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WILLIS v. APFEL

September 27, 2000

JOHNNIE E. WILLIS, PLAINTIFF,
V.
KENNETH APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Coar, District Judge.

MEMORANDUM OPINION AND ORDER

Johnnie Willis is currently 41 years old. He has completed high school and four years of college. His work history is somewhat sporadic. He has a history of problems with his knees for which he has claimed a disability and sought social security benefits. He has appealed the denial of his request for benefits to this court. Both Willis and the Commissioner have moved for summary judgment. For the reasons stated below, the Court DENIES the Commissioner's motion, GRANTS Willis' motion and REMANDS the case for proceedings consistent with this opinion.

Background

After a December 31, 1995, auto accident, in which Willis bumped his knees into the dashboard, Willis went to West Suburban Hospital. Prior to the accident, Willis had had his left knee "scoped" (i.e., had arthroscopic knee surgery). When he went to West Suburban, he reported his knee pain to the doctors, but also stated that the accident caused a different kind of pain.

Since the accident, Willis has had both his left and right knees scoped to diagnose and attempt to repair tears in parts of his knees. Willis has also undergone extensive physical therapy. Because Willis' knees cause him a great deal of pain, he also takes several different types of pain medicine, some of which cause drowsiness.

On August 29, 1996, Dr. Edward Ference evaluated Willis' residual functional capacity ("RFC"). Dr. Ference, who was not Willis' treating physician, concluded that Willis was capable of medium work.*fn1 About a month later, Dr. J. Michael Morgenstern, a specialist in orthopedic surgery who had seen Willis before and continued to see Willis after this evaluation, concluded that as a result of Willis' knee problems and associated pain, that he would only be able to sedentary work.*fn2 On March 6, 1997,*fn3 Dr. Morgenstern again evaluated Willis' RFC. In this report, Dr. Morgenstern found that Willis' condition had worsened and now concluded that Willis could only occasionally lift five pounds and carry it a distance of five feet, that he could not bend, push, or pull, that he could not stand for six hours in an eight-hour-work day, that he could sit for six hours in an eight-hour-work day, but that he would need to stand and lie down intermittently.

In April 1996, Willis applied for Social Security disability benefits. Initially and on reconsideration, Willis' claim was denied. On March 5, 1997, with the assistance of his attorney, Willis presented evidence in support of his claim to an administrative law judge. The ALJ also rejected his appeal in a September 9, 1997, written opinion. One year and one week later, the appeals council denied his request for review.

In the period between receiving the ALJ's decision and the appeals council's decision, Willis again had his knees scoped. He also consulted with a chiropractor. Evidence of the chiropractor visit and his knee surgeries was presented to the appeals council but was rejected as immaterial. Willis appealed to this court.

Standard of Reviewing the Commissioner's Final Decision

Judicial review of the Commissioner's final decision is limited. This Court determines whether substantial evidence in the record as a whole supports the decision to deny benefits. See Pope, 998 F.2d at 480; See Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993). "Substantial evidence," in this context means evidence that "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 Court does not "reevaluate the facts, reweigh the evidence, or substitute its own judgment." Luna v. Shalala, 22 F.3d 687, 690 (7th Cir. 1994) (citation omitted). The Court will affirm the Commissioner's decision if it is reasonably drawn from the record and is supported by substantial evidence, even if some evidence may also support the claimant's position. See 42 U.S.C. § 405 (g), 1383(c)(3). Nevertheless, in making his decision, the ALJ must articulate some minimal basis for the conclusions that he reaches so that the reviewing court may "trace the path" of the ALJ's reasoning. See Diaz v. Chater, 55 F.3d 300, 307-08 (7th Cir. 1995). And, although the ALJ may credit certain evidence and discredit other evidence, he may not simply ignore evidence favorable to the claimant in articulating the basis for his decision. See Groves v. Apfel, 148 F.3d 809, 811 (7th Cir. 1998).

The Statutory and Regulatory Framework

To establish a disability under the Social Security Act, plaintiffs must satisfy two conditions. First they must have a physical or mental impairment that is expected to be fatal or that has lasted for a continuous period of at least twelve months. Second, they must show that the impairment or impairments prevent them from engaging in substantial, gainful, employment. See 42 U.S.C. § 1382c(a)(3). It is the claimants' burden to show a disability. See, e.g., Steward v. Bowen, 858 F.2d 1295, 1297 n. 2 (7th Cir. 1988).

The Social Security regulations require the fact finder to follow a five-step inquiry to determine whether a claimant is disabled. See 20 C.F.R. S 404.1520. The sequential five-step inquiry requires the Commissioner to determine whether a claimant: (1) is not doing substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals one listed by the Commissioner; (4) can perform her past work; and, (5) is capable of performing any work in the national economy. See id. A claimant who does not have a listed impairment (step three) but cannot perform his past work (step four), shifts the burden of showing that he can perform some other job (the fifth step) to the government. Pope v. Shalala, 998 F.2d 473, 477-78 (7th Cir. 1993) (citing Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992)). At the fifth step, the claimant's physical and mental impairments, age, physical and mental impairments, age, education, and work experience are all relevant. See Paige v. Bowen, 695 F. Supp. 975, 977-78 (N.D.Ill. 1988). ...


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