The opinion of the court was delivered by: Moran, Senior District Judge.
Plaintiff John Gutka has appealed the Administrative Law
Judge's (ALJ) decision denying him disability benefits under
Title II of the Social Security Act. He now moves for summary
judgment on his appeal, as does the Commissioner. For the reasons
stated below, both motions are denied and the case is remanded.
On July 20, 1994, plaintiff filed an application for disability
insurance benefits under Title II of the Social Security Act. He
alleged that he was disabled and unable to work due to heart
disease that began with a heart attack on January 20, 1988. This
application was denied initially on December 9, 1994, and upon
reconsideration on January 30, 1995, on the grounds that
plaintiff had recovered from his heart attack within twelve
months and was consequently not disabled as a matter of law.
Plaintiff then sought and received a hearing, held on February
26, 1996, and continued until May 17, 1996, before an ALJ. At
that proceeding he was represented by counsel who argued that
plaintiff had been disabled both by heart disease and mental
depression since 1988.
In support of these contentions plaintiff produced his medical
file, which revealed that in January 1988 he had a heart attack,
followed by coronary angioplasty (Rec. 137-46). Although
diagnostic tests revealed that he had recovered nicely and
performed well on stress tests by May 1988 (Rec.160-65), he
returned to the hospital in July 1988 and May 1989 complaining of
chest pain. There he was examined by Drs. Cornell and Markovitz,
who found no abnormalities (Rec. 166-74; 175-82). Three years
later, in April 1992, he again went to the hospital, this time
complaining of a numb arm and dizziness, but apparently making no
mention of chest pain (Rec.183-87). His tests at a follow-up
examination in June, 1992 were unremarkable. Two years later, in
April 1994, he went to the emergency room complaining that he had
experienced chest pain over the last several weeks, particularly
when exerting himself, but his ECG was unremarkable and the pain
subsided when he was given nitroglycerin (Rec.190). During this
six-year period following his initial hospitalization, his
medical records indicate that various examining physicians made
three separate references to plaintiff's mental state, commenting
that he was unhappy and anxious. However, there is no discussion
or diagnosis of depression until Dr. Amdur, a psychiatrist,
examined plaintiff on January 5, 1996, shortly before his
disability hearing and concluded that plaintiff was suffering
from depression and had been so afflicted since 1988, when his
heart problems began.
The ALJ considered all of this evidence at the hearing and
issued a decision on August 15, 1996, denying plaintiff's request
for benefits. The ALJ found that plaintiff had been insured
between January 20, 1988 and December 31, 1992, and thus met the
threshold requirement for disability insurance during that
period. However, the ALJ concluded that the evidence did not
support plaintiff's contention that the heart disease and
depression significantly limited his ability to perform basic
work-related activities for twelve continuous months.
Consequently, the ALJ found that plaintiff was not disabled for
purposes of Title II. See ALJ's Decision at 8, Record at 22.
On appeal, plaintiff argues that the ALJ erred in concluding
that his depression did not constitute a disability during the
time when he was insured, i.e. prior to December 31, 1992.
Plaintiff relies heavily on the testimony of Dr. Amdur, who
stated that plaintiff's symptoms of depression began in 1988.
We will affirm the ALJ's decision if his findings are supported
by substantial evidence. Pope v. Shalala, 998 F.2d 473, 477
(7th Cir. 1993). The Supreme Court has defined "substantial
evidence" as "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842
(1971). The reviewing court "may not re-evaluate the facts,
re-weigh the evidence or substitute its own judgment for that of
the [ALJ]." Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir.
1993). "[W]here conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility
for that decision falls on the [ALJ]." Id. (citations omitted).
In order that the district court may
effectively review the ALJ's decision, the ALJ is required to
articulate his reasons for accepting or rejecting entire lines of
evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
Although the ALJ is not required to undertake a written
evaluation of each piece of evidence and testimony, he may not
simply select and discuss only that evidence which favors his
ultimate conclusion. Id.
Workers disabled by reason of a medically determinable physical
or mental impairment that is expected to last for twelve
consecutive months are entitled to disability benefits under
Title II of the Social Security Act. 42 U.S.C. § 423(d)(1)(a). A
five-step analysis is used to determine whether the worker at
issue is disabled: (1) Whether he is presently unemployed; (2)
whether his impairment is severe; (3) whether the impairment
meets or exceeds one of a list of specific impairments; (4)
whether the impairment prevents the claimant from doing past
relevant work; and (5) whether the impairment prevents the
claimant from doing any other work in the national economy.
20 C.F.R. § 404.1520. A negative answer at any step, other than step
three, results in a finding that the applicant is not disabled.
Arbogast v. Bowen, 860 F.2d 1400, 1403 n. 1 (7th Cir. 1988).
In this case the ALJ concluded that plaintiff's alleged
depression did not constitute a "severe" mental impairment and
consequently was not a disability. A severe impairment, for
purposes of the statute, is one which significantly limits an
individual's physical or mental ability to do basic work
activities, such as using judgment, responding appropriately to
supervision, co-workers, and usual work situations; and dealing
with changes in a routine work setting.
20 C.F.R. § 404.1521(b)(4)-(6). It is well established that under some
circumstances emotional depression may constitute a severe
impairment. See, e.g., Taylor v. Schweiker, 739 F.2d 1240, 1242
(7th Cir. 1984).
Here plaintiff's primary contention is that the ALJ erred in
failing to credit Dr. Amdur's opinion, rendered on January 17,
1996, during his sole medical examination of plaintiff, that
plaintiff has suffered from depression since 1988 and that this
condition prevented him from engaging in work-related activities
such as those listed above. Plaintiff argues that because Dr.
Amdur's opinion was uncontradicted by other medical testimony,
and supported by both plaintiff's and his wife's subjective
reports, the ALJ was not at liberty to conclude that plaintiff
did not suffer from disabling depression in 1992. We disagree.
Although an ALJ is not permitted to rely only on the evidence
that supports his conclusion and disregarded evidence to the
contrary, he is not bound by thinly supported or incredible
evidence. The issue here is what weight should or must the ALJ
afford a physician's retrospective diagnosis, i.e. one that
relates the plaintiff's claimed impairment back to the covered
period. The Seventh Circuit has recently considered this issue
and ruled that the ALJ may consider such a medical opinion "only
if it is corroborated by evidence contemporaneous with the
eligible period." Estok v. Apfel, 152 F.3d 636, 640 (7th Cir.
1998). It is not enough for the plaintiff to simply produce a
diagnosis with a retroactive onset date, particularly where the
alleged impairment is one that becomes a disability only by
matter of degree. Id.
The only doctor to diagnose plaintiff as suffering from
depression was Dr. Amdur, who examined plaintiff for the first
time in January 1996 and concluded that he had been suffering
from depression since 1988. Dr. Amdur noted that plaintiff
reported several symptoms of depression, including with sleep,
appetite and a loss of libido over the past eight years. However,
the various medical opinions rendered during that time reveal
only three instances where any doctor commented on the
plaintiff's mental state and contain no diagnosis of depression
or prescriptions for related medication. On February 21, 1989,
Cornell noted that plaintiff was "unhappy" because his wife was
diagnosed with breast cancer; on June 8, 1992, Dr. Markovitz
noted that plaintiff complained of having "emotional stressors"
in his life; and finally on November 22, 1994 (almost two years
after plaintiff's insured status ended), Dr. Cornell observed
that plaintiff was anxious and under stress and pressure at home.
Other than plaintiff's and his wife's subjective reports, this is
the only evidence that could possibly corroborate Dr. Amdur's
retrospective diagnosis. Subjective reports of pain or
disability, however, will not control the ALJ's decision where
there is other evidence inconsistent with the level of severity
alleged by the plaintiff. See, e.g., Siemers v. Shalala,
47 F.3d 299 (8th Cir. 1995) (holding that substantial evidence
supported ALJ's decision to discredit applicant's subjective
complaints of pain where the clinical evidence was slim, the
applicant failed to seek regular medical treatment and applicant
did not take prescription medications). In light of the paucity
of medical evidence corroborating Dr. Amdur's retrospective
diagnosis, and plaintiff's failure to seek any treatment or to
take medication for this problem, we find that the ALJ's failure
to adopt Dr. Amdur's retrospective opinion was supported by
substantial evidence in the record.*fn1 Moreover, the ALJ's
opinion reveals that his decision was based upon a thorough
consideration of all of the evidence, including those medical
reports and witness statements supporting plaintiff's claims. We
deny plaintiff's motion for summary judgment.
However, that does not end the matter. We also deny the
Commissioner's motion because we agree with plaintiff's position
that the ALJ should have sought the advice of a medical advisor
pursuant to Social Security Ruling 83-20, which sets down
guidelines for determining the onset of a disability of
nontraumatic origin. This Social Security Ruling requires an ALJ
to call upon a medical advisor in cases where the onset of a
disability cannot be affixed to a particular date and must
consequently be inferred. The Commissioner responds that SSR
83-20 does not apply in cases where the ALJ determines that the
applicant was not disabled prior to his last insured date. In
other words, the Commissioner argues that the ALJ's order of
inquiry should be as follows: The ALJ should first determine the
relevant insured period and then examine the evidence that
indicates the applicant was disabled during that time. If the ...