United States District Court, Northern District of Illinois, E.D
September 24, 1984
EMMALINE KINDRED, PLAINTIFF,
MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Emmaline Kindred ("Kindred") has sued for judicial review of
a final decision of the Secretary of Health and Human Services
("Secretary") (1) reversing the denial of disability insurance
benefits to Kindred for a closed period beginning April 29,
1981 but (2) finding that as of December 29, 1982 she was no
longer disabled in the terms of Social Security Act ("Act")
§ 223, 42 U.S.C. § 423 and therefore no longer entitled to
receive benefits.*fn1 Administrative Law Judge Irving
Stillerman ("ALJ Stillerman" or simply the "ALJ") issued his
decision March 7, 1983. Kindred then exhausted her
administrative remedies in proper sequence (a process that
the ALJ's decision becoming Secretary's) and brought this
action against Secretary pursuant to Act § 205(g), 42 U.S.C. § 405(g).
Following the almost unvarying pattern in these cases, which
come to this Court on the administrative record and a decision
by Secretary, the parties have filed cross-motions for summary
judgment. In a less frequent variation of the customary
sequence of events, Kindred has moved alternatively for remand
of her case to Secretary for the purpose of taking additional
evidence. Kindred's alternative attack rests on alternative
1. No substantial evidence supports the ALJ's
finding that Kindred was no longer disabled as of
December 29, 1982 and could resume her past
relevant work (this of course is the claimed
predicate for summary judgment).
2. New evidence requires additional
consideration at the administrative level (this
is the reason asserted for remand).*fn2
Kindred's first contention cannot be sustained on a careful
review of the record as a whole. But the new evidence offered
by Kindred, especially when viewed in combination with record
evidence suggesting the chronic nature of her impairment,
necessitates remand to Secretary for further consideration.
Accordingly the parties' cross-motions for summary judgment
are denied and Kindred's alternative motion for remand is
Kindred, who was 28 years old at the time of the ALJ
hearing, is a divorced woman with two years of college
education. She was forced to leave her job as a payroll clerk
in April 1981 because of severe back pain. In June 1981 and
again in September 1981 she was admitted to Evanston Hospital
for back surgery. Since then she has continued to undergo
treatment for recurrent back pain.
On the question whether Kindred was no longer disabled as of
December 29, 1982 ALJ Stillerman had before him Kindred's
testimony and several medical opinions:
1. Dr. Jack L. Robbins examined Kindred on
March 31, 1982 and filed a report (R. 185) in
which he stated her flexibility and mobility were
essentially within normal limits. Dr. Robbins
went on to say lumbosacral spine x-rays showed
"no bony abnormality or disc narrowing at all at
this time, no sclerosis is associated with
reactive bone formation and in themselves they
offer a very good prognosis" (R. 186). But Dr.
Robbins also observed (R. 186) that despite the
favorable prognosis Kindred:
is one of those people with more than one disc
problem who has really disc disease as an
ongoing phenomenon. . . . She will have some
recurrent mild symptomatology interspersed with
periods of more discomfort, but like the
dictator, himself, there is no real reason for
her to be disabled for more than the real acute
periods of her illness.
2. Dr. Tomasz Helenowski examined Kindred in
the course of treatment at the Evanston Hospital
neurology clinic on July 23, 1982. He filed a
Spinal Disorders report (R. 188), in which he
indicated Kindred had low back pain radiating to
the right leg as well as some corresponding
sensory loss. He noted she was capable of
unassisted ambulation for about two hours.
3. Dr. Helenowski also examined Kindred on
August 27 and September 3, 1982. On November 3,
1982 he described the course of her treatment and
observed she continued to suffer back pain. At
that time her most recent x-rays showed
"mild" disc narrowing and some calcification of
soft tissues in the area of Kindred's prior
surgery. Dr. Helenowski concluded (R. 193):
Due to the long course of continued pain and
since the patient has had two lumbar
laminectomies in the past, her prognosis for
significant improvement is guarded.
Based upon those reports the ALJ found that as of the time of
the hearing there was no evidence of continuing severe
pathology. Additionally he noted Kindred's testimony that she
does the cooking and other light items around the house, helps
with the shopping and drives an automobile for short
distances. Moreover he observed during the hearing that she
moved about with no apparent restriction or difficulty. His
conclusion was succinctly stated (R. 16):
[A]n evaluation of the claimant's complaints of
pain in light of the observations of the
Administrative Law Judge at the hearing, the
medical evidence of record, the motivation and
demeanor of the claimant, and the claimant's own
testimony as to her usual activities leads to the
conclusion that the claimant's complaints of pain
are not entirely credible and that the claimant
does not suffer from pain severe enough to
preclude her past relevant sedentary clerical
On April 28, 1983 Kindred sought review of the ALJ's
decision by the Appeals Council (R. 5). She submitted in
connection with her request a CT scan report (R. 8) as well as
an additional medical report from Dr. Helenowski (R. 9) based
on examinations of Kindred in January, March and April 1983.
Dr. Helenowski then stated (a) Kindred's pain had not
diminished under the various drug therapies he had attempted
and (b) he was considering hospitalizing her for a myelogram
and perhaps further surgery. Dr. Helenowski concluded (R. 9):
[Kindred] presently cannot be expected to work,
since she would need frequent periods of rest
during which she would need to lie down to
relieve her low back and leg pain.
On December 20, 1983 the Appeals Council denied Kindred's
request for review.
It is standard lore that Secretary's decision cannot be
upheld unless it is supported by substantial evidence
"considering the record as a whole." Strunk v. Heckler,
732 F.2d 1357, 1359 (7th Cir. 1984). Substantial evidence "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),
quoting from Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). Kindred contends
the ALJ's finding that she was no longer disabled on December
29, 1982 fails that test because it did not properly take
account of (1) Dr. Helenowski's conclusion that Kindred
continues to suffer severe back pain and (2) Kindred's
testimony that since her second surgery she has not had
significant relief from her pain.
As to the first point, Kindred contends Dr. Helenowski is
her treating physician, entitling his assessment of her
condition to more weight than that of Dr. Robbins. See
Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir. 1981).
Nonetheless our Court of Appeals has recognized the real-world
likelihood that a patient's regular treating physician "might
have been leaning over backwards to support the application for
disability benefits." Cummins v. Schweiker, 670 F.2d 81, 84
(7th Cir. 1982).
ALJ Stillerman admirably accommodated those opposing
principles. He observed that the physicians agreed in large
part as to Kindred's physical condition. Both found (1) her
flexibility and mobility were essentially within normal limits
and (2) x-rays evidenced the substantial success of her spinal
surgery. Their disagreement lay in their estimates of the pain
she continued to suffer. Faced with such opposing conclusions
deriving from similar clinical findings, the ALJ properly
declined simply to credit Dr. Helenowski's opinion over Dr.
Robbins'. Rather he looked to other
evidence, including Kindred's testimony as to her daily
activities and his own observation of her movements at the
hearing. On the basis of all that evidence considered
together, the ALJ reasonably decided Kindred was not suffering
from disabling pain.
In short the ALJ "merely balanced conflicting evidence as
any factfinder must do, and found that the medical evidence
against a finding of disability outweighed the showing that
the claimant was disabled." Strunk, 732 F.2d at 1364, quoting
Peppers v. Railroad Retirement Board, 728 F.2d 404, 406 (7th
Cir. 1983). This Court is not free to reweigh that evidence de
novo. Cummins, 670 F.2d at 84.
As to the second point, ALJ Stillerman concluded Kindred's
own testimony that she continued to suffer severe back pain
was not credible, again based upon her description of her
daily activities and his observation of her movements at the
hearing. Findings as to a claimant's credibility are even less
open to review by this Court than findings with respect to
medical evidence. Cummins, 670 F.2d at 84. But even on a less
deferential standard, the ALJ's findings would surely survive
review. ALJ Stillerman quite permissibly credited Kindred's
accounts of her daily activities plus his direct observation of
her physical capabilities with greater weight than her own
estimates of the severity of her pain — estimates that were
open to question, given Kindred's natural interest in obtaining
It is clear enough Kindred's motion for summary judgment
must be denied. That does not however mean Secretary's motion
must be granted — at least where as here there is good cause
for remand to Secretary for the taking of additional evidence.
There is a particular need to investigate the possibility of
such remand in a case like this one where the record, while
sustaining a finding of no disability as of a specific date,
also contains strong evidence the claimant suffers from a
chronic disease and future acute episodes are likely.
Act § 205(g), 42 U.S.C. § 405(g) provides: The
court . . . must at any time order additional
evidence to be taken before the Secretary, but only
upon a showing that there is new evidence which is
material and that there is good cause for the
failure to incorporate such evidence into the
record in a prior proceeding. . . .
In support of her motion for remand under that provision,
Kindred submits the CT scan report and the letter from Dr.
Helenowski (both of which accompanied her application to the
Appeals Council), together with physicians' notes from January
and March 1983 and hospital records indicating two admissions
for exacerbated back pain in May and August 1983.
There is a reasonable possibility such strong evidence of
the continuation and worsening of Kindred's condition may
alter Secretary's determination. Accordingly Kindred has met
the statutory requirement of materiality. See Czubala v.
Heckler, 574 F. Supp. 890, 901 (N.D.Ind. 1983). Moreover,
Kindred has met her burden of showing good cause for failing to
incorporate the evidence into the prior record. All the events
giving rise to the new evidence occurred after the ALJ hearing.
Some of the items nevertheless became part of the record
because Kindred, then acting without assistance of counsel,
included them as part of her application for Appeals Council
review. True enough the evidence of Kindred's hospitalizations
was not submitted, but they occurred after Kindred (acting on
her own behalf) had filed her application for review. It is not
unreasonable that Kindred was insufficiently informed in
procedural terms to make a supplemental submission to the
Appeals Council. See Czubala, 574 F. Supp. at 901-02.
Because Kindred has met the standard of Act § 205(g), her
alternative motion for remand is granted. On remand the ALJ
should consider any new evidence presented by Kindred in the
context of a reevaluation of the record as a whole. It is
entirely possible the new evidence will show the
record (even as it stood on December 29, 1982) in a different
light, prompting the ALJ to reweigh the reports of Drs.
Helenowski and Robbins or to revise upward his estimate of
Kindred's credibility. In either instance a change in the
December 29 determination might be appropriate.
Alternatively the ALJ might find, for example, that by the
middle of 1983 Kindred's condition had deteriorated
sufficiently to requalify her for disability benefits. That
finding might lead to no more than a brief gap in Kindred's
disability payments (between December 29, 1982 and the newly
Both parties' motions for summary judgment are denied.
Kindred's alternative motion for remand for reconsideration in
the light of new evidence is granted. Because ALJ Stillerman
is familiar with this case, and because both his conduct of
the hearing and his report reflect the open-mindedness
essential to a hearing officer, there is no reason for the
further hearing to be conducted by a different ALJ.