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Case 1:12-cv-00962-MJD-WTL Document 28 Filed 07/31/13 Page 1 of 11 PageID #: 1400

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

AMANDA L. SIMPSON,

Plaintiff,

vs.

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

Defendant.


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No. 1:12-cv-00962-MJD-WTL


ENTRY ON JUDICIAL REVIEW








Plaintiff Amanda Simpson requests judicial review of the final decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying her application

for Social Security Disability Insurance Benefits (“DIB”) under Title II and for Supplemental

Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”). See 42 U.S.C.

§§ 416(i), 423(d), & 1382c(a)(3). For the reasons set forth below, the decision of the

Commissioner is REVERSED.1

I.

Procedural History



Simpson filed an application for DIB and SSI on April 25, 2008, alleging a disability

onset date of October 15, 2007. Simpson’s applications were denied initially on October 21,

2008, and upon reconsideration on January 14, 2009. Simpson requested a hearing, which was

held on October 19, 2010 before Administrative Law Judge Tammy Whitaker (“ALJ”). The ALJ


1 The parties consented to the Magistrate Judge conducting all proceedings and ordering the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Any objections to or appeal of this decision must be
made directly to the Court of Appeals in the same manner as an appeal from any other judgment of a district court.
28 U.S.C. § 363(c)(3).

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denied Simpson’s applications on December 10, 2010. The Appeals Council denied Simpson’s

request for review on May 9, 2012, making the ALJ’s decision the final decision for purposes of

judicial review. Plaintiff filed her Complaint with this Court on July 13, 2012.

II.

Factual Background and Medical History

Amanda Simpson was 39 years old at the time of the administrative hearing. She

completed high school, and previously worked as a security guard, landscaper, and bricklayer.

Simpson has both physical and mental impairments, suffering from degenerative disc

disease, lumbosacral radiculitis, migraine headaches, major depression, and bipolar disorder.



Simpson’s back problems pre-date the alleged disability onset date. She had a lumbar

discectomy in December of 2006, and a lumbar laminectomy in May of 2007, both surgeries

performed by Dr. Kenneth Renkens. However, Simpson continued to complain of back and hip

pain, and was then diagnosed with post-laminectomy syndrome. She was prescribed epidural

injections for the pain, which were administered from late 2007 to early 2008. She continued to

complain of pain, and in January of 2008, a spinal MRI showed an abnormal signal at L4-L5,

consistent with epidural fibrosis. Dr. Renkens then diagnosed Simpson with radiculopathy.



In March of 2008, Simpson was seen at Meridian Services for complaints of worsening

depression. The social worker there, Debora Tice, diagnosed Simpson with major depression

and gave her a Global Assessment of Functioning (“GAF”) score of 50, indicating serious

symptoms or serious impairment in social or occupational functioning.



In September of 2008, Dr. Bilal Khan performed a consultative examination, at the

request of the Indiana Disability Determination Bureau (“DDB”), and opined that Simpson was

severely disabled due to back pain. In October of 2008, Dr. M. Ruiz of the DDB completed a

Residual Functional Capacity (“RFC”) assessment regarding Simpson’s physical limitations. Dr.



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Ruiz concluded that Simpson could lift 20 pounds occasionally and 10 pounds frequently; could

stand or walk for six hours in an eight hour workday; could sit for the same amount of time;

could balance, kneel, and crouch frequently; could climb ramps and stairs, stoop and crawl

occasionally; and could never climb ladders, ropes, or scaffolds.

Also in October of 2008, the DDB’s Dr. Stacia Hill completed a mental RFC,

determining that Simpson had major depression, and assigned moderate limitation in Simpson’s

ability to maintain concentration, persistence, or pace.



Starting in January of 2009, Simpson complained of daily headaches, and from the end of

that month to July 14, 2010, Simpson sought emergency treatment for headache pain. Dr.

Blankenship, a neurologist, concluded that the headaches were likely caused by Simpson’s pain

medications, and that they would cause her to be absent from work two days a month.



In October of 2009, Simpson sought treatment at the Center for Pain Management, where

Dr. Edward Kowlowitz recommended a trial of a spinal cord stimulator, which Simpson was

given on December 3, 2009.



In the meantime, Dr. Hillman of Meridian Services diagnosed Simpson with Bipolar

disorder, and again assigned her a GAF of 50. In August of 2010, Simpson was involuntarily

admitted at Ball Memorial Hospital for suicidal ideation.

On August 19, 2010, Terri Helbing, Simpson’s therapist, and Dr. S. Khan jointly

provided a mental RFC, in which they indicated that Simpson would need to miss work more

than four days per month. On August 27, 2010, Dr. Mathison completed a physical RFC, in

which he indicated that Simpson’s pain constantly interferes with her attention and

concentration; that she can sit, stand, and walk for only two hours out of an eight hour workday;

that she can rarely lift less than ten pounds and never lift more than ten pounds; that she can



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rarely crouch, squat, or climb stairs; and that she can never twist, stoop, or climb ladders. Dr.

Mathison further opined that Simpson could not sustain gainful employment because of an

inability to focus, due to chronic pain.

III. Applicable Standard



To be eligible for SSI and DIB, a claimant must have a disability under 42 U.S.C. § 423.2

Disability is defined as “the inability to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which can be expectd to result in

death or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d(1)(A). In order to be found disabled, a claimant must demonstrate

that her physical or mental limitations prevent her from doing not only her previous work, but

any other kind of gainful employment which exists in the national economy, considering her age,

education, and work experience. 42 U.S.C. § 423(d)(2)(A).



In determining whether a claimant is disabled, the Commissioner employs a five-step

sequential analysis. At step one, if the claimant is engaged in substantial gainful activity

(“SGA”) she is not disabled, despite her medical condition and other factors. 20 C.F.R. §

404.1520(b). At step two, if the claimant does not have a “severe” impairment (i.e., one that

significantly limits her ability to perform basic work activities), she is not disabled. 20 C.F.R. §

404.1520(c). At step three, the Commissioner determines whether the claimant’s impairment or

combination of impairments meets or medically equals any impairment that appears in the

Listing of Impairments, 20 C.F.R. pt.404, subpt. P, App. 1, and whether the impairment meets

the twelve-month duration requirement; if so, the claimant is disabled. 20 C.F.R. § 404.1520(d).


2 In general, the legal standards applied in the determination of disability are the same regardless of whether a
claimant seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this opinion should be considered to refer to the appropriate parallel provision as context
dictates. The same applies to citations of statutes or regulations found in quoted court decisions.



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At step four, if the claimant is able to perform her past relevant work, she is not disabled. 20

C.F.R. § 404.1520(f). At step five, if the claimant can perform any other work in the national

economy, she is not disabled. 20 C.F.R. § 404.1520(g).



In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be

upheld by this court “so long as substantial evidence supports them and no error of law

occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence

means such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. This court may not reweigh the evidence or substitute its judgment for that of

the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ “need not evaluate in

writing every piece of testimony and evidence submitted.” Carlson v. Shalala, 999 F.2d 180,

181 (7th Cir. 1993). However, the “ALJ’s decision must be based upon consideration of all the

relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). In order to be

affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not

required to address every piece of evidence or testimony,” she must “provide some glimpse into

her reasoning . . . [and] build an accurate and logical bridge from the evidence to her

conclusion.” Dixon, 270 F.3d at 1176.

IV.

The ALJ’s Decision



The ALJ first determined that Simpson met the insured status requirements of the Social

Security Act through September 30, 2011. Applying the five-step analysis, the ALJ found at step

one that Simpson had not engaged in substantial gainful activity since the alleged onset date of

October 15, 2007. At step two, the ALJ found that Simpson had the following severe

impairments: degenerative disc disease, lumbosacral radiculitis, obesity, plantar fasciitis,

migraine headaches, major depression, bipolar disorder, and cannabis abuse.



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At step three, the ALJ determined that Simpson did not have an impairment or

combination of impairments that met or medically equaled one of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix 1. The ALJ evaluated Simpson’s obesity using the criteria

of Listings 1.00Q, 3.00I, and 4.00I and determined that there was no evidence that Simpson’s

obesity was of listing-level severity. The ALJ evaluated Simpson’s back impairment using the

criteria of Listing 1.04 and determined that Simpson lacked the significant and persistent

neurological abnormalities required by that listing. The ALJ evaluated Simpson’s plantar

fasciitis using the criteria of Listing 1.02 and determined that Simpson lacked the gross

anatomical deformity, chronic joint pain, stiffness, and limitation of motion required by the

listing. The ALJ evaluated Simpson’s migraine headaches using the criteria of Listing 11.03 and

determined that there was no evidence of alteration of awareness with significant interference

with activity.

Regarding Simpson’s mental impairments, the ALJ determined that the impairments,

alone or in combination, did not meet or medically equal the criteria of Listings 12.04 or 12.09.

Specifically, the ALJ considered whether the “paragraph B and C” criteria were satisfied. To

satisfy “paragraph B,” the mental impairments must result in at least two of the following:

marked restriction of activities of daily living; marked difficulties in maintaining social

functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated

episodes of decompensation, each of extended duration. The ALJ determined that Simpson had

mild restriction in her activities of daily living; moderate difficulties in social functioning;

moderate difficulties in maintaining concentration, persistence, or pace; and no extended

episodes of decompensation. Thus, the ALJ determined that Simpson’s mental impairments did

not meet the “paragraph B” criteria. Evaluating Simpson’s mental impairments under the



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“paragraph C” criteria, the ALJ found that, in addition to no episodes of decompensation of

extended duration, a minimal adjustment in her environment would not cause Simpson to

decompensate, and there was no evidence that Simpson is unable to function outside a highly

supportive living arrangement. Therefore, the ALJ determined that Simpson’s mental

impairments did not meet the “paragraph C” criteria.



The ALJ found that the claimant has the RFC to perform sedentary work as defined in 20

C.F.R. §§ 404.1567(a) and 416.967(a) except as follows: Simpson must be allowed to sit or stand

alternatively, and must be allowed to stand or walk for five to seven minutes before sitting back

down; Simpson cannot twist, crouch, kneel, crawl, reach overhead, or climb ladders, ropes,

scaffolds, or stairs; she can never stoop below the waist, and can never stoop repetitively;

Simpson must not be exposed to very loud noise, vibration, or hazards such as unprotected

heights, dangerous machinery, and slippery or uneven walking surfaces; she is limited to simple,

routine, and repetitive tasks, and can make only simple work-related decisions; she must be able

to be absent once per month.

At step four, the ALJ determined that Simpson is unable to perform any of her past

relevant work. At step five, the ALJ determined that, considering Simpson’s age, education,

work experience, and RFC, there are jobs that exist in significant numbers in the national

economy that Simpson could perform. Therefore, the ALJ determined that Simpson is not

disabled.

V.

Discussion



The central issue in this matter is whether there is substantial evidence to support the

ALJ’s determination that Simpson is not disabled. Simpson raises two arguments as to why this

Court should reverse the decision of the ALJ: 1) the ALJ erred in failing to grant controlling



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weight to any treating physician, and 2) the ALJ erred in failing to consult a medical expert

regarding the equaling or meeting of a Listing regarding Simpson’s headaches.

A. Substantial Evidence Does Not Support the ALJ’s Decision Not to Grant

Controlling Weight to the Treating Physicians
The ALJ did not grant controlling weight to Dr. Mathison’s RFC, Dr. Blankenship’s



opinion, or Dr. Khan’s mental RFC. This, in itself, is not error if those opinions are not

supported by substantial evidence. 20 C.F.R. § 404.1527(c)(2); See Hofslien v. Barnhart, 439

F.3d 375, 376 (7th Cir. 2006). However, Simpson argues that the ALJ failed to articulate an

acceptable rationale for not granting controlling weight to the treating physicians. This Court

agrees. In this case, the ALJ stated that she granted each of these treating physicians’ opinions

“little weight,” after determining that they were not supported by the record evidence, and/or

inconsistent with Simpson’s level of activities. [R. at 26, 29.] This statement is insufficient.

“The ALJ is not required to address every piece of evidence or testimony presented, but must

provide a “logical bridge” between the evidence and [her] conclusions.” Terry v. Astrue, 580

F.3d 471, 475 (7th Cir. 2009). The ALJ does not explain why the treating physicians’ opinions

were not supported by the record evidence, or were inconsistent with Simpson’s level of

activities, and thus does not build the required logical bridge. “The ALJ did not provide any

explanation for [her] belief that [Simpson’s] activities were inconsistent with [the treating

physicians’] opinion[s] and [her] failure to do so constitutes error.” Clifford v. Apfel, 227 F.3d

863, 870 (7th Cir. 2000).



Further, the ALJ’s bare statement that each treating physician’s opinion is not supported

by the record evidence is itself unavailing. In fact, all of the doctors’ opinions are consistent

with one another in their assessments of Simpson’s limitations, except Dr. Ruiz who never

examined Simpson. It is Dr. Ruiz’ opinion which is inconsistent with the others, and therefore,



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substantial evidence does not support the ALJ’s decision to credit Dr. Ruiz’ opinion over the

others’.

The ALJ relied heavily on Simpson’s level of activities as support that Dr. Ruiz’ had the

most accurate assessment. However, the Seventh Circuit has cautioned that inordinate weight

should not be placed on a claimant’s ability to complete household tasks. Mendez v. Barnhart,

439 F.3d 360, 362 (7th Cir. 2006) (citations omitted). In so doing, the Seventh Circuit

recognized that “[t]he pressures, the nature of the work, flexibility in the use of time, and other

aspects of the working environment as well, often differ dramatically between home and office

or factory or other place of paid work.” Id. at 362. In this case, the ALJ has not pointed to

substantial evidence to conclude that Simpson’s level of activity is inconsistent with disability.

Simpson is on the Daleville Town Council, but that involves attending a single one-hour meeting

per month – hardly the sort of exertion required to hold down a job. Simpson also attends her

son’s basketball games and golf tournaments, as well as her Goddaughter’s annual horse show.

Again, these are not activities which are inconsistent with disability. Simpson also drives her

son to school each day, and does some chores in her home. But as the Seventh Circuit noted in

Mendez, these sorts of activities simply do not have the same pressures as those present in the

workplace, and are thus not inconsistent with disability.



The ALJ also points to the fact that Simpson returned to working as a bricklayer from

around May 14, 2009 to sometime before October 2009 [R. at 790, 845-46.] However, the ALJ

neither characterizes this work as SGA nor as an unsuccessful work attempt. In the absence of

further evidence in the record of either how long it lasted, or why it was terminated, this Court is

unable to determine whether this work was an unsuccessful work attempt. This was error on the

ALJ’s part, as, “at a minimum, the ALJ should have inquired at the administrative hearing as to



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when and why [the plaintiff’s job] ended.” Cheney v. Comm’r of Soc. Sec., 2011 U.S. Dist.

LEXIS 51734 (D. Vt.). If this was an unsuccessful work attempt, as seems quite possible to this

Court, especially in light of the fact that the ALJ did not characterize it as SGA, then the ALJ

should have disregarded it in her evaluation of disability, instead of using it as evidence that “the

claimant has shown during the alleged period of disability that she had the ability to work.” [R.

at 28.] Indeed, to credit the ALJ’s statement in this regard would be to discourage other potential

claimants from attempting to work, or testing their ability to work, which this Court will not do.

B. Substantial Evidence Does Not Support the ALJ’s Decision Not to Obtain an

Updated Medical Opinion
In determining that Simpson’s migraine headaches did not meet or equal a Listing, the



ALJ considered Listing 11.03 in particular. 20 C.F.R. pt.404, subpt. P, App. 1. [R. at 22.]

Simpson argues that the ALJ erred by failing to obtain an updated medical opinion on the issue,

because Simpson did not begin seeking emergency medical treatment for migraines until 2009,

after the DDB physicians had made their evaluation. The ALJ is required to obtain an updated

opinion “when additional medical evidence is received that in the opinion of the [ALJ] may

change the State agency’s medical or psychological consultant’s finding that the impairment(s) is

not equivalent in severity to any impairment in the Listing of Impairments.” SSR 96-6p;

Buckhannon ex rel J.H. v. Astrue, 368 F. App’x 674, 679 (7th Cir. 2010).



Here, state agency doctors Ruiz and Khan had completed their assessments before

Simpson began seeking treatment for migraine headaches. [R. at 721-28.] Starting in January of

2009, Simpson sought treatment for her headaches in an emergency room on at least twelve

different occasions in a year and a half. [R. at 943-45, 932-35, 912-14, 905-08, 901-04, 894-98,

889-893, 884-88, 880-83, 1117-1120, 1111-14, 1107-1110.] In light of such severe and frequent

symptoms, substantial evidence does not support the ALJ’s decision not to obtain an updated



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medical opinion. Thus, this Court concludes that the ALJ’s consideration of whether Simpson’s

impairments met or equaled a Listing was incomplete and requires remand. On remand, the ALJ

is required to obtain an updated medical opinion on whether Simpson’s combined impairments

meet or equal a Listing.

VI. CONCLUSION



For the reasons set forth above, the Commissioner’s decision is REVERSED and this

matter is REMANDED for further consideration in light of this decision.

Date: 7/31/2013



Distribution:

Joseph R. Wambach
KELLER & KELLER
[email protected]

Timothy E. Burns
KELLER & KELLER
[email protected]

Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[email protected]






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Mark J. Dinsmore United States Magistrate Judge Southern District of Indiana