant admits that the April 12, 2011 denial only encompassed the physical
impairment of Jesus’s spinal condition and did not consider any mental
impairments, the Defendant maintains that this does not make the ALJ’s refusal to
reopen judicially reviewable. Additionally, Defendant argues that the ALJ’s
recognition of Jesus’s alleged onset date, with the conclusion that he had severe
impairments and an RFC since that date, does not constitute a constructive
reopening of prior claims. [Id.]
a. Legal Standard
The Social Security Act contains no provision for the reopening of closed
proceedings, but the Social Security Administration has promulgated a regulation
that permits such reopening under certain conditions. 20 C.F.R. §§ 404.987-989.
The Plaintiff only argues the second condition, which indicates that a final

27

determination can be reopened within four years for “good cause,” which can only be
established by (1) furnishing new and material evidence, (2) demonstrating a
clerical error, or (3) offering evidence in the record that “clearly shows on its face
that an error was made.” 20 C.F.R. §§ 404.988(b), 404.989(a).
A decision not to reopen a previous determination or a decision to apply
administrative res judicata is a discretionary decision and typically not within the
district court’s jurisdiction. 5 Johnson v. Sullivan, 936 F.2d 974, 976 (7th Cir. 1991).
There are two instances where a district court nevertheless may review a decision
not to reopen a previous determination. First, a district court can review a decision
not to reopen a proceeding in “those rare instances where the Secretary’s denial of a
petition to reopen is challenged on constitutional grounds.” Califano v. Sanders, 430
U.S. 99, 109 (1977). Second, if the ALJ applies res judicata in concluding that a
previous determination should not be reopened, a district court may review the
decision to determine if res judicata was applied properly. McGee v. Bowen, 647
F.Supp. 1238, 1244-45 (N.D. Ill. 1986); Krizan v. Apfel, 35 F. Supp. 2d 672, 675
(N.D. Ind. 1999).
Other Courts in this Circuit have concluded that a district court may also
review a decision not to reopen if the ALJ nonetheless reconsidered an otherwise
final determination “on the merits to any extent and at any administrative level,”
see McLachlan v. Astrue, 703 F. Supp. 2d, 791, 795 (N.D. Ill. 2010) (citing Johnson
v. Sullivan, 936 F.2d 974 (7th Cir. 1991)), but the Seventh Circuit’s stance on this
District courts have jurisdiction to review final decisions of the SSA made after a hearing. 42
U.S.C. § 405(g).

5

28

issue is unclear. See Clara P. v. Saul, No. 1:18-cv-04029-TWP-TAB, 2019 WL
5537222 (S.D. Ind. Oct. 24, 2019).
b. Title II Claim from Second Application
As mentioned previously, the SSA originally denied Jesus’s Title II claim of
the Second Application because his “back and walking problems due to 37-foot fall”
did not prevent him from performing work. [Dkt. 29-1 at 3 (R. 176).] On July 11,
2013, Plaintiff requested reopening of the Title II claim of his Second Application.
[Dkt. 29-1 at 101-02 (R. 269-70).] On July 16, 2013, the SSA sent the Plaintiff a
letter denying his Title II claim from the Third Application based on res judicata,
stating that “[a]ll subsequent applications at any level will be technical denials. A
new medical decision will never be made for Title II.” [Dkt. 29-1 at 135 (R. 303).]
The letter did not address, however, the Plaintiff’s request to reopen the Second
Application.
The parties contest whether the ALJ’s refusal to reopen the SSA’s denial of
the Second Application for Title II benefits for physical impairments is judicially
reviewable. The Court notes that the Plaintiff followed the proper procedure to
request that his Title II claim of the Second Application be reopened. Within four
years of the date of notice of the initial determination, the Plaintiff requested to
reopen his application arguing good cause. Although the SSA never provided a
formal response approving or denying Jesus’s multiple requests to reopen his Title
II claim of the Second Application, those requests to reopen were properly before the
ALJ when he issued his decision on Jesus’s Fourth Application on May 1, 2017.

29

The ALJ addressed the topic of reopening in his opinion:
The claimant filed prior applications on May 30, 2008 (Title II & Title
XVI) and March 1, 2011 (Title II) but I find no reason/no good cause/no
fraud or other reason necessary to reopen the prior
decision/determination dated February 24, 2010/April 12, 2011.
Pursuant to 20 C.F.R. 404.988(a)/(b)/(c) and 416.1488(a)/(b)/(c)/, I
specifically decline to do so. . . . Though claimant’s counsel has
repeated [sic] sought reopening of prior applications, as stated above,
I saw no obligation to do so.
[Dkt. 29 at 19, 25 (R. 19, 25).]
As discussed, there are two instances where a decision not to reopen becomes
judicially reviewable: when the claimant challenges that decision on constitutional
grounds and when the district court must verify whether the SSA applied res
judicata properly. Here, the Plaintiff does not challenge the ALJ’s decision not to
reopen on constitutional grounds. Additionally, the ALJ does not invoke the
application of res judicata anywhere in his application. Instead, the ALJ clearly
indicates that his discretionary decision not to reopen Jesus’s prior claim is based
on the Plaintiff’s failure to demonstrate good cause. Accordingly, the ALJ’s decision
not to reopen Jesus’s Title II claim of the Second Application is not judicially
reviewable.
c. Title XVI Claim from the Third Application
As mentioned previously, the SSA denied Jesus’s Title XVI claim from the
Third Application initially on September 27, 2012 and on reconsideration on
November 28, 2012 because they concluded that Jesus had too much monthly
income. The Plaintiff requested that the ALJ reopen the Title XVI claim from the
Third Application because he had timely filed a Request for Hearing on March 8,
30

2013 without ever receiving a response. [Dkt. 29-1 at 94 (R. 262).] The ALJ does not
address this issue in his decision, nor does the Commissioner respond to the
Plaintiff’s argument in his briefing. Thus, the Court cannot make a determination
based on the record at hand. This case is already being remanded on other issues,
therefore the Undersigned requests that the SSA evaluate Plaintiff’s March 8, 2013
Request for Hearing on the Title XVI claim of the Third Application on remand.
d. Constructive Reopening
Plaintiff argues in the alternative that even if the ALJ’s express decision
refusing to reopen his Title II claim of the Second Application is not reviewable by
this Court, the ALJ’s opinion constructively reopened that previous claim and
rendered it judicially reviewable. [Dkt. 15 at 32.] The Defendant responds that the
ALJ’s recognition of Plaintiff’s onset date, and the fact that he had severe
impairments and a residual functional capacity since that date, does not constitute
a constructive reopening of previous claims. [Dkt. 21 at 8.]
Some Courts in this Circuit have determined that ALJs can constructively
reopen prior claims if the ALJ makes a determination on the merits by considering
the same evidence for the same time period previously adjudicated by the SSA.
McGee v. Bowen, 647 F. Supp. 1238, 1245 (N.D. Ill 1986); Ritchie v. Berryhill, 1:15cv-299-TLS, 2017 WL 3947541 (N.D. Ind. Sept. 8, 2017). This Court has considered
the issue, and come out on both sides. See Rucker v. Shalala, 894 F.Supp. 1209 (S.D.
Ind. 1995); Garber v. Berryhill, No. 1:16-cv-3221-JMS-MJD, 2017 WL 5889720 (S.D.
Ind. Nov. 29, 2017). But, the concept of constructive reopening has only been

31

acknowledged, not adopted by the Seventh Circuit. See Garber, 2017 WL 5889720,
at *6; Clara P., 2019 WL 5537222, at *5. Plaintiff cites to no Seventh Circuit
precedent that outlines whether and to what extent constructive reopening of a
prior claim may occur. Accordingly, the Court declines to conclude that a
constructive reopening occurred here.
E. ALJ’s Language
On a final note, the Court finds it important to mention that the hearing
transcripts and ALJ opinion contain multiple questionable references and
conclusions. At the June 2016 hearing, it was noted that the Plaintiff had received
$25,000 in a workers’ compensation payment for his injury sustained in falling off a
roof in 2006. The ALJ asked: “What happens to that money? You just blew it all up
your nose or what? Buy a new truck?” [Dkt. 29-11 at 43 (R. 1963).] Jesus responded
that he paid bills and bought himself a coat. [Id.] Then, in the ALJ’s May 1, 2017
decision, the ALJ notes: “Indeed, not to be glib, but the claimant has been able to
engage in domestic violence on a number of occasions and armed robbery that
resulted in incarcerations. Clearly, he was able to rise above his level of pain while
engaging in these activities.” [Dkt. 29 at 25 (R. 25).]
The ALJ provides no context for any of these comments or observations. An
ALJ’s decision cannot be affirmed if it lacks evidentiary support or an inadequate
discussion of the issues. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Jesus’s
physicians, however, addressed these issues directly, concluding that Jesus’s
criminal history “in no way negates or minimizes [the claimant’s] profound

32

psychological suffering and significant losses that are attributable to the accident of
September 25, 2006.” [Dkt. 29-5 at 131 (R. 998).] According to his medical records,
Jesus was incredibly active prior to the accident, engaging in competitive martial
arts and working out consistently, but after the accident he began to experience
severe anxiety and panic attacks, in large part to the dramatic decline in his
psychosocial functioning after the accident. [Dkt. 29-5 at 131-32 (R. 998-99).] The
medical professional found that Jesus’s chronic medical conditions and pre-existing
addictive personality made him vulnerable to opioid addiction, which seems to
explain his desire to use controlled substances. [Id. at 132 (999).] Moreover, a
medical expert noted that because Jesus lacked medical insurance for many years,
he was unable to receive any psychological treatment or gain access to a pain
management clinic that would be able to treat him without narcotics. [Id. at 132
(999).] While this does not negate the criminal activity that Jesus engaged in, it
does provide the Court with the necessary context to evaluate his claims.
Finally, the Court would like to highlight an exchange from the September
2016 hearing that is particularly illuminating for this case:
ALJ: And that was a Dr. Shaw that was giving you some medications. Right?
Jesus: A who?
ALJ: Shaw – Dr. Shaw?
Jesus: I don’t recall Dr. Shaw.
ALJ: I thought it was S-H-A-W. I just saw one doctor didn’t want to talk
about the psych meds.
Attorney: Where’s that at?

33

ALJ: I don’t know. It all runs together after a while. I do about six of these a
day, and they just kind of run together.
[Dkt. 29-11 at 97 (R. 2023).]
While this Court is no stranger to a packed calendar – in fact, the Southern
District of Indiana has the highest weighted filings for the Seventh Circuit, and the
third highest weighted filings for the entire nation – it must remain vigilant to the
fair and effective administration of justice. A busy schedule does not justify
inattention to obligation.
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 four) as detailed above. Final judgment
will issue accordingly.
So ORDERED.

Date: 12/16/2019

Distribution:
All ECF-registered counsel of record.
34