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United States District Court, Northern District of Illinois, E.D

September 4, 1985


The opinion of the court was delivered by: Shadur, District Judge.


Robert Lundquist ("Lundquist") seeks judicial review of a final decision of Secretary of Health and Human Services Margaret Heckler ("Secretary") denying Lundquist's claim for supplemental security income ("SSI") disability benefits. Lundquist initially applied for benefits under Social Security Act ("Act") Title XVI, 42 U.S.C. § 1381a. After the February 22, 1984 hearing, Administrative Law Judge Thomas H. Ploss ("ALJ Ploss" or simply the "ALJ") denied Lundquist's application on June 27, 1984. Lundquist then exhausted his administrative law remedies (a process that resulted in the ALJ's decision becoming Secretary's) and brought this action against Secretary pursuant to Act § 1631(c)(3), 42 U.S.C. § 1383(c)(3).

As always in these cases, the parties have filed cross-motions for summary judgment. For the reasons stated in this memorandum opinion and order, each party's motion is denied. Instead Lundquist's application is remanded to Secretary for proceedings consistent with this opinion.

ALJ Ploss' decision (which became Secretary's) rested on his conclusions (R. 8) that:

    1. Lundquist "does not have a severe impairment" and
  therefore is not "disabled" within the meaning of the Act.

    2. Lundquist failed to follow a "prescribed" treatment
  (weight loss) that could have diminished his symptoms.

Lundquist disputes the decision as not supported by the substantial weight of the evidence and also ascribes the following errors to the ALJ:

    1. He applied an improper "severity" standard at step two of
  the five-step sequential evaluation process.

2. He wrongly discredited Lundquist's testimony as to pain.

    3. He failed to give proper weight to the medical reports of
  Lundquist's treating physician.

    4. He misconstrued a mere recommendation to lose weight as a
  "prescribed" treatment for Lundquist's pain.


Lundquist was 52 at the time of the hearing. He has an eleventh grade education (R. 38) and can read and write (R. 39). Most recently he has held various jobs through the CETA program and at the post office, but he has not worked since 1978 (R. 282-83).

Lundquist complains chiefly (though not solely) of extreme pain in his legs and lower back. His medical problems have led him repeatedly to seek treatment and have resulted in several periods of hospitalization. Several expert opinions as to the nature of Lundquist's ailments appear in the record:

    1. On May 12, 1980 consultative physician Dr. Shroff examined
  Lundquist and diagnosed the presence of osteoarthritis,
  pulmonary disease, hypertension, obesity and varicose veins
  in both legs (R. 108).

    2. In November 1980 Lundquist entered Bethany Methodist
  Hospital, complaining of weakness and numbness in his legs
  and constant back pain. Dr. Hatfield, Lundquist's treating
  physician, diagnosed Lundquist as suffering from lumbosacral
  spine arthritis, essential hypertension, obesity and
  emphysema (R. 124). Dr. Hatfield also noted Lundquist was
  receiving medication pursuant to a previous diagnosis of
  angina (id.).

    3. In March 1981 a CAT scan by a Dr. Melamed revealed a
  bulging disc and degenerative disc changes and suggested a
  herniated disc (R. 148).

    4. Lundquist entered Ravenswood Hospital for two days in June
  1982, again complaining of back pain. Dr. Hatfield concluded
  Lundquist suffered from refractive back pain, obesity and
  hypertension (R. 259). Dr. Hatfield's discharge
  recommendations included "disability" (id.).

    5. In October 1982 Dr. Hatfield referred Lundquist to Dr.
  Lazar, a neurologist. Dr. Lazar concluded Lundquist suffered
  from possible severe spinal stenosis or meralgia paresthetica
  (R. 261). On November 8, 1982*fn2 Lundquist had a
  myelogram (recommended by Dr. Lazar), which revealed
  indentations on both sides of the spinal canal. Dr.
  Poteshman, who read the x-rays, concluded Lundquist's
  condition possibly arose from bulging annulus or spondylosis
  (R. 265).

    6. Dr. Hatfield conducted another medical evaluation of
  Lundquist at the same time as the November 1982 myelogram.
  Dr. Hatfield diagnosed chronic back and lumbosacral spine
  instability, spondylolisthesis, hypertension and obesity (R.
  305). Dr. Hatfield's treatment notes from April 1983 to March
  1984 refer to that diagnosis (R. 309) and regularly record
  Lundquist's chronic back pain (R. 309-10).

    7. Dr. Moffitt, a consultative physician retained by
  Secretary, examined Lundquist in August 1983 (R. 270). Dr.
  Moffitt diagnosed chronic lumbar myositis and degenerative
  joint disease of the lumbar spine (R. 273).

Lundquist testified to constant back pain (R. 58) and flashing pains in the legs ("like an ice pick in there or like atoms going off in there," R. 41). He said he cannot walk three blocks without getting those "ice pick" pains (R. 40-41) and experiences difficulty climbing stairs (R. 38). He carries a cane (R. 30), as recommended by Dr. Hatfield (R. 309), and wears an Ace bandage on his right knee (R. 32). Although he does his own housework, he never leaves his basement apartment except to visit his girlfriend and son and to see his doctor (R. 43-45).

Applying the Statutory Framework

To establish an entitlement to disability benefits, a claimant must show he or she is "disabled." 42 U.S.C. § 1382c(a)(3)(A) defines an individual as disabled:

  if he is unable 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 twelve months. . . .

Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir. 1984) summarizes Secretary's five-step test*fn3 for "disability":

  The following steps are addressed in order. (1) Is the claimant
  presently unemployed? (2) Is the claimant's impairment
  "severe"? (3) Does the impairment meet or exceed one of a list
  of specific impairments? (4) Is the claimant unable to perform
  his or her former occupation? (5) Is the claimant unable to
  perform any other work within the economy? An affirmative

  answer leads either to the next step or, on steps 3 and 5, to a
  finding that the claimant is disabled. A negative answer at any
  point, other than step 3, stops inquiry and leads to a
  determination that the claimant is not disabled.

ALJ Ploss denied Lundquist's claim under the step two "severity" requirement, terminating his analysis with the conclusion that Lundquist's ailments were not "severe." That denial cannot stand in the face of our Court of Appeals' decision in Johnson v. Heckler, 769 F.2d 1202 (7th Cir. 1985). Johnson, at 1212 held the step two "severity" requirement violated the Act. It therefore enjoined Secretary "from enforcing the step two rules and regulations."*fn*

What remains, then, is to determine whether the appropriate result here is to reverse Secretary outright or to remand for a new hearing in conformance with Johnson (see id., at 1213) and, if the latter, to define the scope of that new hearing. Discussion of those issues follows.

There is no question Lundquist suffers from multiple impairments representing (individually or in the aggregate) a material level of severity,*fn4 though they do not appear to "meet or exceed" any of the list of specific impairments (sequential step 3). And the record also establishes without dispute Lundquist cannot perform his last relevant work (sequential step 4). That leads to Secretary's burden on the question posed in sequential step 5 (Johnson, at 1210, quoting Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982)):

  The burden then shifts to the Secretary to show that the
  claimant remains capable of performing other work in view of
  the vocational factors of age, education, and work experience:
  "[o]nce an impairment of sufficient severity is demonstrated
  . . . which precludes the type of work previously engaged in,
  the burden of going forward shifts to the Secretary."

On that score Lundquist, stating he has negated his ability to perform even "light" work as defined by Secretary's regulations (see Lundquist Mem. 5 and his general Rule 12(e) statement), says (Lundquist Mem. 14):

  As has been previously discussed, Mr. Lundquist has a residual
  functional capacity ("RFC") for at most sedentary work. See
  p. 9 supra. Mr. Lundquist is a person approaching advanced
  age (age 52 at the time of the hearing), has at most a high
  school education, and has only unskilled work experience.
  Applying these factors to the grid, Mr. Lundquist is disabled
  under Rule 201.12. 20 C.F.R. Part 400, Subpart P, Appendix 2.

Though that position appears to have considerable force, this Court is not after all a de novo hearing officer. And given the nature of Secretary's argument (her memorandum was filed before the decision in Johnson, and hence she relied on the ALJ's second-step determination), she has really had no opportunity to counter Lundquist's contention at step 5.

Accordingly this Court will not reverse Secretary outright. Instead it remands this case to Secretary for prompt reconsideration in light of this opinion. For that purpose, however, it is appropriate to comment on a few other aspects of the ALJ's opinion.*fn5

1. Wrongful Discrediting of Lundquist's Testimony

ALJ Ploss' position as hearing officer certainly placed him in a position to observe Lundquist to appraise his credibility. That kind of determination, however, need not be blindly rubberstamped by this Court. Garfield, 732 F.2d at 610.

Here the ALJ almost wholly discounted Lundquist's complaints of pain (R. 10):

  [T]he severity of the claimant's alleged pain is not supported
  by the objective medical findings of record.

ALJ Ploss later described Lundquist's testimony as only "partially credible" (R. 12).*fn6

Yet ALJ Ploss himself acknowledged (R. 12) the existence of six separate impairments that Lundquist asserts form the medical basis of his pain. No effort is made by the ALJ to explain what appears such an inherent inconsistency. Those impairments, unquestionably supported by the "objective medical findings," plainly provide an objective basis for Lundquist's subjective complaints about pain. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) put it this way:

  While the claimant has the burden of proving that the
  disability results from a medically determinable physical or
  mental impairment, direct medical evidence of the cause and
  effect relationship between the impairment and the degree of
  claimant's subjective complaints need not be produced. The
  adjudicator may not disregard a claimant's subjective
  complaints solely because the objective medical evidence does
  not fully support them. Lundquist has more than met the
  standard prescribed by Polaski (and the similar case law in
  this Circuit).*fn7

Without any desire to be overly critical of the ALJ's efforts to create a full record, this Court notes a number of the ALJ's early observations during the hearing smack of playing amateur doctor (R. 31-34). That tendency is dangerous — in a related context it has led to judicial criticism of the "sit and squirm" findings by ALJs. Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982); Tyler v. Weinberger, 409 F. Supp. 776, 788-89 (E.D.Va. 1976); see Whitney, 695 F.2d at 788.

Whatever the reason, what is significant here is the ALJ's erroneous disregard — without explanation — of Lundquist's complaints, given the supporting medical evidence. See Szulyk v. Heckler, 575 F. Supp. 1266, 1269 (N.D.Ill. 1984) (ALJ commits error when without further explanation he characterizes plaintiff's complaints as "not entirely credible"). That error must not be repeated on remand.

2. Undervaluation of the Treating Physician's Conclusions

Lundquist also contends the ALJ undervalued the conclusions of Lundquist's treating physician Dr. Hatfield. ALJ Ploss said (R. 12):

  None of these [Dr. Hatfield's] notes contain any clinical signs
  or findings of severe impairment.

In that respect the ALJ simply missed Dr. Hatfield's references to (1) prior diagnoses based on such clinical signs (R. 309), (2) Lundquist's limp (R. 309) and (3) the findings of positive (that is, abnormal) straight leg raising test results (R. 309-10).*fn8

Thus ALJ Ploss both misstated the tenor of Dr. Hatfield's notes and failed to explain why he rejected them. On remand the ALJ should explicitly consider Dr. Hatfield's relevant findings.*fn9

3. Advice To Lose Weight

ALJ Ploss concluded Lundquist's failure to follow a "prescribed treatment" (R. 11-12) precludes a finding of disability.*fn10 It is not entirely clear whether Hatfield's 1980 clinical resume (R. 124-25) listed weight loss as a prescribed treatment or simply a recommendation to Lundquist. But far more relevant for current purposes, Dr. Hatfield's later notes (which Secretary herself urges are the relevant evidence bearing on Lundquist's present disability) merely say "weight loss recommended" (R. 309). Recommendations do not constitute a "prescribed" treatment. Cassiday v. Schweiker, 663 F.2d 745, 749 (7th Cir. 1981).

Moreover, no record evidence suggests weight loss would restore Lundquist's ability to work. All the ALJ can do in that respect is guess that losing 100 pounds "may have diminished [Lundquist's] subjective symptoms" (R. 12). Neither the ALJ nor this Court is free to make such a hypothetical medical diagnosis that mere weight loss might "diminish," let alone eradicate, Lundquist's impairments.


Both parties' motions for summary judgment are denied. Secretary's decision is vacated, and this case is remanded for reconsideration in light of Johnson and this opinion under the following conditions:

    1. Secretary shall designate an ALJ other than ALJ Ploss to
  consider and decide the remaining issues in the case.

    2. In light of the limited scope on remand, the ALJ decision
  shall be rendered within 91 days.


Two aspects of the statement of facts in this opinion call for special comment. Because they are somewhat too long for footnote treatment, they are dealt with in this Appendix.

First, Secretary's counsel did not comply (though Lundquist's did) with this District Court's General Rule 12, requiring statements of the material facts entitling a movant to summary judgment or those as to which a material fact issue would preclude such a judgment. Even though the facts in any social security case such as this one are bounded by the administrative record provided to the court, the General Rule 12(e) and 12(f) statements still play their intended role of focusing any factual disputes — any areas in which the evidence looks two ways.[fn1a] Under the last sentence of General Rule 12(f), this Court could properly have treated everything in Lundquist's General Rule 12(e) statement as admitted for purposes of the current motions. Because of the absence of any factual dispute (except as noted in the next section of this Appendix), this Court has not handled matters in precisely that way, however.

Second, Secretary has taken a crabbed view of the relevant evidence because of Lundquist's several earlier unsuccessful SSI applications. Before the current (June 20, 1983) application (R. 215), Lundquist had filed for benefits on April 21, 1980 (R. 64), October 3, 1980 (R. 78), May 13, 1982 (R. 164) and October 22, 1982 (R. 193). Each application had been turned down, the last on December 2, 1982 (R. 213).

Secretary urges res judicata precludes consideration of any pre-December 2, 1982 evidence. That of course is conceptually mistaken. ALJ Ploss properly concluded res judicata prevented finding Lundquist disabled before the December 1982 date, and that would also bar a disability finding as of any later date involving no change in Lundquist's condition (though there could be an interesting question whether any changes in condition should be measured from October 22, 1982 (the hearing date) or December 2 (the decision date)). But especially where a potentially disabling condition may be a progressive or deteriorating one (and that is certainly true of back problems and of continuing pain), earlier medical evidence may well be relevant in evaluating the applicant's current situation. Thus the ALJ could (and did in fact) consider pre-December 2, 1982 evidence when assessing Lundquist's present disability status (R. 9-10). In any event, Dr. Hatfield's post-1982 treatment notes reaffirm many of the prior diagnoses and conclusions (R. 309-10).


On September 4, 1985 this Court issued its memorandum opinion and order (the "Opinion") remanding this case to the Secretary of Health and Human Services ("Secretary") for reconsideration in light of the Opinion and of our Court of Appeals' recent decision in Johnson v. Heckler, 769 F.2d 1202 (7th Cir. 1985). In still another illustration of serendipity, this Court has just received[fn1b] our Court of Appeals' opinion in Rousey v. Heckler, 771 F.2d 1065 (7th Cir. 1985), prompting this supplement to the Opinion.

Rousey, like Johnson, was authored by Judge Bauer. Like this case, Rousey dealt with an ALJ who had impermissibly substituted himself for a doctor in making his own decision about the effects of the claimant's asserted failure to follow "prescribed treatment." Except for the difference in the nature of the doctors' recommendations (quitting smoking in Rousey, losing weight here), a portion of the Rousey opinion, 771 F.2d at 1069 might well have been written for this case:

  But this argument ignores the reality of the Secretary's role
  in making disability determinations. These decisions must be
  based on testimony and medical evidence in the record or on the
  regulations. The ALJ cannot make his own independent medical
  determinations about the claimant. Freeman v. Schweiker,
  681 F.2d 727, 731 (11th Cir. 1982). It was therefore improper for
  the ALJ to make his own determination regarding the prognosis
  of recovery should Mrs. Rousey stop smoking, when the record
  was devoid of any evidence that she could return to work if she
  quit smoking.

Accordingly Rousey buttresses the conclusion reached in the Opinion. It may be noted parenthetically that the result in Rousey was also a remand to Secretary for proceedings consistent with that opinion.

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