in her knees because he reviewed X-ray results "from the past." (Plaintiff's Memorandum in Support of her Motion for Summary Judgment at p.8). Accordingly, the magistrate judge was correct in finding that the ALJ reasonably relied on the forgoing evidence in determining that Plaintiff had no limitation of motion.
II Respiratory Disease; Listing 10.10E
The Social Security regulations authorize ALJs to find disability for obese claimants who also suffer from respiratory disease. To claim a disability for respiratory ailments, an obese claimant must show "respiratory disease with total forced vital capacity equal to or less than 2.0L." C.F.R. pt. 404, subpt.P, appl, § 10.10(E) ("Listing 10.10(E)").
The Plaintiff claims that her obesity meets Listing 10.10E because she suffers from respiratory disease with total forced vital capacity equal to or less than 2.0 liters, as measured before the administration of a bronchodilator. The ALJ found that Plaintiff's forced vital capacity exceeded 2.0 liters, therefore Plaintiff's obesity did not meet the requirements of Listing 10.10E. The magistrate judge determined that there was substantial evidence to find that the plaintiff's respiratory ailments did not meet the Listing 10.10(E) because plaintiff's forced vital capacity (FVC) scores exceed 2.0 liters. After a full review of the record and relevant cases, this court agrees with the magistrate judge.
At issue here is the appropriate measure of Plaintiff's FVC. Listing 10.10(E) does not mention how a claimant's FVC should be measured. The Listing does not state that a bronchodilator should be utilized, nor does the Listing forbid its use.
In the case at bar, two doctors conducted respiratory examinations of the Plaintiff. Dr. Moscoso found that Plaintiff's FVC was 2.0 liters before the administration of a bronchodilator and 2.3 liters after. Dr. Trafimow's findings included a FVC of 1.64 liters pre-bronchodilator and 2.13 post-bronchodilator. After considering the Plaintiff's post bronchodilator FVC scores, the ALJ concluded that the Plaintiff failed to meet the Listing.
The magistrate judge affirmed the ALJ's finding on this issue. The magistrate judge determined that it was proper for the ALJ to rely on Plaintiff's post-bronchodilator FVC scores in determining whether Plaintiff met Listing 10.10(E). (Report and Recommendation at 18-21). The magistrate judge reasoned that Listing 10.10E does not prohibit the use of a bronchodilator and consideration of post-bronchodilator scores is helpful to the Secretary's evaluation of FVC scores.
The Plaintiff objected to the conclusion in the report and recommendation concerning the approval of the ALJ's consideration of Plaintiff's test scores after the administration of a bronchodilator. Plaintiff argues that Listing 10.10(E) does not require the use of a bronchodilator in assessing the FVC of an obese claimant. It is the Plaintiff's position that if the Secretary desired the use of a bronchodilator, the Secretary would have so specified in the regulations. To support her argument, Plaintiff points to the general listing for respiratory disorders, § 3.00(D), where the Secretary explicitly specifies that a bronchodilator is required to determine a chronic respiratory impairment for a non-obese claimant. 20 C.F.R. pt.404, subpt.P, app.1, § 3.00(D) (1993). Plaintiff asserts that "such an omission in Listing 10.10(E) signaled [the Secretary's] intent not to add the requirement in the obesity listing." (Plaintiff's Objections at 7).
Plaintiff also points out that § 10.10(E) requires a claimant's FVC score fall below 2.0 liters, while Listing 3.00(D) imposes a stricter standard of 1.3 liters. She argues that this distinction exhibits an intention on the part of the Secretary to impose a lesser standard on obese claimant's. Plaintiff claims that by not including a bronchodilator requirement in Listing 10.10(E), the Secretary furthered her intention of lowering the standard for obese claimants.
This court finds the Plaintiff's arguments on this issue unpersuasive. We recognize that the Act imposes a lesser standard for obese claimants, than for non-obese claimants regarding the FVC requirement. Nevertheless, we agree with the magistrate judge that "there is no need to assume, then, that omission of a bronchodilator requirement under 10.10(E) was intended to make even further allowances for obese claimants." (Report and Recommendation at 19). The ALJ in this case did not rewrite the standards detailed in Listing 10.10(E), but merely attempted to evaluate Plaintiff's FVC scores. In order to do so, the ALJ was within his discretionary bounds to refer to Listing 3.00(D) as guidance in evaluating FVC scores.
In light of the above discussion, we agree with the magistrate judge that the ALJ's reliance on post-bronchodilator FVC scores was reasonable and his finding that Plaintiff did not meet Listing 10.10(E) was based on substantial evidence.
III Combination of Impairments
The Social Security regulations, authorize the Secretary to consider the combined effects of impairments when assessing disability. A claimant with a combination of impairments, none of which individually meets or equals a listed impairment, may be declared disabled if the total effect of the individual impairments is medically equivalent to a listed impairment. 20 C.F.R. § 416.926(a). Plaintiff claims that the combined effect of her obesity, asthma, arthritis, hypertension and other impairments is equivalent to the Listing for obesity. In the case at bar the ALJ concluded that "the impairments singly or in combination do not meet or equal the Listings." (R. at 23).
Plaintiff's main contention concerning the ALJ's equivalency finding is that the ALJ has no authority to assess equivalency without a medical opinion. Nowhere in the record is there evidence of a physician furnishing an opinion on whether Plaintiff's combined impairments equal the Listing for obesity.
The magistrate judge held that the ALJ did not have to obtain a medical opinion for an equivalency determination. (Report and Recommendation at 22). The magistrate judge based her decision upon her interpretation of 20 C.F.R. § 416.926(b). That portion of the act is entitled "Medical equivalence must be based on medical findings." It states in part, "we will also consider the medical opinion given by one or more medical or psychological consultants designated by the Secretary in deciding medical equivalence." The magistrate interpreted this regulation to mean that the Secretary need not obtain a medical opinion specifically on the issue of equivalency; rather the Secretary need only base her finding on the general medical evidence in the record. (Report and Recommendation at 22). This court disagrees with the report and recommendation on this issue for the reasons discussed below.
The Seventh Circuit has outlined the procedure required of ALJ's for making equivalency determinations based on the impact of combined ailments. In Fox v. Heckler, 776 F.2d 738 (7th Cir. 1985), a case not addressed by the magistrate judge, the claimant argued that the ALJ had affirmatively failed to consider the combined effects of his impairments. The court cited to SSR 83-19 which stated in part:
As trier of the facts, the administrative law judge is not bound by the medical judgment of a designated physician regarding medical equivalency. However, the judgment of a designated physician on the same evidence before the administrative law judge must be received into the record as expert evidence and given appropriate weight. Fox, 776. F.2d at 740.
The Fox court ruled in favor of the Secretary on this issue. The record in Fox revealed a "Form SSA-831-U5" signed by a reviewing physician which stated that the severity of the individual's impairments did not meet or equal that of any listed impairment. Id. The existence of this form, signed by a physician, proved that the ALJ in Fox complied with SSR 83-19. This Circuit also held in Pope that the presence of a signed "SSA-831-U5" form in the record was considered proof that a physician designated by the Secretary had considered the equivalency question. 988 F.2d at 480. see also Steward v. Bowen, 858 F.2d 1295 (7th Cir. 1988). (Record contained two opinions by consulting physician's that claimant's impairments did not meet or equal a listed impairment).
Although the Secretary rescinded SSR 83-19 in 1990, (Memorandum from Associate Commissioner Eillen Bradley rescinding SSR 83-19, April 27, 1990), its dictate requiring a medical opinion for equivalency determinations survives in a new regulation, SSR 86-8. Social Security Ruling (SSR) 86-8 states in part:
Any decision as to whether an individual's impairment or impairments are medically the equivalent of a listed impairment must be based on medical evidence demonstrated by medically accepted clinical and laboratory diagnostic techniques, including consideration of a medical judgment about medical equivalence furnished by one or more physicians designated by the secretary.
We find that two cases which the magistrate judge relied on, Stuckey v. Sullivan, 881 F.2d 506 (7th Cir. 1989) and Nelson v. Bowen, 855 F.2d 503 (7th Cir. 1988), do not require this court to rule otherwise. Nelson involved an appeal of the Secretary's decision that the Plaintiff had the capacity to perform a limited range of light work therefore he was not disabled. The case was remanded on the grounds that the Appeals Council had erroneously ruled that additional medical evidence submitted by the Plaintiff was immaterial. The court in Nelson never reached the issue of whether a physician must provide an opinion concerning equivalency before an ALJ may decide if the claimant is disabled. Nelson, 855 F.2d at 508.
Stuckey also does not address the question whether a medical opinion is required for an equivalency determination. Stuckey involved a Plaintiff who claimed that the combination of a variety of impairments rendered him disabled. The court held that the medical evidence reviewed by the ALJ did not support Plaintiff's claims. The Seventh Circuit in Stuckey did not address, nor did the parties raise the question of whether the medical reports contained physicians' opinions on medical equivalency. Stuckey, 881 F.2d at 508.
We believe that Fox, Pope and Steward provide the relevant precedent on this issue. Our review of the entire record in this case and the relevant case law convince us that the ALJ erred by not eliciting a specific medical opinion on the question of whether Plaintiff's combined impairments equal the Listing for obesity.
This court's ruling is also in line with the Seventh Circuits's general admonition to courts and ALJ's not to overstep their bounds and make medical determinations rather than legal conclusions. This Circuit held that "the medical expertise of the Social Security Administration is reflected in the regulations; it is not the birthright of the lawyers who apply them. Common sense can mislead; lay intuitions about medical phenomena are often wrong." Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990), cert. denied, 502 U.S. 901, 116 L. Ed. 2d 230, 112 S. Ct. 278 (1991). See also Bauzo v. Bowen, 803 F.2d 917, 926 (7th Cir. 1986). We believe that the ALJ improperly succumbed to the temptation to "play doctor" when he failed to obtain a physician's opinion on whether the effects of Plaintiff's combined ailments equaled a listed impairment under the Act.
On remand, we direct the ALJ to elicit and consider a medical judgment concerning the medical equivalence of claimant's combined impairments. In so doing, the physician should consider all the medical evidence that has been made part of the record. Furthermore, we urge the ALJ to articulate, at least minimally, his justification for accepting or rejecting Plaintiff's claim that the combination of her impairments equals the Listing for obesity. We accept and adopt the remainder of the magistrate judge's report and recommendation.
We remand this matter to the Secretary in accordance with this opinion. The Social Security Act, as amended in 1990, provides for remand of cases in several instances, none of which clearly apply in this case. The language of 42 U.S.C. § 405(g) states that a court may remand a case either upon motion of the Secretary for good cause shown or upon a demonstration of new, material evidence and a good reason for the claimant's failure to include that evidence in the record. The Seventh Circuit has held that remand is also appropriate "when the findings of the Secretary are not supported by substantial evidence but do not provide sufficient evidence to support a reversal and a finding that the claimant is disabled." Garfield v. Schweiker, 732 F.2d 605, 610 n. 8 (7th Cir. 1984); see also Bauzo, 803 F.2d at 926. The circumstances described by the Seventh Circuit apply here in Fenn, so this court remands this case to the Secretary pursuant to this opinion.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
DATE: April 4, 1995
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