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YOUSIF v. CHATER

October 10, 1995

VIRGINIA YOUSIF, Plaintiff,
v.
SHIRLEY A. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: SHADUR

 Virginia Yousif ("Yousif") appeals the final decision of Commissioner of Social Security Shirley Chater ("Commissioner") to terminate Yousif's disability insurance benefits under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i) and 423. *fn1" As is usual in these cases, Yousif and Commissioner have filed cross-motions for summary judgment under Fed. R. Civ. P. ("Rule") 56, with Yousif alternatively requesting a remand for a new hearing. For the reasons stated in this memorandum opinion and order, Yousif's motion for summary judgment is granted (thus mooting her alternative request), and Commissioner's is of course denied.

 From 1979 through early 1992 Yousif performed unskilled light work as a bindery machine operator at Commerce Clearing House (R. 18). Her job entailed removing books from a machine and placing them on a skid or cage truck, and sometimes feeding unbound books into a machine (R. 100), all of those activities requiring the constant use of both hands (R. 55). Because of a job-sustained injury to her right elbow, Yousif claims that she became unable to work on January 14, 1992 (R. 38).

 On December 23, 1992 Yousif filed a claim for disability benefits (R. 96-103). Her application was denied initially (R. 73-75) and on reconsideration (R. 80-82). Next Yousif sought a hearing, which took place before Administrative Law Judge ("ALJ") Allyn Brooks on November 4, 1993 (R. 34). Both Yousif and Vocational Expert Frank Mendrick ("Mendrick") testified at the hearing. Also before the ALJ were medical reports from several doctors who had treated Yousif (R. 114-26, 129-76). At the time of the hearing Yousif was 48 years old and had a high school education (R. 23).

 At the time of the hearing Yousif testified that her condition was a little better than at the time she had to leave work in January 1992, when she not only suffered pain whenever she sought to use her right hand or arm--she could not then even hold a telephone or lift a spoon to eat (let alone lifting articles at work), she suffered muscle stiffness and swelling from the forearm to the wrist, she had a knifelike pain whenever she tried to use her finger--but she also had pain in the arm when she was not using it (R. 39-40). As of the hearing date she said she felt no pain when just sitting, but the pain continued whenever she used the arm or hand, even to dress or undress or to eat (R. 41). Indeed, her inability to use her right hand had led to pain in her left arm and shoulder from overuse (R. 41-42, 44).

 In his March 25, 1994 written opinion the ALJ concluded from the "somewhat equivocal" medical records, in combination with Yousif's testimony about her pain, that she was under a disability from January 14, 1992 through March 3, 1993 (R. 19). In part he pointed to reports by Yousif's chiropractor Dr. James Abele describing her "palpable swelling and tenderness of the right lateral epicondyle" and "hypoesthesia of the right C6 dermatome distal to the elbow" (R. 19). *fn2" ALJ Brooks also relied on reports from Dr. Leon Benson that Yousif experienced a "limited range of motion in the right elbow with tenderness and swelling," that she complained that any movement of her right arm caused pain and that she had been given cortisone shots that provided only temporary relief from pain (R. 19).

 ALJ Brooks also discussed other medical evidence that was "not as persuasive in supporting a finding of disability" (R. 19). He referred to EMG studies that showed no evidence of compression neuropathy and to Dr. Benson's observations that Yousif had full range of motion in her right arm, that she could lift 40 pounds with her right hand by August 1992 and that there was no objective evidence of loss of strength and no visible problems on x-rays (R. 19). ALJ Brooks noted that Yousif's family doctor Dr. Adnan Barazi was the only doctor who said that Yousif could not work, but that it was also "unclear whether he was referring only to her past relevant work of to any work" (R. 19).

 Nonetheless the ALJ explained why he gave Yousif the "benefit of the doubt" about her complaints from her claimed onset date through March 3, 1993, in material part because he found her complaints of pain credible (R. 19). Indeed, in that respect Yousif's subjective pain and its effect on her (causing an inability to perform work-related activities) seemed to be dispositive, as the ALJ concluded that Yousif was unable to perform even sedentary work and that she was therefore disabled beginning on January 14, 1992 (R. 19).

 ALJ Brooks admitted that "the medical evidence does show some objective problems" (R. 21). Nonetheless, because he found Yousif's complaints of disabling pain since March 4, 1993 lacking in credibility, he said that there was sufficient evidence to support a finding of medical improvement (R. 21).

 ALJ went on to find--again giving Yousif "the full benefit of the doubt"--that she could not use her right arm to lift more than 10 pounds, or for frequent motions or grasping, repetitive handling, pushing or pulling, and that she could not climb (R. 21). Yousif was therefore restricted to a part of the full range of light work (R. 21). Indeed, the ALJ found that those limitations prevented her from returning to her past light work as a bindery operator, thus shifting the burden to Commissioner to show that she could perform significant numbers of jobs existing in the national economy. Based on the testimony of Vocational Expert Mendrick that there were 1,800 available jobs that could primarily be performed with the use of only one hand at a time, and with only occasional rather than frequent use of both hands (ticket taking and visual inspection jobs), the ALJ found that Yousif was not under a disability after March 4, 1993 (R. 22).

 Yousif next filed a request for review with the Appeals Council. In addition to arguing that the ALJ's finding of medical improvement was not supported by substantial evidence (R. 181-82), Yousif submitted two new items of evidence--additional notes from Dr. Barazi and a report of her August 1994 surgery for carpal tunnel and lateral epicondyle release--that she claimed established the credibility of her complaints of pain, and consequently the error in the ALJ's conclusion that she was not disabled after March 4, 1993 (R. 181-82).

 On January 3, 1995 the Appeals Council denied Yousif's request for review. First the Council ruled that Dr. Ruder's March 3, 1993 letter was substantial evidence that Yousif's condition had improved at that time and that Yousif was then able to return to work with certain limitations (R. 4). As for the newly submitted evidence, the Council found that it did not alter that conclusion (R. 5).

 By denying Yousif's request for review, the Appeals Council made the ALJ's decision Commissioner's reviewable final decision (Section 405(g); Reg. § 404.981). Yousif then exercised her right under Section 405(g) to appeal Commissioner's decision to this Court.

 Yousif makes two claims here. First she argues that the Appeals Council erred as a matter of law when it held that the "new evidence" submitted with Yousif's request for review did not provide a basis for changing the ALJ's decision (P. Mem. 9-11). Second she contends that the ALJ's determination that Yousif showed "medical improvement" after March 4, 1993 was not supported by substantial evidence (P. Mem. 11-18).

 Appeals Council Decision

 Commissioner's Reg. § 404.970(b) provides:

 This Court may review the Appeals Council decision as to whether new evidence is new and material ( Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992)), *fn3" as well as whether it "relates to" the period on or before the ALJ decision. New evidence is material "if there is a 'reasonable possibility' that it would change the outcome" ( Nelson, 855 F.2d 503, 506).

 As stated earlier, Yousif submitted two pieces of evidence to the Appeals Council. One was a sheet of notes by Dr. Barazi that briefly summarizes each contact Dr. Barazi had with Yousif between February 17, 1992 and August 16, 1994 (R. 177), and the other was a two-page "Report of Operation" ("Surgery Report") that describes in some detail the surgery performed upon Yousif on August 29, 1994 (R. 178-79). Yousif urges that the new evidence shows that her pain continued through 1993 and 1994, so that the ALJ was wrong in determining that her reports of pain were not credible after March 4, 1993. Commissioner counters that the new evidence would not impact the ALJ's decision because it does not show that Yousif experienced pain while her right arm was ...


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