United States District Court, Northern District of Illinois, Eastern Division
March 20, 2003
LINDA S. BRENNAN-KENYON, PLAINTIFF,
JO ANNE B. BARNHART, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT
The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Linda S. Brennan-Kenyon ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405 (g) for judicial review of the final decision of the Commissioner of the Social Security Administration (the "SSA") denying her application for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"). Before the Court is Plaintiffs Motion for Summary Judgment or Remand and Defendant's Motion for Summary Judgment in the cause. For the reasons set forth below, the Court remands the cause for further proceedings consistent with this opinion.
On August 24, 1999, Plaintiff applied for DIB*fn1 alleging that, as of April 1, 1996, she became disabled.*fn2 (R. 26-27, 47-49.) Plaintiffs application for benefits was initially denied on October 15, 1999. (R. 28.) Subsequently, on November 23, 1999, Plaintiffs request for reconsideration was also denied. (R. 36.) Plaintiff then filed a timely request for an administrative hearing and, on February 29, 2000, Plaintiff appeared with counsel and testified at a hearing before an Administrative Law Judge ("ALJ"). (R. 40, 198-228.) There was, no testimony, however, from either a Vocational Expert or Medical Expert. (R. 198.)
On January 23, 2001, the ALJ issued his decision finding that Plaintiff was not disabled because she has the residual functional capacity ("RFC") to perform her past relevant work. (R. 17-24.) Plaintiff then filed a request for review the ALJ's decision, and, on April 24, 2002, the Appeals Council denied Plaintiffs request for review making the ALJ's decision the final decision of the Commissioner. (R. 6, 10.) Pursuant to 42 U.S.C. § 405 (g), Plaintiff initiated this civil action for judicial review of the Commissioners s final decision.
I. PLAINTIFF'S BACKGROUND/TESTIMONY
Plaintiffs allegations of disability are based inter alia on the following conditions: degenerative disc disease; low back, neck and knee pain; major depression; and cervical spondylosis.*fn3 (R. 100, 101, 104.)
Plaintiff was born on April 11, 1949, and was fifty-one years old at the time the ALJ issued his decision. (R. 14-24.) Plaintiff graduated from high school, attended college for one year, and received specialized training as a travel agent. (R. 68.)
Plaintiff began working as a waitress, bartender and hostess in 1984. (R. 75-76.) In 1998, Plaintiff worked as a mail carrier for approximately one month. (R. 75, 77.)
Plaintiff testified, that in early 1996, while employed as a waitress, bartender and hostess at Fellinis Restaurant, she worked "full weeks" which she defined as working "maybe 3, 4 days" up to thirty or more hours per week.*fn4 (R. 202-05.) She stated that, at that time, she worked mostly lunch shifts because she "couldn't handle [working] the heavy dinners." (R. 204, 207.) Plaintiff stopped working on April 1, 1996 because she felt her body was starting to deteriorate and that after a day of work, the next day, she "could hardly move." (R. 204.) Starting in June 1996, however, Plaintiff returned to Fellinis Restaurant where she worked a reduced schedule of only two to three days per week.*fn5 (R. 206-07.) Plaintiff testified that she reduced the number of hours she worked because of pain in her neck, back and knees. (R. 204.)
At the administrative hearing, Plaintiff stated that she was currently working at Fellinis Restaurant as a waitress, but that she only worked two days a week (four hours each day). (R. 162, 207, 210.) She indicated that she was working "[two] heavy dinners" on the weekends because she made more money working at dinner time.*fn6 (R. 206-08.) Plaintiff testified that she does not lift anything heavy*fn7 because her back will go out and she has the bus boys bring the large trays of food to the tables. (R. 210, 220.) She indicated that she could lift "maybe a glass or something to put it on."*fn8 (R. 210-11.) Plaintiff takes the customers' orders, places the orders, and brings the soup and salad to the table because these were "small little dish[es].*fn9 (R. 219-20.) She indicated that during her four hour shift, she was on her feet, `[t]he whole time' and [she] never had a break . . . even on the full time times." (R. 220-221.) After a four hour shift, Plaintiff has pain all over, numbness, and collapses because she cannot do anything more than recuperate before working her shift, the next day. (R. 221-22.) Plaintiff stated that she is "beat up" after working, her body is very sore and she is never able to recover. (R. 222.)
Plaintiff testified that she has difficulty sitting for long periods because her back stiffens up to the point where she cannot straighten up and her right knee bothers her. (R. 209.) She cannot walk more than one-half of a block because she can "hardly move [her] back and [her] knee together." (R. 209, 227.) Plaintiff further states that she cannot walk too far or stand too long without triggering pain in her lower back, neck and right knee. (R. 209-10.) Plaintiff refrains from bending over, stooping and crouching and, moreover, her pain is constant whether she is standing, sitting or walking. (R. 209-11.) Furthermore, Plaintiff moves around when she is seated because she is uncomfortable and she is unable to sit on a stool or alternate between sitting and standing without pain. (R. 226-28.)
In November 1999 and January 2000, Plaintiff indicated that she saw a counselor for depression. (R. 218.) She testified that she took Zoloft*fn10 "off and on" for her depression. (R. 227.)
Plaintiff further testified that while she had health insurance coverage, her deductible was very high. (R. 219.)
With regard to Plaintiffs daily activities of living, she testified that she cooks, does light household chores (e.g., laundry) and shops. (R. 212-14.) Plaintiff stated that she shops for food because it is hard for her to go out to a restaurant, since she cannot sit for very long. (R. 212.) She testified that other than shopping she essentially stays at home. (R. 212-13.) Plaintiff stated that she no longer participated in sports or bowled and, she. could not remember the last time she went to a movie. (R. 212-13.) Moreover, she indicated that a movie is too long to sit through and that she preferred to watch television at home because that way she could lay down or move around. (R. 212-13.) Plaintiff further testified that she attends to her personal hygiene; however, it is difficult for her to take a shower and get dressed. (R. 212.) She stated that she drives only about five miles per week because it is hard for her to get out of the car due to her back problems. (R. 211.) Plaintiff further indicated that her daughter comes to visit once a month and helps her take care of things. (R. 213-14.)
II. MEDICAL EVIDENCE
In April of 1996, Plaintiff was involved in an automobile accident. (R. 100.) On May 29, 1996, Dr. Samar S. Jaglan, M.D. (orthopaedic surgeon evaluated Plaintiff for back and neck pain caused by a jarring trauma from the accident. (R. 100.) In his medical assessment of Plaintiff, Dr. Jaglan noted that Plaintiff had previously incurred injuries to her back and neck which had caused occasional discomfort, but subsequent to the accident, she has had progressive pain in her lower back and cervical spine area. (R. 100.) Plaintiffs physical examination revealed that her range of motion in her lumbar spine was fairly well preserved. (R. 100) Moreover, Dr. Jaglan noted that Plaintiffs cervical spinal range of motion was fairly normal, and she had normal forward bending, extension and rotation. (R. 100.) Plaintiff experienced pain when turning her neck to the right; however, Dr. Jaglan did not note any weakness. (R. 100.) Plaintiffs muscles were normal in strength and her reflexes were intact. (R. 100.) Furthermore, her grip strength and elbow flexion/extension and wrist flexion/extension were normal. (R. 100.) Plaintiff was able to walk on her tip toes and heels. (R. 100.)
At the direction of Dr. Jaglan, Plaintiff underwent an X-ray evaluation of her lumbar and cervical spines. (R. 100.) Plaintiffs lumbar spine X-ray revealed some mild degenerative changes and anterior spur and osteophytes. (R. 100.) An X-ray of Plaintiffs cervical spine, however, revealed moderate to severe disk degeneration of the C5-6 interval with osteophyte spurring, narrowing of the disc and posterior osteophyte formation. (R. 100.) Dr. Jaglan diagnosed Plaintiff as suffering from cervical spondylosis with. disc degeneration of C5-6. (R. 101.) Dr. Jaglan recommended that Plaintiff continue with activity, physiotherapy, range of motion exercises, and use anti-inflammatory medication. (R. 101.)
On January 4, 1999, Plaintiff saw her treating physician, Dr. Samuel Goldstein, M.D. and underwent a comprehensive physical examination. (R. 166.) At that time, Plaintiff reported that she was generally feeling fine, but that she had occasional back pain. (R. 21, 166.) Dr. Goldstein's clinical findings revealed that Plaintiff did not have any pain or swelling in her neck. (R. 166.) Dr. Goldstein further noted that Plaintiff did not have joint pain or swelling, muscle spasms, weakness, or difficulty walking. (R. 166.) Plaintiffs sensory responses and reflexes were also intact. (R. 166.)
On September 10, 1999, Plaintiff underwent an X-ray of her lumbosacral spine which revealed mild degenerative disease, disk space narrowing at L3-S1 and mild demineralization. (R. 105.)
Dr. Michael T. Wagner, M.D., a state consultative examiner, performed a psychiatric evaluation of Plaintiff on September 10, 1999. (R. to 102-04.) Plaintiff stated that her husband had died five years ago and since that time she had been very depressed. (R. 102.) Plaintiff reported that for the past five years she had had a depressed mood much of the time, anhedonia,*fn11 excessive guilt over her husband's death, fatigue, insomnia, and decreased concentration. (R. 102.) Plaintiff further stated that she had previously taken Zoloft for her depression and that she saw a psychiatrist and therapist in 1997 for her depression. (R. 102.) In addition, Plaintiff indicated that she has significant neck and back pain due to a spinal degenerative disk disease. (R. 102.)
With respect to her daily activities, Plaintiff told Dr. Wagner that she only does what she has to do and that she is somewhat able to cook, clean, shop and do laundry. (R. 103.) Plaintiff reported having many friends and that she occasionally goes to movies and restaurants. (R. 103.) She stated, however, that she spends the majority of her day in her home doing housework. (R. 103.) Plaintiff also indicated that she worked two days per week as a waitress. (R. 103.) In his assessment of Plaintiff, Dr. Wagner determined that Plaintiffs poor motivation and depressive symptoms impaired her daily activities. (R. 103.)
Dr. Wagner found that while Plaintiff's mood was depressed, her thought processes were clear. (R. 103.) With respect to Plaintiffs mental status examination, Plaintiff inter alia had a good ability to relate on a personal level, answered all questions competently, did not have any delusions or hallucinations, and possessed good insight and judgment. (R. 103.) Dr. Wagner, however, diagnosed Plaintiff with a major depressive disorder of moderate intensity, with moderate impairment in social and occupational functioning. (R. 104.)
On September 10, 1999, Plaintiff also underwent a physical examination with Dr. Peter Biale, M.D. (internist), a state consultative examiner. (R. 115-17.) Plaintiff told Dr. Biale that she had been suffering from back pain for several years. (R. 115.) Plaintiff stated that her back pain is aggravated when bending over, lifting more than ten or twenty pounds, walking more than a block, climbing a flight of stairs, and sitting or standing for half of an hour. (R. 115.) She reported that she took over-the-counter medications that were not effective. (R. 115.)
Dr. Biale examined Plaintiffs back and stated that she had a full range of motion with respect to her cervical and dorsal spines. (R. 116.) Plaintiffs lumbosacral spine, however, was limited with flexion at 60 degrees and extension at 20 degrees. (R. 116.) Dr. Biale further noted that lateral flexion was also limited at 20 degrees bilaterally and there was tenderness in Plaintiffs paraspinal muscles. (R. 116.) Plaintiffs straight leg raising test was negative and no muscle spasms were noted. (R. 116.) Dr. Biale further observed that Plaintiff was in no distress and exhibited no gross mood disorder. (R. 115-16.)
Plaintiff told Dr. Biale that, during the last two to three years, she had problems with her knees when she walks, climbs or stands. (R. 115.) Dr. Biale conducted a musculoskeletal examination of Plaintiff and determined that she had full range of motion in her leg joints and there was no redness, swelling or thickening of the joints noted. (R. 116.) Dr. Biale also found that Plaintiff could bear her full weight and had a normal gait. (R. 116.) Moreover, Plaintiffs reflexes were normal and her motor strength was intact. (R. 116.)
Dr. Biale assessed Plaintiff as having low back pain and lumbosacral spine limitations such that her pain exacerbates when she bends over, lifts more than ten pounds, walks more than one block, climbs more than one flight of stairs, and sits or stands for half of an hour. (R. 117.) Dr. Biale further assessed Plaintiff as having painful knees, especially when she walks or climbs. (R. 117.) Although her examination revealed a full range of motion, her knee movements were painful and she was not able to walk heel-to-toe or squat down. (R. 117.) Dr. Biale also noted that Plaintiff had a history of being treated for depression. (R. 117.)
On September 16, 1999, Dr. Carl Hermsmeyer, Ph.D., a state agency reviewing psychologist, reviewed Plaintiffs medical record and diagnosed her as having a major depressive disorder of moderate intensity. (R. 129.) Dr. Hermsmeyer also assessed Plaintiff as being moderately limited in her ability to understand, remember and carry out detailed instructions as well as slightly limited in her activities of daily living and in maintaining social functioning. (R. 125, 127.) She, however, seldom had deficiencies of concentration, persistence or pace that would result in her failing to complete tasks in a timely manner. Dr. Hermsmeyer also noted that there was insufficient evidence in the record to determine whether Plaintiff showed episodes of decompensation. (R. 125.) Furthermore, Dr. Hermsmeyer noted that Plaintiff has the mental capacity to perform simple tasks. (R. 129.)
On September 22, 1999, Dr. Earl W. Donelan, M.D., a reviewing state agency physician, reviewed Plaintiffs medical record and determined that she could lift fifty pounds occasionally and twenty-five pounds frequently. (R. 132.) Moreover, Dr. Donelan found that Plaintiff could sit, stand and walk for about six hours in an eight-hour workday, and assessed Plaintiff as having unlimited pushing and pulling capabilities. (R. 132.) Dr. E.C Bone, M.D., another state agency reviewing physician, concurred in Dr. Donelan's assessment of Plaintiff which found that she was capable of performing at least light work, if not medium-level work. (R. 23, 132, 138.)
On November 8, 1999, Plaintiff underwent an evaluation at the Northwest Mental Health Center with Judi Slattery, LCPC.*fn12 (R. 152.) At that time, Plaintiff discussed her grief from the loss of her second husband and the dissatisfaction and frustration she has with her third husband. (R. 152.) Plaintiff also expressed concern over her physical condition (i.e., her back pain) and indicated that she was seeking treatment for it.*fn13 (R. 152.)
From approximately December 1999 through February 2000, Plaintiff underwent rehabilitative physical therapy treatment at Creative Therapy Resource, Ltd. with Jeanne Cleary (physical therapist). (R. 147-59, 161.) When Plaintiff was initially assessed on December 14, 1999, she had major*fn14 extension and moderate*fn15 flexion problems associated with her lumbar spine. (R. 155.) Physical therapy progress notes from January 3, 2000 to February 17, 2000 indicated that she suffered from moderate extension and minimal*fn16 flexion losses in her lumbar spine and had pain in her neck, lower back, right thigh and bilaterally in her knees. (R. 147-51, 157-61.) Progress notes also indicated that initially Plaintiff demonstrated some non-compliance with her physical therapy program (i.e., Plaintiff did not perform her home exercises). (R. 147-151.) However, when Plaintiff did comply with her program, progress notes indicate that she showed improvement, in that, she progressed from a major loss of extension to only a moderate loss of extension with respect to her lumbar spine.*fn17 (R. 147-51, 155.) Cleary also noted that Plaintiff would benefit from a strengthening program and an increase in her overall activity level.*fn18 (R. 159, 161.)
III. THE ALJ'S FINDINGS AND DECISION HEREIN
The ALJ determined that Plaintiff has not engaged in any substantial gainful activity at any time relevant hereto.*fn19 (R. 24.) The medical evidence establishes that Plaintiff suffers from major depression and back disorders (i.e., discogenic and degenerative diseases), but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1, Regulations No. 4. (R. 24.)
Because the ALJ found that Plaintiffs impairments did not meet or equal a listed impairment, the ALJ assessed Plaintiffs RFC to determine what she could do despite her limitations. (R. 24.) The ALJ determined that Plaintiff has the RFC to perform the exertional and nonextertional requirements of light work because she can stand and walk for seven hours in a day and occasionally lift twenty pounds. (R. 24.) The ALJ found that Plaintiffs past work as a waitress and bartender did not require that she perform work-related activities beyond these stated capabilities. (R. 24.) The ALJ determined that Plaintiffs impairments did not prevent her from performing her past relevant work. (R. 24.) The ALJ, therefore, concluded that Plaintiff was capable of performing full-time work as a waitress and bartender. (R. 23.)
Accordingly, the ALJ determined that Plaintiff was not disabled under the terms of the Act. (R. 24.)
I. STANDARD OF REVIEW
Judicial review of the Commissioner's final decision is limited. The Act at 42 U.S.C. § 405 (g) establishes that the Commissioner's findings as to any fact are conclusive if they are supported by substantial evidence. See also Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Pearles, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Brewer, 103 F.3d at 1390. The court may not reevaluate the facts, reweigh the evidence, or substitute its own judgment for that of the Commissioner. See Brewer, 103 F.3d at 1390. Conclusions of law, however, are not entitled to deference. Thus, if the Commissioner commits an error of law, reversal is required without regard to the volume of evidence in support of the factual findings. See Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
II. STATUTORY AND REGULATORY FRAME WORK
To receive disability benefits, SSI and DIB claimants must be "disabled" as defined by the Act. See 42 U.S.C. § 423 (a)(1)(D); 42 U.S.C. § 1382 (a); Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993). An individual is "disabled" if he is unable "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 which has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423 (d)(1)(A); 20 C.F.R. § 404.1505 (a). See also Jones v. Shalala, 10 F.3d 522, 523-24 (7th Cir. 1993). To satisfy this definition, an individual must have a severe impairment that renders him unable to do his previous work or any other substantial gainful activity that exists in the national economy. See 20 C.F.R. § 404.1505 (a).
The Social Security regulations delineate a five-step process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. § 404.1520. The ALJ first considers whether the claimant is presently employed or "engaged in substantial gainful activity." 20 C.F.R, § 404.1520(b). If he is, the claimant is not disabled and the evaluation process is over; if he is not, the ALJ next addresses whether the claimant has a severe impairment or combination of impairments which "significantly limits . . . physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520 (c). Third, the ALJ determines whether that severe impairment meets any of the impairments listed in the regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1. If it does, then the impairment is acknowledged by the Commissioner to be conclusively disabling. See Brewer, 103 F.3d at 1391.
If the impairment does not so limit the claimant's remaining capabilities, the fourth step is that the ALJ reviews the claimant's RFC and the physical and mental demands of his past work. RFC is a measure of what an individual can do despite the limitations imposed by his impairments. See 20 C.F.R. § 404.1545 (a), 416.945(a). See also Social Security Ruling 96-8p (1996). If the claimant can perform his past relevant work, he will be found not disabled. See 20 C.F.R. § 404.1520 (e).
For the fifth step, if the claimant shows that his impairment is so severe that he is unable to engage in his past relevant work, then the burden of proof shifts to the Commissioner to establish that the claimant — in light of his age, education, job experience and functional capacity to work — is capable of performing other work and that such work exists in the national economy. See 42 U.S.C. § 423 (d)(2); 20 C.F.R. § 404.1520 (f). See, also Brewer, 103 F.3d at 1391.
Plaintiff seeks reversal or remand of the ALJ's decision finding that she is not disabled.
Upon review of the record, the Court finds that an outright reversal is not warranted. Separately, as it relates to remand, Plaintiff alleges that: (1) the ALJ erred in finding that Plaintiff has the RFC to perform light work; (2) the ALJ erred in rejecting evidence of Plaintiff's mental impairment; and (3) the ALJ erred in his credibility finding of Plaintiff (Pl.'s Mem. at 6.)
I. THE ALJ ERRED IN HIS RFC FINDING OF PLAINTIFF.
Plaintiff avers that the medical evidence, does not support the ALJ's finding that she is capable of performing light work and her past job as a waitress, which was structured so that she did not have to lift heavy items and so she only had to work two days a week. (Pl.'s Reply at 1.) Plaintiff asserts that the ALJ disregarded medical evidence that was favorable to her and ultimately substituted it with his own lay opinion. (Id. at 1-2.) Therefore, Plaintiff contends that the ALJ, in making his decision, ignored medical reports regarding the severity of her impairments and erroneously made independent medical findings. Id. at 2.)
Defendant, on the other hand, contends that the ALJ properly considered all of the evidence and reasonably concluded that Plaintiff was capable of performing light work. (Def.'s Mem. at 5.) The Defendant asserts that, in making his RFC assessment, the ALJ reviewed the objective medical evidence as well as Plaintiffs subjective complaints and determined that she was not limited to the degree she alleged. (Id. at 6.) Thus, despite Plaintiffs complaints of disabling pain, the ALJ, Defendant maintains, reasonably concluded that the medical evidence failed to substantiate her claims. (Id.)
A. THE ALJ IMPERMISSIBLY IGNORED RELEVANT MEDICAL EVIDENCE.
It is established in Social Security law that an ALJ may not play doctor and substitute his own opinion for that of a physician, or make judgments that are not substantiated by objective medical evidence. Rohan v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996). In other words, ALJ's must not succumb to the temptation to play doctor and make their own independent medical findings. Id. See also Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990), cert. denied, 502 U.S. 901, 112 S.Ct. 278, 116 L.Ed.2d 230; Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992). An ALJ will be reversed in those cases where the ALJ impermissibly played doctor by failing to address relevant evidence. Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001).
Defendant initially avers that the medical evidence does not substantiate Plaintiffs subjective complaints of disabling pain because she only has insignificant mild degenerative changes in her spine. (Def.'s Mem. at 6-8.) Moreover, Defendant asserts that Dr. Jaglan found inter alia that her spinal range of motion was well-preserved, she did not exhibit muscle weakness or muscle atrophy, she had normal strength, and her reflexes were intact. (Def.'s Mem. at 6, R. 100-01.)
The Court notes, however, that the evidentiary record reflects additional objective medical evidence identified by Dr. Jaglan that the ALJ failed to address. (R. 19.) For instance, Dr. Jaglan determined that Plaintiff has progressive pain in her lower back and cervical spine, neck pain when she turns her neck to the right, and cervical spinal disease involving moderate to severe disk degeneration of the C5-6 interval, with osteophytes spurring, narrowing of the disc and posterior osteophyte formation. (R. 19, 100.) Dr. Jaglan specifically diagnosed Plaintiff with cervical spondylosis, with disc degeneration of C5-6, based on an X-ray evaluation. (R. 100.)
Defendant next contends that the ALJ properly considered Dr. Biale's objective medical findings. (Def.s Mem. at S.) For example, Dr. Biale found that Plaintiff inter alia had a full range of motion in her dorsal and cervical spines and leg joints, her straight leg raising test was negative, her reflexes were normal, she could bear her full-weight, and she had a normal lumbar curvature. (Def.'s Mem. at 8; R. 20, 115-17.) Moreover, Defendant avers that while the ALJ relied on Dr. Biale's objective medical findings which failed to substantiate Plaintiffs purported limitations, Plaintiff primarily relies on her own self-reporting of her symptoms as evidence of her alleged impairments.*fn20 (Def.'s Mem. at 8.)
The Court notes, however, that the record establishes that there is other objective medical evidence identified by Dr. Biale that is potentially favorable to Plaintiff that the ALJ either ignores or fails to address in his decision. (R. 20.) For instance, Dr. Wale inter alia found that Plaintiffs lumbosacral spine was limited with flexion at 60 degrees and extension at 20 degrees (lateral flexion was also limited at 20 degrees bilaterally, with tenderness in the paraspinal muscles), she was not able to walk heel-to-toe, and she could not squat down. (R. 20, 116.) Dr. Biale further assessed Plaintiff as having low back pain, pain in her knees, and lumbosacral spine limitations such that her pain exacerbates when she bends over, lifts mote, than ten pounds, walks more than one block, climbs more than one flight of stairs, and sits or stands for half of an hour. (R. 117.)
In September 2000, Dr. Goldstein assessed Plaintiff as having pain in her left knee and found that there was grinding present in her knees at extension. (R. 171.) The ALJ rejects or discredits this evidence because Plaintiff did not provide X-ray evidence of either joint space narrowing or significant bony destruction in her left knee which is needed to determine if she meets the listing for osteoarthritis. The Court finds, however, that based on Dr. Goldstein's findings of knee pain and knee grinding, the ALJ should have ordered the X-ray evaluation instead of ignoring this evidence that may be potentially favorable to Plaintiff.
Next, the Court notes that the ALJ concluded that because Plaintiffs spinal mobility had been enhanced as a result of her physical therapy treatment, she was capable of performing light work. (R. 20-21.) Specifically, the ALJ notes that Plaintiffs physical therapy treatment was successful in improving Plaintiffs spinal mobility because her initial evaluation revealed a major extension loss and a moderate flexion loss with respect to her lumbar spine, but her final report reflected that she only suffered from a moderate extension loss in her lumbar spine. (R. 20-21.) However, even though Plaintiffs physical therapy treatment may have been effective in enhancing or improving her spinal mobility, the fact remains that a moderate extension loss amounts to approximately a fifty percent loss of normal movement. (R. 151.) Thus, the ALJ failed to address how a fifty percent loss of movement would affect Plaintiffs ability to perform light work.
The Court finds that a reasonable inference can be made that sufficient medical evidence which the ALJ ignored or failed to address may substantiate Plaintiffs subjective complaints of pain and limitations. To recapitulate, for example, Plaintiff specifically complains that she has severe back pain, neck and knee pain, and that she cannot stand too long or walk to far without triggering pain in these areas. (R. 209-10.) Plaintiff states that she also refrains from bending over, stooping and crouching, and her pain is constant whether she is standing, sitting, or walking. (R. 209-11.) Moreover, Plaintiff testified that she only works two days a week (4 hours each day) because of her pain, and is only able to perform minimal daily activities. Therefore, based on Dr. Jaglan's X-ray evaluation which shows that Plaintiff suffers from cervical spondylosis with disc degeneration of C5-6; Dr. Biale's findings and assessment that she cannot walk heel-to-toe or squat down and has low back pain, pain in her knees, and lumbosacral spine limitations such that her pain exacerbates when she bends over, lifts more than ten pounds, walks more than one block, climbs more than one flight of stairs, and sits or stands for half of an hour; Dr. Goldstein's findings that she has grinding of her knees at extension; and her physical therapy treatment progress notes indicating that she has a fifty percent loss of extension in her lumbar spine, Plaintiffs allegations of disabling pain and limitations may, in fact, be substantiated by objective medical evidence in the record.
Accordingly, the Court finds that the ALJ erred by impermissibly playing doctor when he ignored and failed to address relevant medical evidence. Dixon, 270 F.3d at 1177. In failing to address relevant evidence favorable to Plaintiff, the ALJ appears to have implicitly relied on other evidence in the record which was unfavorable to Plaintiff. See e.g., Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir. 1983) (a court will remand a clause if the ALJ fails to give at least a minimal articulation of why the claimant's line of evidence was rejected). Thus, while the ALJ mentions or lists much of the medical evidence, he fails to articulate his basis for either crediting or rejecting specific diagnoses and assessments.*fn21 See e.g., Carlson v. Shalala, 999 P.2d 180, 181 (7th Cir. 1993) (an ALJ must "sufficiently articulate his assessment of the evidence to assure us that the ALJ considered the important evidence . . . [and to enable] us to trace the path of the ALJ's reasoning.") (citation omitted). In other words, the ALJ never attempts to explain why the evidence that is favorable (e.g., an X-ray evaluation diagnosing Plaintiff with cervical spondylosis, with disc degeneration of C5-6 (R. 100-01)) to Plaintiff is overcome by evidence that is unfavorable. Moreover, even though an ALJ may reject a physician's opinion if it appears to be based on a claimant's exaggerated subjective complaints, herein, the ALJ improperly either entirely ignored or (at a minimum) failed to address relevant evidence that potentially substantiated Plaintiffs claims. See e.g., Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995). Therefore, a remand is warranted on this issue.
The Seventh Circuit's decision last month in Golembiewski v. Barnhart, No. 02-1286, 2003 WL 262059 (7th Cir. Feb. 3, 2003) is squarely applicable on this issue. In that case, the court remanded the cause to the Commissioner for further proceedings, inter alia, because:
"[t]he ALJ ignored significant [medical,] evidence
supporting his claim. The ALJ must evaluate the record
fairly. Thus, although the ALJ need not discuss every
piece of evidence in the record, Dixon v. Massanari,
270 F.3d 1171, 1176 (7th Cir. 2001), the ALJ may not
ignore an entire line of evidence that is contrary to
the ruling, Zurawski, 245 F.3d at 888. Otherwise it is
impossible for a reviewing court to tell whether the
ALJ's decision rests upon substantial evidence. Smith
v. Apfel, 231 F.3d 433, 438 (7th Cir. 2000). A remand
is required here because the ALJ improperly ignored . . .
lines of evidence." 2003 WL 262059, at *4, 5.
B. THE ALJ IMPERMISSIBLY REJECTED EVIDENCE OF
PLAINTIFF'S MENTAL IMPAIRMENT.
Plaintiff avers that the ALJ erroneously rejected all favorable evidence of her mental impairment and ultimately concluded that she does not have "any mental limitations at all" and "has no limitations in her ability to perform the mental demands of any occupation." (Pl.'s Reply at 8; R. 22-23.) Defendant, on the other hand, asserts that the ALJ properly evaluated Plaintiffs alleged mental impairment and found the medical assessments were not substantiated by the record and were inconsistent with Plaintiffs daily activities and social functioning. (Def.'s Mem. at 11.)
Dr. Wagner determined that Plaintiff suffered from a major depressive disorder of moderate intensity with moderate impairment in social and occupational functioning. (R. 104.) Dr. Wagner further found that Plaintiffs poor motivation and depressive symptoms impaired her activities of daily living. (R. 103.) Based on Plaintiffs clinical evaluation and other evidence in the case, however, the ALJ found Dr. Wagner's assessment unsubstantiated because he "did not specify the basis for or the extent of [Plaintiffs] purported impairments." (R. 19-20.)
Defendant avers that the ALJ reasonably concluded that Dr. Wagner's assessment was not supported by the record and correctly rejected his assessment based on Plaintiffs activities. (Def.'s Mem. at 7, 11; R. 19-21.) For instance, the ALJ notes that Plaintiffs daily activities entail cooking, cleaning, doing laundry, shopping, occasionally going to movies and restaurants with friends, and working as a bartender/waitress one to two days per week.*fn22 (R. 19, 21.) The ALJ also points out that Plaintiff relates well to her customers and examining physicians, and is cordial and friendly to everyone. (R. 21.) The ALJ also noted that Plaintiff was not adverse to socializing, had good social skills, and enjoyed being with people.*fn23 (R. 20-21; Ex. 5E.) Defendant thus contends that the ALJ reasonably concluded that any compromise in Plaintiffs social and occupational functioning was not justified and noted that Dr. Wagner remained vague on how Plaintiffs daily routine was affected by depression "[g]iven that [Plaintiff] does everything that is needed for a normal life and even works part-time in a job that demands that she is affable and pleasant with other humans, [therefore,] any limitation in her activities of daily living [is] invisible to the Administrative Law Judge." (Def.'s Mem. at 11; R. 20-21.)
Dr. Hermsmeyer also diagnosed Plaintiff with a major depressive disorder of moderate intensity and found that she was moderately limited in her ability to understand, remember and carry out detailed instructions, slightly limited in her activities of daily living and in maintaining social functioning, seldom had deficiencies of concentration, persistence or pace, showed no episodes of decompensation,*fn24 and could perform simple tasks. (R. 125, 127, 129.) Defendant contends, however, that the ALJ reasonably rejected Dr. Hermsmeyer's assessment because the record did not support even those minimal limitations that he found. (Def.'s Mem. at 12.) Thus, according to Defendant, the ALJ reasonably rejected Dr. Hermsmeyer's assessment because it was inconsistent with the record. (Id. at 14.) For instance, in his decision, the ALJ states:
[W]ithout explanation [Dr. Hermsmeyer] believed that
[Plaintiff] had slight restrictions of [her]
activities of daily living and in social functioning.
Deficiencies of Concentration [and] Persistence of
Pace were seldom and no episodes of decompensation
were noted by this psychologist. Although slight and
seldom functional deficiencies are of no significant
consequence to the outcome of this case, even these de
minimus findings remain unsupported. Still, Dr.
Hermsmeyer's opinion only slightly differs from that
of the Administrative Law Judge and therefore remains
a valuable ally to the results reached in this
decision. (R. 22.) (emphasis added).
The Court agrees with Plaintiff and finds that the ALJ impermissibly substituted his opinion for that of Drs. Wagner and Hermsmeyer when he rejected favorable evidence of Plaintiffs mental impairment. Both Drs. Wagner and Hermsmeyer found that Plaintiff suffered from a major depressive disorder of moderate intensity and was restricted to some degree in her daily activities and social functioning. (R. 104, 125.) The ALJ, however, concluded that, despite these assessments, the fact that Plaintiff could perform some minimal daily activities, was able to socialize on a limited basis, was cordial and friendly, and worked two days per week as a bartender and waitress meant that the physicians' assessments were unsubstantiated and inconsistent with the record. Herein, the ALJ ultimately rejects the physicians' findings and concludes that Plaintiff has no mental impairment at all. (R. 24.) See e.g., Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) ("Without relying on any medical evidence or authority, the ALJ determined that [the plaintiffs] efforts at engaging in a small machine repair/resale business were incompatible, with a diagnosis of major depression and [the physician's] conclusions regarding [the plaintiffs] functional abilities").
The case of Wilder v. Chater, 64 F.3d 335 (7th Cir. 1995) is instructive. In Wilder, the ALJ believed that the claimant's ability to work as a security guard and carry a gun were inconsistent with a diagnosis of depression. The Seventh Circuit, however, held that this was not a permissible ground upon which the ALJ could rely. Id. at 337-38. The Court explained:
Severe depression is not the blues. It is a mental
illness; and health professionals, in particular
psychiatrists, not lawyers or judges, are the experts
on it. [Wilder] is entitled to a decision based on the
record rather than a hunch. The salient fact of record
is the testimony of the psychiatrist, a disinterested
as well as expert witness, Everything else is rank
conjecture. Wilder, 64 F.3d at 337-38.
As in Wilder, the Court finds that the ALJ's basis for rejecting Drs. Wagner's and Hermsmeyer's assessments is impermissible. Accordingly, the Court finds that the ALJ played doctor by impermissibly supplanting the physicians' medical assessments with his own independent medical judgment. Therefore, a remand on this issue is warranted.*fn25
II. THE ALJ ERRED IN HIS CREDIBILITY FINDING OF PLAINTIFF.
Plaintiff asserts that the ALJ failed to. make a credibility finding based on Plaintiffs subjective complaints and symptoms in accordance with SSR 96-7p and erred in finding her not credible based on her activities. (Pl.'s Reply at 11.) Defendant, on the other hand, contends that the ALJ considered Plaintiffs subjective complaints of pain in accordance with the factors specified in SSR 96-7p and concluded that she was not fully credible because her activities were inconsistent with her purported limitations. (Def.'s Mem. at 14-15; R. 22.)
An ALJ's credibility findings will not be overturned by a court unless they are "patently wrong. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). However, a decision regarding a claimant's credibility must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (citing SSR 96-7p); Golembiewski, 2003 WL 262059, at *2-4. Thus, the ALJ is required to state which of the plaintiffs complaints he rejected and why such complaints were unsupported by the record. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Defendant first avers that the ALJ found Plaintiff not credible because she did not receive medical treatment and was not taking medication for her impairments between 1996 and 1999. (Def.'s Mem. at 15; R. 22.) The ALJ found Plaintiff not fully credible because she claimed
incapacitating orthopedic pain" yet "she seeks no relief from it in analgesic medication*fn26." (R. 22.) Herein, SSR 96-7p is applicable in Plaintiffs favor. SSR 96-7p provides in pertinent part,
[T]he adjudicator must not draw any inferences about
an individual's symptoms and their functional effects
from a failure to. seek or pursue regular medical
treatment without first considering any explanations
that the individual may provide, or other information
in the case record, that may explain infrequent or
irregular medical visits or failure to seek medical
treatment. The adjudicator may need to recontact the
individual or question the individual at the
administrative hearing in order to determine whether
there are good reasons the individual does not seek
medical treatment or does not pursue treatment in a
consistent manner. The explanations provided by the
individual may provide insight into the individual's
credibility. SSR 96-7p.
Moreover, SSR 96-7p sets forth examples for why a claimant may chose not to seek medical treatment; such as, "the individual's daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms . . . [or that] the individual may be unable to afford treatment and may not have access to free or low-cost medical services.". See id.
The Court finds that the ALJ did not question Plaintiff at the administrative hearing or at a later time regarding the fact that she had not sought medical treatment on a regular basis for her impairments. In addition, Plaintiff testified that she has a very high health insurance deductible which may have precluded her from seeking regular medical treatment. In fact, Plaintiff has a $5,000.00 deductible which exceeds or nearly exceeds her annual income*fn27. (R. 219.) Accordingly, because there is insufficient evidence in the record regarding Plaintiffs reason(s) for not seeking medical treatment (other than the fact that Plaintiff has a very high health insurance deductible), the ALJ should have sought out additional information and developed the record in this area in order to properly assess Plaintiffs credibility.
Defendant next contends that the ALJ found Plaintiff not credible based on her ability to "work part-time in the strenuous roles of a waitress and bartender." (Def.'s Mem. at 15; R. 22.) For instance, Plaintiff testified that she could not stand for more than half an hour at a time or walk for more than half a block, yet she worked four hour shifts and she never got a break. (R. 208, 210-11, 221.) Defendant thus avers that Plaintiffs testimony regarding her limitations was inconsistent with her part-time work as a bartender and waitress. (Def.'s Mem. at 15.)
With regard to Defendant's contention, the Court finds that the ALJ mischaracterized Plaintiffs part-time work as a waitress and bartender. First, Plaintiff structured her work activities to accommodate her impairments because she only works two days per week (i.e., four hours each day) and has the bus boys at Fellinis Restaurant carry the large trays of food to the tables. (R. 210, 220.) Next, the fact that Plaintiff can perform some work activities on a limited basis does not mean that she is capable of performing full-time work. Furthermore, and respectfully, Defendant misstates the record by asserting that Plaintiff worked twelve hours a day, six days a week during the period she alleges disability, despite the fact that the record indicates that she was referring to her work prior to the onset of her disability. (R. 75-76.)
The Court next notes that Plaintiffs statements regarding her limitations and what she does as a bartender and waitress are not inconsistent. For instance, Plaintiffs statements that she works four hours on her feet (two days a week) is not inconsistent with her complaints of disabling pain because she stated she is in constant pain and, discomfort. (R. 219-223.) Plaintiff testified that during her four hour shift, she was on her feet, "[t]he whole time" and "[she] never had a break. even on the full time times." (R. 220-221) After a four hour shift, Plaintiff has pain all over, numbness, and collapses because she cannot do anything more than recuperate before working her shift again. (R. 221-22.) Plaintiff stated that she is "beat up" after working, her body is very sore and she is never able to recover. (R. 222.) Furthermore, Plaintiff stated that, at times, she would "force" herself to go in and work additional day, because she needed the money, but that she could not do that for any length of time.*fn28 (R. 223.)
Defendant further asserts that the ALJ properly found that Plaintiff was not credible because her daily activities were inconsistent with her "professed symptoms." (Def.'s Mem. at 14-15; R. 22.) The ALJ noted that Plaintiffs daily activities entailed cooking, cleaning, doing laundry, shopping, driving five miles per week, and attending to personal hygiene. (Def's Mem. at 15; R. 19, 22, 211-14.) The ALJ further found that Plaintiff has. many friends, occasionally goes to movies and restaurants, has good social skills, and enjoys being with people.*fn29 (R. 20-21; Ex. 5E.)
Plaintiffs daily activities, however, are fairly restricted and not the kind of activities that necessarily undermine or contradict a claim of disabling impairments. See, e.g. Zurawski, 245 F.3d at 887; Cifford, 227 F.3d at 872 (noting "minimal daily activities . . . do not establish that a person is capable of engaging in substantial physical activity"). Thus, the ALJ's analysis of Plaintiffs daily activities does not necessarily equate with her ability to perform the full range of extertional and nonexertional work-related activities. See, e.g., Brown v. Massanari, 2001 WL 1315075, *2 (N.D. Ill. Oct. 26, 2001); O'Connor v. Sullivan, 938 F.2d 70, 74 (7th Cir. 1996).
Therefore, the ALJ erred in his credibility determination by finding that Plaintiffs complaints of disabling functional limitations were not credible. See, e.g., Zurawski, 245 F.3d at 887-88; Clifford, 227 F.3d at 870-72. Put differently, for the aforesaid reasons, the Court finds the ALJ erred in his credibility finding of Plaintiff See e.g., Clifford, 227 F.3d at 872; Zurawski, 245 F.3d at 887-88. Accordingly, a remand on this issue is warranted.
III. THE ALJ SHOULD HAVE OBTAINED TESTIMONY FROM A MEDICAL EXPERT.
The procedure for adjudicating a social security disability insurance benefits claim differs significantly from the adversarial model. Green v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000). The procedure requires the ALJ to summon a medical expert if there is not an adequate medical basis in the record for determining whether the claimant is disabled. See id. (stating that the procedure for adjudicating social security disability claims "requir[es] the administrative law judge to summon a medical expert if that is necessary to provide an informed basis for determining whether the claimant is disabled.") See also 20 C.F.R. § 404.1527 (f)(2)(iii) (an administrative law judge may also ask for and consider opinions from medical experts on the nature and severity of [a claimant's] impairments.) In Green, "[t]he administrative law judge refused to believe [the plaintiffs] `complaints of debilitating pain and limitations' because they were disproportionate to the objective medical findings in the record." See id. The ALJ, however, did not summon a medical expert. See id. Accordingly, the case was remanded by the Seventh Circuit to the Commissioner for further proceedings.
Herein, similar to Green, because the ALJ believed that Plaintiffs subjective complaints of pain and limitations were not reasonably supported by the medical evidence, he should be required to summon a medical expert or experts to provide an informed basis for determining whether Plaintiff was disabled. Accordingly, because the ALJ lacked an informed basis necessary to make his decision and ultimately, played doctor by making an independent medical judgment, a remand is warranted.See e.g., Zurawski, 245 F.3d at 889. Accordingly, on remand, the ALJ is instructed to obtain testimony from a Medical Expert.*fn30
In view of the foregoing, the Court grants Plaintiffs Motion for Summary Judgment or Remand insofar as it requests a remand and denies Defendant's Motion for Summary Judgment. Accordingly, the cause is remanded to the Commissioner for further proceedings consistent with this opinion.