statement by your physician that you are disabled or unable to work does not mean that we will determine that you are disabled. We have to review the medical findings and other evidence that support a physician's statement that your are disabled.
Even more to the point, Garrison v. Heckler, 765 F.2d 710, 713 (7th Cir. 1985) (citation omitted) states:
The treating physician's further assertion that Garrison is disabled from any employment is not a medical statement at all. It is a proposition about how particular medical impairments produce reductions in physical exertion, and how such reductions in exertion affect the ability to work. The treating physician's views do not answer the question or tell the agency what tasks Garrison can and cannot perform.
Here as in Garrison the treating physician did not provide any information that contradicts the consultants' opinions about Shields' RFC. Those latter opinions were therefore the only specific evaluations of Shields' RFC in the record. When a consulting physician's opinion is not contradicted by any record evidence, the ALJ does not err in relying on that opinion, despite the existence of some factors that might otherwise disfavor it ( Steward v. Bowen, 858 F.2d 1295, 1298-99 (7th Cir. 1988)). Moreover, the consultants' assessments were not "plucked out of thin air" as Shields contends, but were in each instance supported by a recital of the relevant medical evidence. ALJ Keys did not therefore err in relying on the opinions of the consulting physicians as to Shields' RFC.
Shields' Subjective Testimony Finally, Shields contends that the ALJ improperly discounted Shields' testimony as to the severity of his pain by failing to consider that testimony according to the procedure set forth in SSR 88-13.
Shields points to two portions of that ruling as the basis of the supposed flaw in ALJ Keys' analysis.
First, Shields argues that the ALJ failed to consider the following factors set forth in the Ruling:
1. The nature, location, onset, duration, frequency, radiation, and intensity of any pain;
2. Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);
3. Type, dosage, effectiveness, and adverse side-effects of any pain medication;
4. Treatment, other than medication, for relief of pain;
5. Functional restrictions; and
6. The claimant's daily activities.
But contrary to Shields' assertion, the Ruling does not require the express examination of each of those factors. Instead it merely lists them as being among the considerations that are relevant in evaluating pain allegations. Moreover, ALJ Keys did in fact discuss those listed factors in his discussion of Shields' alleged pain (R. 16).
Second, Shields asserts that the ALJ did not comply with this SSR 88-13 language:
In instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject that individual's subjective complaints solely on the basis of such personal observations. Rather, in all cases in which pain is alleged, the determination or decision rationale is to contain a thorough discussion and analysis of the objective medical evidence and the nonmedical evidence, including the individual's subjective complaints and the adjudicator's personal observations. The rationale is then to provide a resolution of any inconsistencies in the evidence as a whole and set forth a logical explanation of the individual's capacity to work.
Again Shields is wrong. ALJ Keys complied precisely with those stated requirements. He thoroughly discussed both the objective medical evidence and the non-medical evidence, including Shields' subjective complaints and the ALJ's own observations (R. 14-16). And as SSR 88-13 directs, he logically discussed the inconsistencies in that evidence and set forth a reasoned explanation of his ultimate findings as to Shields' ability to work.
Thus ALJ Keys' analysis in the area now under discussion is supported by substantial evidence and complies with SSR 88-13.
This case must be remanded to Secretary for the limited purpose of (1) developing the record on the issue of a possible mental impairment and (2) considering that impairment in accordance with the requirements of Reg. § 404.1520a. Because ALJ Keys' step 5 determination that Shields is not disabled is otherwise supported by substantial evidence, that decision need not be reconsidered--except of course to the extent that any mental impairment, in combination with Shields' other symptoms, may require a different conclusion.
Melkonyan has held that all remand orders that do not come under Section 405(g)'s sentence six (which calls for a remand when certain conditions as to newly-presented evidence are met) fall by definition under sentence four of that Section. That being the case, the order of remand is a final order reversing Secretary's decision (see Young v. Sullivan, 972 F.2d 830, 1992 U.S. App. LEXIS 18697, at *7-12 (7th Cir. 1992)). Accordingly Secretary's decision is reversed, and this action is remanded for further proceedings consistent with this memorandum opinion and order.
Milton I. Shadur
Senior United States District Judge
Date: September 14, 1992