MARK J. DINSMORE, Magistrate Judge.
Plaintiff Staci Harrington 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 of the Social Security Act ("the Act").
Harrington filed her application for DIB in May 2013, alleging April 16, 2013 as the onset date of disability. [
To be eligible for DIB, a claimant must have a disability pursuant to 42 U.S.C. § 423. 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 expected 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).
To determine whether a claimant is disabled, the ALJ employs a five-step sequential analysis: (1) if the claimant is engaged in substantial gainful activity, she is not disabled; (2) if the claimant does not have a "severe" impairment, or one that significantly limits her ability to perform basic work activities, she is not disabled; (3) if the claimant's impairment or combination of impairments meets or medically equals any impairment appearing in the Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, the claimant is disabled; (4) if the claimant is not found to be disabled at step three and she is able to perform her past relevant work, she is not disabled; and (5) if the claimant is not found to be disabled at step three and either cannot perform her past relevant work or has no past relevant work but can perform certain other available work, she is not disabled. 20 C.F.R. § 404.1520. Before proceeding from step three to step four, the ALJ must assess the claimant's residual functional capacity (RFC), identifying the claimant's functional limitations and assessing the claimant's remaining capacity for work related activities. S.S.R. 96-8p, 1996 WL 374184.
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. The Court may not reweigh the evidence or substitute its judgment for that of the ALJ but may only determine whether substantial evidence supports the ALJ's conclusion. Overman v. Astrue, 546 F.2d 456, 462 (7th Cir. 2008) (citing Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). The ALJ "need not contain a complete written evaluation of every piece of evidence." McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011) (quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)). 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. 1997). To be affirmed, the ALJ must articulate his analysis of the evidence in his decision. The ALJ must "provide some glimpse into his reasoning" and "build an accurate logical bridge from the evidence to his conclusion." Dixon, 270 F.3d at 1176. The scope of review is confined to the rationale offered by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).
In his decision, the ALJ first determined that Harrington met the insured status requirements of the Act through December 31, 2017 and had not engaged in substantial gainful activity since April 16, 2013. [
Before step four, "after careful consideration of the entire record," the ALJ determined that Harrington had the RFC to perform light work with additional restrictions. [
[Id.] At step four, the ALJ found that Harrington had no past relevant work. [
Harrington makes several arguments as to why the ALJ's decision must be reversed, challenging the step three determination, mental RFC determination, physical RFC determination, and the Appeals Council's decision not to associate certain evidence with the certified administrative record. Because the Court finds that the ALJ committed reversible error at step three, the Court addresses that issue first before addressing other issues that should be considered on remand.
Harrington maintains that the ALJ erred in not finding her disabled at step three. Harrington argues that she meets the "B" criteria of Listing 12.04 for affective disorders and Listing 12.06 for anxiety related disorders. Harrington asserts two distinct arguments as to why the ALJ's step three determination requires reversal, arguing that the ALJ improperly found a lack of medical equivalence without considering a consultative examiner's report
The Commissioner does not directly respond to Harrington's argument that the ALJ was required to consider a consultative examiner's report in order to make the medical equivalency determination, instead generally arguing that "Plaintiff has not shown that further medical expert evaluations would lead to a different conclusion on the impact of her impairments on functional capacity." [
In reply, Harrington acknowledges her general burden to provide evidence of disability but reiterates her argument that the regulations require the ALJ to consider a consultative examiner at step three.
The ALJ considered Listing 12.04 and Listing 12.06 and determined that Harrington did not satisfy either listing because she failed to satisfy at least two "B" criteria. To satisfy either listing, a claimant must satisfy two of the following "B" criteria: "1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration." 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.04B, 12.06B. The ALJ further determined that Harrington's impairments did not medically equal either Listing.
While the step-three determination of whether a listing is met or equaled is an "ultimate legal question" left to the ALJ and which must be affirmed if supported by substantial evidence, Social Security regulations require the ALJ to consider the opinion of an expert in making the medical equivalency determination. S.S.R. 96-6P, 1996 WL 374180; Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir. 2004) ("Whether a claimant's impairment equals a listing is a medical judgment, and an ALJ must consider an expert's opinion on the issue.); 20 C.F.R. § 404.1526 ("We also consider the opinion given by one or more medical or psychological consultants designated by the Commissioner."). This, at a minimum, requires the ALJ to consider a medical consultant's assessment of the record evidence, usually in the form of a disability determination form. Compare, e.g., Barnett, 381 F.3d at 670, with McKee v. Colvin, No. 1:15-CV-01371-TAB-WTL, 2016 WL 3679702, at *4 (S.D. Ind. July 12, 2016) ("In Barnett, the court pointed out the ALJ did not consult an expert, but notably, no state agency medical consultant made an assessment. The Barnett court found error because the ALJ assumed the impairments had no medical equivalence without any supporting evidence or discussion . . . ." (internal citation omitted)), Pavely v. Colvin, No. 1:14-CV-01890-SEB-MJD, 2015 WL 7176139, at *5 (S.D. Ind. Nov. 9, 2015) ("[T]he ALJ in Barnett did not consult a medical expert at all or rely on a signed Disability Determination."), and Jordan v. Colvin, No. 1:13-CV-01817-JMS-DKL, 2014 WL 4329485, at *5 (S.D. Ind. Sept. 2, 2014) ("An ALJ's reliance on disability forms filled out by state agency physicians satisfies the ALJ's duty to consider an expert's opinion on medical equivalence." (internal quotation and alteration omitted)).
The Commissioner does not identify any consultative report or other expert opinion evaluating Harrington's mental limitations and the Court likewise cannot locate one in the record. Indeed, the only Disability Determination forms in the record address Harrington's physical limitations and suggest restrictions for her physical RFC. [
The Court agrees with the Commissioner that it is generally the claimant's burden to provide evidence of disability—particularly where, as here, the claimant is represented. See, e.g., Glenn v. Sec'y of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987) ("When an applicant for social security benefits is represented by counsel the administrative law judge is entitled to assume that the applicant is making his strongest case for benefits."). This principle is inapplicable, however, when the particular evidence lacking must be provided by a "psychological consultant[] designated by the Commissioner." 20 C.F.R. § 404.1526; see Barnett, 381 F.3d at 670. The ALJ's failure to consult a Disability Determination form or other expert opinion addressed to Harrington's mental limitations means that the ALJ has failed to support his determination that Harrington did not medically equal a Listing with substantial evidence. See id. The Court should therefore reverse the ALJ's disability determination and remand this matter for further proceedings.
Harrington additionally argues that the Appeals Council erred by not associating rejected evidence with her file, such that the rejected evidence did not reach this Court as part of the certified administrative record. The Appeals Council is required to consider "evidence submitted to it which relates to the period on or before the date of the administrative law judge hearing decision." 20 CFR § 404.976. Where the Appeals Council rejects the additional evidence, it must give the claimant an explanation and must "[a]ssociate a copy of the evidence in the appropriate section of the file, placing all medical evidence in the F section." HALLEX I-3-5-20(A), 1993 WL 643143. Thus, while rejected evidence is not exhibited, it must be "included in the certified administrative record" for consideration when "the case is appealed to Federal court." Id.
Generally, the burden is on the claimant asking the Court to remand a case to the Commissioner to consider additional evidence to demonstrate that the new evidence is "material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g)(sentence six). However, as Judge Magnus-Stinson recently pointed out, when evidence submitted to the Appeals Council is rejected, the district court retains jurisdiction to "review the `limited question' of whether the Council had erroneously concluded that the newly submitted evidence was not new and material." Barnhill v. Colvin, No. 1:15-CV-1960-JMS-MJD, 2016 WL 6680358, at *7 (S.D. Ind. Nov. 14, 2016) (quoting Stepp v. Colvin, 795 F.3d 711, 722-23 (7th Cir. 2015)).
Unlike a situation in which a claimant moves for remand under sentence six, in this situation, the evidence was submitted to the Social Security Administration but was not transmitted to the Court for review. Determining "whether the Appeals Council's conclusion that they related to a time period after the ALJ's decision was correct" requires that the Appeals Council "associate[] the medical records that it rejected" with the claimant's file.
For the aforementioned reasons, the Court should find that substantial evidence does not support the ALJ's determination that Harrington is not disabled. The District Judge should therefore
Any objections to the Magistrate Judge's Report and Recommendation shall be filed with the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to timely file objections within fourteen days after service shall constitute a waiver of subsequent review absent a showing of good cause for such failure.
While the ALJ cites to a plethora of evidence supporting his conclusion that Harrington does not
