past relevant work. That conclusion would trigger a step 5 analysis and a likely finding of disability. It is perhaps regrettable that a single blunder by an ALJ should force a fresh look at this case, but the error is so patent and so basic--involving the final piece of medical evidence (one that could reconcile the claimant's claims of severe disabling pain)--that a remand is the only acceptable answer.
2. Mental Impairment
Pilarczyk also argues that the ALJ was required to investigate the possible existence of a mental impairment once he determined that objective medical evidence did not support Pilarczyk's claims of pain. SSR 88-13 does state that when medical evidence does not show a physiological source for a claimant's alleged pain, "the possibility of a mental impairment as the basis for the pain should be investigated."
Yet that language will not bear the weight that Pilarczyk hopes to impose upon it. No duty is imposed on an ALJ to conduct a psychiatric investigation unless the claimant (1) alleges a mental impairment at the time of the hearing and (2) comes forward with proof of such an impairment ( Howell v. Sullivan, 950 F.2d 343, 348 (7th Cir. 1991)).
Pilarczyk never alleged a mental impairment before filing her brief with this Court. Neither at the hearing nor in her brief has she pointed to any meaningful proof of such an impairment. ALJ Greene therefore committed no error by failing to investigate a possible mental impairment on his own. That issue need not be revisited on remand.
3. Proper standard for analyzing claims of pain.
Moothart v. Bowen, 934 F.2d 114, 117 (7th Cir. 1991) holds that under Reg. § 404.1529 subjective claims of pain must always be corroborated by medical findings. Secretary Mem. 10 n.7 argues for application of the Moothart rule to this case. Not so. In the required remand to determine whether Pilarczyk has in fact produced corroborative medical evidence, it is not only unnecessary but it would be improper to apply Moothart. This brief discussion is included only to emphasize the conclusion reached by this Court just days ago in Thomas v. Sullivan, No. 92 C 32 (N.D. Ill. Aug. 14, 1992), that Moothart is no longer good law.
Under a new version of Reg. § 404.1529 that took effect in November 1991, Secretary has made clear that a claim of subjective pain should never be rejected solely for lack of supporting medical evidence. That new regulation, Secretary conceded in Thomas, does not represent any change in his policy but does repeal the Moothart rule. Absence of objective medical evidence may be one factor in the decision not to credit claims of pain, but it cannot be the only factor (Thomas, slip op. at 19).
It follows that Moothart construed HHS policy more strictly than was proper. Once corrected by Secretary, courts in this circuit have no business applying the mistaken rule announced by our Court of Appeals in reliance on Secretary's then-existing regulation
-- even in cases decided after the effective date of the new regulation (Thomas, slip op. at 17-18). No insult is intended to the drafters of Secretary's brief in this case, which was completed before Thomas was decided. But this Court would hope that Secretary will not cite Moothart in future briefs, and it expects that Secretary will not apply the Moothart rule on remand in the instant case.
Pilarczyk's motion for summary judgment is denied. This case is remanded to Secretary for further proceedings consistent with this opinion. On remand, Secretary is instructed to reconsider the significance of the CT scan and, if that reconsideration compels a fresh look at the rest of the evidence, to do that as well. No other issues need be considered on remand.
Milton I. Shadur
Senior United States District Judge
Date: August 25, 1992