takes several different types of pain medicine, some of which
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.
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). The ALJ can use the Medical-Vocational Guidelines
contained in 20 C.F.R. Part 404 Subpart P, Appendix 2, also known
as "the Grid," to determine the claimant's capability of
performing some other job. See, e.g., Caldarulo v. Bowen,
857 F.2d 410, 413 (7th Cir. 1988).
Review of the Commissioner's Final Decision
The ALJ found that Willis was not doing substantial gainful
activity. Additionally, Willis's knee problems qualified as a
severe impairment, but that impairment did not meet or equal one
listed by the Commissioner in the regulations. The ALJ also found
that Willis could not perform his past work because it required
heavy lifting. Willis does not challenge any of these aspects of
the ALJ's findings. Willis also does not challenge the ALJ's use
of the Grid to determine his ability of performing some other
job. On appeal to this Court, the only aspect of the ALJ's
findings that Willis challenges is his residual functional
The ALJ found that Willis was capable of performing "medium
work." Although there is evidence in the record to support this
conclusion (R. 275), the ALJ neither refers to the supporting
evidence as the basis for his conclusion, nor discusses the more
recent medical-opinion evidence that undermines his conclusion.
(R. 446-48) Although, a March 6, 1997, report opines that Willis'
condition had worsened since Dr. Morgenstern last examined him.
(R. 446), the ALJ ignored both the conclusions of this report and
the objective evidence that supported it.*fn4 Instead, he
on a hospital report from a month earlier, which stated that
Willis' knee pain had "no identifiable [cause]" (R. 17). This
reasoning does not satisfy the standard articulated in Groves,
148 F.3d at 811. Just as in that case, the ALJ could have decided
the case either way. Id. "But because his opinion fails to
build a bridge from the evidence to the conclusion and is thus
analytically inadequate — in a word, unreasoned — we cannot
uphold his decision. . . ." Id. Accordingly, the case is
remanded to the ALJ for proceedings consistent with this opinion.
Sentence Six Remand
An additional basis for remand is the new evidence of Willis'
knee operations. Pursuant to "Sentence Six," a court may remand
the case upon "showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding."
42 U.S.C. § 405(g) (sixth sentence); Perkins v. Chater,
107 F.3d 1290, 1296 (7th Cir. 1997). To be material, a claimant does
not need to show that it is "more likely than not" that the ALJ's
outcome would have been different. Cf. United States v.
Bhutani, 175 F.3d 572, 576 (7th Cir. 1999) (using the same
standard for "materiality" in the context of exculpatory
disclosures under Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), to criminal defendants). A Sentence
Six remand only requires the claimant to show that there is a
reasonable possibility*fn5 that the ALJ would have reached a
different conclusion had the evidence been considered. See Sears
v. Bowen, 840 F.2d 394, 399-400 (7th Cir. 1988).
Willis submitted evidence from a chiropractor he had visited
and evidence regarding knee surgeries performed in June and July
1998. The chiropractor's report is generally consistent with
other evidence indicating that Willis' knees caused him pain. If
this were the only evidence submitted, it is highly unlikely that
this alone would sway the ALJ. The evidence of the knee
surgeries, however, provides a reasonable possibility that the
ALJ would reach a different outcome.
As near as the ALJ's analysis can be followed, he discredited
much of Willis' subjective evaluations of pain and apparently
also discredited Dr. Morgenstern's residual functional capacity
evaluation based on a lack of objective evidence. As noted above,
the ALJ concluded at one point that in February 1997 that there
was "no identifiable [cause] for the claimant's bilateral knee
pain." (R. 17). The postoperative report indicates, however,
[d]iagnositic arthroscopy revealed an incisional tear
of the medial meniscus which was removed. . . . A
large supra-patellar plicum was found and noted to be
eroding the femoral condyle. . . . The remainder of
the joint looked fair to good."
(R. 469) Two aspects of this analysis are material. First, this
evidence appears to provide objective support for the knee pain
that Willis expressed. There are identifiable problems that the
doctors attempted to alleviate by the knee surgery. Second, the
fact that Willis voluntarily underwent knee surgery adds credence
to his complaints of pain. Although in the context of "cosmetic
surgery" it is not odd for someone to undergo an invasive
procedure in the absence of any pain, it is still contrary to
common sense prevailing outside of that limited and unique
context that someone would undergo surgery without a good reason
— like the hopeful alleviation of pain.
Evidence of Willis' knee surgeries might have caused the ALJ to
reach a different conclusion. This reasonable possibility is
sufficient under Sentence Six. Accordingly, the case is remanded
to the ALJ for proceedings consistent with this opinion.
For the foregoing reasons, the Court DENIES the Commissioner's
motion, GRANTS Willis' motion and REMANDS the case for
proceedings consistent with this opinion.