United States District Court, Southern District of Illinois
March 23, 1982
PAUL L. CARTER, PLAINTIFF,
RICHARD S. SCHWEIKER, SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANTS.
The opinion of the court was delivered by: Foreman, Chief Judge:
Plaintiff instituted this action pursuant to 42 U.S.C. § 405
(g)(1981), to review the final decision of the Secretary of
Health and Human Services (the Secretary) denying his
application for disability insurance payments. Section 405(g)
provides that this Court has the power to enter, upon the
pleadings and transcript of the record, a judgment, affirming,
modifying or reversing the decision of the Secretary, with or
without remanding the case for a rehearing. Plaintiff filed his
complaint on May 26, 1981. Defendant filed his answer, which
includes a copy of the administrative transcript, on August 11,
1981. Accordingly, this Court will proceed on the merits of the
FACTS AND ADMINISTRATIVE
Plaintiff is a forty year old male, married with dependents
living at his home. He has never attended school, nor has he
received vocational training. He is totally illiterate. He
cannot read and cannot write beyond signing his own name. His
past work experience has been unskilled heavy labor. In 1967,
while working for a furniture company, plaintiff was injured
when a piano fell on his back, thereby fracturing his
vertebrae. He was not hospitalized for this condition, but had
to use a brace for a substantial period of time. In October
1978, plaintiff reinjured his back when he fell at work. He
was not hospitalized for this condition,
but had to use crutches for three weeks. Plaintiff has not
worked since this accident.
On December 21, 1979, plaintiff applied for Supplemental
Security Income benefits (SSI) on the basis of his disability.
His initial application was denied and a request for
reconsideration was filed on February 26, 1980. On
reconsideration, the Social Security Administration affirmed
its denial of the claim, finding that the claimant was not
disabled under 42 U.S.C. § 423(d), which provides:
(d)(1) The term "disability" means —
(A) 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 . . .
(2) For purposes of paragraph (1)(A) ___ (A) an
individual . . . shall be determined to be
under a disability only if his physical or
mental impairment or impairments are of such
severity that he is not only unable to do his
previous work but cannot, considering his age,
education and work experience, engage in any
other kind of substantial gainful work which
exists in the national economy, regardless of
whether such work exists in the immediate area
in which he lives, or whether a specific job
vacancy exists for him, or whether he would be
hired if he applied for work . . .
(3) For purposes of this subsection, a
"physical or mental impairment" is an
impairment that results from anatomical,
physiological, or psychological abnormalities
which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.
On April 8, 1980, plaintiff requested a hearing, which was
subsequently held on May 8, 1980, before Administrative Law
Judge (ALJ) Tom D. Capshaw. Plaintiff was not represented by
counsel at this hearing. Subsequent to the hearing, the ALJ
referred plaintiff to a consultive orthopedic surgeon, Dr.
Willis Pugh, whose report was received into evidence on June
The ALJ found by order dated July 29, 1979, that plaintiff
is illiterate and that his past work history involved heavy
unskilled labor; that he suffers degenerative arthritis of the
lumbar and thoracic spine, lumbo-sacral sprain, and
osteoarthritis of the hands; that he is unable to perform his
past relevant work but retains adequate residual functional
capacity to perform at least sedentary work; and that he is
not disabled according to 20 C.F.R. § 416.913 (1981) and 20
C.F.R., subpart P, Table No. 1 of Appendix 2, Rule 201.23
(hereinafter Appendix 2, Table No. 1).
Plaintiff timely filed a request for review by the Appeals
Council. A memorandum was submitted by plaintiff's treating
physician, Dr. Arcuino, together with additional medical
evidence and an affidavit in support of plaintiff's claim for
On April 13, 1981, the Appeals Council denied plaintiff's
request for review on the grounds that there was no basis for
granting the request for review under Section 416.1470 of
Social Security Administration regulations No. 16,
20 C.F.R. § 416.1470, which provides:
(a) The Appeals Council will review a case if
(1) There appears to be an abuse of discretion by
the administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the
administrative law judge are not supported by
substantial evidence; or
(4) There is a broad policy or procedural issue
that may affect the general public interest.
(b) If new and material evidence is submitted
with the request for review, the Appeals Council
shall evaluate the entire record. It will then
review the case if it finds that the
administrative law judge's action, findings, or
conclusion is contrary to the weight of the
evidence currently in the record.
Accordingly, the Appeals Council's denial of plaintiff's
request for review became the
final decision of the Secretary. Within the time period
prescribed by 42 U.S.C. § 405, plaintiff instituted the present
SUMMARY OF MEDICAL EVIDENCE
Plaintiff began treatment with Dr. Jerry Felts, a
chiropractor, in March of 1979. He has continued this
treatment to the present time, meeting with Dr. Felts a
minimum of two to three times a week. Dr. Felts diagnosed
plaintiff's condition as chronic lumbosacral involvement with
the entire lumbar spine rotation and narrowing of the L-1,
L-2, and L-3 disc spaces. Dr. Felts also found that
plaintiff's range of motion in the lumbar spine was restricted
in extension, flexion, lateral rotation and in bending of the
legs; concluding that plaintiff will receive only symptomatic
response and will always have chronic back problems and should
be considered for total disability.
Plaintiff was informed by the Social Security Office that
Dr. Felts' information was insufficient to support his
application for benefits. Accordingly, plaintiff went to see
Dr. H. Andrew Cserny, a physician, in January of 1980. Dr.
Cserny's examination of plaintiff was cursory. He merely
talked to the plaintiff, asked him to bend over, and tested
his reflexes. Dr. Cserny found that plaintiff suffered from
chronic back strain and pain in his lower back, that
plaintiff's reflexes and ambulation were normal and that there
was no indication of atrophy. Dr. Cserny reported that the
straight leg raising test was normal to 90°, the range of
motion of the cervical spine was normal and the range of motion
of the lumbo-sacral spine was limited to 75° flexion and 15°
extension. Paravertebral muscle spasms were not noted. On the
Physical Capacities Evaluation (supplied by the Social Security
Office), Dr. Cserny indicated that plaintiff was capable of
performing light work and that he could climb, bend, stoop and
operate foot controls frequently. On his report, Dr. Cserny
noted that "this man needs evaluation by an orthopedic
surgeon." (Tr. 120).
In February of 1980, plaintiff began seeing Dr. Arcuino, who
continues to be his treating physician. In a report dated May
2, 1980, Dr. Arcuino described plaintiff's condition as
recurrent lumbo-sacral pain, since 1965, which is aggravated
by lifting and bending. Moderate tenderness was found in the
lumbo-sacral spine area and straight leg raising was limited
to 20° bilaterally with pain. Deep tendon reflexes were
hyperactive and the sensations were found to be intact. An
x-ray examination of the lumbo-sacral spine on February 20,
1980, revealed moderate dextroscoliosis and hypertrophic
osteoarthritic spurring. Dr. Arcuino diagnosed his condition as
chronic lumbo-sacral sprain with intermittent acute
exacerbation secondary to osteoarthritis.
Plaintiff was referred by the Social Security Administration
to Dr. Willis Pugh, a Board certified specialist of orthopedic
surgery. A consultative examination took place on May 28,
1980, during which Dr. Pugh found 50% restricted flexion of
the thoracic and lumbar spine, about the same of the extension
of the lumbar spine, that plaintiff walked with his back in a
mildly stooped position and complained of pain in the lower
back, as well as in the lower thoracic and upper lumbar
region, and that plaintiff's reflexes were normal. X-rays were
taken of the lumbar spine (multiple views) and additional
views were also taken of the lower thoracic and upper lumbar
region. The x-rays revealed an old compression fracture with
moderately advanced degenerative arthritic changes and also
advanced arthritic changes about the rest of the lumbar spine.
Dr. Pugh found some osteoporosis present. The lumbo-sacral
joint region showed some increase in the lumbo-sacral angle,
with very mild osteoporosis, but revealed about 25% narrowing
of the lumbo-sacral joint space due to degenerative arthritis.
Dr. Pugh also noted that plaintiff complained of pain in
both hands and of tenderness about the distal interphalangeal
joints of his fingers, especially on his left hand. Dr. Pugh
found large Heberden's nodes about the distal interphalangeal
joints of his fingers.
Dr. Pugh diagnosed plaintiff's condition as moderately
advanced degenerative arthritis
of the lower thoracic and lumbar spine, with degenerative
arthritis or osteoarthritis involving the hands. He further
This patient, in my opinion, is disabled for
doing strenuous physical exertion such as
pushing, pulling or being on his feet for very
long periods of time, or for lifting or bending
and stooping, or for sitting for very long
periods. He also has difficulty using his hands
for very long periods of time or doing finer
movements due to the changes in his
interphalangeal joints. The prognosis for
improvement, I would think, would be very poor
After reviewing the record, this Court believes that the
ALJ's decision was supported by substantial evidence based on
the record as a whole. Therefore, plaintiff's request to
reverse the Secretary's decision is hereby DENIED. However,
sometime after the hearing, plaintiff submitted new evidence
which the Appeals Council did not give sufficient
consideration. Accordingly, this Court believes that the ALJ
should have this new evidence in determining plaintiff's
Plaintiff's counsel argues that because plaintiff was
unrepresented at the hearing, the record was not fully
developed, and, consequently, the hearing was unfair. For
reasons discussed below, this claim must fail.
A. SECRETARY'S DECISION.
The Secretary found that although plaintiff was unable to
perform any of his previous jobs, he retained adequate
residual functional capacity for sedentary work. The
Secretary's decision must be upheld on judicial review if it
is supported by substantial evidence based on the record as a
whole. 42 U.S.C. § 405(g); see, McNeil v. Califano,
614 F.2d 142, 145 (7th Cir. 1980); Davis v. Califano, 603 F.2d 618,
624-25 (7th Cir. 1979). Consequently, the scope of review is
limited. The Court is not authorized to substitute its judgment
for that of the administrative agency.
Such determinations will not be set aside by
courts if there is evidence to support them. Even
though, upon a consideration of all the evidence,
a court might reach a different conclusion, it is
not authorized to substitute its own for the
Swayne & Hoyt Ltd. v. United States, 300 U.S. 297
, 304, 57
S.Ct. 478, 81 L.Ed. 659 (1937).
The Supreme Court has defined substantial evidence to mean
"more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 1427, 28 L.Ed.2d 842 (1971).
It is axiomatic under the Act that plaintiff bears the
burden of proof to establish his entitlement to disability
insurance benefits. See, Jeralds v. Richardson, 445 F.2d 36
(7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir.
1970). It is equally well established that plaintiff has
carried his burden if he can show that he is unable to perform
his past jobs due to his disability. Once plaintiff shows he
can no longer perform his past jobs, the burden shifts to the
Secretary to produce evidence that will justify a finding that
there is some other kind of substantial gainful employment that
plaintiff is able to perform. See, Smith v. Secretary of HEW,
587 F.2d 857, 861 (7th Cir. 1978); McNeil v. Califano,
614 F.2d 142, 145 (7th Cir. 1980).
The ALJ found that plaintiff could no longer perform his
past jobs (Tr. 38) and pursuant to 20 C.F.R. § 416.972, the
burden shifted to the Secretary to show that plaintiff could
engage in substantial gainful activity.
Substantial gainful activity is work activity
that is both substantial and gainful:
(a) Substantial work activity. Substantial work
activity is work activity that involves doing
significant physical or mental activities. Your
work may be substantial even if it is done on a
part-time basis or if you do less, get paid less,
or have less responsibility than when you worked
(b) Gainful work activity. Gainful work activity is
work activity that you do for pay or profit. Work
activity is gainful if it is the kind of work
usually done for pay or profit, whether or not a
profit is realized.
(c) Some other activities. Generally, we do not
consider activities like taking care of yourself,
household tasks, hobbies, therapy, school
attendance, club activities, or social programs to
be substantial gainful activity.
20 C.F.R. § 416.972.
The Secretary met this burden by applying plaintiff's
vocational experience, education, age and the heaviest type of
work plaintiff can do (hereinafter four factors) to Appendix
2, Table No. 1, which mandates a finding that plaintiff is not
disabled. In a recent case, Judge Posner, speaking for the
Seventh Circuit, found that proper use of Table 1 of Appendix
2 constitutes substantial evidence.
Congress has given the Department of Health and
Human Services very broad authority to promulgate
regulations. "The Secretary shall have full power
and authority to make rules and regulations and
to establish procedures, not inconsistent with
the provisions of this subchapter, which are
necessary or appropriate to carry out such
provisions, and shall adopt reasonable and proper
rules and regulations to regulate and provide for
the nature and extent of the proofs and
evidence . . ." 42 U.S.C. § 405(a). We think it was
not only lawful under this grant of power, but
highly appropriate, for the Secretary to try to
streamline the adjudication of social security
disability cases and bring about some greater
uniformity in the results of these
adjudications . . . The Department of Health and
Human Services has this knowledge and can both
supplement and draw upon it in a rule-making
proceeding. It was entitled to substitute an
institutional judgment for the ad hoc judgments of
administrative law judges based on the testimony of
vocational experts and other witnesses and on their
own limited and variable knowledge of the labor
Cummins v. Schweiker, 670 F.2d 81
, at 83 (7th Cir. 1982).
Concerning Table No. 1 of Appendix 2, § 200.00(a) of Appendix
2 provides that "each of these findings of fact is subject to
rebuttal and the individual may present evidence to refute such
findings." In this case, all of the findings of fact with
respect to plaintiff's vocational experience, education and age
are in plaintiff's favor and cannot be refuted. However, the
major issue is whether plaintiff can perform sedentary work
(the fourth factor). The evidence as a whole before the ALJ
supports his determination that plaintiff retains sufficient
residual functional capacity to perform sedentary work (fourth
factor). Accordingly, the ALJ was correct in using Table No. 1
of Appendix 2. New evidence, however, brings this determination
Section 201.00(h) of Appendix 2 provides that:
A finding of disability is not precluded for
those individuals under age 45 who do not meet
all of the criteria of a specific rule and who do
not have the ability to perform a full range of
Appendix 2, § 201.00(h). Plaintiff's impairments do not meet
the criteria of a specific rule [the listings in Appendix 1,
especially § 1.00 et seq.] and, thus, the question turns on
whether plaintiff can perform a full range of sedentary work.
Sedentary work involves:
. . lifting not more than 10 pounds at a time
and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and
standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and
standing are required occasionally and other
sedentary criteria are met.
20 C.F.R. § 416.967(a).
In addition, basic work activity is described as:
(b) Basic work activities. When we talk about basic
work activities, we mean the abilities and aptitude
necessary to do most jobs. Examples of these
(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching,
carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering
(4) Use of judgment;
(5) Responding appropriately to supervision,
coworkers and usual work situations; and
(6) Dealing with changes in a routine work
20 C.F.R. § 416.921.
Furthermore, "To determine the physical exertion requirements
of work in the national economy, we classify jobs as
`sedentary,' `light,' `medium,' `heavy,' and `very heavy.'
Those terms have the same meaning as they have in the
Dictionary of Occupational Titles, published by the Department
of Labor." 20 C.F.R. § 404.1567. The Dictionary of Occupational
Titles defines sedentary work as:
Sedentary work implies a capacity to sit for at
least 6 hours in an 8 hour work day and to lift
up to 10 pounds maximum. The ability to walk and
stand up to approximately 1/3 of the work day
(2-3 hours per day per 8 hour day) is also
implied in sedentary work.
The aforementioned definitions of sedentary work, and the
basic work activities, should be considered by the ALJ in
determining whether plaintiff's impairments fall within the
exception provided in Appendix 2, § 201.00(h). As mentioned
above, the evidence before the ALJ conformed with these
definitions, and, thus, the ALJ's use of the Table was correct.
Plaintiff's new evidence, however, does not, in part, conform
to the aforementioned definitions. The Appeals Council believed
that this new evidence was insufficient to support plaintiff's
request for review; this Court disagrees.
B. NEW EVIDENCE.
Plaintiff's treating physician, Dr. Arcuino, submitted a
Physical Capacities Evaluation, dated March 9, 1981, which
concluded that plaintiff could perform, with one exception,
all of the requisites of sedentary employment. With respect to
the requirements for sedentary employment, Dr. Arcuino found
that, first, plaintiff can occasionally lift 26-50 lbs.
Second, that plaintiff can carry up to 5 lbs. frequently, and
can use his hands for repetitive actions such as simple
grasping, pushing and pulling of arm controls, and fine
manipulations. Third, that plaintiff can occasionally reach,
bend, crawl and climb. Fourth, that plaintiff can stand for
three hours and walk for three hours in an eight hour day, but
only one hour at a time.
Dr. Arcuino's evidence clearly satisfies the aforementioned
requirements. However, according to the Dictionary of
Occupational Titles, sedentary work implies a capacity to sit
for at least 6 hours in an 8 hour work day. Dr. Arcuino found
that plaintiff can only sit for a total of 3 hours in an eight
hour day and only for one hour at a time.
Under the Act:
If new and material evidence is submitted with
the request for review, the Appeals Council shall
evaluate the entire record. It will then review
the case if it finds that the administrative law
judge's action, findings, or conclusion is
contrary to the weight of the evidence currently
in the record.
20 C.F.R. § 416.1470(b). The Appeals Council did not find the
new evidence sufficient to warrant a review of the case. This
Court believes, however, that because sitting is one of the
major requirements of sedentary work, the deviation between 3
and 6 hours is sufficient to warrant remand to the ALJ to
determine whether this new piece of evidence, in regard to the
record as a whole, supports plaintiff's disability claim.
It should be noted that:
Where the findings of fact made with respect to a
particular individual's vocational
factors and residual functional capacity coincide
with all of the criteria of a particular rule,
the rule directs a conclusion as to whether the
individual is or is not disabled . . . Where any
one of the findings of fact does not coincide
with the corresponding criterion of a rule, the
rule does not apply in that particular case and,
accordingly, does not direct a conclusion of
disabled or not disabled. In any instance where a
rule does not apply, full consideration must be
given to all of the relevant facts of the case in
accordance with the definitions and discussions
of each factor in the appropriate sections of the
Appendix 2, § 200.00(a).
Accordingly, the ALJ should take into consideration this
section and, also, § 201.00(h) of Appendix 2 in determining
whether plaintiff is disabled.
C. PLAINTIFF'S ATTORNEY.
Plaintiff's recently obtained attorney argues that as a
consequence of plaintiff's not being represented at the
hearing, the record was not fully developed because the ALJ
failed in his duty to:
(1) fully develop the evidence in regard to pain,
(2) fully develop the record in regard to the
nature and degree of plaintiff's impairment of
his hands, and
(3) elicit testimony from the plaintiff
concerning the nature and purpose of his
examination by a one-time examining physician,
Dr. Cserny, thereby incorrectly concluding that
Dr. Cserny was a treating physician.
When plaintiff is unrepresented by counsel, the ALJ has a
duty to fully develop the evidence.
While hearings on disability claims are not
adversary proceedings, (citation) where the
disability benefits claimant is unassisted by
counsel, the ALJ has a duty "scrupulously and
conscientiously [to] probe into, inquire of, and
explore for all the relevant facts . . ."
Smith v. Secretary of HEW, 587 F.2d 857
, 860 (7th Cir. 1978).
It is equally important to note, however, that:
. . it is mere speculation to insist that legal
representation is necessary to ensure a fair and
impartial hearing for the claimant. Absent a
showing of clear prejudice or unfairness in the
proceeding, lack of representation by counsel is
not a sufficient cause for remand.
Sykes v. Finch, 443 F.2d 192
, 194 (7th Cir. 1971).
First, plaintiff claims that the ALJ failed to fully develop
the evidence in regard to the extent and nature of plaintiff's
pain. A review of the transcript, however, shows otherwise.
The ALJ elicited from plaintiff the fact that he had constant
pain in his back and legs which generally remained at about
the same degree (of pain) and that he had constant numbness in
his right leg. The ALJ also asked plaintiff if anything made
the pain better or worse and if he had pain anywhere else.
Plaintiff responded to both questions in the negative.
Although it has been held that "[i]t is insufficient (for the
Secretary) to argue that the claimant did not present all
possible evidence favorable to her case," Tillman v.
Weinberger, 398 F. Supp. 1124, 1128 (N.D.Ind. 1975), the new
evidence (plaintiff's affidavit and treating physician's
Physical Capacities Evaluation) submitted to the Appeals
Council does not on the issue of plaintiff's pain, warrant
remand to the Secretary.
With respect to his first claim, plaintiff's counsel also
argues that had the ALJ fully developed the evidence in regard
to pain, the ALJ would have had such evidence before him as
where it hurts, what brings it on, and whether lying down
helps. Yet, plaintiff's affidavit, submitted after attaining
counsel, neither mentions nor describes any pain in
plaintiff's back or legs; it only describes, and in great
detail, the pain in his hands. This Court can only conclude
that because of the failure to submit new evidence, the pain
in plaintiff's back and legs was fully developed at the
Second, plaintiff claims that the ALJ failed to consider the
impairment of plaintiff's
hands and that this impairment prevents plaintiff from
engaging in a full range of sedentary work. A review of the
ALJ's decision, and the record as a whole, indicates
otherwise. The ALJ cannot be faulted for failing to elicit
evidence regarding pain in plaintiff's hands because the ALJ
specifically asked plaintiff if he had any other pains and
plaintiff expressly said no. Also, it was the ALJ who
requested an additional examination by an orthopedic surgeon.
Furthermore, plaintiff now claims that his hands ache
constantly, yet his treating physician, who certainly is aware
of plaintiff's pain, has recently concluded that plaintiff can
repetitively use his hands for simple grasping, pushing and
pulling of arm controls and fine manipulations. Accordingly,
plaintiff's second claim must fail.
Regarding plaintiff's first two claims, plaintiff
additionally argues that new evidence, concerning medication
prescribed to plaintiff after the hearing, greatly changes the
weight of evidence in regard to plaintiff's pain. At the time
of the hearing, plaintiff was taking Clinoril two times a day.
Sometime after the Administrative Hearing, plaintiff's
treating physician prescribed Clinoril two times a day,
Flexeril two times a day, Tylenol 3 with Codeine every four
hours, and cortisone shots once a month, or more frequently,
as needed. Plaintiff is currently being treated with Clinoril
200 mg. two times a day, Flexeril 10 mg. up to eight times a
day, as needed, Empracet No. 4 four times a day, and Ostrolate
This evidence is clearly material to the issue of the
severity of plaintiff's pain and it makes his testimony
concerning pain much more credible. Accordingly, the ALJ
should also consider this evidence (new medications), in
regard to the record as a whole, in determining whether
plaintiff is disabled.
Third, plaintiff claims that the ALJ incorrectly
characterized evidence submitted by a one-time consulting
physician as that of a treating physician, thereby giving
improper weight to this evidence.
There has been some confusion in the past, in both this
district and others, concerning the weight accorded a treating
physician's evidence. In the past, the Seventh Circuit has
generally held that:
Once it is determined that an impairment exists,
the opinions of the treating physician are
entitled to substantially greater weight than the
impressions of a doctor who sees the claimant
Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir. 1977); see
also, Carver v. Harris, 634 F.2d 363, 364 (7th Cir. 1980).
Recently, the Seventh Circuit has clarified the issue, stating
that the mere fact that a physician happens to be a treating
physician does not, per se, entitle his evidence to controlling
[Claimant] particularly complains of the ALJ's
refusal to defer to the judgment of [claimant's]
personal physician. It is true that this
physician had examined [claimant] more
extensively than anyone else; but as [claimant's]
personal physician he might have been leaning
over backwards to support the application for
disability benefits; therefore the fact that he
had greater knowledge of [claimant's] medical
condition was not entitled to controlling
weight . . . A trier of fact is not required to
ignore incentives in resolving issues of
Cummins v. Schweiker, 670 F.2d 81
, at 84 (7th Cir. 1982).
This Court believes that the keystone of the
Cummins decision, that "a trier of fact is not required to
ignore incentives in resolving issues of credibility," should
be considered in light of the fact that the Secretary must take
into consideration the medical findings and other evidence that
support the physician's statement (see, 20 C.F.R. § 404.1527)
and that the weight accorded a physician's evidence "depends on
the degree to which it is supported by specific and complete
clinical findings." Griffin v. Weinberger, 407 F. Supp. 1388,
1395 (N.D.Ill. 1975), aff'd, 539 F.2d 712 (7th Cir. 1976).
Thus, should the ALJ determine that the treating physician's
evidence is credible, the ALJ may give it controlling
weight because of the treating physician's greater knowledge
of plaintiff's conditions and circumstances. On the other
hand, should the ALJ determine that the treating physician's
evidence is not credible, the ALJ is not required to give it
Applying this analysis to the matter before this Court, it
is clear that the ALJ placed great emphasis and weight on Dr.
Cserny's evidence, yet the ALJ was unaware that Dr. Cserny was
a consulting physician, not a treating physician, and that his
examination was only cursory. Furthermore, the ALJ's decision
was entered prior to the decision in Cummins, when the treating
physician's evidence was entitled per se to greater weight.
Thus, there may have been a credibility problem, concerning Dr.
Cserny's evidence, of which the ALJ was unaware. Also, in light
of Cummins, there may be a credibility problem concerning the
new evidence, and, also, the old evidence, submitted by Dr.
Arcuino. However, with these possible problems in mind, this
Court believes that the record as a whole (before the ALJ)
supported the ALJ's conclusion that plaintiff was not disabled.
This Court has pointed out these problems for two reasons.
First, because this Court sees no good, on remand, in allowing
the ALJ to be under any false impressions. Second, to alert
the ALJ of Dr. Cserny's true status and, in light of
Cummins, to forewarn the ALJ of the new weight accorded a
treating physician's evidence.
For the above reasons, plaintiff's complaint to reverse the
Secretary's decision is hereby DENIED. However, because
sufficient new evidence has been submitted, the matter is
hereby REMANDED to the Secretary, but only on the following
1. Determination of the issue of disability with proper
consideration given to:
a. The Definition of sedentary employment
provided in the Dictionary of Occupational Titles;
b. the credibility of Dr. Cserny's evidence and
the credibility of Dr. Arcuino's old, and newly
submitted, evidence; and
c. the new medications prescribed to plaintiff as
effecting the credibility of plaintiff's claim of
IT IS SO ORDERED.
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