BOURNE v. COLVIN

Filing 26

ENTRY REVIEWING THE COMMISSIONER'S DECISION - The Court VACATES the ALJ's decision denying Ms. Bourne benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. 405(g) (sentence four). The Clerk is directed to terminate Ms. Bourne's motion. Final judgment will issue accordingly. See Entry for details. Signed by Judge Jane Magnus-Stinson on 3/10/2015.(LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
RHONDA C. BOURNE,
Plaintiff,
vs.
CAROLYN W. COLVIN Commissioner of the
Social Security Administration,
Defendant.

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No. 2:14-cv-0075-JMS-MJD

ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Rhonda C. Bourne applied for disability and disability insurance benefits from the
Social Security Administration (“SSA”) on March 23, 2011, alleging a disability beginning August
15, 2010. [Filing No. 12-2 at 15; Filing No. 12-5 at 2.] Her claim was denied initially and on
reconsideration, and a hearing was held before Administrative Law Henry Kramzyk (the “ALJ”)
on September 26, 2012. [Filing No. 12-2 at 34.] On October 19, 2012, the ALJ issued an opinion
concluding that Ms. Bourne was not entitled to disability benefits. [Filing No. 12-2 at 26.] The
Appeals Council denied her request for review on December 19, 2013, making the ALJ’s decision
the Commissioner’s “final decision” subject to judicial review. [Filing No. 12-2 at 6.] Ms. Bourne
filed this civil action pursuant to 42 U.S.C. § 405(g), asking this Court to review her denial of
benefits. [Filing No. 1.]
I.
BACKGROUND
Ms. Bourne was forty-nine years old when she applied for disability benefits, alleging a
disability onset date of August 15, 2010. [Filing No. 12-5 at 2.] She completed four years of
college, [Filing No. 12-2 at 39], and detailed a lengthy work history at the hearing before the ALJ,

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[Filing No. 12-2 at 39-48]. She worked primarily as a Certified Nursing Assistant for various
entities. [Filing No. 12-2 at 39-48.]
At the hearing, Ms. Bourne testified that she suffers from Meniere’s disease, grand mal
seizures, secondary seizures, deafness in her right ear, partial deafness in her left ear, right ankle
pain, depression, conversion disorder, and migraines. [Filing No. 12-2 at 48-50.] She detailed the
medications she was currently taking but testified that she does not suffer side effects from those
medications. [Filing No. 12-2 at 50-51.] At the hearing, Ms. Bourne testified that she has an attack
from Meniere’s disease approximately two or three days per week, and that the only thing she can
do is to sleep on those days. [Filing No. 12-2 at 60.] Ms. Bourne further testified that she gets
migraines three to four times per month, that they can last multiple days, and that medication only
helps sometimes. [Filing No. 12-2 at 60.] Ms. Bourne contends that the cumulative effect of her
medical conditions renders her disabled and prevents her from maintaining full-time work. [Filing
No. 12-2 at 48.]
Using the five-step sequential evaluation set forth by the SSA in 20 C.F.R. §
404.1520(a)(4), the ALJ issued an opinion on October 19, 2012, concluding that Ms. Bourne is
not disabled. [Filing No. 12-2 at 15-26.] The ALJ found as follows:
·

At Step One of the analysis, the ALJ found that Ms. Bourne meets the insured status
requirements of the Social Security Act through March 31, 2015. [Filing No. 12-2 at 17.]
The ALJ further found that Ms. Bourne had not engaged in substantial gainful activity 1
since her alleged onset date. [Filing No. 12-2 at 17.]

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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. § 404.1572(a); 20 C.F.R. § 416.972(a).
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·

At Step Two of the analysis, the ALJ found that Ms. Bourne has the following severe
impairments: pseudo-seizures, a conversion disorder, and depression. [Filing No. 12-2 at
17.] The ALJ further found that Ms. Bourne has the non-severe impairments of hearing
loss in her right ear, Meniere’s Disease, a history of a gastric ulcer, irritable bowel
syndrome, hemorrhoids, right ankle pain, and osteoarthritis of her knees. [Filing No. 12-2
at 17.]

·

At Step Three of the analysis, the ALJ found that Ms. Bourne did not have an impairment
or combination of impairments that met or medically equaled the severity of one of the
listed impairments. [Filing No. 12-2 at 18.]

·

The ALJ concluded that through the date of last insured, Ms. Bourne had the residual
functional capacity (“RFC”) to perform light work, except that she can lift and/or carry 20
pounds occasionally, and 10 pounds frequently, can sit up to six hours of an eight-hour
workday, and can stand and/or walk up to six hours of an eight-hour workday. [Filing No.
12-2 at 20.] Her RFC provides that Ms. Bourne can occasionally climb ramps and stairs,
but never climb ladders, ropes, and scaffolds. [Filing No. 12-2 at 20.] The RFC also
includes restrictions prohibiting Ms. Bourne from any exposure to wetness, unprotected
heights, dangerous machinery, and driving. [Filing No. 12-2 at 20.] The RFC notes that
Ms. Bourne is able to understand, remember, and carry out short, simple, repetitive
instructions; sustain attention or concentration for two-hour periods at a time and for eighthours in a workday on short, simple, repetitive instructions; use judgment in making work
decisions related to short, simple, and repetitive instructions; and that she requires an
occupation with a set routine and procedures, few changes during the workday, with no
fast-paced production work. [Filing No. 12-2 at 20.] The RFC states that Ms. Bourne can

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maintain regular attendance and be punctual within customary tolerances and that she can
perform activities within a schedule. [Filing No. 12-2 at 20.]
·

At Step Four of the analysis, the ALJ concluded that Ms. Bourne was unable to perform
any past relevant work. [Filing No. 12-2 at 24.]

·

At Step Five of the analysis, the ALJ concluded that considering Ms. Bourne’s age,
education, work experience, and RFC, there are jobs that exist in significant numbers in
the national economy that she can perform. [Filing No. 12-2 at 25.] The ALJ specifically
relied on testimony from the vocational expert (“VE”) who testified at the hearing and
identified unskilled jobs such as encapsulator, office helper, inspector, wire prep tender,
and electronics worker. [Filing No. 12-2 at 25.]

·

Based on these findings, the ALJ concluded that Ms. Bourne is not disabled as defined by
the Social Security Act and, thus, is not entitled to the requested disability benefits. [Filing
No. 12-2 at 26.]
Ms. Bourne requested that the Appeals Council review the ALJ’s decision, but that request

was denied on December 19, 2013, making the ALJ’s decision the Commissioner’s “final
decision” subject to judicial review. [Filing No. 12-2 at 6-8.] Ms. Bourne now seeks relief from
this Court. [Filing No. 1.]
II.
STANDARD OF REVIEW 2
“The Social Security Act authorizes payment of disability insurance benefits and
Supplemental Security Income to individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212,

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Ms. Bourne filed the brief supporting her petition for review as a “Motion for Summary
Judgment,” [Filing No. 16], but the Court will apply the well-established standards for reviewing
a social security decision.
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214 (2002). “The statutory definition of ‘disability’ has two parts. First, it requires a certain kind
of inability, namely, an inability to engage in any substantial gainful activity. Second it requires
an impairment, namely, a physical or mental impairment, which provides reason for the inability.
The statute adds that the impairment must be one that has lasted or can be expected to last . . . not
less than 12 months.” Id. at 217.
When an applicant appeals an adverse benefits decision, this Court’s role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For
the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the ALJ
“is in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d 668,
678 (7th Cir. 2008), this Court must afford the ALJ’s credibility determination “considerable
deference,” overturning it only if it is “patently wrong,” Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v),
evaluating the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment meets or equals one of
the impairments listed by the [Commissioner]; (4) whether the claimant can
perform [his] past work; and (5) whether the claimant is capable of performing
work in the national economy.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). “If
a claimant satisfies steps one, two, and three, [he] will automatically be found disabled. If a
claimant satisfies steps one and two, but not three, then [he] must satisfy step four. Once step four
is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing
work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
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After Step Three, but before Step Four, the ALJ must determine a claimant’s RFC by
evaluating “all limitations that arise from medically determinable impairments, even those that are
not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). In doing so, the ALJ “may not
dismiss a line of evidence contrary to the ruling.” Id. The ALJ uses the RFC at Step Four to
determine whether the claimant can perform his own past relevant work and if not, at Step Five to
determine whether the claimant can perform other work. See 20 C.F.R. § 416.920(e), (g). The
burden of proof is on the claimant for Steps One through Four; only at Step Five does the burden
shift to the Commissioner. Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate only where all factual issues have been resolved and the record
can yield but one supportable conclusion.” Id. (citation omitted).
III.
DISCUSSION
Ms. Bourne challenges the ALJ’s decision on multiple bases. [Filing No. 17.] First, she
argues that the ALJ’s adverse credibility determination is flawed. [Filing No. 17 at 9-13.] Second,
she contends that the ALJ erred in rendering his RFC assessment. [Filing No. 17 at 13-19.]
Contained in each of these general, overarching arguments are sub-arguments, which Ms. Bourne
has developed to varying degrees. 3 The Court finds clear merit in one of these sub-arguments—

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The Court cautions counsel to be sure to adequately develop arguments she intends for the Court
to address on appeal to avoid them being waived. Cadenhead v. Astrue, 410 F. App’x 982, 984
(7th Cir. 2011) (citing Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)).
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that the ALJ’s opinion ignores evidence of Ms. Bourne’s migraines and their effect on her
functional capacity. [Filing No. 16 at 20.] Thus, the Court begins its analysis with that issue. The
Commissioner opposes Ms. Bourne’s request to reverse the ALJ’s decision, [Filing No. 24], and
the Court will detail those arguments regarding the issues addressed below as necessary.
A. Ms. Bourne’s Migraines
Ms. Bourne argues on appeal that the ALJ’s decision denying her disability benefits must
be reversed because the ALJ never reconciled “the evidence of the frequency of her
pseudoseizures, migraines, and Meniere’s exacerbations” with her RFC. [Filing No. 17 at 15-16.]
Ms. Bourne points out that the ALJ’s opinion “is devoid of any mention of migraines/headaches
and their frequency/limiting impact on Plaintiff’s RFC.” [Filing No. 17 at 16.] She emphasizes
that an RFC “is supposed to set forth the most one can do despite her limitations or restrictions on
a regular and continuing basis.” [Filing No. 17 at 16.]
The Commissioner does not expressly respond to Ms. Bourne’s argument that the ALJ’s
decision ignores evidence of Ms. Bourne’s migraines, as well as her testimony at the hearing
regarding their limiting effect on her ability to work. [Filing No. 24.] In detailing Ms. Bourne’s
medical treatment, however, the Commissioner acknowledges that there is medical evidence of
Ms. Bourne’s migraines in the record. [See, e.g., Filing No. 24 at 3 (referencing Filing No. 12-12
at 23 (Dr. Seitz report from August 10, 2012, concluding “Meniere’s [disease] component of
dizziness seems well controlled . . . migraines and seizures may play a role in possible central
vertigo”).]
In her reply, Ms. Bourne points out that the Commissioner’s response is confusing because
she acknowledges evidence of Ms. Bourne’s seizures and migraines that “would seem to belie”
the ALJ’s conclusions. [Filing No. 25 at 2-3.]

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The Court defers to an ALJ’s factual determinations if they are supported by substantial
evidence. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (citing 42 U.S.C. § 405(g)). The
ALJ “is not required to discuss every piece of evidence, but must build a logical bridge from
evidence to conclusion.” Villano, 556 F.3d at 562 (collecting cases). The ALJ “may not ignore
an entire line of evidence that is contrary to the ruling.” Terry v. Astrue, 580 F.3d 471, 477 (7th
Cir. 2009) (citing Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004)).
The ALJ must consider the aggregate effect of the claimant’s “entire constellation of
ailments,” including those that in isolation are not severe. Golembiewski v. Barnhart, 322 F.3d
912, 918 (7th Cir. 2003); see also 20 C.F.R § 404.1545(e) (the ALJ “will consider the limiting
effects of all [the claimant’s] impairment(s), even those that are not severe, in determining [the
claimant’s RFC].”). Moreover, the ALJ cannot reject a claimant’s statements about the effects of
her symptoms on her ability to work simply because the available objective medical evidence does
not substantiate the statements. 20 C.F.R. § 404.1529(c)(2). If the ALJ’s decision “lacks adequate
discussion of the issues, it will be remanded.” Villano, 556 F.3d at 562.
On her disability form, Ms. Bourne specifically listed “migraines” as one of the medical
conditions that precludes her from working. [Filing No. 12-6 at 46.] At the hearing, Ms. Bourne
testified about her migraines, which the ALJ acknowledged. [Filing No. 12-2 at 50 (ALJ: “Do you
have migraines also?” Ms. Bourne: “Yes.”).] Ms. Bourne went on to detail the specific nature of
the pain and that she takes medication for her migraines. [Filing No. 12-2 at 50-51.] Ms. Bourne
testified that she gets migraines “three or four times a month” and that they sometimes last “two
and three days.” [Filing No. 12-2 at 60.] The VE testified that no jobs would exist for someone
with Ms. Bourne’s limitations who “could not maintain regular attendance.” [Filing No. 12-2 at
71.] The Commissioner does not dispute that there is medical evidence in the record regarding

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Ms. Bourne’s migraines. [See, e.g., Filing No. 24 at 3 (“In January 2012 . . . Plaintiff continued to
complain of migraines, seizures and double vision.”) (referencing Filing No. 12-12 at 30-32);
Filing No. 24 at 3 (referencing Filing No. 12-12 at 23 (Dr. Seitz report from August 10, 2012,
concluding “Meniere’s [disease] component of dizziness seems well controlled . . . migraines and
seizures may play a role in possible central vertigo”).]
The Court agrees with Ms. Bourne that the ALJ’s decision ignores the line of evidence in
the record regarding her migraines and the functional impact she alleges her migraines have on her
ability to work. At Step Two, the ALJ did not classify Ms. Bourne’s migraines as severe or nonsevere. [Filing No. 12-2 at 17-18.] In crafting the RFC, the ALJ stated that Ms. Bourne “alleges
that she cannot work due to her pseudo-seizures, conversion disorder, and depression[,]” but he
did not mention her migraines. [Filing No. 12-2 at 21.] The ALJ “may not ignore an entire line
of evidence.” Terry, 580 F.3d at 477. The ALJ’s silence regarding the evidence and testimony
about Ms. Bourne’s migraines makes it impossible for this Court to tell whether the ALJ’s decision
rests upon substantial evidence. Golembiewski, 322 F.3d at 917 (“[T]he ALJ may not ignore an
entire line of evidence that is contrary to the ruling . . . . Otherwise it is impossible for a reviewing
court to tell whether the ALJ’s decision rests upon substantial evidence.”). Accordingly, remand
is required. Id.; Villano, 556 F.3d at 562 (holding that if the ALJ’s decision “lacks adequate
discussion of the issues, it will be remanded”).
B. Other Issues Raised
Given the Court’s reason for remand, it cannot address Ms. Bourne’s remaining arguments
in detail because it is impossible to tell whether the ALJ’s decision rests upon substantial evidence.
Golembiewski, 322 F.3d at 917. That said, on remand, the ALJ should take care to sufficiently
explain his rationale and build a logical bridge between the evidence and his conclusions, making

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sure to explain why he discounts evidence contrary to his conclusion. For example, as the
Commissioner admits in her response, the ALJ’s reliance on the alleged “lack of coordination of
care among [Ms. Bourne’s] doctors” to support the adverse credibility finding “could probably
have [been] clearer,” [Filing No. 24 at 7], and as Ms. Bourne contends, may have impermissibly
crossed the line into the ALJ playing doctor, [Filing No. 17 at 9-10]. Additionally, on remand the
ALJ must also make sure to craft an RFC that accounts for the aggregate effect of the claimant’s
“entire constellation of ailments,” including those that in isolation are not severe. Golembiewski,
322 F.3d at 918; 20 C.F.R § 404.1545(e); see [Filing No. 17 at 11 (arguing that the ALJ fails to
reconcile how Ms. Bourne can maintain employment despite time off for her pseudoseizures and
that if he “did not believe the frequency of her seizures, he certainly fails to explain why”)].
IV.
CONCLUSION
For the reasons detailed herein, the Court VACATES the ALJ’s decision denying Ms.
Bourne benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. §
405(g) (sentence four). The Clerk is directed to TERMINATE Ms. Bourne’s motion. [Filing No.
16.] Final judgment will issue accordingly.

March 10, 2015

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Electronic Distribution via CM/ECF:
Meredith E. Marcus
DALEY DISABILITY LAW, PC
[e-mail]

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Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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