NOBLES v. COLVIN

Filing 26

ORDER adopting in part Magistrate Judge's 22 Report and Recommendations. The decision of the ALJ is REVERSED and this matter is REMANDED to SSA for proceedings consistent with this Entry. Signed by Judge Richard L. Young on 3/31/2016. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
BETH A. NOBLES,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

3:15-cv-00001-RLY-MPB

ENTRY ON THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Beth A. Nobles, Plaintiff, filed a request for judicial review of the final decision of
Carolyn Colvin, Acting Commissioner of the Social Security Administration, denying her
application for disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. § 401 et seq. The court referred the matter to the Magistrate Judge, who issued
his Report and Recommendation. The Magistrate Judge concluded that the
Administrative Law Judge’s (“ALJ”) decision was supported by substantial evidence, and
therefore recommended that the court affirm the determination that Plaintiff is not
disabled within the meaning of Title II. This matter now comes before the court on
Plaintiff’s Objection to the Magistrate Judge’s Report and Recommendation. For the
reasons set forth below, the court SUSTAINS IN PART Plaintiff’s Objection,
REJECTS IN PART the Magistrate Judge’s Report and Recommendation, and
REMANDS the matter to the Social Security Administration for further proceedings.

1

I. Standard of Review
The court reviews an ALJ’s decision “deferentially only to determine if it is
supported by substantial evidence.” Yurt v. Colvin, 758 F.3d 850, 856 (7th Cir. 2014).
See 42 U.S.C. § 405(g). Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). It is well established that “an ALJ is not required to
provide a complete and written evaluation of every piece of testimony and evidence, but
‘must build a logical bridge from the evidence to his conclusion.’” Minnick v. Colvin,
775 F.3d 929, 935 (7th Cir. 2015) (quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th
Cir. 2005)).
The Magistrate Judge reviewed the ALJ’s decision, and Plaintiff filed a timely
objection to his Report and Recommendation pursuant to Rule 72(b). When a party
raises specific objections to a Magistrate Judge’s Report and Recommendation, the
district court reviews those matters de novo, determining for itself whether the
Commissioner’s decision on those issues is supported by substantial evidence. Upon
conducting a review, the court “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3).
II. Discussion
Plaintiff raises three objections to the Report and Recommendation. Each
objection is discussed in turn.

2

A. Ignoring Significant Lines of Evidence
First, Plaintiff argues that both the ALJ and the Magistrate Judge ignored
significant lines of evidence. In support, Plaintiff lists numerous pieces of evidence that
the ALJ allegedly failed to consider (e.g., portions of a lumbar MRI from December 2011
that shows disc protrusion, findings of physical therapists from November 2012 to
February 2013, and a note from treating orthopedist, Ross Whitacre’s physical exam).
Unfortunately, Plaintiff stops there. She fails to conduct any actual analysis on the ALJ’s
alleged error, meaning that the court is left to guess why the evidence is significant. The
Commissioner responds that “an ALJ is not required to provide a complete and written
evaluation of every piece of testimony and evidence,” Minnick, 775 F.3d at 935, and that
is an accurate statement of the law. However, an ALJ must nonetheless “provide a
‘logical bridge’ between the evidence and his conclusions.” Varga v. Colvin, 794 F.3d
809, 813 (7th Cir. 2015). As discussed below, that did not happen here.
In short, Plaintiff avers that she cannot ambulate effectively, which is required to
meet Listings 1.03 or 1.04c. “Inability to ambulate effectively means an extreme
limitation of the ability to walk.” 20 C.F.R. § 404 subpt. P., app. 1 § 1.00(B)(1). As
summarized by the Seventh Circuit,
The regulations state that ‘ineffective ambulation’ is ‘defined generally’ as
requiring the use of a hand-held assistive device that limits the functioning
of both upper extremities.
But the regulations further provide a
nonexhaustive list of examples of ineffective ambulation, such as the
inability to walk without the use of a walker or two crutches or two canes;
the inability to walk a block at a reasonable pace on rough or uneven surfaces;
the inability to carry out routine ambulatory activities, like shopping and
banking; and the inability to climb a few steps at a reasonable pace with the
use of a single handrail.
3

Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009) (quoting 20 C.F.R. § 404 subpt. P.,
app. 1 § 1.00(B)(1-2)).
The simple problem here, which Plaintiff fails to convey, is that the ALJ did not
provide adequate reasoning for the determination that Plaintiff can effectively ambulate.
In the Report and Recommendation, the Magistrate Judge concluded,
In determining that Nobles was able to effectively ambulate, the ALJ based
his decision off of Nobles’ (1) full cervical range of motion, (2) normal gait,
(3) no evidence of spinal arachnoiditis, (4) no disorganization of motor
function, (5) and vision in her right eye not less than 20/200.
(Filing No. 22, Report and Recommendation (“Report”) at 6-7). Yet, it is wholly unclear
where the Magistrate Judge found these bases for the determination because the entirety
of the ALJ’s discussion of ambulation is a single sentence: “The claimant retains the
ability to ambulate effectively with a normal gait.” (Filing No. 12-2 at 22). The ALJ
offers no explanation for how he arrived at that conclusion. Even if the court agreed the
ALJ had offered those five reasons, the Magistrate Judge himself held that at least one of
those reasons was unsupported by the record: “[T]he ALJ omitted reference to significant
evidence of the severity of Plaintiff’s right knee limitations. The finding of ‘normal gait’
does not seem supported by substantial evidence.” (Report at 7 n.1).
The ALJ’s single sentence on the topic of ambulation is followed by a single
citation to a report from consultative examiner Surinder Kad, M.D. Dr. Kad’s report is
problematic though. Initially, Dr. Kad’s report does not directly conclude that Plaintiff
can ambulate effectively. More importantly though, the report is self-contradictory on
this topic. On one hand, Dr. Kad writes: (1) Plaintiff can only walk “[o]ccasionally 2 hrs/

4

day,” (2) “[t]here are definitive limitations to her movements, motions, or activities at this
time”; and (3) Plaintiff “uses a walker as an assistive device for ambulation at night
time.” (Filing No. 12-11 at 588). On the other hand, Dr. Kad also finds: (1) Plaintiff
“has the ability to perform activities involving . . . carrying . . . and traveling”; (2) “At
this time, I see no limit to her/his activities (ADL, recreational, sports, repetitive, physical
and exertional)”; (3) “[s]he can walk up and down steps”; and (4) Plaintiff has a normal
gait. (Id.). Depending on which lines are selectively quoted, Dr. Kad’s report could
likely support a finding of either effective ambulation or ineffective ambulation. The
ALJ is silent on how he resolved these internal inconsistences.
The Commissioner contends that remand is unnecessary because the evidence
cited by Plaintiff does not show she satisfies the definition of ineffective ambulation:
“Plaintiff did not cite evidence showing that she relied on a hand held assistive device
that limited her functioning in both of her arms.” (Filing No. 24, Commissioner’s
Response at 2 (emphasis original)). This argument misses the mark though, as that is not
the only way to prove ineffective ambulation. The Social Security Administration’s
regulations provide that examples of ineffective ambulation include, but are not limited
to, “the inability to walk a block at a reasonable pace on rough or uneven surfaces . . . and
the inability to climb a few steps at a reasonable pace with the use of a single hand rail.”
20 C.F.R. § 404 subpt. P., app. 1 § 1.00(B)(2). Moreover, “The ability to walk
independently about one’s home without the use of assistive devices does not, in and of
itself, constitute effective ambulation.” Id.

5

Because the ALJ did not build a logical bridge between the evidence and his
conclusion, remand is required. On remand, the ALJ should reassess the evidence
regarding Plaintiff’s ability to ambulate and offer support for his ultimate conclusion.
Even if the ALJ comes to the same conclusion, he should discuss (and explain his reason
for discounting) the evidence indicating Plaintiff cannot ambulate effectively. See Scott
v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (“The ALJ was not permitted to ‘cherrypick’ from those mixed results to support a denial of benefits.”).
B. Failure to Consider Impairments in Combination
Second, Plaintiff offers a cursory argument that the ALJ did not consider
impairments in combination when determining her residual functional capacity (“RFC”).
Plaintiff raised this issue to the Magistrate Judge in her opening brief, and the Magistrate
Judge rejected the argument after conducting a thorough discussion of the evidence. The
Magistrate Judge found, “Although the ALJ might have more clearly articulated his
consideration of all the Plaintiff’s impairments in combination, I find that he addressed
each impairment. I can trace the path of reasoning here and determine that all conditions
were considered in combination.” (Report at 8). In her Objection, Plaintiff simply states
that “the ALJ did not clearly articulate his reasoning,” but that is insufficient to show that
the ALJ did not consider the combined impact of Plaintiff’s impairments. Plaintiff fails
to offer any explanation as to why the limitations provided in the RFC are insufficient.
She also does not propose any additional limitations that she believes the ALJ should
have included. She has therefore waived this objection. See Clarett v. Roberts, 657 F.3d

6

664, 674 (7th Cir. 2011) (“We have repeatedly held that undeveloped arguments are
considered waived.”).
C. Failure to Adequately Address Dr. Dukar’s Opinion
Lastly, Plaintiff takes issue with the following paragraph from the Report and
Recommendation:
While the ALJ also found that Nobles had left-eye corneal edema, glaucoma,
ice syndrome, and right-eye sclerotic cataract and glaucoma with ocular
hypertension, the ALJ gave great weight to the opinion of specialist Dr.
[Omar K.] Dukar, who opined that “claimant’s visual impairments do not
result in any functional limitation of her physical activities.” Filing No. 122 at EFC p. 25.
(Report at 9). Plaintiff argues that this paragraph “reflects a lack of recognition of the
difference between exertional and non-exertional impairments.” (Filing No. 23,
Plaintiff’s Objection at 5). She goes on to imply that Dr. Dukar’s opinion leaves room
for a finding that Plaintiff’s eye impairments cause non-exertional limitations. 1 The court
disagrees. Dr. Dukar’s letter states, “[Plaintiff] has no functional limitation imposed by
her impairment to do work related physical activities such as sitting, standing, walking,
lifting, carrying, handling objects, hearing, speaking and travelling.” (Filing No. 12-11 at
569). This statement is unambiguous and leaves no room for Plaintiff’s interpretation.
Dr. Dukar plainly considered non-exertional limitations because he opines that Plaintiff’s

1

“Limitations are classified as exertional if they affect your ability to meet the strength demands
of jobs.” 20 C.F.R. § 404.1569a(a). “Limitations or restrictions which affect your ability to
meet the demands of jobs other than the strength demands, that is, demands other than sitting,
standing, walking, lifting, carrying, pushing or pulling, are considered nonexertional.” Id.

7

eye conditions do not impair her ability to hear or speak, which are non-exertional in
nature.
Despite Dr. Dukar’s opinion, the ALJ did, in fact, provide limitations in Plaintiff’s
RFC to account for her eye impairments: “[T]he claimant’s left eye blindness can
reasonably be expected to result in diminished depth perception and diminished
peripheral vision. Because of this, the claimant should avoid concentrated exposure to
workplace hazards such as slippery, uneven terrain, and unprotected heights.” Again,
Plaintiff fails to explain what additional limitations would have been appropriate.
IV. Conclusion
For the foregoing reasons, the court SUSTAINS IN PART Plaintiff’s Objection
(Filing No. 23) and REJECTS IN PART the Magistrate Judge’s Report and
Recommendation (Filing No. 22). The ALJ failed to build a logical bridge from the
evidence to his conclusion that Plaintiff can ambulate effectively. Accordingly, the
decision of the ALJ is REVERSED. Plaintiff’s Objection is OVERRULED and the
Report and Recommendation is ADOPTED in all other respects. This matter is
REMANDED to the Social Security Administration for proceedings consistent with this
Entry.

SO ORDERED this 31st day of March 2016.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

8

Distributed Electronically to Registered Counsel of Record.

9