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August 14, 1992

JOHN THOMAS, Plaintiff,
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: MILTON I. SHADUR

 John Thomas ("Thomas") appeals the final decision of Secretary of Health and Human Services Louis Sullivan ("Secretary") denying his claim for disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d). *fn1" Each of Thomas and Secretary has filed a motion for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, both motions are denied and the case is remanded to Secretary for reconsideration.

 Factual and Procedural Background

 Thomas is now age 50, having been 48 years old at the time of the hearing referred to a bit later (Administrative Record ("R.") 47). He completed only a few years of grade school and cannot read or write (R. 49, 106). From 1968 to 1989 Thomas worked in the construction trade, operating a jackhammer, toting lumber, shoveling concrete and doing other miscellaneous jobs (R. 50-54, 61, 106-07). Thomas suffered a back injury while on the job in 1983 (R. 55).

 There is some conflict about the limitations that the back injury imposed on Thomas. Administrative Law Judge ("ALJ") Larry Miller found, and Secretary argues on appeal, that Thomas told a contradictory and implausible story--first contending that he maintained a full work schedule until he suddenly became unable to work in 1989, then changing his version to one under which he did no substantial work from 1983 onward (R. 24).

 Thomas describes his testimony very differently--he says that he did not grasp the ALJ's questions at first and merely clarified his testimony later on. Before the injury, he says, he ran the jackhammer for half a day while his partner ran it the other half. After the injury Thomas ran it as "little as possible . . . maybe an hour or two hours" (R. 75). He no longer toted lumber (R. 77) or shoveled concrete (R. 78), and he sat on the job when the boss was absent, though he knew he would have been fired if he had been caught doing that (R. 50). According to Thomas his partner "would take the load up off me," would "do different things for me to kind of help me out" and "did this so I could make it" (id.). He testified that since 1983 he has not driven a car because his back pain leaves his legs unable to depress the pedals (R. 50). Thomas also claimed to have an ulcer (R. 69), asthma (R. 72) and ringing in the ears (R. 67-68, technically termed tinnitus, R. 222). He said the asthma has gotten considerably worse since he stopped working (R. 72).

 Next Thomas took his case to the HHS Appeals Council (R. 13). On October 31, 1991 the Appeals Council denied his request for review and adopted the opinion of ALJ Miller as Secretary's final decision (R. 3-4). This appeal followed.

 Rule 56 Principles

 On summary judgment the court must rule in favor of the moving party if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Only when the record evidence would permit a reasonable factfinder to adopt the view of the nonmoving party is there a "genuine" issue ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 273-74 (7th Cir. 1991)). Only when a fact would prove outcome-determinative under the substantive law is it "material" ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir 1991)).

 Rule 56 principles require the movant to establish the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). In deciding whether that burden has been met, the court must draw "all reasonable inferences in favor of the nonmoving party" ( Allensworth v. General Motors Corp., 945 F.2d 174, 178 (7th Cir. 1991)). On cross-motions the court must extend the required inferences to each party when considering the other's motion.

 Statutory and Regulatory Framework

 Section 1382c(a)(3)(A) defines disability as:

 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[.]

 Young v. Secretary of HHS, 957 F.2d 386, 389 (7th Cir. 1992) (case citations omitted) explains the process that guides Secretary's evaluation of a disability claim:

 When considering whether a claimant is eligible for benefits, the Secretary uses a five-step inquiry: 1) is the claimant presently unemployed; 2) is the claimant's impairment or combination of impairments severe; 3) does the impairment meet or exceed any of the list of specific impairments (the grid) that the Secretary acknowledges to be so severe as to preclude substantial gainful activity; 4) if the impairment has not been listed by the Secretary as conclusively disabling, is the claimant unable to perform his or her former occupation; and 5) if the claimant cannot perform the past occupation, is the claimant unable to perform other work in the national economy in light of his or her age, education and work experience. A negative conclusion at any step (except for step three) precludes a finding of disability. An affirmative answer at steps one, two or four leads to the next step. An affirmative answer at steps three or five results in a finding of disability. 20 C.F.R. § 404.1520 (1991). The claimant bears the burden of proof in steps one through four. If that burden is met, the burden shifts to the Secretary to prove that the claimant cannot perform other work in the economy.

 Step 3 requires Secretary to assess whether the claimant has an impairment specified in the Listing of Impairments (Part 404, Subpt. P, App. 1). Impairments found in the Listing mandate a finding of disability because they are "severe enough to prevent a person from doing any gainful activity" (Reg. § 404.1525(a)). Such a finding must rest on one of two conclusions: that the claimant's impairment corresponds directly to the requirements spelled out in the Listing, or that the claimant's impairment (or combination of impairments) is "medically equivalent" to a Listing although it does not match up precisely with the regulatory criteria (id. § 404.1526(a)).

 Step 5 requires Secretary to decide whether the claimant can perform "sedentary," "light," "medium," "heavy" or "very heavy" work. Those levels of "residual functional capacity" ("RFC") are defined by Reg. § 404.1567. Secretary also assesses the claimant's age, education and work experience, known as claimant's "vocational factors" (Reg. §§ 404.1563-1565). Finally, Secretary consults the "grid" (Medical Vocational Guidelines of Part 404, Subpart P, Appendix 2). For each permutation of RFC and the vocational factors, the grid specifies whether or not a claimant will be deemed disabled.

 Standard of Review

 District courts "decide[] disability cases . . . by reviewing the final decision of the Secretary to ensure that it is supported by substantial evidence" ( Young, 957 F.2d at 388). Reported cases regularly remind that "we may not decide the facts anew, reweigh the evidence, or substitute our own judgment for that of the ALJ" ( Meredith v. Bowen, 833 F.2d 650, 653 (7th Cir. 1987)). "Substantial evidence" means ( 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)):

 more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

 "Substantial evidence may be something less than the greater weight or preponderance of the evidence" ( Young, 957 F.2d at 389).

 Every ALJ has a duty to explain with particularity the basis of his decision. To quote once again from Young, id. at 393, "within reasonable limits, the reason for rejecting evidence must be articulated if there is to be meaningful appellate review." Stein v. Sullivan, 966 F.2d 317, 1992 U.S. App. LEXIS 15282, at *6 (7th Cir. 1992), quoting Brown v. Bowen, 847 F.2d 342, 346 (7th Cir. 1988), expands on that concept:

 The level of articulation required is far from precise. . . . The requirement that the ALJ articulate his consideration of the evidence is deliberately flexible. "It is enough if the ALJ indicates the path of decision. The administrative tribunal need not spell out every step in the reasoning, if it provides enough of the steps that the full course may be discerned."

 ALJ Miller's Decision and Reasoning

 At step 1 ALJ Miller found that Thomas was not gainfully employed (R. 25). At step 2 he found that Thomas suffered from severe asthma and low backache syndrome (id.). But the ALJ found at step 3 that those ailments did not meet or equal, either singly or in combination, any impairment found in the Listing (id.). At step 4 ALJ Miller adjudged Thomas incapable of doing his old construction job (R. 26). But he then found that Thomas could to "a wide range of medium work"(id.)--a category of activity that involves prolonged walking or standing, lifting a maximum of 50 pounds, and frequently lifting or carrying 20 pounds--so long as he did not work "around excessive pulmonary irritants or in a polluted environment" (R. 25).

 Vocational expert Hamersma testified without contradiction that a significant number of jobs existed in the national economy for people of Thomas' age, education, physical capacity and skill level. Therefore at step 5 ALJ Miller deemed Thomas not disabled (R. 26).

 ALJ Miller emphasized that he found Thomas' own testimony incredible (R. 24):

 The claimant testified that in the space of one year, he went from working to being absolutely incapacitated, having-to prop himself against the wall, and being unable to lift anything over five pounds. All this was attributed allegedly to longstanding impairments. The claimant had trouble deciding on some important matters. He first testified that he continued to do the same work after his 1983 back injury, but at the end of the hearing, stated that he mostly loafed on the job.

 When asked if his longstanding asthma had gotten worse after he left work, the claimant replied that he cannot breathe. However, upon further questioning, he stated that he has been unable to breathe for seven or eight years.

 Besides this, the claimant allegedly has constant pain from his ulcer, although he is not on a special diet and has gained 20 pounds since he left work. He has put on this weight and still by the time of the hearing, gave the impression of being healthy and vital, in spite of his testimony that he has to spend half his time lying on the floor, that he props himself against the wall to stand, and that he is unable to breathe and has been this way for seven or eight years.

 Then the ALJ added that the medical evidence "does not lend [the pain testimony] more support" (id.). Evidence of low backache syndrome--without more--"connotes a lack of objective findings for the alleged symptoms" (id.). ALJ Miller noted the absence of any emergency-room treatment for asthma attacks, the lack of any acute ...

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