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February 22, 1995

JOE E. LLOYD, Plaintiff,

The opinion of the court was delivered by: RUBEN CASTILLO

 Pursuant to 42 U.S.C. § 405(g), Joe D. Lloyd ("Lloyd") appeals the final decision of the Department of Health and Human Services Secretary Donna Shalala ("Secretary") denying Lloyd's claim for Disability Insurance Benefits ("DIB") under the Social Security Act, 42 U.S.C. §§ 416(i), 423. Both parties move for summary judgment under Federal Rule of Civil Procedure 56.


 We begin with a brief overview of the present case and then review the evidentiary record in detail. Lloyd is a 55 year old male who alleges that he became disabled on March 14, 1979, due to arthritis of the spine, and whose insured status expired on September 30, 1986. *fn1" (R. 167, 180) The onset of Lloyd's injuries appears to date back, at least, to an accident in 1978 at the Ford Motor Company ("Ford"), where he was employed at the time. *fn2" (R. 107-108, 123-124, 360) On April 29, 1978, Lloyd was admitted to Northwestern Memorial Hospital complaining of a history of low back pain that was aggravated two weeks previously at his work. (R. 221) At the time, Lloyd reported a two to three year history of low back pain. He was discharged a little more than a week later, after his symptoms subsided following a regimen of bedrest, traction and local heat. (Id.) Although Lloyd initially evidenced a positive straight leg raise bilaterally, at discharge he was able to straight leg raise to 90 degrees without difficulty and was walking without assistance. (Id.) An x-ray of the spine revealed an "essentially normal appearing lumbar spine," id., with the disc spaces well preserved and no significant evidence of arthritis, fractures or destructive lesions. (R. 218)

 In 1979 Lloyd retired from Ford due to his back pain and has not worked since to any significant extent. *fn3" (R. 123-125). On August 14, 1984, Lloyd was again admitted to a hospital with lower back pain, and was discharged after improving somewhat following physiotherapy. (R. 245-46) In February 1990, Lloyd began outpatient physical therapy for his back pain, but after sporadic attendance his therapy was discontinued. (R. 322-330) In connection with his present application for benefits, Lloyd began a series of four or five consultations with a psychologist (Dr. Antia) in May 1992, who subsequently opined that Lloyd was disabled from work due to his pain and psychoneurological impairments. (R. 355-60)

 Over the years since Lloyd's initial complaints in 1978, Lloyd consulted a number of physicians who have generally opined that Lloyd was suffering from a variety of back maladies. There has been no consensus on Lloyd's diagnosis, see, e.g., R. 224 (Dr. Oh--lumbar-sacral muscle sprain); R. 234 (Dr. Rabinowitz--Chronic low back syndrome); R. 241 (Dr. Domoto--status post trauma of the lumbar spine); R. 335 (Dr. Brown--chronic low back strain with right sided sciatica); R. 316 (Dr. Gerhold--osteoarthritis lower back, back pain), and, as will be discussed below, diagnostic assessments including x-ray, CT scan, and myelogram have consistently revealed an essentially normal spine. Almost without exception, the physicians that Lloyd consulted indicated that he could return to light or sedentary work; and, those who concluded that Lloyd was unable to return to any work did so many years after Lloyd's date last insured of September 30, 1986, see, e.g. R. 316 (Dr. Gerhold--3/11/91); R. 470 (Dr. Antia--7/17/92).

 Following a hearing on March 20, 1991, an Administrative Law Judge ("ALJ") issued a decision denying Lloyd's claim for disability benefits. (R. 102-113) The Appeals Council affirmed in part and modified in part the ALJ's decision. Specifically, the Appeals Council affirmed the ALJ's determination that Lloyd was not disabled on or before September 30, 1986; however, the Appeals Council modified the ALJ's findings by rejecting the ALJ's enumerated finding number 4 that Lloyd's residual functional capacity to perform the full range of sedentary work was reduced by back pain. The Appeals Council found this finding to be inconsistent with the ALJ's discussion in the narrative portion of his decision and inconsistent with the ALJ's enumerated findings numbers 4 and 5. Accordingly, the Appeals Council found that "the evidentiary record, as set forth by the Administrative Law Judge, amply demonstrates that as of September 30, 1986, the claimant retained the functional capacity to perform the full range of sedentary work." (R. 11) The Appeals Council explicitly considered the evidence submitted following the ALJ's decision was issued concerning Lloyd's mental impairment and reached its finding of "not disabled" in light of both the evidence presented to the ALJ and the psychological report. (R. 7-13) The Court now turns to its review of the pertinent testimony and medical evidence in the record. Lloyd's Hearing Testimony

 For ease of exposition in the following summary of Lloyd's testimony, the Court shall, for the most part, dispense with the use of qualifying expressions such as "Lloyd reported", "Lloyd testified", and "Lloyd stated". Nevertheless, it should be understood that the Court is merely recounting Lloyd's testimony here, not stating findings of fact.

 Lloyd retired from Ford--where he performed heavy work loading machines and being on his feet all day--in 1979, due to back pain which developed after being struck by a lift truck at work. (R. 123-124) He tried to do lighter work at Ford, but was unable to do it because it aggravated the pain in his back. (R. 125)

 Lloyd complains of pain in his lower back and right leg, which has remained the same since the date of his injury. (R. 148) Cold and damp weather, bending, sitting, standing, and walking aggravate his pain. (R. 149-150, 152) Lloyd testified that he could not sit or stand for more than 15 or 20 minutes, (R. 153), and he indicated that sitting for the duration of the hearing aggravated the pain in his back. (R. 158) Lloyd also stated that when he goes to church--approximately once per month, he has to get up and move around after 15 or 20 minutes of sitting. (R. 135) Walking, even as little as ten steps aggravates his pain. (R. 151) He has no numbness. (R. 152) Although he is fully capable of lifting a cup of coffee, Lloyd will not lift anything over five to ten pounds. (R. 152-53)

 Lloyd generally gets up between 10:00 and 11:00 a.m. and spends most of his day around his house, alternating between sitting, walking, and going to bed. (R. 133) If there is food in the house he eats breakfast in, otherwise, he drives to a restaurant. (Id.) However, he drives as little as possible because getting in and out of the car is difficult. (R. 162) Although he eats two to three meals per day, Lloyd does not cook; therefore, he either eats out at a restaurant or prepares a cold meal such as a sandwich for himself. (R. 133) He eats out most of the time. (R. 137) Lloyd has a "good appetite" and enjoys his food. (R. 135)

 Lloyd has no hobbies although he has belonged to a health club for approximately five or six years. He tries to go to the club at least two to three times per week and when he does, he sits in the steam or the whirlpool; he does not exercise. (R. 134)

 Around the house, Lloyd does light housework such as washing dishes and dusting; however, his son, with whom he lives, does the more substantial tasks such as taking out the garbage, doing the laundry and cutting the grass. (R. 136-37) Lloyd also does light grocery shopping, such as picking up "little odds and ends . . . maybe milk and bread and maybe some lunchmeat . . . just to have something in the house to eat." (Id.) Lloyd is capable of taking care of his personal needs such as washing and dressing himself--although he has trouble bending over to put on his shoes and pants. (R. 136)

 When asked about medication, Lloyd testified that he was taking Equigesic two or three times a week but since they were making him dizzy and drowsy, he discontinued taking them regularly. He now takes equigesic only "now and then." (R. 140-141) Lloyd also stated that sometimes Equigesic helped him, whereas on other occasions it did not provide relief. (Id.) Lloyd was previously prescribed Tylenol III; however, it has been a couple of years since he has taken this drug. (R. 140) Lloyd also testified that had been prescribed Darvocet at some point in time before the Tylenol III was prescribed but it did not seem to help. (R. 160)

 Lloyd goes to Dr. Gerhold for "prescriptions" authorizing outpatient physical therapy at Ingalls hospital. Lloyd indicated that he would go to physical therapy when his back was causing a lot of pain. When asked how many times he went to physical therapy in the past five years, Lloyd responded: "Maybe twice." (R. 144) Later, Lloyd indicated that he received physical therapy at Ingalls in February of 1990. (R. 155) Finally, Lloyd stated that he had also seen a chiropractor six or seven years before the hearing, for about two to three weeks, and that the treatment seemed to have helped at the time. (R. 145)

 When asked if there was anything else troubling him that was not explored during the hearing, Lloyd responded, "No." (R. 156-57) Lloyd's non-attorney advocate questioned him concerning the emotional effects of his inability to work. In response, Lloyd seemed to focus on the financial consequences of his inability to work, noting, "the more money you can make[,] you can do more for yourself.. I don't have the money to do things for myself." (R. 162) When asked if there were any effects on how he felt about himself other than financial effects, Lloyd responded, "if you [are] living poorly your friends look down on you. Like you aint nothing or something like that. . . ." (R. 162-63)

 When Lloyd was asked why he waited so long to reapply for benefits after his disallowances in the early 1980s, Lloyd responded "I couldn't [] say." (R. 147) And, when asked why he did not appeal his earlier disallowances, Lloyd indicated that he was aware of his right to appeal and stated that he did not know why he did not. (R. 163)

 Lloyd's Medical Records

 1. Northwestern Memorial Hospital Records (R. 211-221)

 On April 29, 1978, Lloyd was admitted to Northwestern Memorial Hospital with a history of low back pain, aggravated at work two weeks prior to admission. (R. 221) Lloyd's physical examination was within normal limits, except his straight leg raise was positive bilaterally with cross-over on the left side. Faber's test was positive. (Id.) x-ray revealed an essentially normal-appearing lumbar spine. (Id.) Lloyd was treated with bedrest, traction, and local heat, to which he responded excellently. (Id.) At the time of his discharge on May 9, 1978, Lloyd was able to straight leg raise to 90 degrees without difficulty and walk without any assistance. (Id.)

 2. Dr. Gerhold Reports4

 A. Attending Physicians Statement (R. 225-29)

 Dr. Gerhold completed several "attending physician statements" concerning Lloyd in connection with his extended disability benefits program offered through Ford. The statements bear dates between March 11, 1980, and August 22, 1984. (R. 225-229)

 In the February 11, 1980 report--which was completed approximately one-month after Lloyd's most recent visit, Dr. Gerhold noted a diagnosis of "low back pain, probable slipped disk; lumbo-sacral strain; absent right knee jerk. (R. 226) The statement provides a date of March 16, 1979 as the date of first treatment for Lloyd's injury and further states that Lloyd has been continuously disabled from March 13, 1979 through the date of the statement. The time frame of Lloyd's disability is stated to be indefinite. (Id.) In the March 11, 1980 *fn5" report, Gerhold again noted a diagnosis of "Low Back pain; probable slipped disk; Lumbo sacral strain; Absent Rt. knee jerk" and characterized Lloyd's condition as "unimproved." (R. 225). *fn6" Gerhold further indicated that Lloyd was "totally" disabled and that he had been continuously disabled since February 7, 1979. Again, the time frame of Lloyd's disability is stated to be indefinite. (Id.) The diagnostic impression reported in the October 2, 1980 statement remained the same as in the previous statements. (R. 227) Gerhold again reported that Lloyd was unimproved and suffering from a total disability, of an indefinite character since February 8, 1979. (Id.) Gerhold's statement of March 9, 1982 *fn7" , is essentially the same, again indicating that Lloyd was totally disabled for an indefinite period of time with the onset of his disability being on March 13, 1979. (R. 228) In the August, 22, 1984 statement, Dr. Gerhold provided a diagnosis of osteoarthritis of the lower spine. (R. 229) The date of first treatment after last day worked is reported as August 7, 1984. (Id.) Dr. Gerhold reported that Lloyd was continuously disabled from August 7, 1984, and that his disability was indefinite. (Id.) Finally, on March 11, 1991, Gerhold completed an Attending Physician's Report declaring Lloyd permanently disabled since March of 1979 with a diagnosis of osteoarthritis of the lower back. (R. 316)

 B. Report and Physical Capacities Evaluation

 On May 22, 1980, Gerhold completed a report on Lloyd at the request of State of Illinois Disability Determination Services in connection with Lloyd's application for benefits. (R. 230-232) Gerhold's most recent examination of Lloyd was approximately two months earlier. Gerhold provided a diagnosis of lower back pain and probable slipped disk (R. 230) Gerhold noted that Lloyd's gait and reflexes were normal, that Lloyd ambulated without assistance, and that there was no atrophy or sensory loss. (R. 230) Gerhold also noted that Lloyd reported back pain radiating into the right leg. (Id.) Range of motion of the cervical spine was normal. With respect to flexion, range of motion of the lumbo-sacral spine was somewhat limited; extension of the lumbosacral spine was normal. (R. 231) Lloyd reported that straight leg raising was painful bilaterally. (Id.) On the physical capacities evaluation accompanying the spinal disorders report, Gerhold reported that Lloyd could perform sedentary work, *fn8" bend and stoop occasionally, and climb and operate foot controls frequently. (R. 232)

 C. Admission, Progress and Discharge Summary (R. Ex 22)

 On August 14, 1984, Lloyd was admitted by Gerhold to St. Francis Hospital ("St. Francis") for treatment and evaluation of back pain radiating down into the right leg. (R. 244-46) Dr. Gerhold reported that Lloyd's physical examination was essentially normal. (R. 246) A complete pre-admission diagnostic work-up--including a CT scan and myelogram--was conducted at St. James Hospital. (R. 245) Gerhold reported that there was "some facet arthropathy at L5-S1 which was shown by the CAT scan. However, there was no nerve root displacement." (R. 246) *fn9" X-ray of the spine revealed slight levoscoliosis of the lower lumbar vertebrae. (Id.) The radiology report noted that "the disc spaces and vertebral heights . . . are well maintained" and that "there is no evidence of significant bone or joint ...

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