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SCOTT v. SHALALA

August 10, 1995

TERRIAN SCOTT, Plaintiff,
v.
DONNA E. SHALALA, Secretary of the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.



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

 This is a social security appeal under 42 U.S.C. ยง 405(g). The Plaintiff has moved for summary judgment on the basis of the record of the administrative hearing below. Plaintiff Terrian Scott ("Ms.Scott") appeals the ruling by the Secretary of Health and Human Services ("the Secretary") denying her disability insurance benefits. Ms. Scott alleges three grounds for reversing or remanding the case. First, she argues that the Social Security Administration's Administrative Law Judge ("ALJ") improperly admitted into evidence a consultative medical report that was not signed. Second, she argues that in reaching his conclusion of not disabled, the ALJ failed to consider properly the reports of the treating physician and the Secretary's own medical advisor which were favorable to her claim of disability. Finally, she argues that the ALJ improperly substituted his own medical judgment regarding Ms. Scott's residual functional capacity for performing work for that of the physicians of record. Because we agree with the Plaintiff on all three of her grounds, we grant the Plaintiff's motion.

 For the reasons discussed below, we remand the case to the ALJ to take evidence on whether Ms. Scott's symptoms of pain in her right shoulder and neck were supported by objective medical evidence based on medically acceptable clinical or laboratory diagnostic techniques. If such objective evidence is found, we further instruct the ALJ to develop and consider medical and other evidence which will allow the Secretary to evaluate the intensity and severity of the pain and how the pain would diminish her residual functional capacity.

 BACKGROUND

 I. Procedural History

 Ms. Scott was born on February 1, 1950. On June 28, 1987, while working at a home for mentally retarded adults, she hurt her hand. On that day, Ms. Scott was feeding a resident of the home. For a moment she turned her glance away, and the patient grabbed her thumb and pulled it toward her wrist. This caused substantial injury to her hand. Her thumb was splinted for one week and then placed in a cast for three weeks. (R. 223). Several months after the injury, on December 12, 1987, Ms. Scott had surgery on the right hand to release the right carpal tunnel.

 II. Review of the Evidence

 This case comes to us in the posture of an appeal. When reviewing the decision of the ALJ below, we must accept his findings if there was sufficient evidence on record that a reasonable mind might accept as adequate to support the same conclusion. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). "Although we review the entire record, we may not decide the facts anew, reweigh the evidence, or substitute our own judgment for that of the Secretary." Herron, 19 F.3d at 333 (quoting Jones v. Shalala, 10 F.3d 522, 523 (7th Cir. 1993)); see Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994).

 The record contains evidence from three doctors, Drs. Schenck, Stevens, and Markovitz, as well as the testimony of the claimant Ms. Scott and of the vocational expert Carl Triebold. It also contains the first and second ALJ opinions. A summary of our review of the entire record follows.

 A. Treating Physician Dr. Schenck

 Dr. Schenck was Ms. Scott's treating physician hand specialist after her carpal tunnel surgery and beginning in February, 1988. The record contains his reports to her employer's worker's compensation office concerning her condition and her capacity for work. At his initial consultation, he noted that she complained of "pain in the thumb which shoots up the arm as far as the neck. It is mostly tender in the thumb but varies everywhere from the tip to the first dorsal compartment in the radial styloid area." *fn1" (R. 150). Her right hand grip strength varied from seven to ten pounds, while her left hand grip strength varied from twenty-five to thirty-five pounds. He indicated the use of a thumb spica splint, a Transcutaneous Electrical Nerve Stimulation (TENS) unit *fn2" for her right arm and shoulder, and Elavil 25 mg each night to control the pain symptoms. (R. 152).

 Subsequent visits to Dr. Schenck followed. In April, 1988, he prescribed the use of a Jobst glove on Ms. Scott's right arm to help control the pain and swelling. (R. 153). He noted she was not capable of returning to light tasks at that time. On April 27, 1988, Dr. Schenck noted increase in grip strength but a continuation of pain symptoms. He added Naprosyn 500 mg to her list of medications to control pain. On June 1, 1988, Dr. Schenck noted her increase in discomfort in the upper arm and shoulder, and that she chose to use the TENS unit on her shoulder to control pain there. (R. 156). He added Amitriptyline 50 mg to her medication list to control pain. (R. 158). On June 29, 1988, Dr. Schenck noted no major change in her condition. On August 10, 1988, Dr. Schenck noted some improvement in her pain symptoms and grip strength. (R. 159). At the September 7, 1988, visit, Ms. Scott complained that the pain persisted in the form of shooting pains from her right long finger to her elbow, and up to her neck. The doctor wrote, "the diagnosis of this patient is reflex sympathetic dystrophy *fn3" which is causing her pain syndrome." (R. 160).

 At the October 10, 1988, visit, her complaints of right shoulder and neck stiffness continued, including right neck spasms. (R. 162). Dr. Schenck reported the results of a functional capacities evaluation he commissioned for Ms. Scott: carrying capacity in the right hand was two to three pounds and in the left hand five pounds; hook grasp carrying in the right hand was two pounds and in the left six pounds; and bilateral carrying was five pounds. At her December 12, 1988, examination, the complaints of pain continued, and Dr. Schenck reported that certain of her pain medications gave her drowsiness and so were reduced. (R. 164). Her February 20, 1989, physical examination revealed moderate edema but no tenderness in the right hand, and that the TENS unit was helpful for her. On May 24, 1989, Dr. Schenck reported Ms. Scott's belief that the upper right extremity pain had decreased overall but was still present in the right neck and shoulder. At this examination, she reported developing triggering of the left thumb, and received an injection of cortisone for it. Dr. Schenck once again prescribed Elavil. (R. 166).

 On October 13, 1989, Dr. Schenck noted that Ms. Scott continued to use the TENS unit for pain for eight hours per day. He opined that the results of her year-old functional capacities evaluation "would be essentially unchanged at this point in time," suggesting that carrying capacity had not improved. (R. 167). He continued to prescribe pain killing medications. The final examination by Dr. Schenck in the record occurred on October 22, 1990. He noted she was still wearing the thumb spica splint and that she continued to use the TENS unit. He noticed that her pain persisted. At this examination, Dr. Schenck also located a lesion on the "dorsal ulnar aspect of the right wrist." (R. 169). This lesion was found to be non-malignant and was surgically removed by another doctor on January 22, 1991.

 B. Medical Advisor Dr. Stevens

 Dr. Stevens testified as a medical advisor to the Secretary at the December 18, 1991, hearing. He testified that based on his review of the medical record and his observations of the claimant at the hearing, Ms. Scott could lift with her right hand ten pounds occasionally, (R. 61), and with the left hand ten pounds occasionally, (R. 70). Using her right hand as an assist to her left, he believed she could lift ten pounds frequently or twenty pounds occasionally. (R. 61). He did not observe any atrophy of the right arm, which he testified would evidence total permanent disuse. (R. 60). He testified that doing some "residual things" during the day with that hand would keep those hand muscles working and unatrophied. (R. 71). He could give no opinion concerning a diagnosis of reflex sympathetic dystrophy as an objective medical cause of her pain because, he testified, "I don't have hard evidence in that file. You'd normally have to have bone scans showing lack of bone calcium . . . . And I don't see any evidence of that and I don't see any EMG *fn4" -- current EMG or nerve conduction velocity studies in that file." (R. 61). Concerning gross and fine dexterity in the right hand, he testified, "so basically, things that require gross and fine dexterity of the hand are limited in this instance." (R. 63). She would be able to do fingering only with her splint off and her TENS unit on to control the pain. (R. 64). In response to the question of whether he thought her complaints of pain in her right shoulder are credible, he replied, "I'm not denying the fact that she has pain." (R. 69).

 C. Consultative Examining Physician Dr. Markovitz

 After this hearing and prior to the second hearing, Dr. Markovitz filed a consultative examination report on his thirty minute examination of Ms. Scott. He reported that she experiences constant pain and weakness in the right hand. Also, "she does have fairly clear cut 'give way' weakness, involving essentially all of the musculature of the right upper extremity." (R. 258). He saw no evidence of wasting or fasciculation, *fn5" swelling or rash, and she had full range of motion in all joints in the right upper extremity. He wrote, "there was some numb type of feeling on tapping over the median nerve at the right carpal tunnel, as well as sensitivity over the ulnar nerve in the right ulnar groove at the elbow." (R. 258-59). He saw

 
no convincing evidence of nerve, nerve root, spinal cord or brain pathology to explain Ms. Scott's symptoms. . . .
 
Ms. Scott probably does have a very mild poly-neuopathy *fn6" [sic] related to her underlying diabetes. Obviously an EMG would be required to evaluate that further. Ms. Scott is right hand dominant, and all of these problems have seriously affected her ability to perform manual tasks.

 (R. 259).

 On January 9, 1993, the ALJ sent a follow-up questionnaire to Dr. Markovitz containing four interrogatories. In return, the ALJ apparently received a copy of the original letter with responses to the interrogatories written in cursive in the margins. The responses were nowhere signed or initialed. Numbers three and four follow:

 
3. If Ms. Scott's right hand is incapacitated as she alleges, would you have expected to observe wasting of the hand muscles; and, if so, does this fact raise any doubt in your mind concerning the validity of her complaints?
 
[written in the margin:] My conclusion was there was no damage.
 
4. If the answer to 3 is affirmative, exactly what do you mean when you state on page two of your report ". . . all of these problems have seriously affected her ability to perform manual tasks"? [written in the margin:] Subjectively ...

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