United States District Court, N.D. Illinois
February 27, 2004.
EDWARD RIVAS, Plaintiff
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
Edward Rivas ("Plaintiff') seeks judicial review of the final decision
of the Commissioner of the Social Security Administration
("Commissioner"). See 42U.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 June 13, 2003. See
28 U.S.C. § 636(c); Fed.R.Civ.P. 73.
Plaintiff filed for DIB on August 22, 2001, alleging disability on
April 26, 2001. (Tr. 117). Plaintiff's application for benefits was
denied on January 3, 2002. (Tr. 82). On February 19, 2002, Plaintiff
filed a request for reconsideration. (Tr. 86). Plaintiff's request
for reconsideration was denied on April 29, 2002. (Tr. 88). Plaintiff
then filed a request for a hearing before an Administrative Law Judge
("ALJ") on May 15, 2002. (Tr. 92). Plaintiff appeared, with counsel,
before an ALJ on October 29, 2002. (Tr. 25). In a decision dated
December 26, 2002, the ALJ found that Plaintiff was not entitled to
DIB. (Tr. 24). On January 8, 2003, Plaintiff requested a
review of the ALJ's decision by the Appeals Council. (Tr. 7). On
March 10, 2003, the Appeals Council denied Plaintiff's request for
review. (Tr. 5).
Plaintiff was born on December 10, 1967 and was thirty-four years old
at the time of his October 29, 2002 hearing. (Tr. 31). Plaintiff
graduated from high school. (Id.). At the time of his hearing, Plaintiff
had been living with his mother for two years since separating from his
wife. (Id). Plaintiff suffers from affective/mood disorders and a
disorder of his back. It is for these reasons that Plaintiff claims to be
As an initial matter, Plaintiff testified that he had back surgery in
1998. The date of the surgery was not disclosed. From 1998 to 2000,
Plaintiff worked for Hilton performing general cleaning duties. (Tr.
37). Specifically, Plaintiff testified he cleaned windows, restrooms and
wiped down the machines. (Id.). The job required no lifting but did
require Plaintiff to be on his feet for eight hours. (Tr. 38). Plaintiff
testified that he took a three month leave of absence from his job at
Hilton after his back surgery, but returned after the three months.
After Hilton, Plaintiff worked for Capsa Corporation, which later
became First Staffing. Although unclear, Capsa, and then First Staffing,
appear to be temporary employment agencies. While at First Staffing,
Plaintiff worked on an assembly line and as a welder. The assembly line
job required no lifting but required Plaintiff to stand for ten hours
with a few sit down breaks and lunch. (Tr. 55). Plaintiff testified that
he was having problems with his job and informed his supervisor because
he was having pain in his back associated with standing for such a long
duration. (Tr. 36).
As a welder, which Plaintiff apparently did at some point, Plaintiff
testified that he had to lift approximately fifteen to twenty pounds (the
weight of the grinder). (Tr. 34). Plaintiff apparently
attempted to find work as a grinder in May/June 2001 but was unable
to attain such employment because he did not have the strength to lift
the fifteen to twenty pound grinder. (Id.).
In terms of Plaintiff's day-to-day activities, Plaintiff testified that
since he stopped working in April, he does little around the house except
watch television. (Tr. 38). Plaintiff stated he spends an average of four
to five hours watching television and can sit and watch television for
about a half an hour without having to stand,*fn1 (Id.). On occasion,
however, Plaintiff testified that he helps with the dishes*fn2 and
sweeps. Except on holidays, Plaintiff also stated that he does not leave
the house to visit friends or relatives and usually only drives his car
when he has to go to the doctor. (Id.). Generally, Plaintiff gets only
one or two hours of sleep a night because of the pain. (Tr. 54).
Since his back surgery in 1998, Plaintiff testified he feels "[p]ain, a
lot of pain" in his back. (Tr. 40). Generally, the pain is located in his
lower back down through his right leg. (Id.). Occasionally, Plaintiff
stated, the pain goes down to his right toe, but always goes to his right
leg. (Id.). Plaintiff described the pain as a "stabbing pain" that has
worsened since April 2001 when he was "walking around the house and . . .
happened to start coughing and sneezed." (Tr. 33). Since that day in
April 2001, Plaintiff stated he feels the pain everyday. (Tr. 40). As a
result of the pain, Plaintiff stated he can only sit or stand for about
fifteen minutes and he can only walk half a block before his leg starts
to weaken from the pain and he falls. (Tr. 42). When asked to clarify,
Plaintiff stated that on seven or eight occasions while walking he felt
as though he could not control his right leg and he loses control of it
and falls. (Id.). Plaintiff stated his doctors told him he falls because
he has nerve damage in his leg. (Tr. 43). On his own and without
being prescribed one, Plaintiff started using a cane. (Tr. 57).
In addition to his leg and back pain, Plaintiff testified that he
suffers from depression. (Tr. 45). Plaintiff testified that for about six
or eight months prior to the hearing he was feeling depressed, usually
about his leg, back and the pain that goes with both. (Id.). Like the
pain in his back and leg, Plaintiff stated he feels depressed everyday for
a few hours at a time. (Id.). During those few hours, Plaintiff locks
himself in a room and cries. (Tr. 48). Additionally, Plaintiff testified
that he blacked out twice over the course of six months prior to the
hearing as a result of his depression. (Id.). Plaintiff was unable to
identify anything specific that caused the blackouts. (Tr. 47). In
addition to the occasional blackouts, Plaintiff testified he vomits and
has diarrhea everyday. (Tr. 50).
Vocational Expert, Susan Entenberg, appeard before the ALJ during
Plaintiff's October 2002 hearing. (Tr. 65). Ms. Entenberg first testified
that Plaintiff's job at Hilton would be light unskilled and Plaintiff's
welding job would be light semi-skilled but also performed at a heavy
level. (Tr. 66). The ALJ then asked Ms. Entenberg to assume the
With the ability to read, write and numbers and the
same prior work history as the [Plaintiff] in this
case with the capacity to perform work with the
following and no other additional limitations. Lifting
and carrying be limited to up to 20 pounds maximum on
occasional basis and 10 pounds frequently with the
ability to sit, stand and walk respectively with
normal breaks up to six hours each within an eight
hour day. The individual could not climb ladders,
ropes or scaffolds, but may otherwise climb ramps or
stairs, balance, stoop, kneel, crouch or crawl with no
more than an occasional basis. The individual must
avoid exposure to hazards, such as exposed,
unprotected heights or excavations or dangerous
machinery and would not have the capacity to recall or
focus upon or carry out complex or detailed
instructions or to focus upon or perform complex or
detailed work activities at a
sustained pace. But retain the capacity to focus on
and carry out simple instructions and to perform
simple, routine tasks at a sustained workmanlike
pace. Additionally the individual should not perform
work which would require more than incidental contact
with members of the general public.
(Tr. 68). Based on the above, Ms. Entenberg stated that such an
individual could only perform the housekeeping work. (Id.). The ALJ next
asked Ms. Entenberg to further assume that the individual was "limited in
terms of lifting and carrying up to a 10 pound maximum on occasional
basis and five pounds frequently the individual could stand and walk for
no more than a combined total of two hours in an eight hour day and for
no longer than about 15 minutes continuously." (Tr. 69). Based on the
further limitation, Ms. Entenberg stated that all prior work would be
eliminated. (Id.). However, Ms. Entenberg testified that such an
individual would nonetheless be able to perform some assembly jobs, some
packer jobs and some inspection jobs in the region.*fn3 (Id.).
Specifically, Ms. Entenberg testified that there ARB about 7,000 assembly
jobs in the region, about 4,000 packer jobs in the region, and about
3,000 inspection jobs in the region that such an individual could
perform. (Tr. 70).
In regards to the three above mentioned jobs, the ALJ then asked
whether the use of a cane for ambulation, and not for standing, would
eliminate any of the above mentioned jobs. (Id.) Ms. Entenberg stated
that no jobs would be eliminated. (Id.) Finally, with regards to the
three above mentioned jobs, the ALJ asked Ms. Entenberg what is the
minimum duration that an individual must be able to sit. Ms. Entenberg
stated that an individual must be able to sit continuously for thirty to
45 minutes. (Id.) Even if the individual had to take breaks for a minute
or two after 30 to 45
minutes, Ms. Entenberg testified that such action would not eliminate any
jobs. (Tr. 71).
III. MEDICAL HISTORY
The earliest medical report before this court is dated July 19, 1999.
On that date, Plaintiff saw Dr. Noam Stadlan of the Chicago Institute of
Neurosurgery and Neurosresearch. (Tr. 242). By way of background, Dr.
Stadlan reported that Plaintiff had a lumbar discectomy in October 1998
because he was having back pain, right leg pain, and numbness. (Id.) Dr.
Stadlan also reported that subsequent to his October 1998 surgery,
Plaintiff's leg pain had resolved but Plaintiff was still having residual
numbness and significant back pain. (Id.) A physical examination of
Plaintiff revealed a healthy appearing gentlemen with some localized pain
on flexion and extension. (Tr. 241). A neurological examination showed
some slightly decreased strength in Plaintiff's right L5 distribution.
(Id.) Dr. Stadlan recommended Plaintiff have an MRI scan and
flexion/extension films of his back to assess whether he has a gross
instability or whether the pain is more muscular. (Id.).
A few daw later, Plaintiff saw Dr. Michael Mikhael of the Department of
Diagnostic Radiology and Nuclear Medicine. (Tr. 232). Dr. Mikhael
performed an MRI of Plaintiff's lumbar spine, the results of which
indicated that Plaintiff's previous right hemilaminectomy at L4-L5 showed
enhancement. (Id.). There was no evidence of a herniated or extruded disc
or any bony stenosis. (Id.). However, Dr. Mikhael did report that some
minimal bulging of Plaintiff's disc was seen at the L5-S1 level. (Id.).
Ultimately, Dr. Mikhael found enhancing epidural fibrotic changes in
Plaintiff's right hemilaminectomy at L4-L5 with no evidence of a
recurrent herniated disc or significant foraminal narrowing. (Id.).
Six days later, Plaintiff saw Dr. Stadlan again. (Tr. 240). Dr. Stadlan
reviewed Plaintiff's MRI from July 23, 1999, and indicated that there
appeard to be degenerative disc disease at L4-5.
(Id.) Additionally, Dr. Stadlan noted some very small minimal disc bulges
but no impingement on any nerve root. (Id.) Dr. Stadlan also filled out a
functional/activity work status form for Plaintiff. On the form, Dr.
Stadlan indicated Plaintiff was cleard to carry up to 30-40 pounds
occasionally. (Tr. 243). Ultimately, Dr. Stadlan recommended Plaintiff
start physical therapy and prescribed Soma and Voltraren. (Id.).
Plaintiff saw physical therapist Jonathan Bender four days after seeing
Dr. Stadlan. Mr. Bender evaluated Plaintiff and noted that Plaintiff's
significant problems include: limited sitting tolerance due to lower back
pain; slow and guarded functional movements; and coughing and sneezing which
cause lower back pain. (Tr. 239). Mr. Bender's clinical assessment
indicated Plaintiff had limited lumbosacral range of movement and a
significantly weaker right lower extremity. (Id.) Mr. Bender proposed a
treatment plan for Plaintiff that would hopefully decrease Plaintiff's
pain by eighty percent.
After Mr. Bender's report, Plaintiff's medical records fast forward to
March 27, 2001. (Tr. 186). On March 27, 2001, a mental health assessment
was performed on Plaintiff by Ms. Kristsi Kitchen, B.A/MHP of the Janet
Wattles Center in Rockford, Illinois. (Id.) Ms. Kitchen indicated that
Plaintiff came to Janet Wattles complaining of crying spells, an
inability to think clearly, racing thoughts, decreased appetite, and
feeling as though he was losing control. (Id.). A mental status exam
revealed Plaintiff's thoughts were intact and sequential and he was able
to answer questions and correctly answer simple mathematical problems.
(Tr. 187). Under her clinical summary, Ms. Kitchen reported Plaintiff had
a GAF of 45. (Tr. 191).
Also on March 27, 2001, Plaintiff saw Dr. Uma Srivastava, a staff
psychiatrist at Janet Wattles. (Tr. 184). Dr. Srivastava reported that
Plaintiff looked "[r]ather shabbily dressed" and
quite depressed and sad. (Id.). However, Plaintiff was oriented to time,
place and person with a clear sensorium. (Id.). Ultimately, Dr. Srivastava
diagnosed Plaintiff as suffering from a major depression recurrent
without psychotic features, a dependent personality, and a GAF of 60.
On April 6, 2001, Plaintiff saw Dr. Carol Dubois, a staff psychiatrist
at Janet Wattles. (Tr. 183). Dr. Dubois reported that Plaintiff had been
on Prozac for a week prior to April 6, 2001 and the Prozac was working
well. (Id.). Specificaly, Dr. Dubois reported Plaintiff felt forty
percent better and smiled. (Id.). Dr. Dubois continued Plaintiff on the
Another MRI of Plaintiff's back was done on September 13, 2001. (Tr.
218). Dr. Chad Justesen, of Rockford Memorial, requested an MRI of
Plaintiff's back again because Plaintiff continued to complain of pain in
his back. (Id.). The MRI revealed an apparent right hemilaminectomy at
L4-5. (Id.). The disc was abnormal with loss of height and disc
dessication. (Id.). Additionally, a rounded or ovoid structure lying
behind the right side of Plaintiff's L5 vertebral body was noted. (Id.).
Plaintiff saw Dr. Justesen on September 25, 2001 to discuss the MRI.
(Tr. 220). Dr. Justesen recommend Plaintiff return to physical therapy
for six weeks and possibly receive epidural steroid injections to
alleviate the pain. (Id). On October 12, 2001, Plaintiff received an
epidural steroid injection. (Tr. 225).
On October 20, 2001, Dr. Kamlesh Ramchandani, on behalf of the Illinois
Department of Rehabilitation Services Bureau of Disability
Determination, saw Plaintiff for twenty minutes. (Tr. 202). Dr.
Ramchandani indicated Plaintiff was having sharp back pain with numbness
in his right leg. (Id.). Plaintiff did not however have a cane or any
assistive device. (Id.). Dr. Ramchandani's physical exam revealed
Plaintiff was alert, oriented times three and in no acute distress. (Id.)
Plaintiff's gait was normal unassisted and he was able to walk on his
heels and toes. (Tr. 203). Dr.
Ramchandani's impressions of Plaintiff were that he suffered from
chronic backache secondary to discogenic disease of his lumbar spine and
a history of depression, although not suicidal. (Tr. 203).
Plaintiff saw Dr. Frederick Gahl of Rockford Memorial for a second
epidural. (Tr. 227). Dr. Gahl reported that Plaintiff's first epidural did
not eliminate his back pain. (Id.) In fact, Dr. Gahl reported that
Plaintiff continued to have constant pain in his right lateral hip and
thigh, to his right lateral calf and ankle. (Id.) Additionally, Dr. Gahl
indicated that he was concerned that the fragment in Plaintiff's back was
causing problems that probably would not be remedied with epidurals.
On October 30, 2001, Dr. John Peggau of Psychology Consultants, PC,
performed a psychological evaluation of Plaintiff. (Tr. 210). Dr. Peggau
reported Plaintiff was going through a divorce and was prescribed
anti-depressant medication although he was not taking them as of October
30, 2001. (Id.) Plaintiff's physical appearance was neat, clean and very
meticulously groomed. (Id.) Plaintiff spoke clearly. His motor activity,
gait and posture were normal. (Id.) His mood was appropriate and not
depressive. (Id.) Of interest, Dr. Peggau reported Plaintiff takes three
showers per day because Plaintiff said he feels dirty. The rest of the
day Plaintiff told Dr. Peggau he watches television and listens to the
radio. (Id.).In summary, Dr. Peggau reported Plaintiff showed no signs of
depression and looked very well nourished, rested and had good skin
tone. (Tr. 212).
Plaintiff saw Dr. Gahl again on November 14, 2001. (Tr. 229). Things
seemed to improve with Plaintiff on this date. Dr. Gahl reported
Plaintiff was occasionally pain free and only in pain two to three hours
a day, mostly at night. (Id.) Plaintiff was using a cane at this
time due to the fact that he had fallen on two separate occasions. Dr.
Gahl reported that while Plaintiff still had lateral
hip pain, Plaintiff's pain was no longer constant and Plaintiff was
sleeping well. (Id.) Even with Plaintiff improvements, Dr. Gahl
nonetheless gave Plaintiff a third epidural in the hope that it would
alleviate his pain further. (Id.).
A Psychiatric Review Technique Form was filled out by Dr. E. Kuesten on
November 14, 2001 based on Plaintiff's medical record. (Tr. 258). Dr.
Kuesten indicated that Plaintiff suffered from affective disorders that
were not severe. (Id.) Specifically, with regards to Plaintiff's
functional limitation, Dr. Kuesten reported that Plaintiff was mildly
limited with regards to his restrictions of activities of daily living
and difficulties in maintaining concentration, persistence or pace. (Tr.
268). Dr. Kuesten found no limitation with regards to Plaintiff's
difficulties in maintaining social functioning or episodes of
decompensation. (Id.) Dr. D.G. Hudspeth adopted Dr. Kuesten's finding on
April 17, 2002. (Tr. 258).
On December 20, 2001, an unnamed doctor filed out a Residual Functional
Capacity Assessment Form. (Tr. 272). The unnamed doctor opined that
Plaintiff can lift twenty pounds occasionally, ten pounds frequently,
stand and/or sit for at least two hours in an eight hour workday, sit
with normal breaks for a total of six hours in an eight hour workday, and
push and/or pull an unlimited amount. (Tr. 273). The unnamed doctor also
indicated that Plaintiff had no postural limitations, no manipulative
limitations, no visual limitations, no communicative limitations, and no
environmental limitations. (Tr. 275-277). Dr. William Conroy affirmed
these findings on April 22, 2002. (Tr. 272).
On April 18, 2002, Ms. Ronee Kennedy, DCA II, filed out a Report of
Contact. (Tr. 178). Ms. Kennedy reported that Plaintiff's RFC indicated
Plaintiff is limited to only light work and must avoid work at
unprotected heights and the operation of hazardous machinery and
According to Ms. Kennedy, a person with such limitations could perform
work as a furniture rental consultant, scaling machine operator, and
cotton classifier. (Id.).
On April 22, 2002, Ms. Kennedy filed out a Residual Functional Capacity
Assessment Form. (Tr. 288). Ms. Kennedy reported that Plaintiff's
exertional limitations precluded lifting twenty pounds occasionally, ten
pounds frequently, standing and/or walking about six hours in an eight
hour day, siting about six hours in an eight hour workday and pushing
and/or pulling an unlimited amount. (Tr. 289). With regards to
Plaintiff's postural limitations, Ms. Kennedy reported Plaintiff is
limited occasionally in his ability to climb, balance, stoop, kneel,
crouch, and/or crawl and never limited in his ability to balance. (Tr.
290). No other limitations were noted.
Dr. Frank Bonelli of Swedish American Hospital in Rockford, Illinois
saw Plaintiff on July 19, 2002. (Tr. 314). Dr. Bonelli reported that a
view of Plaintiff's lumbar indicated a moderate narrowing of Plaintiff s
L4-5 interspace with relative preservation of the remaining
intervertebral disk space heights. (Id.) Dr. Bonelli also indicated that
the remainder of the exam revealed no abnormalities, (Id.).
Beth Reinhardt, BA/MHP of Janet Wattles saw Plaintiff on October 18,
2002. (Tr. 302). Ms. Reinhardt reported Plaintiff's assessment of
Plaintiff was that he walked with a limp and used a cane and was
unshaven. (Tr. 303). Plaintiff was oriented and able to answer questions
when asked and reported a decreased appetite. (Id.) Ms, Reinhardt
ultimately concluded Plaintiff's problems were that he suffered from a
major depressive disorder, back problems and had a GAF of 45. (Tr. 304).
Ms. Reinhardt recommended Plaintiff get a psychiatric medication
assessment, individual counseling and take medication. (Tr. 306).
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 judgment for that of the [ALJ]." Simon 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 ARB 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 decision rests with 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. 2QQty; Rohan v.
Chater, 98 F.3d 966, 911 (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). "However, when such determinations
rest on objective factors of fundamental implausibilities rather than
subjective considerations, [reviewing] courts have greater freedom to
review the ALJ's decision." Herron v. Shalala, 19 F.3d 329, 335 (7th
V. FRAMEWORK FOR DECISION
The ALJ concluded that Plaintiff did not meet the Act's definition of
"disabled," and accordingly denied his application for benefits.
"Disabled" is defined as the 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 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 ARB 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 Cir. 1988).
The Commissioner proceeds through as many as five steps in determining
whether a claimant is disabled. 20 C.F.R. § 404.1520(a)-(f),
416.920(a)-(f) (1998).*fn4 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 ARB 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.*fn5 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 ARB 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 ARB
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 ARB 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 whole.
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. 20 C.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. m, Part 404 Subpart P, Appendix 2; Walker v. Bowen, 834 F.2d 635,
640 (7th Cir. 1987); 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 December 26, 2002. (Tr. 15). Specifically, the ALJ
stated "[t]here is 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 l, 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 degenerative disease of the lumbar spine and depression. (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 l
to Subpart P of Regulations number 4. (Tr. 26). The ALJ found, after
thoroughly proceeding through the listings, that Plaintiff's conditions
did not meet or equal listing section 1.00 or 12.04. (Id.) With regards
to listing 12.04, the ALJ meticulously proceeded through the requirements
to satisfy listing 12.04 and ultimately determined that some of
Plaintiff's limitations were mild while the others were nonexistent. As a
result, the ALJ determined Plaintiff did not satisfy listing 12.04 and
this court agrees.
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?
Before proceeding to Step Four, the ALJ first needed to determine
Plaintiff's residual functional capacity ("RFC"). In determining a mental
RFC, the first step in the procedure is to assess the nature and extent
of the claimant's mental limitations and restrictions (20 C.F.R. § 416.945
(c)). This information is then used to determine the mental RFC. In order
to properly assess an individual's level of functioning due to a mental
disorder, evaluation of the impairment must take into account the
severity of the impairment over a period of time.(20 C.F.R. Ch. III, Part
404, Subpart P, Appendix l 12.00(d)). This information is then used to
complete claimant's vocational assessment. After carefully considering
the Plaintiff's entire medical record, including Plaintiff's allegations
of disabling symptoms, the ALJ found Plaintiff's medically determinable
precluded the following:
lifting/carrying up to 10 pounds more than
occasionally, 5 pounds more than frequently; standing
and/or walking for more than a combined total of 2
hours in an 8 hour day and for longer than 15
minutes, continuously; sitting with normal breaks for
more than 6 hours in an 8 hour day, but must be
allowed to alternate between sitting and standing
positions at intervals of 30 minutes for a period of l
to 2 minutes on each such occasion; may not climb
ladders, ropes or scaffolds, buy may otherwise climb
ramps/stairs, balance, stoop, kneel, crouch, and crawl
no more than occasionally; must avoid exposure to
hazards such as exposed/unprotected heights or
excavations and to exposed unprotected dangerous
moving machinery; and, does not possess the capacity to
recall, focus upon or carry out complex or detailed
instructions, or to focus upon and perform
complex/detailed tasks at a sustained workmanlike
pace; but retains the capacity to focus upon and carry
out simple instructions, and to perform simple routine
tasks at a sustained workmanlike pace; and, may not
perform work requiring more than incidental contact
with members of the general public.
(Id.).Based on the above limitations, the ALJ found that Plaintiff cannot
perform any past relevant work, as testified to by the vocational expert,
because even Plaintiff's least demanding job required him to perform work
activities inconsistent with the RFC determined above. (Tr. 21). While
Plaintiff's work history is not perfectly clear, the vocational expert
found that two of Plaintiff's prior jobs were classified as semi-skilled
and unskilled, light. (Id.) Based on these classifications, Plaintiff's
limitations would preclude any past relevant work. This court agrees.
The finding of the ALJ as to Step Four 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 Four of the Analysis is
E. Step Five: Is the claimant capable of performing any work existing
in substantial numbers in the national economy?
At Step Five The ALJ determined that although Plaintiff's RFC did not
allow him to perform the full range of light work, there existed a
significant number of jobs in the national economy that he can perform.
Before proceeding, the ALJ first noted that Plaintiff's past relevant
work provided some skills, but those do not transfer to other occupations
within Plaintiff's RFC. (Tr. 21). Based on Plaintiff's RFC, the ALJ
determined Plaintiff can perform a limited range of sedentary work. As an
aside, the ALJ noted that if Plaintiff could perform a full range of
sedentary work, Medica-Vocational rule 201.28 would apply and a finding
of "not disabled" would apply. (Tr. 22). However, because Plaintiff's RFC
limitations do not "exactly coincide" with the rule, the ALJ ultimately
determined the rule could not apply. (Id.)
Once the ALJ determined that Plaintiff did not fit within the
vocational rules, the ALJ consulted a vocational expert. Based on the
limitations previously noted, the vocational expert determined the
following unskilled sedentary jobs in the region existed: Assembler
(4,000 jobs); Packer (2,000 jobs); and Inspection (less than 1,000 jobs).
(Id.) Additionally, although not necessarily needed, the ALJ noted that
the use of a cane for ambulation would not decrease the number of stated
jobs above. (Id.) Thus, the ALJ ultimately determined a substantial
number of jobs exist that Plaintiff can perform. (Id.).
Plaintiff argues, inter alia, that the ALJ failed to properly consider
the severity of the mental impairment by, among other things, failing to
have a medical expert testify at Plaintiff's hearing, and that the ALJ
substituted his judgment for that of the physician's. (Pl's Mem. of Law
in Support of Pl's Mot. for Summ. J. at 6). This court rejects
Plaintiff's argument as discussed below.
Generally, an ALJ is required to consult a medical expert if there is
not an adequate basis in the record to determine whether the Plaintiff is
disabled. See Green v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000);
see also 20 C.F.R. § 416.927 (c)(3)(stating that "[i]f the evidence is
consistent but we do not have sufficient evidence to decide whether you
ARB disabled, . . . we will . . . ask you or others more information.")
The ALJ may not substitute his/her own judgment for a physician's opinion
or play doctor. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
Plaintiff's argument appears to focus on Ms. Kitchen's and Ms.
Reinhardt's GAF findings of 45 and Dr. Srivastava's GAF finding 60.
According to Plaintiff, a GAF of 45 would completely preclude Plaintiff
from work. Plaintiff argues this because a GAF scored between 41 and 50
indicates "serious symptoms (e.g. suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g. no friends, unable to keep a
job)." See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)(outlining the GAF scale). A
GAF between 51 and 60, on the other hand, indicates only "moderate
symptoms (e.g. flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g. few friends, conflicts with peers or co-workers)." Id.
Therefore, if Plaintiff's GAF is 45, then it would follow, according to
Plaintiff, that Plaintiff has serious symptoms that preclude him from
performing any of the jobs presented by the vocational expert.
Defendant argues that the GAF of 60 is more correct and that such a
designation will not prevent Plaintiff from performing the jobs presented
by the vocational expert. In so arguing, Defendant first attempts to
discredit the two 45 GAF scores because they were rendered by
unacceptable sources, namely nurse practitioners. (See tr. 186, 191-192,
302, 304). However, Defendant's attempt is improper because, as Plaintiff
correctly argues, the determinations of nurse practitioners ARB
considered acceptable sources. The statute states "[i]n addition to
the acceptable medical sources . . . we may also use evidence from other
sources to show the severity of your impairments" such as nurse
practitioners. 20C.F.R. § 4 04.1513(d)(1)(emphasisadded). The use of the
word "may" does not dictate that the ALJ rely on such sources but this
court would find it inappropriate to completely ignore such sources. The
ALJ did not ignore the nurse practitioners. Rather, the ALJ focused on
the entire record. Remember the most qualified source, Dr. Srivastava,
determined Plaintiff had a GAF of 60.
In addition to Dr. Srivastava's GAF score, the ALJ also relied on state
agency medical and psychological consultants, none of which found
Plaintiff disabled. Further, no treating physicians found Plaintiff
disabled. The ALJ's reliance on state agency medical and psychological
consultants is not misplaced. See Scheck v. Barnhart, No. 03-2107, 2004
WL 212907, at *2 (7th Cir. Feb. 5, 2004)(finding that an ALJ may properly
rely upon the opinion of state agency physicians");
20 C.F.R. § 416.928(f)(2)(i) ("State agency medical and psychological
consultants . . . ARB highly qualified physicians and psychologists who
ARB also experts in Social Security disability evaluation.")
Turning to Plaintiff's back, it is also undisputed that Plaintiff
responded well to epidural steroid injections, and at the second
injection, Plaintiff reported to Dr. Justeen that he was occasionally
pain free and feeling better. (Tr. 229). Additionally, Plaintiff reported
that the injection almost eliminated his leg pain and instead of
surgery, Dr. Justeen continued conservative treatment. (Tr. 284).
Additionally, the record contains numerous findings that Plaintiff's
muscle strength was good and that Plaintiff could walk unassisted with a
normal gait, squat and rise without support and move with little
difficulty. (Tr. 203). While Plaintiff has limited hip and lumbar
motion, the ALJ properly restricted Plaintiff to sedentary work with no
more than occasional postural movements. (Tr. 16). The medical record,
the GAF score determined by Dr. Srivastava and the opinions of the
state agency doctors (and the lack of a finding by Plaintiff's treating
physicians to the contrary) ARB consistent with the ALJ's findings.
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 Five of the Analysis is affirmed.
For the above stated reasons, the ALJ's decision to deny benefits to
Plaintiff is sustained. The ALJ is affirmed at all steps of the
disability determination process as outlined above. Defendant's Motion
for Summary Judgment is granted. Plaintiff's Motion for Summary Judgment
on the administrative record and pleadings is denied.