United States District Court, Northern District of Illinois, E.D
September 30, 1985
EDILBERTO AVILES, PLAINTIFF,
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Edilberto Aviles ("Aviles") seeks judicial review of a final decision
by Secretary of Health and Human Services Margaret Heckler ("Secretary")
denying Aviles disability insurance and supplemental security income
benefits. Aviles initially applied for benefits under the Social Security
Act ("Act") §§ 216(i), 223 and 1602, 42 U.S.C. § 416(i), 423 and
1381a. After a November
14, 1984 evidentiary hearing (the "Hearing"), Administrative Law Judge
Peter Scalise ("ALJ Scalise" or simply the "ALJ") denied Aviles'
application December 10, 1984. Aviles then exhausted his administrative
remedies in proper sequence (a process that resulted in the ALJ's
decision becoming Secretary's) and brought this action against Secretary
pursuant to Act § 205(g), 42 U.S.C. § 405(g).
As invariably occurs in these actions, which come to this Court on the
administrative record and a decision by Secretary, the parties have filed
what they have labeled cross-motions for summary judgment. In fact,
however, Aviles' motion is "to remand his case to the Secretary of [sic
— should be `for'] further administrative review," and Secretary
Mem. 13 n. 2 essentially concedes the propriety of a remand. For the
reasons stated in this memorandum opinion and order, this case is
remanded to Secretary for further proceedings consistent with this
Aviles, who was 43 years old at the time of the Hearing, was born in
Puerto Rico. He has an eighth-grade education and is literate in
Spanish, but his English is apparently poor (the Hearing was conducted
through an interpreter). Since 1967 he has held jobs with five firms in
the Chicago area, most recently as a line assembler with Stern
Electronics ("Stern") from February 1978 to June 1982. On June 17, 1982
Stern laid him off because he was missing work two or three days a week.
Aviles claims disability because he suffers from hypertension, gout and
arthritis, which produce disabling headaches, dizziness and an inability
to walk. He testified he was regularly missing work at Stern because he
was "sick on [his] feet and [he] could not work a full week" (R. 33).
Aviles submitted a handwritten note (R. 110) from his physician, Dr.
TO Whom it may concern:
that Mr. EDILBERTO AVILES Treated by me since
1/6/78 for HYPERTENSION & polyarthritis. BP up
sometimes to 180/115[.] [L]ast time seen on
12/8/83 his BP was 150/100[.] Taking MODURETIC
one a day and INDOCIN. . . .
Dr. Bacalla's October 7, 1983 consultative examination (R. 97-100) also
found Aviles' blood pressure was 150/100 (it is worth noting Aviles, 5'5
1/4" tall, then weighed in at 197 pounds). Dr. Bacalla went on to find:
1. Aviles was "without any significant evidence of
2. Aviles' history of chest pain was "not typical of
angina pectoris," and a chest x-ray showed "normal
heart size without any evidence of pulmonary
3. Aviles gave a history of gout attacks occurring
once or twice per month, involving the knees and feet
and occasionally the right upper extremity.
4. "On examination of this patient, he is able to
ambulate with minimal limp towards the right side but
independently. There was tenderness over the dorsum of
the right foot. There were no signs of acute
inflammation during the examination. The rest of the
joints in both upper and lower extremities revealed no
significant bony deformity or restriction of movement
of the joint. The SM4-12 revealed an elevated uric
acid of 9.4 mgs."
Dr. Panitch's shorter report of a February 21, 1984 consultative
examination (R. 111-12) is consistent with Dr. Bacalla's
results, except that Dr. Panitch measured Aviles' blood pressure at
180/120 (Aviles then tipped the scales at 192 pounds). Dr. Panitch's
Heavy alcohol abuse.
Gout by history with possible gouty arthritis.
On July 25, 1984 Dr. Rumilla examined Aviles (R. 136-40) and found his
gout was "getting better" and "will be better" with diet and medication.
His weight was 209 pounds and his blood pressure was 160/100, but his
EKG, urinalysis and heart were normal.
On August 27, 1984 Aviles received emergency room treatment at Cook
County Hospital. His blood pressure was 164/130, his left knee was
swollen and very painful to the touch and there was slight edema in the
left ankle (R. 132). Aviles was advised to take colchicine and Aldomet,
follow a low-salt diet and return in three days for another examination
(R. 133). Aviles did not return until November 1, 1984,*fn2 when his
blood pressure was 160/110 and the diagnosis reflected uncontrolled
hypertension, lower back strain and a history of gout (the work-up for
gout was not completed due to Aviles' noncompliance) (R. 134-35).
At the Hearing Aviles testified he could not exercise, could walk only
half a block at a time (R. 38), had a lot of headaches on top of his
head, could not bend over and had to use crutches in the morning because
of pain in his feet (R. 40). He said in his present condition he could
not sit or stand for an eight-hour work day (R. 41).
Applying the Statutory Framework
To establish entitlement to disability benefits, a claimant must show
he or she is "disabled." Act § 216(i)(1), 42 U.S.C. § 416(i)(1)
defines "disability" as:
inability to engage in any substantial gainful
activity by reason of any medically determinable
physical or mental impairment which . . . has lasted
or can be expected to last for a continuous period of
not less than 12 months. . . .
Once the claimant has demonstrated an impairment of sufficient severity
to preclude the type of work he or she previously performed, the burden
shifts to Secretary to prove there exists other "substantial gainful
employment" the claimant can do. Whitney v. Schweiker, 695 F.2d 784
(7th Cir. 1982).
Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir. 1984)
(citations omitted) summarizes what has been the five-step inquiry*fn3
to be used by the ALJ in determining disability, with a shift in the
burden from the claimant to Secretary between steps 4 and 5:
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.
In applying step 5 the ALJ typically looks to the "Grid,"
medical-vocational guidelines (found at 20 C.F.R. Subpart P, Appendix 2)
that balance the claimant's physical limitations against his or her age,
education and work experience. Alternatively the ALJ may base the step 5
determination on other evidence, including the assessment of a vocational
specialist (20 C.F.R. § 404.1566(e)).
Secretary's decision must be affirmed on appeal unless the findings are
not supported by substantial evidence or Secretary has applied incorrect
legal standards. 42 U.S.C. § 405(g). Richardson v. Perales,
402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83
L.Ed. 126 (1938), has defined "substantial evidence" as:
such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
Based on the medical evidence and Aviles' testimony, the ALJ found in
Aviles' favor at steps 1 and 2 of the sequential analysis. But as to
steps 3 and 4 the ALJ concluded (R. 10):
3. The medical evidence establishes that the claimant
has severe gout and hypertension, but that he does not
have an impairment or combination of impairments
listed in, or medically equal to one listed in
Appendix 1, Subpart P, Regulations No. 4.
7. The claimant's impairments do not prevent the
claimant from performing his past relevant work.
In support of that last conclusion the ALJ found (id.):
4. The claimant's complaints of disabling headaches,
dizziness, and inability to walk due to gout are not
credible in view of the medical evidence of record.
5. The claimant has the residual functional capacity
to perform work-related activities except for work
involving heavy lifting and frequent bending
(20 C.F.R. § 404.1545 and 416.945).
6. The claimant's past relevant work as a line
assembler did not require the performance of
work-related activities precluded by the above
limitation(s) (20 C.F.R. § 404.1565 and 416.965).
Aviles challenges the step 4 determination that he can perform his past
relevant work. It is not that he contests the ALJ's rejection of his
subjective complaints in light of the medical evidence — he does
not. Rather he urges his past work as a line assembler did involve heavy
lifting, so — given the ALJ's finding he cannot do that — the
step 4 determination was incorrect as a matter of law.
Aviles' Past Work Experience
ALJ Scalise's decision found that on Aviles' job as a line assembler he
typically "walked two hours, stood eight hours, occasionally bent and
carried very small parts" (R. 8). Those findings were obviously drawn
directly from the circled items and written notations on one page (R. 84)
of the Department of Health and Human Services ("HHS") form Vocational
Report signed by Aviles August 29, 1983 ("Vocational Report," R. 83-88).
That information, clearly relating to Aviles' most recent job at
Stern,*fn4 described that job as (R. 84):
Putting parts together with screws. Used hand tools
such as screwdrivers, air guns, yankee screwdriver,
hammer. Parts which were put together were contacts,
light sockets, coils, etc. Stapled cables with air
But it must be remembered the Vocational Report could not have been
filled out by Aviles himself (he lacked the English to do so), so it had
to represent an interviewer's understanding of what Aviles had told him
or her. By contrast, the Hearing reflects the following colloquy (R.
Q. From February 2, 1978 to June 17, 1982, you worked
at Stern . . . Electronics . . . as an inspector.*fn5
Your job as an inspector probably required you to
carry heavy weights[;] more than 10 pounds?
A. More than 50 pounds.
Q. And, for instance, what, what did you call the job
where you had to lift more than 50 pound weights?
A. I have to take the boards that brought in the
electronics, pinballs, the games, pinball games. They
came into these boards and.
Q. How much did they weigh about?
A. I used to lift these boards and put them on a
rack. They made a pinball machine that weighed over 80
Q. How did you know that they weighed more than 80
A. Because the boss, took two of us to lift these
A. Because one of the guys working there hurt his back
and was hospitalized for a while.
That testimony tracks directly with the information on an undated HHS
Claimant's Work Background form ("Work Background," R. 142), listing
Aviles' past employers and stating as to the Stern job:
Lifted pinball machines that weighed over 80
lbs. Knew because his boss helped him and one
other co-worker hurt his back on acct of lifting
heavy weights*fn6. . . .
Finally, the job description (R. 73-74) in the August 18, 1983 HHS
Disability Report form ("Disability Report," R. 69-76) is somewhat
garbled. It describes a typical day as involving eight hours' walking,
eight hours' standing, no sitting, constant bending and constant reaching
(R. 74). Then in the "Lifting and Carrying" section the form describes
Aviles' work at the "toy factory" (Playskool, where he worked the year
before Stern) rather than at Stern itself, and a checkmark under
"HEAVIEST WEIGHT LIFTED" falls somewhere between the adjacent "20 lbs."
and "50 lbs." boxes (id.).
What all this reflects is an impermissible singling out by the ALJ
— without saying so or (at least equally important) saying why
— of one second-hand recording of what an unknown interviewer had
understood Aviles to say in the Vocational Report. That version was
totally inconsistent with everything else in the record — whether
essentially contemporaneous, or recorded at an unstated time, or in the
only first-hand version (Aviles' Hearing testimony). Cf. Jackson v.
Heckler, 592 F. Supp. 1124, 1128 (N.D.Ill. 1984) (claimant's own
description of her work at hearing justified ALJ in finding it was "light
or sedentary" work she was presently capable of performing). And it must
be remembered all the information comes from Aviles himself in any event
— this is not a typical battle of conflicting medical opinions, or
the other typical situation in which an ALJ or court makes a choice of
objective medical evidence over a claimant's subjective complaints.
If the ALJ had any doubts as to Aviles' credibility in testifying about
his having to lift heavy weights over 50 pounds,*fn7 he did not evidence
them by probing further with questions when he had Aviles before him. ALJ
Scalise's decision does not say either that he disbelieved what Aviles
said or, if so, why. As Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th
Cir. 1984) teaches:
While we must defer to the credibility determinations
of the fact-finder, we must be sure that the ALJ has
indeed made a credibility determination. . . . In the
absence of an explicit and reasoned rejection of an
entire line of evidence, the remaining evidence is
when considered in isolation. It is more than merely
"helpful" for the ALJ to articulate reasons (e.g.,
lack of credibility) for crediting or rejecting
particular sources of evidence. It is absolutely
essential for meaningful appellate review. As the
Third Circuit put it in Cotter v. Harris, 642 F.2d 700,
705 (3d Cir. 1981), when the ALJ fails to mention
rejected evidence, "the reviewing court cannot tell if
significant probative evidence was not credited or
True enough, Stephens v. Heckler, 766 F.2d 284
(7th Cir. 1985) may
perhaps narrow Zblewski's holding to some extent,*fn8
reading Zblewski to
require only the mentioning of "uncontradicted evidence" rejected by the
factfinder. As Stephens, 766 F.2d at 287 put it:
If a sketchy opinion assures us that the ALJ
considered the important evidence, and the opinion
enables us to trace the path of the ALJ's reasoning,
the ALJ has done enough.
Despite the ALJ's total failure to mention the principal evidence and
how it was at war with his stated finding, it is easy enough to "trace
the path of the ALJ's reasoning" — and that reasoning itself is
fatally self-contradictory. ALJ Scalise specifically found Aviles could
perform work-related activities "except for work involving heavy lifting
and frequent bending" (R. 10). Nothing whatever in the medical evidence
addresses Aviles' ability to do those things. Necessarily, then, the
ALJ's determination on that score must have credited Aviles' own
testimony (the only record evidence on the subject) that he was "sick on
[his] feet" and could not work a full week as a line assembler at Stern
(R. 33). That leaves wholly unexplained, in rational terms, any failure
by the ALJ to credit Aviles' contemporaneous testimony that the Stern job
in fact required heavy lifting and frequent bending.
Though no ALJ should thus force a reviewing court to indulge in
speculation, it may perhaps be the ALJ relied on the part of the
Vocational Report describing the job as assembly work with small tools
— and that description may well have been accurate as to what most
of Aviles' time on the job entailed. But as Valencia v. Heckler,
751 F.2d 1082, 1086 (9th Cir. 1985) states:
Every occupation consists of a myriad of tasks, each
involving different degrees of physical exertion. To
classify an applicant's "past relevant work" according
to the least demanding function of the claimant's past
occupations is contrary to the letter and spirit of
the Social Security Act.
It may be that some jobs classified as "line assembly" work would not
involve much heavy lifting (though that is hardly an apt matter for some
unstated form of judicial notice). But if an employee must lift any
weights over 50 pounds, 20 C.F.R. § 404.1567 classifies his job as
"heavy work." Aviles was not in a position to define his own job and
parse out the aspects he was incapable of managing, refusing to perform
that part of the work required for total performance. No more could the
ALJ (or this Court) redefine Aviles' job.
ALJ Scalise's finding that Aviles cannot do heavy lifting
differentiates this case from those in which issues are controverted and
ALJ's make permissible credibility determinations. It is impossible to
characterize the ALJ's own internally inconsistent treatment as supported
by substantial evidence. Whether (1) by his failure to be struck by the
obvious fact the one inconsistent statement about job content was in an
English-language form filled out by someone other than Aviles, or (2) by
oversight, or (3) by faulty reasoning, or (4) by a combination of those
factors, the ALJ did not fulfill his duty "to determine the physical
demands of the particular type of work [Aviles] had done and then
those demands to [his] present capabilities." Strittmatter v. Schweiker,
729 F.2d 507, 509 (7th Cir. 1984). Secretary's Mem. 13 n. 2 admits as
much (though she "reasons" from that acknowledgement to the wrong
It is unclear from the ALJ's decision whether he did
ascertain the demands of plaintiff's past relevant
work as a line assembler and compare them with his
present physical capacity in concluding that his
impairments do not prevent him from working as a line
Because the ALJ found (erroneously) Aviles could perform his relevant
past work, the ALJ stopped the analysis there and did not proceed under
step 5 to determine (via the Grid or otherwise) whether Aviles is able to
perform any other work available within the economy. Strittmatter, 729
F.2d at 509-10. That of course represents a failure on Secretary's part
to meet her burden of going forward, which had shifted to her at that
stage of the analysis. Whitney, 695 F.2d at 786. And the law could
perhaps impose the consequences of that failure on Secretary, who controls
the shape and scope of disability hearings, by this Court's entry of a
final ruling in Aviles' favor.
Any such general rule, however, would undercut the whole concept of the
five-step inquiry. Garfield, 732 F.2d at 607 n. 2 specifically recognized
the ALJ could properly stop his or her analysis with a step 4 finding
adverse to the claimant:*fn9
A negative answer at any point, other than step 3,
stops inquiry and leads to a determination that the
claimant is not disabled.
And so it was in Whitney, 695 F.2d at 789-90 (a case much like this one)
that our Court of Appeals found a remand necessary for application of the
Here too this Court cannot substitute its judgment for administrative
expertise. Its task ends with determining Secretary's findings cannot be
supported by substantial evidence. Remand is the appropriate result.
No substantial evidence exists to support ALJ Scalise's conclusion that
Aviles can perform his past relevant work as a line assembler.
Secretary's motion for summary judgment is therefore denied.
It remains to be determined whether Aviles is capable of performing
other work available within the economy. In accordance with Aviles'
motion, this case is remanded to Secretary for that determination under
step 5 of the sequential analysis.*fn10 In view of the very limited
scope of remand (which will call for either no further evidentiary
hearing or one of narrow compass), Secretary is ordered to complete that
determination within 91 days from the date of this order.