United States District Court, N.D. Illinois
January 26, 2004.
JEANETTE SMITH, Plaintiff
P. Michael Mahoney JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Jeanette Smith ("Plaintiff") seeks judicial review of the final
decision of the Commissioner of the Social Security Administration
("Commissioner"). See 42 U.S.C. § 405(g), 1383(c)(3). The
Commissioner's final decision denied Plaintiff's application for
Disability Insurance Benefits ("DIB") pursuant to Title XVI of the Social
Security Act (the "Act"). 42 U.S.C. § 1381 (a). This matter is before
the Magistrate Judge pursuant to consents filed by both parties on July
15, 2003. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.
Plaintiff filed for DIB on June 21, 2000, alleging disability on
February 5, 1999. (Tr. 72). Plaintiff's application for benefits was
denied on November 4, 2000. (Tr. 36). On February 12, 2001, Plaintiff
filed a request for reconsideration. (Tr. 40). Plaintiff's request for
reconsideration was denied on May 17, 2001. (Tr. 44). Plaintiff then
filed a request for a hearing before an Administrative Law Judge ("ALJ")
on July 29, 2001. (Tr. 50). Plaintiff appeared, with counsel, before an
ALJ on July 22, 2002. (Tr. 18). In a decision dated January 27, 2003, the
ALJ found that Plaintiff was not entitled to DIB. (Tr. 17). On February
3, 2003, Plaintiff requested a review of the
ALJ's decision by the Appeals Council. (Tr. 7). On April 18, 2003,
the Appeals Council denied Plaintiff's request for review, (Tr. 4).
Plaintiff was born on May 2, 1940 and was sixty-two at the time of her
July 22, 2002 hearing. (Tr. 18). Plaintiff graduated from high school.
(Tr. 68). At the time of her hearing, Plaintiff was married and living
with her husband. (Tr. 21). Plaintiff suffers from pain associated with
her cervical disc disease, bilateral carpal tunnel syndrome, diffuse
arthritis, and benign positional vertigo. (Tr. 68). It is for these
reasons that Plaintiff claims to be disabled.
From 1980 to 1999, Plaintiff worked for Joseph Behr & Sons ("Joseph
Behr"), a recycling company. (Tr. 22). At Joseph Behr, Plaintiff worked
in the precious metals division performing general clerical work such as
inventory control, accounts receivable and payable accounting, occasional
telephone answering, and general office filing. (Tr. 23). Plaintiff
testified that during her tenure at Joseph Behr, the precious metals
division closed down and, although it appears Plaintiff did not move to
another division, Plaintiff remained an employee even though she was
unable to perform manual labor. (Id.). Plaintiff testified that
Joseph Behr kept her "for her brain." (Id.). In 1999,
Plaintiff's employment at Joseph Behr ended and she received a severance
package based on her eighteen years of service. (Id.).
After her employment at Joseph Behr, Plaintiff testified that she
attempted to find another job. (Tr. 24). Specifically, Plaintiff looked
for clerical work that was not demanding. However, Plaintiff was unable
to find a job because most of the clerical jobs she found required use of
a typewriter, computer or calculator, which Plaintiff apparently could
not operate. After looking for a job, Plaintiff filed for unemployment
and received unemployment compensation from February
1999 until August 1999. (Id.).
At the hearing, Plaintiff was wearing a soft cervical collar and a
splint on both arms. Plaintiff testified she wears the soft cervical
collar when her neck is "aching more and seems to be cracking more." (Tr.
27). Plaintiff testified she wears the arms splints "only when the base
of [her] thumbs and the wrists are aching." (Id.). Plaintiff
also stated she wears them at night. It appears that Plaintiff wears the
arm splints, at least on her right hand and arm, because in 1987
Plaintiff had bilateral carpal tunnel surgery. (Tr. 28).
In closing, Plaintiff testified that she does not believe she can
perform any sit down jobs because of her dexterity problems with her
hands and the fact that, after holding her head in one position too long,
the pain is "excruciating." (Tr. 29). Additionally, Plaintiff stated that
the feeling in her fingers are such that she cannot turn pages in a
book and filing is impossible. (Id.). Plaintiff's hand problems
also prevent her from operating a mouse for a computer. (Tr. 30).
III. MEDICAL HISTORY
The earliest medical record available to this court is dated May
4, 1998, (Tr. 177). On that date, Dr. Margaret A. Myslek, of Roxbury
Family Medicine, reported that physically, Plaintiff was in good health,
except that Plaintiff had arthritis, mostly osteo in her knees and in her
ankles. (Id.). Emotionally, Dr. Myslek reported, Plaintiff was
not doing too well. Plaintiff's mother had died in January 1998 and
Plaintiff's husband's health condition had worsened. (Id.). Dr.
Myslek prescribed 80 mg once a day of Diovan. (Id.).
Plaintiff saw Dr. Myslek again on June 8, 1998. (Tr. 178). Dr. Myslek
again reported that Plaintiff was doing well physically (except for some
jitteriness from the Diovan). Dr. Myslek also reported that Plaintiff had
improved emotionally due to her husband's improved health.
Myslek's ultimate assessment of Plaintiff was that she was a
postmenopausal female with osteoporosis risk factors. (Id.). Dr.
Myslek also started Plaintiff on 5 mgs of Ziac. (Id.).
Plaintiff worsened physically. On August 31, 1998, Plaintiff again saw
Dr. Myslek. (Tr. 179). Plaintiff complained that she was having more
tenderness in both of her hands over the joints and was experiencing
numbness in her fingers. (Id.). Dr. Myslek also reported that
Plaintiff's blood pressure was not constant and, at times, was high.
On September 17, 1998, a bilateral mammogram was performed on
Plaintiff. (Tr. 190). The mammogram revealed some developing clustered
microcalcification in the medial inferior aspect of Plaintiff's left
breast. (Id.). A microscopic diagnosis was performed on October
12, 1998. (Tr. 183). The microscopic diagnosis revealed sclerosing
adenosis associated with microcalcifications and apocrine metaplasia in
fragments of benign breast tissue. (Id.).
Plaintiff continued to see Dr. Myslek in 1999 and early 2000, but there
are no medical records of any substance until May 16, 2000. (Tr. 126). On
that date, Dr. Myslek reported Plaintiff had neck pain and significant
stiffness in both arms, neck and her lower back. (Id.).
Additionally, Dr. Myslek noted Plaintiff again was experiencing numbness
and tingling in her arms and joints. (Id.). Plaintiff indicated
that her arm grip had weakened due to the numbness and tingling.
(Id.). An objective medical assessment of Plaintiff revealed
that she had tenderness over the neck involving the C3, C4, C5 & C6.
(Id.). Plaintiff had restricted ROM to approximately 45 degrees
to each side on rotation, Dr. Myslek reported Plaintiff's arms revealed
normal sensation with an arm grip of approximately "2/5 bil."
(Id.). Some tenderness over Plaintiff's lumbar vertebrae was
noted. (Id.). A neck x-ray revealed discongenic disease and
partial anklylosing at C5 thru C7 with mild subluxation at C4 & C5.
Also on May 16, 2000, Dr. James J. Langan, of the Camelot Radiology
Associates, performed x-rays on Plaintiff's right hand, left hand, and
cervical spin, (Tr. 128-130). Dr Langan reported that the x-ray of
Plaintiff's right hand revealed that the bone density was normal, no
fracture, dislocation or significant arthritic involvement was noted, but
that a minimal osteophyte formation was seen in the distal
interphalangeal joints. (Tr. 128). An x-ray of Plaintiff's left hand
revealed exactly the same thing as the x-ray of Plaintiff's right hand,
according to Dr. Langan. (Tr. 129). The x-ray of Plaintiff's cervical
spine revealed disk space narrowing at the C5-6 and C6-7 levels where
partial ankylosis was noted. (Tr. 130). Additionally, Dr. Langan reported
that there was atherosclerosis involving the right carotid artery.
(Id.). Ultimately, based on all three x-rays, Dr. Langan
reported that with regards to Plaintiff's hand there was minimal
degenerative change and with regards to Plaintiff's spine, there was
discogenic disease and partial ankylosis at C5 through C7 with mild
subluxation of C4 upon C5. (Id.).
Dr. John D. Roll, of Camelot Radiology Associates, performed an MRI on
Plaintiff's spine on May 20, 2000. (Tr. 127). The MRI revealed that
Plaintiff had decreased disc space height with osteophyte formation and
degenerative spurring at C5-6 and C6-7. (Id.). Also, slight
anterior slippage of C4 relative to C5 was evident with minor bulging.
(Id.). Finally, Dr. Roll reported that mild spinal stenosis was
present at C5 and C6. (Id.).
On June 5, 2000, Dr. Myslek wrote a letter to Social Security on behalf
of Plaintiff. (Tr. 124). Dr. Myslek's letter stated that Plaintiff
suffers from severe degenerative disc disease in her neck. Also, Dr.
Myslek's letter indicated Plaintiff experienced stiffness in her arms as
well as pain, numbness and tingling in both arms. Because of these
things, according to Dr. Myslek, Plaintiff "is unable to continue to do
her job as an accountant, which requires a lot of computer hours."
On September 29, 2000, Dr. Kamlesh Ramchandani, of One Eleven Medical
Clinic, examined Plaintiff for thirty minutes on behalf of the Illinois
Department of Rehabilitation Services. (Tr. 137). Dr. Ramchandani
reported that Plaintiff complained of pain in her shoulder, joints, elbow
and spine. (Id.)Plaintiff also indicated to Dr. Ramchandani that
she could lift ten pounds and walk as far as she wants and stand as long
as she wants, but when her joint pain is severe she cannot do anything at
all. (Id.). A physical examination of Plaintiff revealed that
she is able to walk heel to toe unassisted, get on and off the
examination table without difficulty, dress and undress herself without
assistance, and pick up objects, open and close doors, make a fist, and
flip pages. (Id.). Plaintiff's neck was supple with no
lymphadenopathy, thyromegaly or bruit. (Id.). An examination of
Plaintiff's joints revealed that she had soft tissue swelling of the PIP
and MCP joints bilaterally with hallux valgum deformity in both big toes.
Tr. 138). Ultimately, Dr. Ramchandani's impressions of Plaintiff were
that she suffered from osteoarthritis in multiple joints including both
hands and cervical spine, benign positional vertigo, and discogenic
disease of her cervical spine. (Id.).
A physical residual functional capacity assessment was determined for
Plaintiff, based on her medical records, on October 18, 2000 by Dr.
George R. Andrews. (Tr. 142-149). Dr. Andrews reported that Plaintiff can
lift fifty pounds occasionally and twenty five pounds frequently. (Tr.
143). He further reported that Plaintiff can stand and/or walk about six
hours in an eight hour day, sit about six hours in an eight hour day, and
push and/or pull an unlimited amount of weight, (Id.). Dr.
Andrews also reported that Plaintiff had no postural limitations (such as
climbing, balancing, kneeling, etc), no manipulative limitations (such as
handling, fingering, feeling, etc), no visual
limitations, no communicative limitations, and no environmental
limitations. (Tr. 144-146). Finally, Dr. Andrews indicated that
Plaintiff's cervical arthritis was supported by Plaintiff's limited range
of movement of thirty degrees and her arthritis of the hands was
supported by x-rays showing minimal degenerative changes. (Tr. 147).
However, while Dr. Andrews indicated Plaintiff is credible in her
allegations, Dr. Andrews stated the "[o]bjective evidence supports the
allegations but not the degree of impairment alleged." (Id.).
Therefore, according to Dr. Andrews, due to Plaintiff's motor strength in
her upper extremities, she is limited to a full range of medium work
On March 4, 2001, Plaintiff filed out a Pain Questionnare. (Tr. 112).
On the Questionnaire, Plaintiff indicated that her pain began in 1987 and
is mainly located in her neck, hands, right elbow, shoulders, knees and
feet. (Id.). Plaintiff indicated these pains occur daily and
last hours. (Id.). When asked to describe how the pain has
changed her activities, Plaintiff wrote "all activities have decreased
over the last 14 years. I help make bed. Take laundry to basement
Occasionally help with dishes, dusting, grocery shop once a month, bath
or shower daily." (Tr. 113). Under additional comments Plaintiff wrote
the following: "I have worked many years with the pain because I still
could do so and my co-worker helped me on bad days. I no longer am able
to perform the functions required to do that job or my other, that I have
been trained to do." (Id.).
Also on March 4, 2001, Plaintiff filed out an Activities of Daily
Living Questionnaire. (Tr. 115-118). Many of the answers reflect
Plaintiff's answers to the Pain Questionnaire; however, in addition,
Plaintiff indicated that she cannot leave home alone because she does
not drive due to vertigo and neck pain. (Tr. 116). With regards to
daily activities, Plaintiff indicated that she often reads and sometimes
goes to church, watches television, and talks on the phone. (Tr. 117).
However, Plaintiff indicated that she rarely/never drives, watches
children, fixes things, plays cards
or games, performs hobbies, goes to sports events, talks to
neighbors, volunteers, pays bills, goes out to eat, goes to the movies,
or goes to school/classes. (Id.).
Dr. Steven Campau, of Rockford Memorial Hospital, saw Plaintiff on May
2, 2001 for forty five minutes. (Tr. 150). Dr. Campau performed a very
thorough examination of Plaintiff, most of which is not relevant.
However, with regard to Plaintiff's neck examination, Dr. Campau reported
no gross deformity was noted but some tenderness to the touch over the
cervical spine. (Tr. 152). Additionally, Dr. Campau noted that Plaintiff
was able to touch her chin to her chest, look up at the ceiling, and
rotate her neck to over both her right and left shoulder with some
subjective pain. (Id.). An examination of Plaintiff's upper and
lower extremities revealed no gross deformities, with pulses in both
upper and lower to be "2 and full." (Id.). A musculoskeletal
examination of Plaintiff's shoulder revealed minimal crepitance and an
examination of Plaintiff's wrists revealed positive Tinel's sign
difficulty. (Tr. 153), An examination of Plaintiff's back revealed some
lordosis. (Id.). In summary, Dr. Campau indicated that Plaintiff
had been diagnosed with carpal tunnel in the late 1980's and surgery was
done without success. (Id.). Additionally, Dr. Campau reported
that although Plaintiff had been diagnosed with benign positional
vertigo, at time of the evaluation, Dr. Campau had "no documenting
evidence supporting this." (Id.).
On July 13, 2001, in response to Plaintiff's attorney's inquiry, Dr.
Myslek filed out a Residual Functional Capacity Questionnaire. (Tr. 156).
On the Questionnaire, Dr. Myslek indicated that she believed Plaintiff
can sit and stand for no longer then two hours and walk for no longer
then four hours. (Tr. 157). Additionally, Dr. Myslek reported that
Plaintiff could not crawl, climb, balance, crouch or kneel, but could
bend for no more then two hours. (Id.). In terms of lifting, Dr.
Myslek indicated Plaintiff can lift up to five pounds frequently, six to
ten pounds occasionally, and
more then ten pounds never. (Tr. 158). With regards to Plaintiff's
ability to use her hands, Dr. Myslek indicated Plaintiff cannot do simple
grasping or arm control with either right or left, but could perform fine
manipulation with her right or left. (Id). Finally, Dr. Myslek
indicated that Plaintiff's "bad days" would result in her absence from
work more than three times a month and that Plaintiff's limitations are
permanent. (Tr. 160).
On September 14, 2001, Dr. K. Stevens, of Saint Anthony Medical Center,
performed a Echocardiogram on Plaintiff due to her uncontrolled
hypertension. (Tr. 170). Dr. Stevens reported that Plaintiff's left
ventricular dimensions appeared normal with diastolic dimensions at
4.5cm. Dr. Stevens also reported that there was borderline left
ventricular hypertrophy at 1.4cm. Plaintiff's aortic root, left atrium
size and right heart were all normal. (Id.). Plaintiff's
ejection fraction was about 70%. (Id.). Overall, Dr. Steven's
impressions of Plaintiff's Echocardiogram were that Plaintiff had
borderline mild left ventricular hypertrophy, mild mitral insufficiency
with normal left atrial size, and mild tricuspid insufficiency with mild
pulmonary artery hypertension. (Id.).
IV. STANDARD OF REVIEW
The court may affirm, modify, or reverse the ALJ's decision outright,
or remand the proceeding for rehearing or hearing of additional evidence.
42 U.S.C. § 405(g). Review by the court, however is not de
novo; the court "may not decide the facts anew, reweigh the evidence
or substitute its own judgment for that of the [ALJ]." Binion v.
Charter, 108 F.3d 780, 782 (7th Cir. 1997); see also Maggard v.
Apfel, 167 F.3d 376, 379 (7th Cir. 1999). The duties to weigh the
evidence, resolve material conflicts, make independent findings of fact,
and decide the case accordingly are entrusted to the commissioner;
"[w]here conflicting evidence allows reasonable minds to differ as to
whether a claimant is entitled to benefits, the responsibility for that
falls on the Commissioner." Schoenfeld v. Apfel, 237 F.3d 788,
793 (7th Cir. 2001). If the Commissioner's decision is supported by
substantial evidence, it is conclusive and this court must affirm.
42 U.S.C. § 405(g); see also Scott v. Barnhart, 297 F.3d 589,
593 (7th Cir. 2002). "Substantial evidence" is "evidence which a
reasonable mind would accept as adequate to support a conclusion."
Binion, 108 F.3d at 782.
The Seventh Circuit demands even greater deference to the ALJ's
evidentiary determinations. So long as the ALJ "minimally articulate[s]
his reasons for crediting or rejecting evidence of disability," the
determination must stand on review. Scivally v. Sullivan,
966 F.2d 1070, 1076 (7th Cir. 1992). Minimal articulation means that an ALJ
must provide an opinion that enables a reviewing court to trace the path
of his reasoning. Clifford v. Apfel, 227 F.3d 863, 874 (7th Cir.
2000), Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1996). Where
a witness credibility determination is based upon the ALJ's subjective
observation of the witness, the determination may only be disturbed if it
is "patently wrong" or if it finds no support in the record. Pope v.
Shalata, 998 F.2d 473, 487 (7th Cir. 1993), Imani v.
Heckler, 797 F.2d 508, 512 (7th Cir. 1986), cert. denied. "However,
when such determinations rest on objective factors of fundamental
implausibilities rather than subjective considerations, [reviewing]
courts have greater freedom to review the ALJ decision." Herron v.
Shalala, 19 F.3d 329, 335 (7th Cir. 1994), Yousif v.
Chater, 901 F. Supp. 1377, 1384 (N.D. Ill. 1995).
V. FRAMEWORK FOR DECISION
The ALJ concluded that Plaintiff did not meet the Act's definition of
"disabled," and accordingly denied her application for benefits.
"Disabled" is defined as the inability "to engage in any substantial
gainful activity by reason of any medically determinable physical or
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 twelve months." 42 U.S.C. § 1382c(3)(A). A physical or mental
impairment is one "that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques."
42 U.S.C. § 1382c(3)(C). See Clark v. Sullivan, 891 F.2d 175, 177 (7th
The Commissioner proceeds through as many as five steps in determining
whether a claimant is disabled. 20C.F.R. § 404.1520(a)-(f),
416.920(a)-(f) (1998).*fn1 The Commissioner sequentially determines the
following: (1) whether the claimant is currently engaged in substantial
gainful activity; (2) whether the claimant suffers from a severe
impairment; (3) whether the impairment meets or is medically equivalent
to an impairment in the Commissioner's Listing of Impairments; (4)
whether the claimant is capable of performing work which the claimant
performed in the past; and (5) whether the claimant is capable of
performing any other work in the national economy.
At Step One, the Commissioner determines whether the claimant is
currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520
(a), (b). Substantial gainful activity is work that involves
doing significant and productive physical or mental duties that are done,
or intended to be done, for pay or profit. 20 C.F.R. § 404.1510. If
the claimant is engaged in substantial gainful activity, he is found not
disabled, regardless of medical condition, age, education, or work
experience, and the inquiry ends; if not, the inquiry proceeds to Step
Step Two requires a determination whether the claimant is suffering
from a severe
impairment.*fn2 A severe impairment is one which significantly
limits the claimant's physical or mental ability to do basic work
activities. 20 C.F.R. § 404.1520(c). The claimant's age, education,
and work experience are not considered in making a Step Two severity
determination. 20 C.F.R. § 404, 1520(c). If the claimant suffers from
severe impairment, then the inquiry moves on to Step Three; if not, then
the claimant is found to be not disabled, and the inquiry ends.
At Step Three, the claimant's impairment is compared to those listed in
20 C.F.R. Ch. III, Part 404, Subpart P, Appendix 1. The listings
describe, for each of the major body systems, impairments which are
considered severe enough per se to prevent a person from doing
any significant gainful activity. 20 C.F.R. § 404.1525(a). The
listings streamline the decision process by identifying certain disabled
claimants without need to continue the inquiry. Bowen v. New
York, 476 U.S. 467, 470-71 (1986). Accordingly, if the claimant's
impairment meets or is medically equivalent to one in the listings, then
the claimant is found to be disabled, and the inquiry ends; if not, the
inquiry moves on to Step Four.
At Step Four, the Commissioner determines whether the claimant's
residual functional capacity allows the claimant to return to past
relevant work. Residual functional capacity is a measure of the abilities
which the claimant retains despite his impairment.
20 C.F.R. § 404.1545(a). Although medical opinions bear strongly upon the
determination of residual functional capacity, they are not conclusive;
the determination is left to the Commissioner, who must resolve any
discrepancies in the evidence and base a decision upon the record as a
20 C.F.R. § 404.1527(e)(2); Diaz v. Chater, 55 F.3d 300, 306 n.2 (7th
Cir. 1995). Past relevant work is work previously performed by the
claimant that constituted substantial gainful activity and satisfied
certain durational and recency requirements. 20 C.F.R. § 404.1565;
Social Security Ruling 82-62. If the claimant's residual functional
capacity allows him to return to past relevant work, then he is found not
disabled; if he is not so able, the inquiry proceeds to Step Five.
At Step Five, the Commissioner must establish that the claimant's
residual functional capacity allows the claimant to engage in work found
in significant numbers in the national economy. 20C.F.R.
§ 404.1520(f), 404.1566. The Commissioner may carry this burden by
relying upon vocational expert testimony, or by showing that a claimant's
residual functional capacity, age, education, and work experience
coincide exactly with a rule in the Medical-Vocational Guidelines (the
"grids"). See 20 C.F.R. Ch. III, Part 404 Subpart P, Appendix 2;
Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987); Binion
v. Shalala, 13 F.3d 243, 246 (7th Cir. 1994); Social Security Law
and Practice, Volume 3, § 43:1. If the ALJ correctly relies on the
grids, vocational expert evidence is unnecessary. Luna v.
Shalala, 22 F.3d 687, 691-92 (7th Cir. 1994). If the Commissioner
establishes that sufficient work exists in the national economy that the
claimant is qualified and able to perform, then the claimant will be
found not disabled; if not, the claimant will be found to be disabled.
The court will proceed through the five step analysis in order.
A. Step One: Is the claimant currently engaged in substantial gainful
In performing the Step One Analysis the ALJ found that Plaintiff had
not engaged in any substantial gainful activity at any time relevant to
his decision issued on January 27, 2003. (Tr. 14).
Specifically, the ALJ found "no evidence of work after the alleged
onset date in this case." (Id.).
Under ordinary circumstances, a claimant is engaged in substantial
gainful activity if the claimant's earnings averaged more than seven
hundred and eighty dollars per month for years after January 1, 2001.
(20 C.F.R. § 1574 (b)(2) Table 1, as modified by 65 FR 82905, December
The finding of the ALJ as to Step One of the Analysis is not challenged
by either party and the court finds no reason to disturb this finding.
The ALJ's determination as to Step One of the Analysis is affirmed,
B. Step Two: Does the claimant suffer from a severe impairment?
In performing the Step Two Analysis the ALJ found Plaintiff suffered
from severe impairments. Specifically, the ALJ found Plaintiff suffered
from arthritis in her neck, hands, right elbow, shoulders and knees; as
well as vertigo, and migraine headaches. (Tr. 14). Based on these, the
ALJ found that Plaintiff's conditions produce limitations which meet the
definition of severe. (Id.).
Substantial evidence exists to support the ALJ's determination that
Plaintiff suffers from severe impairments. This finding is not challenged
by either party and the court finds no reason to disturb it. The ALJ's
finding as to Step Two of the Analysis is affirmed.
C. Step Three: Does claimant's impairment meet or medically equal an
impairment in the Commissioner's listing of impairments?
In performing the analysis for Step Three the ALJ determined that
Plaintiff's impairments do not meet or equal any impairment in Appendix 1
to Subpart P of Regulations number 4. (Id.). Specifically, the
ALJ found that Plaintiff's osteoarthritis does not satisfy the guidelines
has not resulted in a significant degree of functional limitation
in either ambulation or fine or gross manipulative ability as demanded in
Section l.00B of Appendix 1. (Id.).
Substantial evidence exists to support the ALJ's finding and the court
finds no reason to disturb it. Therefore, the ALJ's determination as to
Step Three of the Analysis is affirmed.
D. Step Four: Is the claimant capable of performing work which the
claimant performed in the past?
In performing the analysis for Step Four, the ALJ determined that
Plaintiff is able to perform past relevant work. In so finding, the ALJ
first determined Plaintiff's residual functional capacity ("RFC"). After
considering the entire record, the ALJ found Plaintiff's medically
determinable impairments (including her exertional and nonexertional
requirements) preclude the following work-related activities: "lifting
more than 10 pounds at a time or more than occasional lifting or carrying
small articles like docket files, ledgers or small tools;
standing/walking for more than approximately two hours in an eight hour
workday." (Tr. 14). In support of his finding, the ALJ first turned to
the medical evidence. Looking first to Plaintiff's neck, the ALJ
indicated that while x-rays revealed discogenic disease and partial
ankylosis at C5-7 and mild spinal stenosis at C5-6 and mild subluxation
of C4 upon C5, no herniations were detected. (Id.). Turning next
to Plaintiff's hands, the ALJ found that while Plaintiff's arm grip was
diminished bilaterally, there was no small hand muscle weakness and
Plaintiff had symmetrical abduction and adduction of the fingers
bilaterally as well. (Id.). Moreover, x-rays of both hands
indicated only minimal degenerative changes. (Id). Additionally,
while Plaintiff's grip strength was slightly decreased and there was some
swelling in the PIP and MCP joints, the ALJ found Plaintiff was still
able to pick up objects, oppose thumbs to fingers, make fists, open and
close doors and flip pages. (Id.). Finally, while the ALJ noted
was positive for Phalen's and Tinel's signs in both wrists as well
as some trembling in her hands when opposing her fingers, the ALJ found
no deficits in her fine manipulative abilities. (Id.).
Leaving the medical evidence, the ALJ next turned to Plaintiff's
subjective evidence. (Id.). The ALJ focused first on the fact
that while Plaintiff alleges an onset date of February 1999, progress
notes in Plaintiff's files indicate that in April and November 1999
Plaintiff was feeling well, healthy and without complaint.
(Id.). Additionally, the ALJ noted that Plaintiff takes only
Ibuprofen for the pain and, although she wore a cervical collar and wrist
sprint to the hearing, Plaintiff testified she wears the collar primarily
during flare-ups of neck pain, often when the weather is bad. (Tr. 16).
However, noticeably absent (and problematic) from this whole process is
a vocational expert. While the ALJ never made it to Step Five because he
found that Plaintiff can return to her previous work, this court will use
the analysis at Step Five with regards to the use of a vocational expert.
The ALJ in this case did not apply the Medical-Vocational Guidelines (the
"Grid") because, as stated above, the ALJ never made it to Step Five,
However, the analysis in determining whether the ALJ should have
consulted an ALJ at Step Five is very similar, if not exact, to the
analysis of whether the ALJ should have consulted a vocational expert at
The Grid is a chart that classifies a claimant as "disabled" or "not
disabled" based on the individual's exertional capacity, age, education,
and previous work experience. Kornfeld v. Apfel, No. 00 C. 5642,
2003 WL 103009, at *5 (N.D. Ill. Jan. 9, 2003); 20 C.F.R. § 404,
Subpart P, Appendix 2. When appropriate, the ALJ may use the Grid alone
in determining disability, and in such cases, the Grid alone constitutes
substantial evidence sufficient to uphold the ALJ's decision. See
Clark v. Sullivan, 891 F.2d 175, 179 (7th Cir. 1989). However, where
the claimant suffers from severe non-exertional impairments, including
pain, the use of the Grid may be inappropriate. See
Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
where an individual has an impairment or
combination of impairments resulting in both
strength limitations and nonexertional
limitations, the rules in this subpart are
considered in determining first whether a finding
of disabled may be possible based on the strength
limitations alone and, if not, the rule(s)
reflecting the individual's maximum residual
strength capabilities, age, education, and work
experience provide a framework for consideration
of how much the individual's work capability is
further diminished in terms of any types of jobs
that would be contraindicated by the nonexertional
limitations. Also, in these combinations of
nonexertional and exertional limitations which
cannot be wholly determined under the rules in
this appendix 2, full consideration must be given
to all of the relevant facts in the case in
accordance with the definitions and discussions of
each factor in the appropriate section of the
regulations, which will provide insight into the
adjudicative weight to be accorded each factor.
20 C.F.R. § 404, Subpart P, Appendix. (Emphasis added). In such
cases, the ALJ must determine whether the claimant's non-exertional
impairments are severe enough to substantially limit the claimant's
abilities. Walker v. Brown, 834 F.2d 635
, 641 (7th Cir. 1987).
In the instant case, the ALJ established a RFC for Plaintiff that
precluded lifting more than 10 pounds at a time or more than occasional
lifting or carrying small articles like docket files, and
standing/walking for more than approximately two hours in an eight hour
workday. (Tr. 14). Surprisingly, the ALJ did not mention any limitations
on the length of time Plaintiff could work without stopping or the fact
that Plaintiff may need to stop due to pain. Plaintiff alleged an
inability to work due to arthritis in her neck, hands, right elbow,
shoulders and knees. Putting her right elbow, shoulder and knees aside,
the record indicates Plaintiff suffers pain in her neck and in her hands.
The Plaintiff wore a soft cervical collar at her hearing. Plaintiff
testified that she wears the collar because
the pain in her neck is so bad at times that she cannot keep her
head in one position too long. (Tr. 29). The medical evidence revealed
that Plaintiff has decreased disc space height with osteophyte formation
and degenerative spurring at C5-6 and C6-7. (Tr. 127).
Additionally, it is undisputed that Plaintiff had unsuccessful carpal
tunnel surgery. (See Tr. 153). In fact, Plaintiff testified that
she has a hard time turning book pages, filing, or using a mouse because
of the pain in her right hand. The medical evidence revealed Plaintiff
experienced numbness and tingling in her arms and joints and that her arm
grip was weak due to the numbness and tingling. Further, Plaintiff was
positive for Phalen's*fn3 and Tinel's*fn4 signs in both wrists as well
as some trembling in her hands when opposing her finger. It is hard to
imagine that Plaintiff can return to work as a secretary/bookkeeper with
little or no problem. At the very least it would appear Plaintiff would
need some limitations in the length of time she can work without stopping
and the type of work she can do. However, because the ALJ did not consult
a vocational expert, this court does not have a full understanding of
whether Plaintiff can in fact return to work as a secretary/bookkeeper.
Therefore, on remand, this court recommends that the ALJ consult a
vocational expert to determine, given Plaintiff's limitations including
the pain in her hands and neck, whether Plaintiff
can return to her previous employment. This court does not suggest
Plaintiff cannot return to work, but only that a more thorough analysis
For the above stated reasons, Plaintiff's Motion for Summary Judgment
is granted in part and denied in part. The case is remanded. This court
recommends the ALJ consult a vocational expert to determine if Plaintiff
can return to her previous employment and, if not, the ALJ should proceed
to Step Five. Defendant's Motion for Summary Judgment is denied.