United States District Court, Northern District of Illinois, Eastern Division
December 13, 2002
LINDA HERT, PLAINTIFF,
JO ANNE B. BARNHART, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.
The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Linda Hert ("Claimant" or "Hert") seeks judicial review of
the final decision of the Commissioner of Social Security, Jo Anne
Barnhart ("Commissioner"), denying Hert's application for Disability
Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under
the Social Security Act, Titles II and XVI, 42 U.S.C. § 416, 423,
1381a. Hert claims the Commissioner's decision should be reversed because
the Administrative Law Judge, John Mondi ("ALJ"), did not properly
analyze the findings of the consulting psychologist, his determination of
Hert's credibility was improper, and he failed to properly consider
Hert's limitations on standing. Both parties now move for summary
judgment. For the reasons stated herein, this Court affirms the
Commissioner's decision, denies Hert's motion for summary judgment, and
grants the Commissioner's motion for summary judgment.
I. RELEVANT FACTS
A. Hert's Hearing Testimony
On May 22, 2001, Hert testified before the ALJ at a Social Security
Administration ("SSA") Hearing. R. 37-78. At the time of the hearing,
Hert was 34 years old and lived with her parents and 14-year-old
daughter. R. 38, 51. She graduated from high school and completed one
year of vocational college. R. 38. Hert last worked for two full months,
answering phones for Naperville Jeep, R. 40. She was terminated on
November 4, 1999, due to a reorganization and received unemployment
compensation. R. 40-41. Although she looked for part-time employment as a
receptionist, she was unemployed at the time of the hearing. R. 39, 41.
Her past employment experience included work as a receptionist,
telemarketer, insurance verifier and mail room clerk. R. 38, 79.
Hert testified that she has been unable to work since November 4,
1999, because of pain in her back, right shoulder, neck, legs and
numbness in her toes. R. 46. Hert first injured her back while working as
a mail room clerk for Wilton Industries. R. 45. Although some heavy
lifting was required at that job, she worked full-time from January 1992
through January 1996. R. 45, 122. Hert had her first back surgery in June
1993. R. 45. Because pain persisted after work hardening and physical
therapy, Hert changed doctors and had a diskogram which revealed further
back trouble. R. 45.
In July 1994, Hert had a metal cage surgically placed in her lower
back. R. 45. During the procedure Hert tore her right rotator cuff. R.
45. The shoulder surgery and physical therapy delayed the back physical
therapy, and her sciatica continued to worsen. R. 46,
Hert left Wilton and received workers compensation. R. 43. In September
1996, Hert began to work at Colar Dodge but was let go two months later.
R. 43. Auto Auction in Bolingbrook temporarily hired her to replace an
employee on maternity leave in December 1996. R. 43. That job required
standing, sitting and walking up and down stairs. R. 43. She was let go
in July 1997. R. 43. Hert received six months of unemployment. R. 43.
Subsequent to the expiration of the unemployment, Hert worked as a
telemarketer for Colorado Prime and a verification clerk for Americall.
R. 41, 42, 44. She worked at Americall for fourteen months but found it
increasingly difficult to sit for extended hours and eventually left to
work at Naperville Jeep in September 1999. R. 42.
After two months, Hert
was let go due to internal reorganization. R. 42.
B. Medical Evidence
1. First Surgery
Claimant injured her back while lifting mail at work in 1993. R. 187.
She underwent conservative treatment and after diagnostic testing in 1993
revealed a herniated disc, Claimant underwent a decompressive lumbar
microdiskectomy. R. 188, 191-93, 229-30, 255, 300. She improved
significantly post-operatively, but later developed pain when she
returned to work and lifted heavy boxes. R. 262. Subsequent diagnostic
testing revealed disc bulging at L3 . . . L4, but Dr. George E.
DePhillips felt the disc bulge was not causing pain and reported surgery
was not indicated. R. 267, 303-04. Dr. DePhillips released Claimant to
return to work on regular duty as of January 1994. R. 307.
In May 1994, Claimant began seeing Dr. Scott D. Hodges, Chief of Spine
Surgery at Loyola University Medical Center. His physical examination of
Claimant was essentially normal. R. 528-30. CLaimant reported chronic
disabling back pain since she returned to full duty work, lifting 40-50
pounds on a repetitive basis. R. 528. Despite Dr. Hodges' conclusion
Claimant could continue working at her present job without surgery, he
reported that she was likely to "spiral downward if her problem was not
addressed appropriately." R. 531.
2. Second Surgery
Claimant elected to undergo a second surgery in July 1994, followed by
physical therapy and work hardening. R. 398, 408-58, 524. She underwent an
anterior lumbar diskectomy at L4-L5, and a spiral fusion at L4-L5. R.
312-14. Two weeks later, Claimant was "doing really quite well." R. 516.
In January 1995, Claimant underwent right shoulder arthroscopy with
repair of the rotator cuff which was injured during the spinal fusion
surgery. R. 469-72.
In June 1995, Claimant underwent a functional capacity assessment in
which she demonstrated the ability to lift 20 pounds occasionally at all
three levels of lifting. R. 544. Claimant was able to sit for eight hours
with no apparent limitations, stand for three to four hours and for 30
minutes at one time, and walk for seven hours. R. 544, 546-47. Claimant
was able to occasionally bend and stoop. R. 546. Dr. Lorenz released
Claimant to work with a permanent 20 pound lifting restriction. R. 555.
He otherwise regarded her capabilities as consistent with the June 1995
functional capacity assessment. R. 553-54.
In July 1997, Claimant was seen for intermittent pain in her right
leg. R. 561. She was diagnosed with an acute lumbosacral sprain, with
"some worsening radiculopathy, now resolving." Id. Claimant returned to
work and worked until November 1999, when she was fired. R. 110.
3. Consulting Exams
In March 2000, Dr. Ram Mukunda examined Claimant on a consultative
basis for SSA. R. 563-65. Claimant reported pain for the past several
years, but she was working until November 1999 as a secretary. R. 563.
Physical examination revealed no joint abnormalities in Claimant's arms,
and tenderness in her right shoulder. R. 564. Claimant had no joint
inflammation in her legs, no paraspinal muscle spasm in her lower back,
and normal reflexes and strength. R. 564-65.
In May and June 2000, state agency physicians reviewed the record and
concluded Cialmant could lift 50 pounds occasionally and 25 pounds
frequently, and sit, stand, and walk for six hours each in an
eight-hour workday. R. 566-73. The physicians noted that Claimant's
"complaints of pain are way out of proportion to actual findings of
limitations." R. 572.
4. Psychological Exam
Because Claimant alleged depression, the ALJ referred her to Dr.
William N. Hilger, a psychologist, for an assessment. R. 594-99. Claimant
did not exhibit any pain behavior but claimed she could only sit for no
more than two hours. R. 594. Dr. Hilger noted a "minimal" and at times
"questionable" effort by Claimant who left the first appointment
prematurely claiming her back was hurting. Id. Dr. Hilger concluded that
his test results provided "minimal and questionable estimates" of
Claimant's mental functioning due to her "questionable effort." Id. On
emotional testing, Claimant's MMPI scores "produced an extremely
exaggerated profile," with Claimant "willing to endorse as much
symtomatology as possible and produced a very exaggerated, malingering
type of profile that could not be reliably interpreted." R. 597. Dr.
Hilger diagnosed a somatoform pain disorder, dysthmic disorder and
possible malingering disorder with exaggeration of symptomatology. R.
598. He concluded Claimant "appears capable of performing lighter duty
clerical tasks." R., 599. Dr. Hilger concluded Claimant had slight or no
limitations in most areas of functioning, with moderate limitations in
her ability to interact with the public, co-workers and supervisors, and
ability to respond to work pressures. R. 600-01. The form Dr. Hilger
completed defined moderate as: "[t]here is moderate limitation in this
area but the individual is still able to function satisfactorily." R.
C. Vocational Expert Testimony
The VE, Cheryl Hoiseth, testified Claimant's past relevant work was
unskilled and ranged from sedentary to medium exertional level. R. 79.
Her receptionist job at Naperville Jeep and her telemarketing job were
sedentary work, her mail room job was medium work and her insurance
verifier job was light work. R. 79. The ALJ asked the VE a hypothetical
question regarding whether a person of Claimant's age, education, and
experience, could perform any of Claimant's past relevant work, given the
following limitations: able to lift ten pounds, sit, and stand and walk
for six hours in an eight-hour workday, unable to climb ropes, ladders or
scaffolds, and occasionally climb ramps and stairs. R. 80. The VE
testified that such a person could perform Claimant's past relevant work
as a telemarketer and receptionist. Id. The VE testified that if the
person was required to alternate every half hour between sitting and
standing, all work would be precluded because, "45 minutes is generally
the cut off point" R. 81. The VE also testified that if Claimant's
testimony regarding her inability to bend or stoop, comfortably lift more
than a laundry basket, or go out alone were true, then all work was
II. STANDARD OF REVIEW
Judicial review of a Commissioner's final decision is governed by
42 U.S.C. § 405 (g), which provides that the "findings of the
Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive." An ALJ's decision becomes the
Commissioner's final decision if the Appeals Council denies a request for
review. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993). Under such
circumstances, the decision reviewed by the district court is the
decision of the ALF Eads v. Secretary of the Dept. of Health & Human
Serv., 983 F.2d 815, 816 (7th Cir. 1993). A reviewing court may not
decide facts anew, reweigh the evidence, or
substitute its own judgment
for that of the Commissioner. Knight v. Chater, 55 F.3d 309, 313 (7th
Judicial review is limited to determining whether the ALJ applied the
correct legal standards in reaching his decision and whether there is
substantial evidence in the record to support his findings. Schoenfeld
v. Apfel, 237 F.3d 788, 792 (7th Cir. 2001); 42 U.S.C. § 405 (g).
Substantial evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971). The court may reverse the
Commissioner's decision only if the evidence "compels" reversal, not
merely because the evidence supports a contrary decision. INS v.
Zacarias, 502 U.S. 478, 481, n. 1 (1992). The Act gives a court the power
to enter a judgment "affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the cause
for a rehearing." 42 U.S.C. § 405 (g).
III. DISABILITY STANDARD
In order to be entitled to DIB under Title II of the SSA or to qualify'
for SSI under Title XVI of the SSA the claimant must establish a
"disability"as defined by the SSA. Zurawski v. Halter, 245 F.3d 881, 885
(7th Cir. 2001). A disability is an "inability to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
has lasted or can be expected to last for a continuous period of not less
than twelve months." 42 U.S.C. § 416 (i)(1).
A five step evaluation must be performed to determine whether a
claimant is disabled. 20 C.F.R. § 404.1520 (a). The sequential
process ends if the ALJ, at any step in the process, finds that the
claimant is not disabled. Id.
The ALJ must inquire: 1) whether the claimant is still
working; 2) whether the claimant has a severe
impairment; 3) whether the claimant's impairment meets
or equals a listed impairment; 4) if the claimant does
not suffer from a listed impairment, whether [s]he can
perform past relevant work; and 5) whether the
claimant is capable of performing any work in the
Greer v. Barnhart, 201 F. Supp.2d 897, 903 (N.D. Ill. 2002) (citing
20 C.F.R. § 404.1520). In order to determine whether the claimant can
perform any past relevant work (at step 4), the ALJ assesses the
claimant's residual functional capacity ("RFC"). § 404.1520(e). An
individual's RFC is defined as the most that individual can do after
considering the effects of physical and mental limitations that affect
her ability to perform work-related activities. 20 C.F.R. § 404.1545.
The issues presented are: 1) whether the ALJ erred in his treatment of
Dr. Hilger's psychological report, specifically the diagnosis of
somatoform disorder and the ALJ's assessment; 2) whether the ALJ erred in
his analysis of Hert's credibility; and 3) whether the ALJ failed to
incorporate a limitation on prolonged standing.
A. The ALJ Properly Applied Dr. Hilger's Report.
1. The ALJ properly analyzed Dr. Hilger's diagnosis of somatoform and
applied the symptoms and effects in determining Hert's RFC.
Dr. Hilger diagnosed Claimant with a somatoform disorder and found that
she had "moderate" limitations in her
ability to interact appropriately
with the public, interact with supervisors, and respond to work
pressures. R. 601. The ALJ carefully evaluated Dr. Hilger's report. The
mere diagnosis of a somatoform disorder does not end the inquiry. One
must also evaluate the severity of the impairment. Despite the diagnosis
of a somatoform disorder, Dr. Hilger found that Claimant had no or slight
limitations in all areas except for moderate limitations in her ability
to interact with the public and supervisors and in response to work
pressure. R. 601-02. Moderate was defined on the form as "there is
moderate limitation in this area but the individual is still able to
function satisfactorily." R. 600.*fn1 Given the definition of moderate
on the form, the ALJ reasonably found that Claimant's mental limitations
did not impose an additional vocational impact.
Claimant's reliance on Parks v. Sullivan, 766 F. Supp. 627 (N.D. Ill.
1991) is misplaced. In Parks, the district court reversed an ALJ's
decision and ordered an award of benefits where the Claimant was
diagnosed with a somatoform disorder. In Parks, three psychiatrists and
one psychologist agreed that Claimant has a mental condition that causes
her to feel real pain. Id. at 635. One doctor found that she was
physically unable to perform simple tasks and another found that her
physical/mental status would make it difficult for her to perform in a
work setting. Id. at 635-36. The ALJ's opinion failed to address the
"overwhelming psychiatric and psychological findings that [Claimant] is
experiencing real pain that would render her unable to perform physically
in a work environment." Id. at 637. In addition there was no medical
diagnosis of malingering or feigning of pain. Id.
In contrast, Dr. Hilger concluded that despite his diagnosis of a
somatoform pain disorder, "she appears capable of performing lighter duty
clerical tasks as long as she would not have to sit for extended periods
of time." R. 599. He diagnosed her with a "possible malingering disorder
with exaggeration of symptamology." R. 598. The ALJ fairly analyzed the
impact of the somatoform pain disorder on Claimant's ability to perform
B. The ALJ's Credibility Finding Was Properly Explained
In the face of this overwhelming medical evidence, Claimant requests
this Court to reverse and remand the ALJ's decision based on the ALJ's
credibility finding which the Claimant contends does not comport with
Social Security Ruling 96-7p and the Seventh Circuit decision in Zurawski
v. Halter, 245 F.3d 881 (7th Cir. 2001) and other similar cases.
1. SSR 96-7p
SSR 96-7p is a policy interpretation ruling which became effective on
July 2, 1996. It addresses the ALJ's responsibility in making a
credibility finding regarding a claimant's statements about pain or other
symptoms and its functional effects. In particular, this policy
interpretation ruling makes clear that:
5. It is not sufficient for the adjudicator to make a
single, conclusory statement that "the individual's
allegations have been considered" or that "the
allegations are (or are not) credible."
SSR 96-7p requires the ALJ to consider the claimant's "statements about
symptoms with the rest of the relevant evidence in the case record" and
to consider the entire case record, including
evidence, and other relevant evidence in coming to a credibility
determination. SSR 96-7p ¶ 1-4. This SSR essentially requires an ALJ
to "build an accurate and logical bridge from the evidence to his
conclusion." Clifford v. Apfel, 227 F.3d 863
, 872 (7th Cir. 2000).
2. Zurawski v. Halter
In Zurawski v. Halter, 245 F.3d 881 (7th Cir. 2001), the Seventh
Circuit reversed and remanded a case were the ALJ found the Claimant's
complaints of disabling pain "not entirely credible due to the
inconsistencies with the objective medical evidence, and inconsistencies
with daily activities." Id. at 887. In Zurawski, the Court noted that the
ALJ confined her discussion to the medical evidence which showed claimant
capable of returning to work, but did not include a discussion of the
medical evidence showing claimant had a bulging disc and degenerative
disc disease which only one doctor had considered, and that claimant had
epidural injections and was prescribed medications to alleviate pain and
depression. Id. at 888. The Court held that the ALJ's decision was
deficient because "we are unable to tell whether the ALJ investigated
"all avenues' that relate to [Claimant's] complaints of pain because her
decision offers no clue as to whether she examined the full range of
medical evidence as it relates to his claim." Id. Because of the
incompleteness of the analysis, the Court remanded the case for greater
elaboration in order to "conduct a reevaluation of Zurawski's complaints
of pain with due regard for the full range of medical evidence." Id.
3. The ALJ's Credibillty Determination Was Made With Due Regard
to the Full Range of Medical Evidence.
The ALJ found Claimant had significant limitations based upon credible
evidence, which included the opinion of her treating physician, the
observations of Dr. Hilger and two state agency physicians. R. 18.
Claimant cites no objective medical evidence that supports that she is
Moreover, the ALJ considered appropriate factors and evidence in
evaluating Claimant's subjective complaints. R. 18. First, he noted the
physician opinion evidence and reasonably adopted the limitations
identified by Claimant's treating physician. R. 18. The ALJ also noted
that Claimant's use of medication, and her inconsistent pursuit of
treatment even after she returned to work in 1997 undermined the
credibility of her subjective complaints. R. 18. While Claimant notes her
testimony that she didn't see a physician after July 14, 1997, because
she lacked insurance, Claimant ignores her testimony that she was only
"was going to go back to him one other time." R. 74. Moreover, Claimant's
earnings record indicates significant earnings in 1997, 1998, and 1999,
in contrast to her earnings in 1995 and 1996. R. 110. Thus, Claimant was
able to earn money despite her alleged disabling impairments. Thus, it
was reasonable for the ALJ to consider Claimant's inconsistent treatment
history since returning to work. R. 18. In February 2001, the treatment
note indicates that Claimant was seen because she was out of pain
medication since the end of December 2000. R. 585. Given the degree of
pain Claimant alleged, the ALJ reasonably concluded that her use of
medication was inconsistent with those allegations.
Finally, the ALJ noted Dr. Hilger's reports of Claimant's exaggerating
and malingering. R. 18,594,597. Although Claimant suggests that Dr.
Hilger merely suggested a diagnosis of malingering, in contrast to a
disorder, Dr. Hilger's report is replete with
references to Claimant's lack of effort, "extremely exaggerated profile,
" and Claimant's "willingness to endorse as much symptomatology as
possible." R. 594, 597. Dr. Hilger's evaluation clearly supports the ALJ's
Substantial evidence supports the ALJ's credibility assessment.
Claimant disagrees. However, because the ALJ is in the best position to
observe a witness, his credibility determination should not be disturbed
unless it has no support in the record or is patently wrong. See Diaz v.
Chater, 55 F.3d 300, 308 (7th Cir. 1995) ("We have repeatedly stated that
an ALJ's credibility determination will not be disturbed unless it is
patently wrong."); Heron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994)
("Since the ALJ is in the best position to observe witnesses, we usually
do not upset credibility determinations on appeal so long as they find
some support in the record and are not patently wrong.") An ALJ's
credibility determination is sufficient if it allows a reviewing court to
"track the ALJ's reasoning and be assured that the ALJ considered the
important evidence." Diaz, 55 F.3d at 308.
C The ALJ Properly Incorporated The Alleged Limitation On Hert's
Ability To Stand.
Claimant's emphasis on her purported inability to stand more than one
half hour at a time is misplaced because, it simply does not impact on
her ability to perform past work. The same functional capacity evaluation
that indicated Claimant could not stand more than 30 minutes at one
time, also indicated Claimant could walk for seven hours in an eight-hour
workday, and could sit without limitation. R. 546-47. The VE's testimony
makes clear that it is only a requirement that Claimant be allowed to
alternate between sitting and standing every thirty minutes that would
render her incapable of performing any of her past jobs. R. 81. However,
no physician of record, and indeed, Claimant's own testimony, fails to
support that limitation.
The ALJ's decision finds substantial support in the record. The
treating physician, the state agency physicians and the examining
psychologist all found Claimant capable of returning to work. The ALJ's
decision provides a roadmap to his reasoning and the record fully
supports the ALJ's conclusions. For the reasons set forth in this
opinion, the Commissioner's motion for summary judgment is granted, the
Claimant's motion for summary judgment is denied, and the Commissioner's
decision finding Claimant not disabled is affirmed.