United States District Court, Northern District of Illinois, E.D
September 4, 1985
ROBERT LUNDQUIST, 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
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.
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
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
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
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
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
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.
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
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.
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.
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
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
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.
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
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.