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THOMPSON v. SULLIVAN

April 11, 1990

DARLEEN THOMPSON, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D.,1 Secretary, U.S. Department of Health and Human Services, Defendant



The opinion of the court was delivered by: MORAN

 Plaintiff Darleen Thompson ("Thompson") brings this action challenging the decision of defendant Louis W. Sullivan ("Secretary") denying her application for social security disability benefits under the Supplemental Security Income ("SSI") program of the Social Security Act, 42 U.S.C. § 1381 et seq. (1982 & Supp. 1987). Before this court are the parties' cross motions for summary judgment. For the reasons set forth below, we grant Thompson's motion and remand the case to the Secretary for further consideration.

 FACTS

 Born on November 12, 1931, Thompson received a high school equivalency diploma and additionally attended two years of vocational training in secretarial and business skills (A.R. 46, 100). She worked for over ten years as a clerk typist with the civil service (A.R. 100) but claims that she was forced to leave that job due to arthritis in her hands, which impeded her typing ability (A.R. 51). For the following five years, Thompson was employed in retail sales (A.R. 100), and beginning in June of 1985, she held two jobs -- one as a product demonstrator and coupon distributor at retail stores (A.R. 50) and the second as a telephone solicitor (A.R. 48). On February 5, 1987, while at her telephone soliciting job, Thompson tripped over a telephone wire and suffered a displaced intercapsular fracture of the neck of her left femur (A.R. 53, 176). The same day, an orthopedic surgeon, Dr. Gerald Goshgarian, operated on her hip and inserted four cannulated pins (A.R. 141). She was released from the hospital on February 22, 1987, but as of May 25, 1988, the date of the Appeals Council's (and therefore the Secretary's) final decision, Thompson had not returned to work.

 Thompson initially filed an application for SSI benefits on March 3, 1987, which was denied on April 20, 1987; nor were her efforts rewarded on reconsideration. She requested -- and received -- a hearing before an Administrative Law Judge ("ALJ"), which was held on December 8, 1987, but which did not convince the ALJ of the merit of her claim. On May 25, 1988, the Appeals Council of the Social Security Administration denied Thompson's request for review, making the ALJ's decision the final decision of the Secretary. Thompson now asks this court to review the Secretary's decision pursuant to 42 U.S.C. § 405(g) (1982), asserting that the Secretary improperly evaluated Thompson's claim of disabling pain and therefore erroneously denied her application for benefits.

 DISCUSSION

 For a claimant to be eligible for SSI benefits, he must demonstrate that he was disabled by virtue of an "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." 42 U.S.C. § 423(d)(1)(A) (1982). Regulations promulgated by the Social Security Administration establish a five-step sequential inquiry that must be followed in determining whether a claimant merits benefits:

 
The first inquiry under the sequence concerns whether a claimant is currently engaged in substantial gainful employment. If it is found that he is, the claim is denied without reference to the other steps in the sequence. If he is not, the second inquiry is whether the claimant has a "severe" impairment. If he does not, the claim is denied. If a severe impairment is present, the third inquiry is whether such impairment meets or equals one of the impairments listed under Appendix I to Subpart P of the Administrative Regulations No. 4. If it does, the claim is approved. If it does not, the fourth inquiry is whether the claimant's impairments prevent him from performing his past relevant work. If he is found to be capable of returning to his past relevant work, the claim is denied. If he is not found to be so capable, the fifth and final inquiry is whether the claimant is able to perform other forms of substantial gainful activity, considering his age, education, and prior work experience. If he is not the claim is approved.

 Cannon v. Harris, 651 F.2d 513, 517 (7th Cir. 1981); see 20 C.F.R. § 404.1520 (1989).

 In the present case, the ALJ determined that Thompson, who had not been employed since her injury on February 5, 1987 (step one), had suffered a severe impairment (step two), but that this condition did not meet any of the listed impairments (step three). The ALJ found further that, at least as of December, 1987, Thompson had regained the residual functional capacity to perform her past relevant work as a telephone solicitor (step four), and therefore her impairment did not last the requisite 12 months. It is the ALJ's analysis at step four that Thompson contests; she argues that the ALJ failed to evaluate the non- medical evidence of her pain, including her own subjective complaints and the corroborating testimony of her friend Mrs. Watson, a witness at the administrative hearing.

 In reviewing the Secretary's denial of benefits, this court is not free to make de novo factual determinations but rather must uphold the decision if the record as a whole contains substantial evidence to support it. See Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984). Of course, an error of law warrants reversal "irrespective of the volume of evidence supporting the factual findings." Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980). Evidence is "substantial" if "'a reasonable mind accepts [it] as adequate to support [the] conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)).

 1. Standard for Evaluating Pain

 Severe, disabling pain may serve as the basis of an award of SSI benefits provided there is an objective finding of a medical impairment that could reasonably be expected to produce the pain. See 42 U.S.C. $ 423(d)(5)(A) (Supp V 1987); Walker v. Bowen, 834 F.2d 635, 641 (7th Cir. 1987); Veal v. Bowen, 833 F.2d 693, 698 (7th Cir. 1987). An objectively adduced impairment will be found reasonably capable of producing pain if the claimant can establish "a loose nexus . . . between the pain-causing impairment and the pain alleged." Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987); cf. Sparks v. Bowen, 807 F.2d 616, 618 (7th Cir. 1986) (requirement that claimant "show an objectively verifiable abnormality is designed to screen out claims by hypochondriacs and goldbricks"). Thus, the disabling pain of which a claimant complains need not inevitably or even ordinarily flow from the underlying objective impairment, see Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986); Marcus v. Califano, 615 F.2d 23, 28 (2d Cir. 1979); to impose such a requirement would be to ignore the fundamentally idiosyncratic nature of pain. See Howard, 782 F.2d at 1488; Marcus, 615 F.2d at 28. It follows, then, that the Secretary may not deny a claim solely because the severity of the pain is not supported by the objective medical evidence, Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); once the loose nexus is established, the Secretary must consider subjective complaints of pain. See Luna, 834 F.2d at 165; Lundquist v. Heckler, 670 F. Supp. 781, 785 (N.D. Ill. 1985). The Social Security Administration, mindful of the difficulties inherent in proving and quantifying pain, has promulgated a ruling that lays out a standard for the evaluation of pain. S.S.R. 88-13; see generally Simmons v. Heckler, No. 83 C 5049, 1989 U.S. Dist. LEXIS 2947 (N.D. Ill. March 16, 1989). *fn2" In cases where the full extent of the alleged pain is not supported by the objective medical evidence, S.S.R. 88-13 requires that the ALJ explore the subjective complaints by turning to other indicators of the severity of the pain:

 
In developing evidence of pain or other symptoms, it is essential to investigate all avenues presented that relate to subjective complaints . . . . In evaluating a claimant's subjective complaints of pain, the adjudicator must give full consideration to all of the available evidence, medical and ...

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