BUNNELL v. SAUL

Filing 26

ENTRY ON JUDICIAL REVIEW - The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this Order. See Order for details. Signed by Magistrate Judge Mark J. Dinsmore on 11/18/2021.(SWM)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANGINETTA B., 1

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Plaintiff,
v.
KILOLO KIJAKAZI, 2
Defendant.

No. 1:20-cv-02430-MJD-JPH

ENTRY ON JUDICIAL REVIEW

Claimant Anginetta B. requests judicial review of the final decision of the Commissioner
of the Social Security Administration ("Commissioner") denying her Social Security application
for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §
423(d). For the reasons set forth below, the Court REVERSES and REMANDS the decision of
the Commissioner.
I. Background
This matter is Claimant's third request for judicial review of an unfavorable disability
determination. Claimant applied for DIB on January 8, 2014, alleging a disability onset of

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In an attempt to protect the privacy interest of claimants for Social Security benefits, consistent
with the recommendation of the Court Administration and Case Management Committee of the
Administrative Office of the United States Courts, the Southern District of Indiana has opted to
use only the first name and last initial of non-governmental parties in its Social Security judicial
review opinions.
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Pursuant to Federal Rule of Civil Procedure 25(d), after the removal of Andrew M. Saul from
his office as Commissioner of the SSA on July 9, 2021, Kilolo Kijakazi automatically became
the Defendant in this case when she was named as the Acting Commissioner of the SSA.
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September 17, 2013. [Dkt. 15-2 at 67.] Claimant first appeared for a hearing before ALJ Gladys
Whitfield on January 5, 2016. [Dkt. 15-2 at 3.] ALJ Whitfield issued an unfavorable decision on
March 23, 2016, and the Appeals Council subsequently denied Claimant's request for review.
[Dkt. 15-2 at 64, 39.] Claimant filed a Complaint in this Court seeking judicial review on April
28, 2017, Case No. 1:17-cv-1357-SEB-DML. After a joint motion for remand, District Judge
Sarah Evans Barker reversed and remanded the ALJ's decision on October 23, 2017. [Dkt. 15-9
at 8.]
On September 25, 2018, Claimant's first remand hearing was held before ALJ Whitfield.
[Dkt. 15-8 at 32.] On January 28, 2019, ALJ Whitfield issued a partially favorable decision,
finding that Claimant became disabled on December 1, 2017, but was not disabled prior to that
date. [Dkt. 15-8 at 2.] Claimant filed a Complaint in this Court seeking judicial review on April
3, 2019, Case No. 1:19-cv-1339-JRS-TAB. Following another joint motion to remand, District
Judge James Sweeney II reversed and remanded the ALJ's decision on October 21, 2019. [Dkt.
15-15 at 30.]
On June 19, 2020, Claimant's second remand hearing was held before ALJ Kevin Walker
to determine whether Claimant was disabled prior to December 1, 2017. [Dkt. 15-14 at 34.] On
July 14, 2020, ALJ Walker issued an unfavorable decision and found that Claimant was not
disabled during the relevant period from September 17, 2013, to November 30, 2017. [Dkt. 1514 at 23.] Claimant timely filed her Complaint on September 21, 2020, seeking judicial review of
ALJ Walker's decision. [Dkt. 1.]
II. Legal Standards
To be eligible for benefits, a claimant must have a disability pursuant to 42 U.S.C. § 423.
Disability is defined as the "inability to engage in any substantial gainful activity by reason of

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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 12
months." 42 U.S.C. § 423(d)(1)(A). To determine whether a claimant is disabled, the
Commissioner, as represented by the ALJ, employs a sequential, five-step analysis: (1) if the
claimant is engaged in substantial gainful activity, she is not disabled; (2) if the claimant does
not have a "severe" impairment, one that significantly limits his ability to perform basic work
activities, she is not disabled; (3) if the claimant's impairment or combination of impairments
meets or medically equals any impairment appearing in the Listing of Impairments, 20 C.F.R. pt.
404, subpart P, App. 1, the claimant is disabled; (4) if the claimant is not found to be disabled at
step three, and is able to perform her past relevant work, she is not disabled; and (5) if the
claimant is not found to be disabled at step three, cannot perform her past relevant work, but can
perform certain other available work, she is not disabled. 20 C.F.R. § 404.1520. Before
continuing to step four, the ALJ must assess the claimant's residual functional capacity ("RFC")
by "incorporat[ing] all of the claimant's limitations supported by the medical record." Crump v.
Saul, 932 F.3d 567, 570 (7th Cir. 2019).
In reviewing Claimant's appeal, the Court will reverse only "if the ALJ based the denial
of benefits on incorrect legal standards or less than substantial evidence." Martin v. Saul, 950
F.3d 369, 373 (7th Cir. 2020). An ALJ need not address every piece of evidence, but must
provide a "logical bridge" between the evidence and her conclusions. Varga v. Colvin, 794 F.3d
809, 813 (7th Cir. 2015). Thus, an ALJ's decision "will be upheld if supported by substantial
evidence," which means "such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019). This Court
may not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute its

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judgment for that of the ALJ. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). Where
substantial evidence supports the ALJ's disability determination, the Court must affirm the
decision even if "reasonable minds could differ" on whether Claimant is disabled. Id.
III. ALJ Decision
The ALJ first determined that Claimant had not engaged in substantial gainful activity
during the relevant period from her alleged onset date of September 17, 2013, through November
30, 2017. [Dkt. 15-14 at 7.] At step two, the ALJ found that Claimant had the following severe
impairments: "migraines, thyroid impairment, degenerative disc disease, and carpal tunnel
syndrome." [Dkt. 15-14 at 8.] At step three, the ALJ found that Claimant's impairments did not
meet or equal a listed impairment during the relevant time period. [Dkt. 15-14 at 10.] The ALJ
then found that, during the relevant time period, Claimant had the residual functional capacity
("RFC")
to perform sedentary work as defined in 20 CFR 404.1567(a) except she could stand
and or walk for up to 30 minutes at one time, up to two hours total in an eight-hour
workday. She could sit for up to six hours in an eight-hour workday. She could
occasionally climb ramps and stairs. She could never climb ladders, ropes, or
scaffolds. She could occasionally balance and stoop but never kneel, crouch, or
crawl. She could occasionally reach overhead bilaterally. She could frequently
reach in all other directions bilaterally. She could occasionally operate foot controls
with her left lower extremity. She could not operate motor vehicles. She could have
occasional exposure to concentrated wetness or humidity, or to extreme heat, cold,
or vibration. She could have frequent exposure to pulmonary irritants, including
dusts, fumes, odors, and gases. She could have no exposure to unprotected heights
or hazardous machinery. She could have moderate noise exposure.
[Dkt. 15-14 at 11-12.]
At step four, the ALJ found that Claimant was unable to perform any past relevant work
during the relevant time period. [Dkt. 15-14 at 22.] At step five, the ALJ, relying on testimony
from a vocational expert ("VE"), determined that Claimant could have performed jobs that exist
in the national economy during the relevant time period. [Dkt. 15-14 at 22.] For example, the VE
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testified that the hypothetical person described by the ALJ would be able to work as a sedentary
and unskilled document preparer, touch up screener, or addresser. [Dkt. 15-14 at 23.]
Accordingly, the ALJ concluded that Claimant was not disabled from September 17, 2013,
through November 30, 2017. [Dkt. 15-14 at 23.]
IV. Discussion
Claimant advances two arguments in support of her request to reverse ALJ Walker's
decision. First, she argues that the ALJ erred by failing to account for Claimant's non-severe
mental limitations in his RFC assessment and hypothetical questions posed to the VE. [Dkt. 19 at
18.] Second, Claimant argues that the ALJ erred in his "evaluation of the intensity, persistence,
and limiting effects of her symptoms." [Dkt. 19 at 22.] The Court addresses each argument in
turn below.
A. RFC Issue
First, Claimant argues that, after finding that Claimant had "mild limitations in
understanding, remembering, or applying information; concentrating, persisting, or maintaining
pace; and adapting or managing herself," the ALJ erred by failing to account for these limitations
in his RFC assessment and hypothetical questions posed to the VE. [Dkt. 19 at 18.] In response,
the Commissioner asserts that "[t]he ALJ adhered to the regulations when he found Plaintiff did
not have a mental impairment that resulted in a work-related limitation." [Dkt. 23 at 8.]
"[W]hen a claimant has at least one severe impairment . . ., [she] is entitled to have the
ALJ evaluate whether the combination of [her] non-severe and severe impairments impose any
functional limitations." Jeremy L. J. v. Saul, 2020 WL 1033795, at *5 (S.D. Ind. Feb. 14, 2020)
(referencing Bowen v. Yuckert, 482 U.S. 137, 150-51 (1987)). Indeed, "[t]he ALJ cannot merely
conclude from non-severity that no limitations are necessary." Id. "The duty to analyze non-

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severe impairments in formulating a claimant's RFC to be used at steps four and five is
fundamental to the disability programs under the Social Security Act." Id. As the Seventh Circuit
has explained, ALJs are required to "consider the limitations imposed by all impairments, severe
and non-severe," when determining a claimant's RFC. Ray v. Berryhill, 915 F.3d 486, 492 (7th
Cir. 2019) (citing 20 C.F.R. § 404.1523; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010)).
Here, ALJ Walker found that Claimant had "mild" limitations in "understanding,
remembering, or applying information," "concentrating, persisting or maintaining pace," and
"adapting or managing oneself." [Dkt. 15-14 at 9-10.] The ALJ also stated that he "considered all
of the claimant's medically determinable impairments, including those that are not severe, when
assessing the claimant's residual functional capacity." [Dkt. 15-14 at 10.] Despite this, ALJ
Walker made no mention of these limitations in his RFC. See [Dkt. 15-14 at 11-12]. Even though
Claimant's mental limitations were non-severe, the ALJ was still obligated to consider how those
mental limitations might interact with her severe physical impairments and "to explain why this
evidence does not require at least some nonexertional limitations to Plaintiff's RFC." SimonLeveque v. Colvin, 229 F. Supp. 3d 778, 787 (N.D. Ill. 2017); Crump, 932 F.3d at 570
(explaining that the ALJ must assess a claimant's RFC by "incorporat[ing] all of the claimant's
limitations supported by the medical record"). ALJ Walker also did not include Claimant's mild
mental limitations in the hypotheticals posed to the VE. See Crump, 932 F.3d at 570 ("When the
ALJ supplies a deficient basis for the VE to evaluate the claimant's impairments, this error
necessarily calls into doubt the VE's ensuing assessment of available jobs."). This failure to
account for Claimant's mild psychological limitations, both in the RFC and in the hypotheticals
posed to the VE, warrants remand. See Alesia v. Astrue, 789 F. Supp. 2d 921, 933-34 (N.D. Ill.
2011) (finding reversible error where the ALJ "did not include any mental functioning

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restrictions in his RFC finding," and thus the claimant's "mental functioning limitations could not
be taken into account in the step-four finding").
B. Symptoms Issue
Second, Claimant argues that ALJ Walker's "evaluation of the intensity, persistence, and
limiting effects of her symptoms is patently wrong." [Dkt. 19 at 22.] In response, the
Commissioner asserts that the ALJ properly considered the medical evidence, medical opinions,
and Claimant's subjective symptoms and therefore did not err in his RFC finding. [Dkt. 23 at 14.]
An ALJ's credibility determinations are generally deferential unless "if, after examining
the ALJ's reasons for discrediting testimony, we conclude that the finding is patently wrong."
Larson v. Astrue, 615 F.3d 744, at 751 (7th Cir. 2010). The ALJ's determination may be patently
wrong where he fails to "'build an accurate and logical bridge between the evidence and the
result.'" Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th Cir. 2006) (citing Shramek v. Apfel, 226
F.3d 809, 811 (7th Cir. 2000)).
Here, ALJ Walker stated as follows:
After careful consideration of the evidence, I find that the claimant's medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant's statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision.
[Dkt. 15-14 at 13.] ALJ Walker continued:
claimant retained the ability to perform a range of sedentary exertional work from
September 7, 2013 through November 30, 2017. The claimant primarily alleged
pain that affected her ability to perform exertional and postural activities. However,
the claimant's MRI results from this period showed disc bulges in her lumbosacral
spine that did not significantly displace the right S1 or L5 nerve root and only
mildly displaced the left L5 nerve root. Though the claimant was observed using a
cane at appointments during this time, it was not prescribed and was not identified
as medically necessary in Dr. Silbert's opinion statements. The claimant was
observed to have a limited range of motion at appointments with Dr. Silbert, yet
she retained normal motor functioning in her extremities. She had symmetrical
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reflexes and normal sensation. . . . The claimant generally managed her symptoms
with medication during the period being adjudicated. She declined to pursue
physical therapy, additional injections, a spinal cord stimulator, or a neurological
follow up, suggesting her pain and headaches were adequately controlled on her
treatment regimen. She continued to perform a broad range of daily activities,
including bathing, dressing, caring for herself, cooking simple meals, doing light
household chores, driving short distances, shopping in stores, attending church,
managing funds, and going to medical appointments. The overall record supports
the above residual functional capacity assessment through November 30, 2017.
[Dkt. 15-14 at 18.]
After reviewing the entire record, it becomes increasingly obvious that the ALJ has
downplayed or misinterpreted the evidence of record in several respects and thus the requisite
logical bridge is absent from ALJ Walker's determination.
First, in suggesting that a mild impingement of the L5 nerve root couldn't be responsible
for Claimant's limiting pain, ALJ Walker has "succumb[ed] to the temptation to play doctor and
[made his] own independent medical findings." Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.
1996). Indeed, Listing 1.04 does not specify whether the requisite "compromise of a nerve root"
be mild or significant, and without a supporting medical opinion it was not the ALJ's place to
determine how much or little pain may result. See 20 C.F.R. pt. 404, subpart P, App. 1,
1.04(A).
Second, the Court agrees with Claimant that the record reveals that the ALJ
"consistently downplays or omits how severely limited [Claimant's] lumbar forward flexion was
on several of her visits to Dr. Silbert." [Dkt. 19 at 23-24.] For example, there are several
occasions where the ALJ notes that Claimant had a decreased or limited range of motion in her
lumbar spine but does not acknowledge the degree of limitation which, at times, was as low as
ten degrees. See [Dkt. 19 at 24-25]. The Commissioner responds that the ALJ was not obligated
to "describe findings in the same detail as that provided by the examining physician." [Dkt. 23 at

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14.] While that is true, an ALJ must nonetheless "confront the evidence that does not support
[his] conclusion and explain why that evidence was rejected." Moore v. Colvin, 743 F.3d 1118,
1123 (7th Cir. 2014). Such vastly limited range of motion supported Claimant's alleged disability
status, and so by downplaying its severity, the ALJ failed to confront evidence in Claimant's
favor. Additionally, "a cane does not require a prescription," and suggesting otherwise in
support of discounting Claimant's subjective symptoms is improper. Parker v. Astrue, 597
F.3d 920, 922 (7th Cir. 2010).
Third, the ALJ did not inquire as to why Claimant "declined to pursue physical therapy,
additional injections, a spinal cord stimulator, or a neurological follow up," and simply assumed
that doing so meant her symptoms were managed. [Dkt. 15-14 at 18.] "Although a history of
sporadic treatment or failure to follow a treatment plan can undermine a claimant's credibility,
an ALJ must first explore the claimant's reasons for the lack of medical care before drawing a
negative inference." Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (citing Social
Security Ruling 96-7p, 1996 WL 374186, at *7). Doing so may require the ALJ to "question
the individual at the administrative proceeding in order to determine whether there are good
reasons the individual does not seek medical treatment or does not pursue treatment in a
consistent manner." Id. (citing Social Security Ruling 96-7p, 1996 WL 374186, at *7). Even
still, the ALJ's assertion that Claimant's symptoms were relieved with medication and
treatment is explicitly contradicted by Claimant's testimony. See [Dkt. 15-14 at 46].
Finally, the ALJ relies on his assessment of Claimant's daily activities, but the Seventh
Circuit has "previously cautioned ALJs that there are critical differences between keeping up
with activities of daily living and holding down a full-time job." Reinaas, 953 F.3d at 467
(citing Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014); Bjohnson v. Astrue, 671 F.3d

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640, 647 (7th Cir. 2012)). In any case, ALJ Walker seems to mischaracterize Claimant's
testimony regarding her daily living. The ALJ stated that Claimant "continued to perform a broad
range of daily activities, including bathing, dressing, caring for herself, cooking simple meals,
doing light household chores, driving short distances, shopping in stores, attending church,
managing funds, and going to medical appointments." [Dkt. 15-14 at 18.] In reality, however,
Claimant testified that, during the relevant time period, although she tried to cook, she often
could not finish preparing a meal because the pain forced her lie down "and rest for about an
hour." [Dkt. 15-14 at 52.] She also testified that she could not clean nor do laundry, and that she
was only able to dust what was around her before needing to rest. [Dkt. 15-14 at 53.] Claimant
would go to the grocery store with her husband, but required an electric wheelchair to do so.
[Dkt. 15-14 at 53, 56.] Further, although she tried to go to church, her pain often prevented her
from staying longer than thirty minutes and sometimes prevented her from going at all. [Dkt. 1514 at 53-54.] Accordingly, the ALJ's determination regarding the intensity, persistence, and
limiting effects of Claimant's symptoms fails to properly consider relevant evidence in a
balanced manner and does not convince the Court that meaningful consideration has taken place.
In sum, the ALJ erred by failing to account for Claimant's non-severe mental limitations
in his RFC assessment and hypothetical questions posed to the VE, and he did not appropriately
evaluate the intensity, persistence, and limiting effects of Claimant's symptoms. As such, ALJ
Walker's decision is REVERSED and REMANDED. On remand, the ALJ must consider how
Claimant's mental limitations might interact with her severe physical impairments, must include
such considerations in hypotheticals to the VE, and must appropriately consider all relevant
evidence when determining the intensity, persistence, and limiting effects of Claimant's
symptoms during the relevant time period.

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V. Conclusion
For the reasons stated above, the Commissioner's decision is REVERSED and
REMANDED for further proceedings consistent with this Order.
SO ORDERED.

Dated: 18 NOV 2021

Distribution:
Service will be made electronically
on all ECF-registered counsel of record via
email generated by the Court's ECF system.

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