JEFFERS v. SAUL

Filing 24

ORDER - For the reasons explained above, the ALJ's decision is REVERSED and the case is REMANDED for further consideration consistent with this order under sentence four of 42 U.S.C. § 404(g). Final judgment shall issue by separate order. Fed. R. Civ. P. 58(a). SEE ORDER. Signed by Judge Sarah Evans Barker on 9/15/2022.(JRB)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TAMARA J., 1

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Plaintiff,
v.
KILOLO KIJAKAZI, Acting Commissioner of
Social Security, 2
Defendant.

No. 1:21-cv-00326-SEB-MG

ORDER
Plaintiff Tamara J. ("Tamara") has appealed the final decision of the
Commissioner ("Commissioner") of the Social Security Administration ("SSA") denying
her November 29, 2017, application for supplemental security income ("SSI"), alleging a
disability onset date of February 27, 2017. R. (Dkt. 13) at 15. The application was
initially denied on March 19, 2018, R. at 108, and upon reconsideration on July 24, 2018.
R. at 120. An administrative law judge conducted a hearing on June 11, 2020, R. at 3467, resulting in a decision on August 17, 2020, that Tamara was not disabled and thus not
entitled to receive SSI. R. at 12-26. The Appeals Council denied review on December

1

To protect the privacy interests of claimants for Social Security benefits, and 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 uses only first
names and last initials of non-governmental parties in Social Security judicial review opinions.
2

According to Federal Rule of Civil Procedure 25(d), Kilolo Kijakazi automatically became the
Defendant in this case when she was named as the Acting Commissioner of the SSA.
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11, 2020. R. at 1. On February 9, 2021, Tamara timely filed this civil action seeking
judicial review of the decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Dkt. 1.
For the reasons explained below, we order a remand of this case.
Background 3
The ALJ followed the five-step sequential evaluation set forth by the SSA, see 20
C.F.R. § 416.920(a)(4)(i) to (v), in concluding that Tamara was not entitled to SSI. R. at
26. Specifically, the ALJ found as follows:
• At Step One, Tamara had not engaged in substantial gainful activity 4 since
November 29, 2017, the application date. 5 R. at 17.
• At Step Two, she had "the following severe impairments: fibromyalgia; plantar
fasciitis; bilateral ankle bursitis; peroneal tendonitis; and obesity." Id. (citation
omitted).
• At Step Three, she did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments. R. at 19.
• After Step Three but before Step Four, Tamara had the residual functional
capacity ("RFC") "to perform sedentary work as defined in 20 CFR 416.967(a)
except that she: can occasionally climb ramps or stairs, but never climb ladders,
ropes, and scaffolds; can occasionally balance, stoop, kneel, crouch, or crawl; can
never work at unprotected heights; can occasionally work around moving
mechanical parts or operate a motor vehicle; can frequently be exposed to
humidity, wetness, extreme cold or heat, dust, odors, fumes, or pulmonary

3

The discussion of Tamara's medical history and treatment includes sensitive and otherwise
confidential medical information that has been thoroughly detailed in the ALJ's decision and the
parties' respective briefs. To the extent possible, we detail here specific facts only as necessary to
address the parties' arguments.

4

Substantial gainful activity is defined as work activity that is both substantial (i.e., involves significant
physical or mental activities) and gainful (i.e., work that is usually done for pay or profit, whether or
not a profit is realized). 20 C.F.R. § 416.972(a).

5

SSI is not compensable before the application date. 20 C.F.R. § 416.335.
2

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irritants; and any time off task can be accommodated with up to 10 percent of a
normal workday in addition to normal breaks." R. at 20.
• At Step Four, relying on the testimony of the vocational expert (the "VE") and
considering Tamara's RFC, she was incapable of performing any of her past
relevant work as a loan officer and demonstrator. R. at 24.
• At Step Five, relying on the VE's testimony and in light of Tamara's age (46 years
of age on the application date), education (associate degree in general studies),
work experience, and RFC, there were jobs that existed in significant numbers in
the national economy that she could have performed in representative occupations
like a food and beverage clerk, touch up screener, and patcher. R. at 25-26; 43.
Standard of Review
Upon review of the Commissioner's decision,
[w]e will uphold [it] if it applies the correct legal standard and is supported
by substantial evidence. Castile v. Astrue, 617 F.3d 923, 926 (7th Cir.
2010). Substantial evidence is "'such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Id. (quoting
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). A decision denying
benefits need not discuss every piece of evidence, but if it lacks an adequate
discussion of the issues, it will be remanded. Villano v. Astrue, 556 F.3d
558, 562 (7th Cir. 2009). Our review is limited to the reasons articulated
by the ALJ in her decision. Larson v. Astrue, 615 F.3d 744, 749 (7th Cir.
2010).
Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010). In determining whether the
decision was properly supported, we neither reweigh the evidence nor assess the
credibility of witness, nor substitute our judgment for the Commissioner's. Lopez ex rel.
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Analysis
Tamara presents two issues for review: whether (1) the ALJ provided an accurate
and logical bridge from the evidence to her conclusion concerning Tamara's use of an

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assistive device to ambulate, and (2) the ALJ's subjective symptom evaluation followed
Social Security Ruling ("SSR") 16-3p.
Ambulatory Aid
Tamara contends that the ALJ never mentioned that her primary care physician
ordered a scooter for her to use to assist with ambulation. Dkt. 17 at 14. She also asserts
that the ALJ overlooked, forgot, or ignored ample evidence that she used assistive
devices because of significant foot pain. Id. at 14-15.
The Seventh Circuit has explained that "[t]he ALJ is not required to mention every
piece of evidence but must provide an 'accurate and logical bridge' between the evidence
and the conclusion that the claimant is not disabled, so that 'as a reviewing court, we may
assess the validity of the agency's ultimate findings and afford [the] claimant meaningful
judicial review.'" Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) (quoting Young v.
Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004)).
Tamara testified that she experienced chronic pain throughout her body, but her
foot pain was the worst because her feet "constantly hurt." R. at 48. She stated that the
pain increases "immediately" with standing and was "beyond excruciating" in less than
five minutes. Id. She also testified that after standing for five minutes, she needs to sit
for "normally like hours" or at least an hour. R. at 49. She estimated that she could walk
for "two minutes as long as it's slow." R. at 50. She further testified that she uses a
rollator walker and motorized scooter that were both prescribed, but she uses a cane "in
the home some, too, because the rollator is a problem with getting through the
doorways." Id.
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The ALJ did not ignore the line of evidence. She explained:
I conclude the claimant has not established a medical need for the use of a
cane or other assistive device on a regular basis. While the claimant
alleged a need for the use of an assistive device, the objective evidence
shows that she generally demonstrates intact sensation and reflexes in the
lower extremities as well as no documented strength-related deficits or use
of an assistive device on examination (B9F; B15F; B16F; B20F; B21F).
Therefore, I have not incorporated an assistive device into the residual
functional capacity.
R. at 24. Throughout the decision, the ALJ repeatedly explained that Tamara "generally
exhibited no documented gait-related abnormalities or use of an assistive device on
examination (B1F; B6F; B12F; B16F)." R. at 48. Our review was made more difficult
by the ALJ's citations to entire exhibits without providing specific page numbers. One
such exhibit, Tamara's specialized mental health treatment, (R. at 478-89 (Exhibit
B12F)), which, no surprise, included no examination of Tamara's ability to ambulate. On
occasion, the ALJ did provide citations to specific pages of the record. For instance, she
explained that Tamara "exhibited no documented gait-related abnormalities or use of an
assistive device (B6F; B16F/21-26)." During one treatment visit cited by the ALJ, on
January 3, 2018, Tamara was treated for abdominal pain, her abdomen was examined, her
gait was not examined, and the treatment notes reflected that she was "sitting in [a]
wheelchair." R. at 558 (B16F/21).
Concerning a March 2018 consultative examination, the ALJ explained that
Tamara "was using a wheelchair and had mild (4/5) weakness in both feet due to pain.
However, she could walk slowly without limping and gave minimal effort during parts of
the examination." R. at 22. The examiner recorded that Tamara's gait was "normal but
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slow. She only walked a few steps. [. . .] She cannot stay on [her] feet for long. She
requested to sit down." R. at 446. The ALJ found that the consultative examiner's
statement that Tamara could not stand on her feet for long periods was "only somewhat
persuasive." R. 23. More to the point, this was the ALJ's only reference to the record as
mentioning that Tamara used some kind of ambulatory aid.
The record contains several references to Tamara's use of an ambulatory aid due to
her plantar fasciitis pain. On April 26, 2018, Tamara's primary care provider explained
that she had tried physical therapy, custom orthotics, and home exercises for her plantar
fasciitis "without relief," she was requesting a referral to pain management, and she was
in a wheelchair. R. at 552. Tamara's physical therapist had explained in 2012 that
Tamara's weight was the likely cause of her plantar fasciitis. 6 R. at 495. Her physician
wrote an "order for [a] scooter to provide for better ambulation." R. at 553. On April 23,
2019, Tamara reported that her foot pain had "[w]ent [sic] away for a little while but
[returned] more severe," she was "[a]ble to bear some weight but [her feet were] swollen
and painful," and her endocrinologist said that the pain was not related to her diabetes
mellitus. R. at 541. Tamara was referred to a podiatrist. R. at 542. On May 8, 2019, she
again presented in a wheelchair for her doctor's appointment. R. at 538. The ALJ
omitted any reference to Tamara's physician ordering her a scooter or her use of a
wheelchair during treatment visits. The ALJ also failed to acknowledge that Tamara's

6

On April 23, 2019, Tamara was recorded as having a body mass index of 61.13. R. at 541.
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appearance at the consultative examination was consistent with her presentation during
treatment visits.
The ALJ's omissions might be excused based on her relevant findings concerning
the line of the evidence, but for the fact that the ALJ's analysis of the relevant evidence
was also inaccurate. To illustrate: the ALJ explained—
The claimant presented for a podiatry consultation during September of
2019 and complained of significant foot pain. Nevertheless, she described
pain measuring only four out of ten and indicated that her symptoms had
improved. Upon examination, the claimant displayed an unstable gait as
well as tenderness and limited motion in both feet. An ultrasound also
showed inflammation of the proximal plantar fascia. However, the
claimant still exhibited normal strength, intact sensation, and no
documented use of an assistive device. She was diagnosed with
plantar fascial fibromatosis, peroneal tendinitis, and bursitis. She was
encouraged to use orthotics to improve her pain, but indicated that she
would not begin to do so until she returned from an upcoming trip outside
of the country.
R. at 22 (citation omitted). The podiatrist noted that Tamara's durable medical equipment
history included that she had exchanged a tall-back walker for a medium short-back
walker with a large liner on May 14, 2019. R. 652. Tamara reported that going barefoot
and wearing flat-soled footwear made her pain worse. Id. She also reported that she
could not go without a brace because her pain flared the following day. Id. She also
explained that she was not tolerating her orthotics well because she still needed to break
them in, and she was planning to do so when she returned to the country in November.
R. at 655. She also stated that she was not tolerating her "Scott brace well," but was
using an over-the-counter brace on her left foot. Id. The examination also showed gait
"instability," R. at 653, and her provider gave her advice about managing "chronic lateral
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ankle instability." R. at 655. Contrary to the ALJ's analysis, the evidence shows that
Tamara used a walker and foot brace, she had tried orthotics, and she had a specific gaitrelated abnormality on examination, i.e., ankle instability.
The SSA's guidance provides as follows:
Medically required hand-held assistive device: To find that a hand-held
assistive device is medically required, there must be medical documentation
establishing the need for a hand-held assistive device to aid in walking or
standing, and describing the circumstances for which it is needed (i.e.,
whether all the time, periodically, or only in certain situations; distance and
terrain; and any other relevant information). The adjudicator must always
consider the particular facts of a case. For example, if a medically
required hand-held assistive device is needed only for prolonged
ambulation, walking on uneven terrain, or ascending or descending slopes,
the unskilled sedentary occupational base will not ordinarily be
significantly eroded.
Since most unskilled sedentary work requires only occasional lifting and
carrying of light objects such as ledgers and files and a maximum lifting
capacity for only 10 pounds, an individual who uses a medically required
hand-held assistive device in one hand may still have the ability to perform
the minimal lifting and carrying requirements of many sedentary unskilled
occupations with the other hand. For example, an individual who must use
a hand-held assistive device to aid in walking or standing because of an
impairment that affects one lower extremity (e.g., an unstable knee), or to
reduce pain when walking, who is limited to sedentary work because of the
impairment affecting the lower extremity, and who has no other functional
limitations or restrictions may still have the ability to make an adjustment
to sedentary work that exists in significant numbers. On the other hand, the
occupational base for an individual who must use such a device for balance
because of significant involvement of both lower extremities (e.g., because
of a neurological impairment) may be significantly eroded.
Social Security Ruling 96-9p (S.S.A. July 2, 1996), 1996 WL 374185, at *7 (footnote
omitted and emphasis in bold in original but added in italics). The VE testified that the
sedentary exertional occupations that the ALJ ultimately concluded that Tamara could
adjust to could only be performed by an individual who "needed a cane for walking." R.
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at 62. Testimony was not solicited about the effects of needing other ambulatory aids
like a walker, scooter, or wheelchair in specific circumstances. The ALJ categorically
concluded that Tamara would not need any ambulatory aid, but meaningful review of that
finding is precluded because the ALJ failed to adequately address the relevant evidence
in order to demonstrate that she considered all the particular relevant facts of Tamara's
case. Accordingly, remand is necessary for an appropriately fulsome analysis of
Tamara's reliance on ambulatory aids.
Other Arguments
Given our order of remand, we decline to examine whether the ALJ's subjective
symptom evaluation was patently wrong. The ALJ is requested to evaluate Tamara's
subjective statements along with all the relevant evidence upon remand.
Conclusion and Order
For the reasons explained above, the ALJ's decision is REVERSED and the case is
REMANDED for further consideration consistent with this order under sentence four of
42 U.S.C. § 404(g). Final judgment shall issue by separate order. Fed. R. Civ. P. 58(a).
IT IS SO ORDERED.
9/15/2022
Date:________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
Lu Han
SOCIAL SECURITY ADMINISTRATION
[e-mail]
Ashley D. Marks
Hankey Law Office
[e-mail]
Julian Clifford Wierenga
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Kirsten Elaine Wold
Hankey Law Office
[e-mail]

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