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April 4, 1995

Josephine Fenn, Plaintiff
Donna Shalala, Secretary Department of Health and Human Services, Defendant

The opinion of the court was delivered by: BRIAN BARNETT DUFF

 This case comes before the court on an appeal from an Administrative Law Judge's (ALJ) decision to deny Plaintiff's application for Supplemental Security Income (SSI). Plaintiff alleges in her application that her obesity, complicated by asthma, hypertension, and pain in her knees and hips, have rendered her disabled since December 15, 1986. In 1990 an ALJ determined that Plaintiff was not disabled. The Appeals Council reviewed and remanded the case for further orthopedic and mental examinations. The ALJ held a supplemental hearing in 1992 and again concluded that Plaintiff was not disabled. The Appeals Council subsequently denied Plaintiff's request for a review of the ALJ's decision. The Plaintiff appeared before this court and moved for summary judgment to reverse the Secretary's final administrative decision, or in the alternative, to remand the matter for further evidentiary findings pursuant to 42 U.S.C. § 405(g).

 A magistrate judge reviewed the record and recommended that this court deny Plaintiff's motion. The Plaintiff filed timely objections to the magistrate judge's report and recommendation. The magistrate judge must be complimented for the insightful analysis which she provided regarding the issues that the Plaintiff has raised. This court must disagree with the report and recommendation however, concerning the magistrate judge's finding that the ALJ was not required to consider a medical report on whether Plaintiff's combined impairments equaled the Listing for obesity. For this reason, this court must remand this matter to the ALJ for further proceedings.



 Pursuant to the Social Security Act ("Act"), a claimant is entitled to benefits if he or she is "under a disability." 42 U.S.C. § 423(a)(1)(d). The Act defines disability as the "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 for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(a). A person will be found to be disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d)(2)(A).

 Social Security regulations outline a five step inquiry to be followed in determining whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920(a)-(e). First, the Secretary must ascertain whether the claimant is currently employed. If he is, then he is not disabled. Second, if the claimant is unemployed the Secretary must determine whether the claimant has a severe impairment. If there is no severe impairment, the Secretary will find the claimant not disabled. Third, if there is severe impairment, the Secretary must decide whether the impairment meets or equals an impairment listed by the Secretary. If the claimant's impairment equals the Listing, disability will be found. Fourth, if the claimant's impairment does not meet one listed by the secretary, the Secretary must then determine whether the claimant can perform his past work. If yes, then there is no disability. Fifth, if the claimant cannot perform his past work, the burden then shifts to the Secretary to show that the claimant is capable of performing any work in the national economy. See Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993).

 Section 405(g) of the Social Security Act grants this court the authority to review a final decision of the Secretary, including the power to affirm, modify, or reverse such decision with or without remand to the Secretary for a rehearing. 42 U.S.C. § 405(g). Our scope of review, however, is narrow, for "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Id. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)). Specifically, substantial evidence is something "more than a mere scintilla," Cass v. Shalala, 8 F.3d 552, 554 (7th Cir. 1993), but may be "something less than the greater weight or preponderance of the evidence." Young v. Secretary of Health and Human Services, 957 F.2d 386, 389 (7th Cir. 1992). Additionally, this court will also review decisions of the Secretary for errors of law. "When the Secretary commits an error of law, reversal is, of course, warranted irrespective of the volume of evidence supporting the factual findings." Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).


 A U.S. Magistrate Judge reviewed the evidence in this case to determine whether the Secretary's final decision was supported by substantial evidence and based on the proper legal criteria. The extremely thorough report and recommendation of the magistrate judge concluded that the Secretary's decision was "based on substantial evidence an proper interpretation of the relevant rules." The magistrate judge recommended that this court deny Plaintiff's motion and enter judgment in favor of the Secretary. (Report and Recommendation at 30). Specifically, the magistrate judge found that the Secretary's conclusion that the Plaintiff did not meet or equal Listing 10.10 under the Social Security Act (20 C.F.R. pt. 404, subpt. P, app. 1, § 10.10A 1993) was supported by substantial evidence. Thus, her "obesity" was not an impairment which met or equaled one listed by the Secretary, so she failed part three of the five-step inquiry described above.

 The Plaintiff contests several of the magistrate judge's conclusions. Plaintiff argues that she met Listing 10.10 concerning obesity. Plaintiff claims that she not only satisfied the statutorily imposed weight requirement for obesity, but she also exhibited a history of pain and limitation of motion in her knees. The Plaintiff specifically challenges the magistrate judge's findings on obesity on the following grounds: (1) that the magistrate used the wrong legal standard to analyze whether Plaintiff had a history of pain and (2) that there is not substantial evidence in the record to support the Secretary's finding that the Plaintiff had no limitation of motion.

 Plaintiff also asserts errors in the magistrate judge's report and recommendation concerning Plaintiff's claims of respiratory ailments. Plaintiff alleges that she suffers from a respiratory ailment serious enough to constitute a disability under Listing 10.10(E). Plaintiff asserts that the magistrate judge and the Secretary erred in their determination of whether Plaintiff met the listing for respiratory disease by considering Plaintiff's pulmonary function test scores after the administration of a bronchodilator.

 Plaintiff further claims that the ALJ should have considered a medical opinion as to whether her combined impairments equaled the Listing for obesity. Plaintiff maintains that irrespective of whether the above impairments individually constitute a disability, the combined effect is equivalent to the Listing for obesity, thus qualifying her as disabled.

 The Plaintiff did not object to the remainder of the magistrate judge's findings. Any objection to those findings is deemed waived. The court accepts the magistrate judge's findings regarding these remaining issues. This opinion examines each of the disputed issues below.

 I. Obesity Listing § 10.10A

 In order to command a finding of disability due to obesity, Listing 10.10A requires that a claimant meet a four-part demonstration of proof. The claimant must meet a certain weight requirement, substantiate a history of pain, demonstrate a limitation of motion in any weight bearing joint or the spine, and supply X-ray evidence of arthritis in the affected joint or spine. 20 C.F.R. pt. 404 subpt. P, app. 1 § 10.10A (1993). The magistrate judge acknowledged that the Plaintiff met the weight requirement. However, the magistrate judge agreed with the Secretary that the record ...

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