WILSON v. SAUL
ENTRY REVIEWING THE COMMISSIONER'S DECISION - For the reasons detailed herein, the Court REVERSES the ALJ's decision denying the Plaintiff benefits and REMANDS this matter for further proceedings. Final judgment will issue accordingly. SEE ORDER. Signed by Judge James Patrick Hanlon on 3/31/2021.(KAA)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ANDREW M. SAUL, Commissioner of the )
Social Security Administration,
ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Clayton W. (the "Plaintiff") seeks judicial review of the Social
Security Administration's decision denying his petition for certain benefits. For
the reasons that follow, the decision is REMANDED.
The Plaintiff applied for supplemental security income ("SSI") from the
Social Security Administration ("SSA") on April 7, 2016, alleging disability
beginning on April 1, 2011. [Dkt. 7-2 at 16.] His application was initially denied
on July 22, 2016, [Dkt. 7-4 at 4], and again upon reconsideration on October
11, 2016, [Dkt. 7-4 at 16].
Administrative Law Judge Ronald T. Jordan (the "ALJ") conducted a
hearing on June 18, 2018, [Dkt. 7-2 at 32–62], and issued a decision on July
17, 2018, concluding that the Plaintiff was not entitled to receive benefits, [Dkt.
7-2 at 13–24]. The Appeals Council denied review on August 29, 2019. [Dkt. 71
2 at 2.] On October 28, 2019, the Plaintiff timely filed this civil action asking the
Court to review the denial of benefits according to 42 U.S.C. § 1383(c). [Dkt. 1.]
The Court notes that jurisdiction is also proper according to 42 U.S.C. § 405(g).
STANDARD OF REVIEW
"The Social Security Act authorizes payment of disability . . . benefits . . .
to individuals with disabilities." Barnhart v. Walton, 535 U.S. 212, 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
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. "The standard for disability claims under the Social
Security Act is stringent." Williams-Overstreet v. Astrue, 364 F. App'x 271, 274
(7th Cir. 2010).
"Even claimants with substantial impairments are not
necessarily entitled to benefits, which are paid for by taxes, including taxes paid
by those who work despite serious physical or mental impairments and for whom
working is difficult and painful." Id. at 274.
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 accord 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)
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. §
416.920(a)(4)(i)–(v) 1, 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), as amended (Dec. 13, 2000)
(citations omitted). "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).
The Code of Federal Regulations contains separate, parallel sections concerning Disability
Insurance Benefits and SSI, which are identical in most respects. Cases, as here, may reference
the section pertaining to the other type of benefits under the Social Security Act. Clifford, 227
F.3d at 868 (citing 20 C.F.R. § 404.1520(a)(4)). Generally, a verbatim section exists establishing
the same legal point with both types of benefits, such as the section substituted above. The
Court will take care to detail any substantive differences that are applicable to the case but will
not always reference the parallel section.
After Step Three, but before Step Four, the ALJ must determine a
claimant's residual functional capacity ("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. 20 C.F.R. § 416.920(a)(4)(iv)–(v). The burden of proof is on
the claimant for Steps One through Four; only at Step Five does the burden shift
to the Commissioner. See 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).
The Plaintiff was 18 years old when his alleged disability began. [See Dkt.
7-5 at 2.] He has completed the ninth grade and does not have a GED. [Dkt. 72 at 43–44.] He has a history of special education. [Dkt. 7-6 at 18.] He has
worked as a laborer, assembly line worker, and dishwasher/cook. [Dkt. 7-6 at
The ALJ followed the five-step sequential evaluation set forth by the SSA
in 20 C.F.R. § 416.920(a)(4) and concluded that the Plaintiff was not disabled.
[Dkt. 7-2 at 24.] Specifically, the ALJ found as follows:
At Step One, the Plaintiff had not engaged in substantial gainful
activity 3 since April 7, 2016, the application date. 4 [Dkt. 7-2 at 18.]
At Step Two, he had "the following severe impairments: degenerative
disc disease, borderline intellectual functioning, and depression."
[Dkt. 7-2 at 18 (citation omitted).]
At Step Three, he did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the
listed impairments. 5 [Dkt. 7-2 at 18.]
After Step Three but before Step Four, the Plaintiff had the RFC "to
perform light work as defined in 20 CFR 416.967(b) except he can lift,
carry, push or pull twenty pounds occasionally and ten pounds
frequently. He can stand and walk six hours of an eight-hour workday
and sit for six hours. He can occasionally stoop, balance, crouch,
crawl, kneel, and climb stairs or ramps, but cannot climb ladders,
ropes, scaffolds. He should not work around hazards such as
unprotected heights, or unguarded, dangerous moving machinery. He
should not be required to ambulate on wet or uneven surfaces. He is
The relevant evidence of record is amply set forth in the parties' briefs and need not be repeated
here. Specific facts relevant to the Court's disposition of this case are discussed below.
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).
SSI is not compensable before the application date. 20 C.F.R. § 416.335
When assessing the "paragraph B" criteria, the ALJ found that the Plaintiff had moderate
limitations with concentration, persistence, or maintaining pace. [Dkt. 7-2 at 19.] The
limitations identified in the paragraph B criteria are used to rate the severity of mental
impairments at Steps Two and Three of the sequential evaluation process. 20 C.F.R. §
416.920a(d)–(e). However, the RFC assessment used at Steps Four and Five requires a more
detailed assessment by itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorder listings. Social Security Ruling ("SSR") 96-8p (S.S.A.
July 2, 1996), 1996 WL 374184, at *4.
limited to work involving simple, repetitive tasks requiring occasional
independent judgement regarding basic work processes and work
goals from day to day should be static and predictable." [Dkt. 7-2 at
At Step Four, the Plaintiff did not have any past relevant work to
consider. [Dkt. 7-2 at 23.]
At Step Five, relying on the testimony of the vocational expert and
considering the Plaintiff's age, education, work experience, and RFC,
there were jobs that existed in significant numbers in the national
economy that he could have performed through the date of the decision
in representative occupations such as a sorter, routing clerk, and
collator operator. [Dkt. 7-2 at 23–24.]
The Plaintiff raises a host of issues—arguing that:
This Court must consider (1) whether the ALJ's [d]ecision is
premised on cherry-picked evidence and fails to provide an accurate
and logical bridge to support his critical conclusions and assertions;
(2) whether the ALJ erred at Step Two (and beyond) given (a) the
evidence of [the] Plaintiff's (i) anxiety disorder and (ii) underweight
condition, and (b) the Agency's regulations requiring consideration
of the combination of [the] Plaintiff's conditions, and (c) at all the
Steps thereafter; (3) whether the ALJ erred in assessing [the]
Plaintiff's mental impairments at Step Two and beyond given that
the ALJ (a) erred in assessing the "B Criteria," which (b) flowed into
the remainder of the [d]ecision; (4) whether the ALJ erred at Step
Three in (a) failing to consider all relevant listings, and (b) failing to
properly consider whether [the] Plaintiff's impairments, individually
or in combination, medically equal a listing; (5) whether the ultimate
residual functional capacity ("RFC") is supported given that (a) the
ALJ erred in considering [the] Plaintiff's statements and (b) the ALJ
erred in assessing the record; and, (6) whether the ALJ's Step Five
determination is supported by substantial evidence given that the
ALJ failed to provide a complete picture of [the] Plaintiff's functional
capacity to the vocational expert in order to determine whether [the]
Plaintiff was capable of performing any work.
[Dkt. 10 at 2.] The Court addresses the arguments as necessary to resolve the
A. Concentration, Persistence, or Maintaining Pace
The Plaintiff contends that the ALJ ignored evidence of more than
moderate limitations with the Plaintiff's ability to concentrate, persist, or
maintain pace. [Dkt. 10 at 25]; see supra note 5 (and accompanying text). The
Plaintiff also contends that even assuming the ALJ's finding that he had
moderate limitations in that domain, the ALJ's RFC assessment failed to
adequately account for those limitations. [Dkt. 10 at 30–31.]
Concerning the latter contention, the Seventh Circuit has repeatedly
cautioned that "someone with problems concentrating might not be able to
complete a task consistently over the course of a workday, no matter how simple
it may be." Martin v. Saul, 950 F.3d 369, 373–74 (7th Cir. 2020) (collecting
cases); see Craft v. Astrue, 539 F.3d 668, 677–78 (7th Cir. 2008) (restricting RFC
to unskilled work did not consider difficulties with memory, concentration, or
mood swings); see also Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015) (citing
Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014) (additional citations omitted)
(RFC limited to simple, repetitive, routine tasks did not
temperamental deficiencies with carrying out those tasks).
The Plaintiff attended two psychological consultative examinations at the
request of the SSA with Steven L. Marlow, Ph.D. On February 11, 2015, Dr.
Marlow reviewed the Plaintiff's relevant history including his education through
the ninth grade in learning disability classes for math, writing, and speech, as
well as his employment that has lasted two weeks at the longest with the most
recent attempt ending because of a combination of back pain, chest pain,
anxiety, and panic. [Dkt. 7-7 at 37.] Dr. Marlow's examination revealed that the
Plaintiff's "immediate memory was in the mentally deficient range" based on
digit-span testing. [Dkt. 7-7 at 38.] His mood was "dysphoric" and his affect
was "anxious." [Dkt. 7-7 at 39.] The Plaintiff reported symptoms consistent with
Dr. Marlow's diagnosis of Generalized Anxiety Disorder including "being easily
fatigued, difficulty concentrating, irritability, muscle tension, and sleep
disturbance." [Dkt. 7-7 at 39–40.] The Plaintiff's "mental control appeared to be
in the mentally deficient range." [Dkt. 7-7 at 39.]
Dr. Marlow provided a medical source statement that the Plaintiff had
"average understanding, poor memory, poor concentration, and average
persistence." [Dkt. 7-7 at 39.] "He is unable to keep up with the pace of the
workplace environment. Claimant can do simple tasks." [Dkt. 7-7 at 39.]
At the second consultative appointment on July 5, 2016, Dr. Marlow's
examination revealed similar findings including deficiencies with the Plaintiff's
immediate memory and mental control, his mood was depressed, and he
reported severe symptoms of anxiety.
[Dkt. 7-11 at 41–42.]
diagnosed Borderline Intellectual Functioning based on IQ testing, Major
Depressive Disorder, recurrent, moderate, and Generalized Anxiety Disorder.
[Dkt. 7-11 at 42–43.]
Dr. Marlow's medical source statement concluded that the Plaintiff had
"average levels of memory and understanding. He ha[d] poor levels of persistence
and concentration," and he could "complete simple tasks." [Dkt. 7-11 at 42.]
The ALJ addressed Dr. Marlow's medical source statements that the
Plaintiff "would have difficulty with changes in the work environment and would
be unable to keep up with the pace of the workplace environment but could do
simple tasks." [Dkt. 7-2 at 22 (record citations omitted).] The ALJ explained
that he gave "Dr. Marlow'[s] opinion regarding simple tasks appropriate weight
as it is reasonably consistent with the overall medical evidence." [Dkt. 7-2 at
The SSA requires that the "RFC assessment must always consider and
address medical source opinions.
If the RFC assessment conflicts with an
opinion from a medical source, the adjudicator must explain why the opinion
was not adopted." SSR 96-8p, 1996 WL 374184, at *7. The Seventh Circuit has
also explained that the "ALJ is not required to adopt the recommendations of an
examining physician. But when a physician provides significant evidence that
cuts against the conclusion reached by the ALJ, the ALJ must provide enough
analysis to allow a re-viewing court some idea of why [he] rejected it." Spicher v.
Berryhill, 898 F.3d 754, 757-58 (7th Cir. 2018) (citing Clifford, 227 F.3d at 87374; Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1996)). An ALJ must provide a
"good explanation" for rejecting the opinion of a consultative examiner who
examined the claimant at the request of the agency. Beardsley v. Colvin, 758
F.3d 834, 839 (7th Cir. 2014) (citing Gudgel v. Barnhart, 345 F.3d 467, 470 (7th
Cir. 2003) ("An ALJ can reject an examining physician's opinion only for reasons
supported by substantial evidence in the record; a contradictory opinion of a
non-examining physician does not, by itself, suffice."); 20 C.F.R. § 404.1527(c)(1)
("Generally, we give more weight to the opinion of a source who has examined
you than to the opinion of a source who has not examined you.").
The ALJ's RFC assessment did not include any limitations consistent with
Dr. Marlow's examination findings and medical source statements that the
Plaintiff would have deficiencies with memory, concentration, and maintaining
pace. The ALJ did not explain why corresponding limitations were rejected but
only a limitation to simple tasks was adopted. The ALJ also did not address
relevant aspects of the record, including Dr. Marlow's diagnosis of Generalized
Anxiety Disorder, as well as the Plaintiff's testimony that he could not read a
newspaper or write a letter that would be understood by anyone other than his
wife. [See Dkt. 7-2 at 44.]
The ALJ's failure to grapple with the relevant record is error. Accordingly,
remand is necessary for further consideration of the Plaintiff's RFC.
B. Remaining Arguments
Having found remand to be warranted for further consideration of the
evidence addressed above, the Court declines to analyze the Plaintiff's remaining
As always, the ALJ should consider the Plaintiff's combined
impairments. The Plaintiff is free to pursue any arguments based on the record,
as well as produce evidence to fill any gaps necessary to adjudication of his claim.
For the reasons detailed herein, the Court REVERSES the ALJ's decision
denying the Plaintiff benefits and REMANDS this matter for further proceedings
under 42 U.S.C. § 405(g) (sentence 4) as detailed above. Final judgment will
SOCIAL SECURITY ADMINISTRATION
Julian Clifford Wierenga
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Adriana Maria de la Torre
THE DE LA TORRE LAW OFFICE LLC
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