STUCKER v. BERRYHILL

Filing 28

CLOSED JUDGMENT/REMANDED - The ALJ's decision is REVERSED. The case is REMANDED for proceedings consistent with this order under sentence four of 42 U.S.C. § 405(g). Final judgment shall issue by separate document. Fed. R. Civ. P. 58(a). See Order for details. Signed by Judge Sarah Evans Barker on 7/30/2018. (MAT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
MISTY S., 1

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL Deputy
)
Commissioner for Operations, Social Security )
Administration, 2
)
)
Defendant.
)

No. 4:17-cv-00198-SEB-DML

ORDER
Plaintiff Misty S. (“Misty”) appeals the final decision of the Deputy
Commissioner for Operations (“Deputy Commissioner”) of the Social Security
Administration (“SSA”) denying her June 9, 2014, application for disability insurance
benefits (“DIB”). R. (Dkt. 13) at 11. The application was initially denied on September
12, 2014, R. at 74, and upon reconsideration on September 30, 2014. R. at 79. The
administrative law judge (“ALJ”) conducted a hearing on June 7, 2016, R. at 28, resulting

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In an attempt to protect the privacy interests 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.
2

On March 6, 2018, the President was notified that, effective November 17, 2017, Nancy A.
Berryhill could no longer serve as the Acting Commissioner of the Social Security
Administration pursuant to the Federal Vacancies Reform Act of 1998. Government
Accountability Office, https://www.gao.gov/products/D18772#mt=e-report (last visited Apr. 27,
2018). The case caption has been updated to reflect the Deputy Commissioner’s current title.
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in a decision on August 31, 2016, that Misty was not disabled and thus not entitled to
receive DIB. R. at 8. The Appeals Council denied review on August 24, 2017, and the
Deputy Commissioner’s decision became final. R. at 1. On October 27, 2017, Misty
timely filed this civil action seeking judicial review of that the decision pursuant to 42
U.S.C. § 405(g). Dkt. 1.
For the reasons below, the decision is reversed and the case remanded for action
consistent with this order.
Background 3
The ALJ followed the five-step sequential evaluation set forth by the SSA, see 20
C.F.R. § 404.1520(a)(4)(i) to (v), in concluding that Misty was not disabled. Specifically,
the ALJ found as follows:
• At Step One, Misty had not engaged in substantial gainful activity 4 since May 25,
2014, the alleged disability onset date. R. at 13.
• At Step Two, she had the following severe impairments: “history of left knee
crush injury, degenerative joint disease/bursitis of the left knee, status post fluid
removal surgery 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 14.
• After Step Three but before Step Four, Misty had the residual functional capacity
(“RFC”) “to perform sedentary work as defined in 20 CFR 404.1567(a). She can
sit for six hours in an eight-hour workday but must be permitted to alternate to
3

The discussion of Misty’s medical history and treatment includes sensitive and otherwise
confidential medical information. 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. § 404.1572(a).
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standing or walking for three to five minutes after 30 to 45 minutes of sitting, and
can stand or walk for two hours in an eight-hour workday but must be permitted to
alternate to sitting for three to five minutes after every 20 to 30 minutes of
standing or walking. She can occasionally operate foot controls with the left lower
extremity. She can occasionally balance, stoop, kneel, crouch, crawl and climb
ramps and stairs, but can never climb ladders, ropes or scaffolds. She is limited to
occasional exposure to unprotected heights, moving mechanical parts, and
vibration, and must avoid concentrated exposure to slippery, wet or moving
surfaces.” Id.
• At Step Four, relying on the testimony of the vocational expert (“VE”) considering
Misty’s RFC, she was incapable of performing her past relevant work as a waitress
and utility worker. R. at 19.
• At Step Five, relying on the testimony of the VE and in light of Misty’s age (30
years old on the alleged disability onset date, May 25, 2014), education (at least a
high school graduate), and RFC, there were jobs that existed in significant
numbers in the national economy that she could have performed through the date
of the decision. R. at 19-20.
Standard of Review
Upon review of the Deputy 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 Deputy Commissioner’s. Lopez
ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).

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Analysis
Misty presents three issues for review: whether the ALJ erred (1) by failing to
include a limitation in the RFC finding that she would need to elevate her legs, 5 (2) in his
evaluation of her subjective symptoms, and (3) by giving only partial weight to the
opinion of her treating orthopedic specialist, Travis E. Clegg, M.D. (“Dr. Clegg”). We
agree the ALJ did not provide an adequate explanation of how the above issues were
resolved in favor of denying benefits. This was reversible error.
The SSA’s regulations and rulings, as interpreted by the Seventh Circuit, impose
on the ALJ a duty to articulate certain critical aspects of his decision. “The determination
or decision must contain specific reasons for the weight given to the individual’s
symptoms, be consistent with and supported by the evidence, and be clearly articulated so
the individual and any subsequent reviewer can assess how the adjudicator evaluated the
individual’s symptoms.” Social Security Ruling 16-3p, 2017 WL 5180304 at *10. In
assessing a claimant’s symptoms, the ALJ is required to “build an accurate and logical
bridge from the evidence to [the] conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th
Cir. 2000).
Misty testified consistently throughout the hearing, in detail, about the need to
elevate her leg while sitting. She testified to being in pain with prolonged sitting,

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We note that there appears in the record and in the briefing some ambiguity as to whether
Misty’s condition affects, and whether her proffered limitation would apply to, both of her legs
or her left leg only. But we have found this ambiguity material neither to the decision below nor
to ours here.
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including in the type of chair she was seated in during the hearing. R. at 36. When
examined by the ALJ, she was asked what her most comfortable position at home was
and responded, “I sit in my recliner with my feet propped.” Id. When asked if she thought
she could perform a job where she could sit for most of the day, but get up periodically as
needed, she responded, “No, sir. My leg swells.” R. at 41. The ALJ inquired, “This is the
left leg?” Id. “Yes, sir.” Id. When asked what she does for her leg when it swells, she
explained further:
[Misty:] I have this knee brace that I can’t wear right now, because my
leg’s too swollen to get it [on]; I have a compression sleeve that I
have to wear on my ankle to keep the swelling out of my foot;
and I have to use ice and heat. And I have to elevate it.
[ALJ:]

Okay. How often do you elevate?

[Misty:] At least 20 minutes every hour.
[ALJ:]

How high?

[Misty:] Higher than my heart.
[ALJ:]

So, you do, you do that every hour of every day, you’re elevating
your leg 20 minutes—

[Misty:] Yes, sir.
[ALJ:]

—out of—did a doctor tell you to do that?

[Misty:] To minimize the swelling, yes.
Id. Later in the hearing, Misty’s representative asked her to show the ALJ her left leg, to
which he commented on the record, “It . . . looks pretty swollen.” Misty confirmed it was
considerably more swollen because she had been unable to prop it up for a couple of
hours in order to attend the hearing. R. at 45.
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In a later portion of the hearing, the VE testified that in addition to the limitations
that would eventually be the ALJ’s RFC finding, if an individual needed to elevate her
leg to heart level at regular intervals during the course of the workday for periods of
fifteen to twenty minutes at a time, the limitation “would preclude full-time competitive
work.” R. at 52-53.
Despite this testimony, the ALJ’s decision did not discuss why this potential
limitation was discredited. The omission at the very least frustrates meaningful review.
And a similar omission was held reversible error by the Seventh Circuit in Smith v.
Astrue:
Regarding leg elevation, Smith notes that the ALJ made only a cursory
comment on this point: “The medical records do not support the limitations
alleged by the claimant that she is medically required to elevate her legs.”
The ALJ failed to link any of the evidence to her conclusion regarding leg
elevation, Smith asserts, and she accuses the [Deputy] Commissioner of
trying to salvage the ALJ’s conclusion through “post hoc rationalization.”
Given the perfunctory nature of the ALJ’s discussion of leg elevation, we
agree with Smith. An ALJ must explain her reasoning, building a so-called
“logical bridge” that connects the evidence and her decision.
467 F. App’x 507, 510 (7th Cir. 2012) (remanding case). The Deputy Commissioner
makes no attempt to distinguish Smith. Here, the ALJ made not even a conclusory
statement that the limitation was unnecessary, much less an effort to connect the evidence
to his ultimate conclusion.
Furthermore, Misty’s proffered limitation is bolstered by the opinion of a treating
orthopedic specialist. Compare id. (remanding even in absence of claimant’s supportive
treating opinion). On April 30, 2015, Misty was examined by Dr. Clegg for knee pain,

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well after the injury to her left leg occurred and nearly a full year after her alleged
disability onset date. R. at 345. Dr. Clegg commented, “At this point I did not feel like
there is anything I can do for her from a surgical standpoint.” R. at 347. “Unfortunately
this may just be as good as she is going to get from this injury.” Id. At a later follow-up
visit on June 13, 2016, Dr. Clegg opined,
At this point she is . . . currently applying for disability which I think is
very reasonable. The primary issue why she can’t work is that she has to be
off her feet and keep her legs elevated most of the day in order to prevent
swelling. Anytime she is standing or sitting with her legs hanging down for
more than an hour the leg swells [and] becomes very painful.
R. at 363.
The ALJ acknowledged Dr. Clegg’s opinion, but did not provide good reasons for
discounting the limitation embodied in it. “An ALJ must offer ‘good reasons’ for
discounting the opinion of a treating physician.” Scott v. Astrue, 647 F.3d 734, 739 (7th
Cir. 2011) (citing Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011); Campbell, 627
F.3d at 306). “Generally, [the SSA] give[s] more weight to the medical opinion of a
source who has examined [a claimant] than to the medical opinion of a medical source
who has not examined [the claimant].” 20 C.F.R. § 404.1527(c)(1). Additionally, the
SSA generally
give[s] more weight to the medical opinions from [a claimant’s] treating
sources, since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of [the claimant’s] medical
evidence that cannot be obtained from the objective medical findings alone
or from reports of individualized examinations, such as consultative
examinations or brief hospitalizations.

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20 C.F.R. § 404.1527(c)(2). Finally, the SSA “generally give[s] more weight to the
medical opinion of a specialist about medical issues related to his or her area of specialty
than to the medical opinion of a source who is not a specialist.” 20 C.F.R. §
404.1527(c)(5).
Here, the ALJ concluded that Dr. Clegg’s opinion was deserving of only “partial
weight,” explaining that, “[w]hile he is a treating source, his opinion is not entirely
consistent with the objective medical evidence of record, or fully supported by relevant
evidence.” This explanation falls short by failing to specify the objective or relevant
evidence that contradicts Dr. Clegg’s opinion, which would otherwise be deserving of
considerable, even controlling, deference.
The Deputy Commissioner contends that Dr. Clegg’s assessment is inconsistent
with his own treatment note from the April 2015 appointment, where he made no
mention of Misty’s need to elevate her legs. For one, we find the ALJ’s written decision
devoid of such reasoning. “Under the Chenery doctrine, the [Deputy] Commissioner’s
lawyers cannot defend the agency’s decision on grounds that the agency itself did not
embrace.” Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012) (citing SEC v. Chenery
Corp., 318 U.S. 80, 87–88 (1943); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.2010)).
Moreover, had such reasoning been stated, it would have been of dubious value. At the
April 2015 visit, Dr. Clegg “discussed modalities to help control pain including ice/heat,
compression, etc.” R. at 347. The advice given appears to be aimed at managing swelling
and is consistent with Misty’s testimony about the remedial measures she has to take to
address it.
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We find in the record no grounds to doubt Dr. Clegg’s unequivocal statement
about the need to elevate Misty’s leg, dictated at the following visit, based on the advice
that was previously given. The record contains multiple references to occasions on which
Misty was advised by different providers to “[e]levate extremity when at rest.” R. at 24344. There is further evidence that she in fact followed that advice. On June 26, 2013,
“[s]he [was] elevating and using ice.” R. at 243. On June 6, 2015, “[s]he wears a brace
most of the time. Takes ibuprofen/naproxyn for pain on a daily basis along with the last
month alternating moist heat and ice with rest and elevation.” R. at 334.
Absent the ALJ linking relevant evidence to his conclusion that Dr. Clegg’s
opinion was deserving of only partial weight, we have conducted our own review of the
record. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986) (“[T]he district court [is]
obliged to review all the evidence contained in the record[.]”). Dr. Clegg’s
contemporaneous treatment notes indicated that “all imaging studies were personally
reviewed,” and “the knee d[id] show significant scar tissue on MRI.” R. at 362. His
examination indicated that Misty’s “knee joint show[ed] mild effusion,” and “some
swelling [was] noted at the ankle.” Id. The balance of the record contains other relevant,
supportive evidence. On March 7, 2013, a provider “aspirated 30 cc’s of fluid from
[Misty’s] knee.” R. at 241. On November 19, 2013, a biopsy of a mass removed from
Misty’s left knee indicated “adipose tissues show[ing] a focal area of fat necrosis and
chronic inflammation.” R. at 264. The operative report noted her knee “had been
aspirated of clear fluid on 3 different occasions.” R. at 269. On January 9, 2015, an
examination revealed “[i]increased swelling surrounding [left] knee and into lower leg.”
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R. at 286. On January 20, 2015, Misty’s complaints included “[c]hronic swelling of
knee” and the examination showed positive effusion. R. at 331-32. We find here nothing
inconsistent with Dr. Clegg’s opinion, much less the kind of obvious contradiction as
might obviate the need for a reasoned written decision.
The Deputy Commissioner contends further that the ALJ’s RFC determination is
supported by the opinions of two state-agency reviewing consultants and a one-time
consultative examiner, all of which the ALJ gave “great weight.” R. at 18. But these
opinions were all given in September 2014, well before Dr. Clegg’s assessment. R. at 5961, 68-70, 279. We find no reason in the decision in favor of crediting these outdated
opinions over the more recent opinion of a treating specialist who had the benefit of
examining Misty on more than one occasion, particularly given that the other opinions
did not specifically address whether or not she would need to elevate her leg. The Deputy
Commissioner asserts that the absence of any such limitation creates a negative inference
that elevation is not medically necessary, but the Seventh Circuit has suggested the
contrary. See Chase v. Astrue, 458 F. App’x 553, 557 (7th Cir. 2012) (“The [Deputy
Commissioner] defends the ALJ’s ruling on grounds that the ALJ considered . . . the
state-agency physicians’ conclusions that Chase could do sedentary work. But the stateagency physicians said nothing about foot elevation . . . .”).
Misty’s case may be instructively contrasted with that of Britt v. Berryhill, 889
F.3d 422 (7th Cir. 2018). There, the claimant’s
strongest argument [was] that the ALJ failed to evaluate his testimony that
he needed to elevate his foot as a treatment measure to reduce pain. That
restriction [was] outcome-determinative because the [VE] testified that
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elevating his foot during working hours would exclude all jobs. [Claimant]
maintains that the case must be remanded because the ALJ acknowledged
his claim that he must elevate his foot at work but failed to explain why that
limitation was not included in the RFC. ALJs must confront evidence that
supports a finding of disabled, like Britt’s testimony, and then explain why
it was rejected. See O'Connor-Spinner v. Astrue, 627 F.3d 614, 621 (7th
Cir. 2010). And RFC assessments must explain why a reported limitation is
or is not consistent with the evidence in the record. SSR 16-3p, 2017 WL
5180304, at *8.
Id. at 425–26. The court upheld the ALJ’s decision, concluding that the ALJ had
explained why he rejected the claimant’s testimony, including an explanation that the
ALJ had given great weight to a medical expert that testified that elevation was not
medically necessary. Id. at 426. The court also found the ALJ justified in discounting a
treating orthopedic opinion, which stated
that [Claimant] should elevate his foot “as needed.” But here too there was
no error because that recommendation was a temporary measure. [The
treating physician] recommended—immediately after the injury and almost
a year before [Claimant’s] alleged onset date—merely that [Claimant]
elevate his foot to reduce swelling. No objective medical evidence postdating [Claimant’s] alleged onset date support[ed] his allegation that he
must elevate his leg at work. In fact, . . . the medical expert who testified at
[Claimant’s] first hearing . . . opined that elevation was not medically
necessary after the alleged onset date.
Id.
Here, by contrast, there is no contrary medical opinion specifically addressing the
issue, much less the opinion of medical expert with the benefit of having reviewed the
longitudinal record. Dr. Clegg was not offering a temporary measure immediately after
the injury. Dr. Clegg’s opinion was given well after the alleged onset date, appears to be
a permanent restriction, and was supported by objective evidence during the period at
issue. Accordingly, we believe the instant case is distinguishable from Britt. Given the
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supportive evidence and absence of any relevant and focused discussion that we can
adequately review, remand is necessary for further consideration of the outcome
determinative issue.
Conclusion and Order
For the reasons explained above:
The ALJ’s decision is REVERSED.
The case is REMANDED for proceedings consistent with this order under sentence
four of 42 U.S.C. § 405(g). Final judgment shall issue by separate document. Fed. R. Civ.
P. 58(a).
IT IS SO ORDERED.

7/30/2018
Date: _________________

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

Distribution:
Lu Han
SOCIAL SECURITY ADMINISTRATION
[e-mail]
William Joseph Jenner
JENNER, PATTISON, HENSLEY & WYNN, LLP
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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