United States District Court, N.D. Illinois
March 30, 2004.
JOSEPH WOOLRIDGE, plaintiff;
JO ANNE BARNHART Commissioner of Social Security, Defendant
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Joseph Woolridge is currently 62 years old. He has a history of
medical problems with his legs, feet, and hips for which he has claimed
disability and sought social security benefits. He has appealed the
denial of his request for benefits to this court. Both Woolridge and the
Commissioner have moved for summary judgment. For the reasons stated
below, the Court DENIES the Commissioner's motion, GRANTS Willis' motion
and REMANDS the case for proceedings consistent with this opinion.
Plaintiff Joseph Woolridge ("plaintiff or "Woolridge") began having
problems with his legs when he sustained a fracture to his left knee when
he was struck by a car in 1985. Following the accident, Woolridge
underwent successful orthopedic surgery to repair his knee. For a number
of years, Woolridge exhibited a full recovery and sustained no ill
effects from the injury. In 1998, Woolridge slipped on some ice and
injured his right hip. He claimed that the injury resulted in a right hip
fracture, but the x rays of Woolridge's hip and back do not show
any type of fracture. Woolridge nevertheless complained of significant
difficulty ambulating, severe pain
in his legs, and numbness in his left foot. In addition, he suffers
from severe psoriasis, which causes itching lesions over 80 percent of
Between 1998 and 2001, Woolridge was financially unable to seek regular
treatment for his medical complaints. During that time, the record
reveals he went to an oupatient clinic at the Evanston Northwestern
Healthcare facility at least three times. He visited on August 7, 1998,
when he complained of pain in his right hip and leg from his fall which
the report dates as March 10, 1998. (R. 146) Woolridge also complained of
psoriasis. The report of the August 7, 1998 visit also notes that he was
"seen in ER 5/98 for cont. pain" (R, 146), but there are no records from
that visit in the Administrative Record. He visited the outpatient
department again on October 9, 1998, again complaining that the bottom of
his right foot gets numb while walking and of psoriasis. (R. 149) His
final documented visit to Evanston Northwestern Healthcare facility
during this time period was on July 17, 1999. The documentation of this
visit consists of a diagnostic radiology report indicating an old
fracture deformity of the tibial plateau and degenerative change about
the knee joints. (R. 145)
In an Internal Medicine Consultative Examination Report for the Bureau
of Disability Services dated June 1, 2001, Dr. Michael Raymond, an
examining physician, indicated that Woolridge had limited left knee
flexion to 110 degrees and had difficulty arising from a chair due to
left knee pain. Woolridge's gait was antalgic, favoring the left leg. He
could "walk 50 feet without support, though with difficulty and
increasing degrees of pain." (R. at 129). Dr. Raymond also noted that
Woolridge "exhibit[ed] diminished sensation along the S1 dermatome
level" in his left foot. (R. at 130).
On February 1, 2002, Dr. Lisa Shives noted that Woolridge has a history
of chronic left leg pain and weakness dating from the motor vehicle
accident. (R. at 150) Dr. Shives noted that Woolridge could not walk or
stand for more than fifteen minutes nor could he lift any weight greater
than ten pounds.
Woolridge filed an application for disability insurance benefits and
Security Income (SSI) benefits on May 8, 2001. In his initial
application, plaintiff noted an onset of disability of March 10, 1998.
(Tr. 156) He later alleged onset of disability on January 20, 1998. The
claim was denied initially and on reconsideration. plaintiff filed a
request for a hearing and a hearing was held on July 9, 2002 before
Administrative Law Judge (ALJ) Cynthia Bretthauer. The ALJ issued her
decision on August 30, 2002, finding plaintiff was not disabled.
plaintiff appealed that decision to this Court.
Standard of Reviewing the Commissioner's
Judicial review of the Commissioner's final decision is limited. This
Court determines whether substantial evidence in the record as a whole
supports the decision to deny benefits. See Pope. 998 F.2d at
480; See Wolfe v. Shalala, 997 F.2d 321
, 322 (7th
Cir. 1993). "Substantial evidence," in this context means evidence that
"a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389
, 401 (1971); see also
Micus v. Bowen, 979 F.2d 602
, 604 (7th Cir. 1992). The Court does
not "reevaluate the facts, reweigh the evidence, or substitute its own
judgment." Luna v. Shalala. 22 F.3d 687
, 680 (7th Cir. 1994)
(citation omitted). The Court will affirm the Commissioner's decision if
it is reasonably drawn from the record and is supported by substantial
evidence, even if some evidence may also support the claimant's position.
See 42 U.S.C. § 405(g), 1383(c)(3). Nevertheless, in making
his decision, the ALJ must articulate some minimal basis for the
conclusions that he reaches so that the reviewing court may "trace the
path" of the ALJ's reasoning. See Diaz v. Chater, 55 F.3d 300,
307-08 (7th Cir. 1995). And, although the ALJ may credit certain evidence
and discredit other evidence, he may not simply ignore evidence favorable
to the claimant in articulating the basis for his decision. See
Groves v. Apfel, 148 F.3d 809
, 811 (7th Cir. 1998).
The Statutory and Regulatory Framework
To establish disability under the Social Security Act, plaintiffs must
satisfy two conditions. First they must have a physical or mental
impairment that is expected to be fatal or that has lasted for a
continuous period of at least twelve months. Second, they must show that
the impairment or impairments prevent them from engaging in
substantial, gainful, employment. See 42 U.S.C. § 1382c(a)(3).
It is the claimants' burden to show a disability. See,
e.g., Steward v. Bowen, 858 F.2d 1295, 1297 n.2 (7th Cir. 1988).
The Social Security regulations require the fact finder to follow a
five step inquiry to determine whether a claimant is disabled.
See 20 C.F.R.S. 404.1520. The sequential five step
inquiry requires the Commissioner to determine whether a claimant: (1) is
not doing substantial gainful activity; (2) has a severe impairment; (3)
has an impairment that meets or equals one listed by the Commissioner;
(4) can perform her past work; and, (5) is capable of performing any work
in the national economy. See id
Review of the Commissioner's Final Decision
The ALJ found that Woolridge was not disabled at step four of the five
step inquiry because he could perform his past work as a cashier.
In reaching that assessment, the ALJ had to establish the plaintiff's
residual functional capacity (RFC). The ALJ found that Woolridge's
"medically determinable impairments preclude the following work
lifting more than 20 pounds occasionally or 10
pounds frequently; standing and/or walking
approximately 2 hours in an eight hour workday;
sitting for more than a total of 6 hours in an
eight hour workday; repetitive operation of foot
controls with the left foot; climbing, balancing
stooping, kneeling, and crouching more than
occasionally; crawling; and understanding,
remembering and/or carrying out more than simple,
unskilled jobs. (R. at 12)
The ALJ determined that Woolridge's "past relevant work, as a
cashier [did not] require the performance of work related
activities precluded by the residual functional capacity limitations."
(R. at 16)
Plaintiff asserts in his Motion that the ALJ committed four errors
which require reversal and/or remand for further proceedings. The first
and second errors relate to the ALJ's assessment of Dr. Shives' opinion.
plaintiff claims that the ALJ's failure to give controlling or great
weight to the opinion of Dr. Shives as required by 20 C.F.R. § 404.1527(d)
and the failure to contact Dr. Shives for clarification
pursuant to 20 C.F.R. § 404.1512(e) and SSR 96-2p both independently
require reversal and/or remand. The third is an alleged error of fact in
failing to specify the
duties of Woolridge's relevant past work before making a finding
that he was capable of performing the tasks required by the job of
cashier. The final alleged error is that the ALJ's determination that the
plaintiff was not credible.
1. THE ALJ'S ASSESSMENT OF DR. SKIVES' OPINION
Plaintiff asserts that the ALJ was required to give Dr. Shives' opinion
controlling weight because she was a treating physician. Although the ALJ
does not specify the reasons for so finding, in her determination she
made a clear finding that Dr. Shives was an examining physician, not a
treating physician. (R. at 14) ("The undersigned acknolwedges an
examining physician's opinion that is inconsistent with the
residual functional capacity herein.") (emphasis added), Under
20 C.F.R. § 404.1512, Dr. Shives was clearly a treating physician, not an
examining physician, as plaintiff only visited her in the context of a
treatment relationship. The regulations require the ALJ to give a
treating physician's opinion controlling weight if it is supported by
objective medical evidence and consistent with other medical evidence in
the record. See 20 C.F.R. § 404.1512(d). If, however, an
ALJ does not give controlling weight to the treating physician's opinion,
the ALJ is required to evaluate the length and frequency of the
examinations and the nature and extent of treatment that the treating
physician provided, See 20 C.F.R. § 404.1512(d)(2).
In this case, the ALJ did not undertake the evaluations of Dr. Shives'
testimony that the regulations require. The ALJ properly noted that Dr.
Shives' opinion differed from others in the record in that her assessment
of Woolridge's capabilities was more restrictive than the other medical
opinions. (R. at 14) Beyond that, however, the ALJ made a unilateral
determination that if Dr. Shives' opinion was accurate, there should be
"more serious objective findings throughout the medical file." (R. at 14)
She went on to declare that Dr. Shives should have pursued "more
aggressive treatment measures" for "an individual . . . as truly limited
as" Woolridge. (R. at 14). The Seventh Circuit has cautioned
"adminstrative law judges of the Social Security Administration" to
resist "the temptation to play doctor" because "lay intuitions about
medical phenomena are often wrong." Schmidt v. Sullivan.
914 F.2d 117, 118 (7th Cir. 1990). It appears that the ALT was unable to
resist the temptation in this case. Other than substituting her own
judgment for the medical opinion in this case, the ALJ offers no
foundation for her assertion that Dr. Shives should have "pursued more
aggressive treatment measures."
Elsewhere in her determination, the ALJ noted that Woolridge did not
frequently seek medical services, but she does not rely on that in her
credibility determination about Dr. Shives. Instead, she uses this
information to undermine Woolridge's credibility. The determination about
Woolridge's credibility is and should be entirely separate from the
determination of his treating physician's credibility. The ALJ did not
evaluate the length and frequency of Doctor Shives' examinations or the
nature and extent of Dr. Shives' treatment in determining what weight to
give her opinion. Instead, she improperly relied on her assessment of
Woolridge's credibility (which is somewhat suspect, as discussed below)
to discount Dr. Shives' medical opinion.
The ALJ also notes that the state agency physicians "discount[ed] Dr.
Shives' opinion" when they made their RFC determination. (R. at 14) The
record clearly reflects that the state agency physicians were unaware of
Dr. Shives' opinion at the time they rendered their own, so it was
impossible for them to have considered it, much less to have discounted
it. (R. 137) Here, the ALJ is inventing facts not in the record in
support of her assessment of Dr. Shives' medical opinion. This is not
permitted under the law.
Instead of inventing facts outside of the record, what the regulations
contemplate in a situation such as this is that the ALJ should make
"every reasonable effort to recontact the source for clarification of the
reasons for the opinion." SSR 96-5p, available at 1996 WL
374183, at *6. If the ALJ had undertaken a proper assessment of Dr.
Shives' opinion pursuant to the regulations, the failure to recontact Dr.
Shives might not justify a remand in this case. In light of the failure
to undertake a proper assessment of Dr. Shives' opinion, however, the
failure to recontact her for clarification only compounded the error.
These errors relating to the assessment of Dr. Staves' medical opinion
require reversal and remand. On remand, the ALJ should assess Dr. Shives'
opinion in the manner that the regulations require and, if necessary,
contact Dr. Shives for clarification of her opinion.
2. ALJ'S DETERMINATION THAT PLAINTIFF COULD WORK AS A CASHIER
The ALJ decided that the plaintiff was not disabled because his AL J
determined RFC permitted him to perform his past work as cashier.
In order to determine whether plaintiff could perform his past relevant
work, the regulations require the ALJ to compare his RFC to the
requirements of his past relevant work as a cashier.
20 C.F.R. § 404.1560(b).
The Court will now recite the entire contents of the record on the
subject of the requirements of the job of cashier. plaintiff reported to
the Social Security Administration that the job required him to "sit in a
booth, get tickets from people in cars, a [sic] ring tickets in machine."
(R. at 101) plaintiff also reported that the job required sitting for 8
hours, lifting ten pounds occasionally, and lifting less than ten pounds
frequently. (R. at 101). At his evidentiary hearing, plaintiff testified
that he could not presently perform his past job as cashier because he
"can't concentrate . . . on work, period. . . . My mind goes and comes.
It just don't, it don't focus anymore." (R. at 25). Based on this
evidence, the ALJ determined that "the exertional and nonexertional
requirements of that job are consistent with the claimant's residual
functional capacity as determined in this decision and, therefore, the
claimant retains the capacity to perform `past relevant work.'" (R. at
Nowhere in the ALJ's determination is there any genuine comparison of
the requirements of the position of cashier to plaintiff's RFC.
plaintiff, in his summary judgment motion, has provided job descriptions
of the twelve cashier jobs listed in the Dictionary of Occupational
Titles. plaintiff makes a convincing case that even with the ALJ
determined RFC (which he challenges based on the errors relating to Dr.
Shives' opinion), he was precluded from performing all twelve of the
But plaintiff need not go so far to obtain a reversal on this ground.
The only evidence in
the record as to the requirements of the cashier's job is that it
would have required Woolridge to remain seated for 8 hours a day. By the
ALJ's own assessment, Woolridge could only be seated for up to six hours
of an eight hour work day. Consequently, the only evidence in the record
compels a finding that the plaintiff could not return to his previous
relevant work as cashier based on the ALJ's determination of his RFC.
There is not a shred of evidence in this record to support the finding
that Woolridge could return to his previous relevant work as cashier.
The Commissioner, in her summary judgment motion, asserts that a
cashier "is such a well known and often cited job, the
court is able to trace the path of the ALJ's reasoning. . . ." (Def.
Motion Summ. J., at 12) This is thin gruel served cold. Where there are
no findings of fact about the requirements of a previous occupation and
the only record evidence as to the occupation's requirements demonstrates
the claimant could not perform the job, neither this Court nor any other
can "trace the path of the ALJ's reasoning." Reversal and remand for
further proceedings is required.
3. ALJ'S DETERMINATION OF WOOLRIDGE'S CREDIBILITY
plaintiff's final argument for summary judgment is that the ALJ's
determination of plaintiff's credibility was patently wrong. Woolridge's
chief medical complaint is that of severe pain in his legs. An ALJ is
required to evaluate a claimant's subjective complaints of pain in
determining whether he is disabled, see
20 C.F.R. § 404.1529, considering both the objective medical evidence, id.
§ 404.1529(b), as well as information provided by the claimant, his
treating physician, or others, id. § 404.1529(c). The ALJ
must also evaluate the credibility of the claimant's testimony in light
of his (i) daily activities, (ii) the location, frequency, and duration
of pain, (iii) precipitating and aggravating factors, (iv) the effects
of medication, (v) treatment, (vi) other measure used to relieve the
pain, and (vii) other facts concerning functional limitations.
Id. § 404.1529(c)(3). Although the ALJ must give specific
reasons for findings of credibility, see Steele v. Barnhart,
290 F.3d 936, 942 (7th Cir. 2002); Social Security Ruling 96-7p (1996),
these findings are entitled to deference and will not be disturbed
unless "patently wrong" in light of the
record, Powers v. Apfel. 207 F.3d 431, 435 (7th Cir. 2001).
In this case, the ALT found that Woolridge's description of the pain he
suffered from was "so extreme as to render it implausible." To support
this finding of implausibility, the ALJ observed that Woolridge "behaved
as if he were in a great deal of pain and moved frequently during the
hearing, to the point that his complaints of pain seemed exaggerated."
The ALJ relied on the observance of a claims representative at the Social
Security Office (another non medical professional) to buttress
the ALJ's own medical conclusions about plaintiff's condition. (R. at 14)
While it is certainly proper for an ALJ to observe the demeanor of the
witness in making credibility determinations, the ALJ is once again
succumbing to the temptation to play doctor. plaintiff rightly points out
the contradiction in the ALJ's assessment: "The ALJ seems to imply that
Mr. Woolridge's testimony about constant pain and the inability to remain
either seated or standing for long periods of time would actually have
been more credible if he had remained seated and appeared to be
comfortable during the hearing." (Pl. Motion Summ. J. at 13) While these
quasi medical findings are of exceedingly dubious significance,
the Court must also examine the other bases for the ALJ's credibility
The only other dent the ALJ makes in plaintiff's credibility has to do
with his relatively infrequent visits for medical treatment. Woolridge
testified that he did not have money to pay for health services, and so
he only sought treatment when he was experiencing extreme symptoms.
During the hearing, when the ALJ asked directly if the plaintiff knew he
could get free treatment at Cook County Hospital, he replied, "No, I did
not know that. When you go in there, these people want money, and I don't
have any money." (R. at 27) In discrediting plaintiff's testimony on this
issue, the ALJ declared that free medical aid is "generally available to
the indigent in this country." (R. at 14) Although there are laws that
prevent emergency rooms from refusing patients treatment due to inability
to pay, the ALJ's assertion about free medical aid is overbroad and
definitely not supported in the record. The ALJ also noted that one of
plaintiff's medical records indicated that "he only comes when he needs
disability forms." (R. at 14) This does provide
support for the ALJ's assessment that plaintiff's complaints were
The ALJ's assessment of plaintiff's credibility in this case was based
on a mix of permissible and impermissible factors, but it does not
approach the level of credibility analysis that the regulations envision.
While this Court strongly discourages placing Social Security claimants
into the kind of medical credibility bind that Woolridge faced in this
case, it cannot determine that the ALJ's finding on plaintiff's
credibility was patently wrong or insufficient as a matter of law. When
the case is remanded on the other grounds, however, the Court expects
that the ALJ will bring to bear the analytical framework envisioned by
the regulations on the question of plaintiff's credibility.
For the foregoing reasons, the Court DENIES the Commissioner's motion,
GRANTS Woolridge's motion and REMANDS the case for proceedings consistent
with this opinion.