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United States District Court, N.D. Illinois

April 8, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge



Plaintiff Hazel Tucker ("Claimant") seeks judicial review of the final decision of Jo Anne B. Barnhart, the Commissioner of Social Security ("Commissioner"), denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This case comes to this Court on cross-motions for summary judgment. Claimant raises the issues of whether the Administrative Law Judge ("ALJ") properly disregarded the opinions of Claimant's treating physician and psychologist in favor of the opinions of the medical experts ("ME"), whether the ALJ committed factual error in his interpretation of certain expert testimony, and whether Claimant has a somatoform disorder. For the reasons stated below, Claimant's motion for summary judgment is granted and the Commissioner's motion for summary judgment is denied. The case is remanded to the Commissioner for further proceedings not inconsistent with this opinion. II. BACKGROUND


  Claimant applied for DIB on May 9, 2001, claiming that she became disabled on June 30, 1999. R. 186-87, 192-201. Her application was denied on June 8, 2001. R. 122-25. Claimant then requested reconsideration and simultaneously applied for SSI on August 15, 2001. R. 135, 214-19, 463-65. Her request for reconsideration and her SSI application were denied in November 2001. R. 136-39, 466. Claimant's initial DIB application and request for reconsideration both were denied because, although the Disability Determination Services ("DDS") consultants determined she had a restrictive condition, the condition did not prevent her from returning to childcare work. R. 122, 139. On January 10, 2002, Claimant requested an administrative hearing. R. 140.

  On September 24, 2002, Administrative Law Judge ("ALJ") Stephen H. Templin conducted a hearing at which Claimant appeared with counsel. R. 23. Claimant, ME Dr. Bernard Stevens, and vocational expert ("VE") Richard Hamersma testified at the hearing. R. 21-99. During that hearing, the ALJ determined that further medical evidence — x-rays of Claimant's right wrist and hand — was required. R. 28, 88-89.

  After the x-ray was taken, the ALJ conducted a supplemental hearing on February 18, 2003, at which ME Dr. Stevens and ME Dr. Eric Ostrov testified. R. 100-19. ALJ Templin issued a decision on February 28, 2003, denying Claimant's application for DIB and SSI on the grounds that Claimant was not disabled because she did not establish through competent medical evidence the existence of at least one medically determinable severe physical or mental impairment. R. 19. Claimant's timely request for a review of the ALJ's decision by the Appeals Council was denied on May 23, 2003. R. 7-9. Thus, the ALJ's decision is the Commissioner's final decision. Claimant filed a timely complaint with this Court on July 23, 2003, and jurisdiction is proper pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3).


  1. Claimant's Testimony

  At the time of the administrative hearing, Claimant was fifty years old and divorced, with no living children. R. 59-61. Claimant completed three years of high school, took several community college and business courses, and later received a GED. R. 62-63.

  Claimant has her own residence, but at the time of the hearing she was residing with her niece because she was sick. R. 59-60. Prior to residing with her niece, Claimant usually prepared her own meals and cared for herself but sometimes received assistance from family. R. 71-72. Claimant has not done her own grocery shopping since 1995 or 1996. R. 72.

  Claimant was employed last in 1999 as a cashier at a Dominick's food store. R. 64-65. She was terminated for taking too much sick time off and since has not worked or looked for employment. R. 65, 67-68.

  Prior to working at Dominick's, Claimant worked in the childcare industry from 1996 until 1998. R, 69. Prior to 1996, Claimant cared for her son, who passed away from AIDS and a drug overdose in 1995, and she received compensation from the state for that care. R. 61, 89-90.

  Claimant purports to have numerous medical problems. She has fractured her wrists on three separate occasions: once in 1994 while defending herself from an assault by a thief, R. 72-73, 234; again in 1997 while lifting a ten pound box of ribs, R. 73, 244-47; and a third time in 1999 while lifting her nephew, R. 77, 79. A July 1994 x-ray noted evidence of a residual healed post-fracture deformity and osteoporosis, but no similar findings were noted in a September 1994 x-ray, which showed good alignment, R. 238-40. There are medical records for the 1994 and the 1997 fractures, but not for the 1999 fracture. R. 234-40, 244-47.

  Claimant's right wrist hurts her the most, she is restricted to lifting less than ten pounds, and as of July 2001 her wrists and fingers repeatedly "locked up." R. 87, 320. Standing more than two hours causes muscle spasms in her leg, R. 84. She has sensitivity to heat and cold, and when she is exposed to dust she wheezes because of bad allergies. R. 85.

  2. Jon Beran, M.D. — Treating Physician

  Claimant's primary treating physician is Dr. Jon Beran, who has treated Claimant since 1996 and sees her between two and six times a year. R. 86, 355. Recently, he completed three relevant reports, which are discussed below.

  a. May 2001 Report to Illinois Department of Human Services

  On May 24, 2001, Dr. Beran completed a report of incapacity to the Illinois Department of Human Services. R. 323-28. The doctor diagnosed Claimant with the following conditions: (1) degenerative joint disease of the hands, feet, and wrists; (2) chronic dental infection; (3) dyspepsia; and (4) controlled hypertension. R. 323. He reported that Claimant experienced respiratory wheezing, abdominal pain, stiff fingers, toes, and wrists, but had a fairly fuIl range of motion in her joints and otherwise normal body systems. R. 323-25. No x-rays were taken. Id.

  Dr. Beran also evaluated Claimant's capacity to perform various activities during an eight-hour workday, five days a week. R. 326. He concluded that Claimant had a more than fifty percent reduced capacity in her ability to walk, bend, stand, or climb; she had a twenty to fifty percent reduced capacity for stooping, pushing, and pulling, as well as in finger dexterity and fine manipulations. Id. Claimant had full capacity for sitting, turning, speaking, traveling by public conveyance, and "grasping manipulations." Id. Dr. Beran indicated that Claimant should not lift more than ten pounds at a time and that her overall ability to perform the physical activities of daily living was reduced up to twenty percent. Id.

  b. July 2001 Report of General or Combined Physical Impairments

  On July 19, 2001, Dr. Beran completed another report regarding Claimant's DIB and SSI claims. R. 355-59. He stated that Claimant's main complaint was finger and hand pain, which extended into her arm, because overuse caused Claimant's fingers to "lock up" on her. She also complained of toe and foot pain resulting from prolonged standing or walking. Id. Dr. Beran diagnosed Claimant with Osteoarthritis of the hands and wrists. Id. Dr. Beran stated that Claimant's impairment could be expected to last at least twelve months, that Claimant could not stand continuously for six to eight hours, but that Claimant could sit upright continuously for six to eight hours. Id. He explained that Claimant had to lie down during the day because her pain level fatigued her, that Claimant could not lift or carry more than five pounds frequently, and that she had problems with functions such as grasping because pain led to severe finger spasms. R. 355, 357. Finally, he indicated that Claimant had subjective complaints of pain in her hands without objective visible pathology, and that the "locking up" of her fingers left her with pain for two to three days after each occurrence. Id.

  c. April 2002 Medical Source Statement of Ability to do Work-Related Activities

  On April 3, 2002, Dr. Beran received from the Social Security Administration ("SSA") a questionnaire entitled, "Medical Source Statement of Ability to do Work-Related Activities (Physical)," to be completed on behalf of Claimant. R. 413-15. The instructions on the form indicated that the SS A was trying to determine Claimant's ability to do work-related activities, asked the doctor to indicate what activities Claimant was capable of performing despite her impairments, and requested a listing of the supporting medical findings or factors. R. 413.

  Dr. Beran reported that Claimant had exertional limitations. She could occasionally lift or carry less than ten pounds, but she could not frequently lift or carry anything. R. 413-14. She could stand or walk for less than two hours in an eight-hour workday, and she must periodically alternate between sitting and standing to relieve pain and discomfort. Id. Dr. Beran supported these conclusions with Claimant's complaints of leg pain and weakness after walking further than two blocks and additional complaints of hand, wrist, and forearm pain limiting her ability to grip and to hold objects. R. 414.

  Claimant also had postural limitations. She could never climb, kneel, crouch, or crawl. Id. The medical findings listed as supporting this conclusion were Claimant's lower back and leg joint pain and weakness. Id.

  With regard to manipulative limitations, the doctor found Claimant to be limited in reaching in all directions, handling (gross manipulations), and fingering (fine manipulations). R. 415. Dr. Beran stated these impairments were caused by Claimant's limitations in lifting extremely light weight objects, such as a can of food. Id.

  Finally, Claimant had the following environmental limitations: she was limited in her ability to withstand temperature extremes, dust, humidity, hazards (such as machinery or heights), fumes, and chemicals. Id. The doctor's clinical findings supporting these limitations were based on Claimant's allergic rhinitis, triggered by dust and fumes. Id.

  3. Bernard Stevens, M.D. — Medical Expert

  Dr. Bernard Stevens testified as a medical expert in internal medicine. R. 26-58, 81-83, 148-49. He reviewed Claimant's medical records, R, 27, and concluded that there was no medically determinable severe physical impairment established, R. 42. He never examined her. Although Claimant made an allegation of chronic lung disease, nothing in any of her medical records supports this allegation, nor is there any diagnosis or treatment for any other pulmonary system impairment. R. 34-35, Also, although Claimant's medical records mention allergic rhinitis, the condition is not medically determinable and can not cause an impairment. R. 40.

  Dr. Stevens indicated that there were no x-rays consistent with any type of arthritic process in Claimant. R. 27. Lack of post-traumatic arthritis was reinforced in a May 15, 2001 medical examination in which Claimant's musculoskeletal system showed no deficits and during which she made no complaints of wrist or hand pain. R. 29-31. However, Claimant did complain of stiffness and pain in a medical report dated May 24, 2001. R. 48, 324.

  Dr. Stevens stated that Claimant's complaints of her hands "locking up" were not supported by any medical evidence. R. 31. To the contrary, medical reports from May 26, 1999, after the date of her wrist fractures that year, showed Claimant to have a full range of motion in all extremities. R. 32, 291. Furthermore, the medical reports are devoid of any evidence to corroborate Claimant's complaint of pain in her feet and toes. R. 33.

  In addition to complaints of foot and toe pain, Claimant complained of systemic weakness or fatigue, such that if she walks for more than two blocks then she has to sit down and rest. R. 35. However, there is no medical evidence of a neurological or a musculoskeletal system impairment to explain these symptoms. Id. The medical records indicate that Claimant has a normal sedimentation rate, which rules out any inflammatory process that could cause pain. R. 37. There is also no documentation indicating that Claimant's pain could stem from any sort of pathological process. Id.

  Dr. Stevens acknowledged that Claimant's treating physician observed that Claimant had a fifty percent reduced capacity in walking, bending, standing, and climbing. R. 47. However, he expressed his own opinion that there was very little clinical evidence to support those findings. R, 46-47. Also, Claimant's treating physician diagnosed her with degenerative joint disease of the hands, feet, and wrists on May 24, 2001, but Dr. Stevens contended that this diagnosis was also lacking in any clinical evidence. R. 49, 323.


  1. Bernard Stevens, M.D. — Medical Expert

  Dr. Bernard Stevens testified again at the February 18, 2003 hearing. R. 103-09. He stated that the October 7, 2002 x-ray of Claimant's right hand showed one abnormality, with the rest of the hand and wrist appearing normal. R. 104. The x-ray did not reveal any changes in Claimant's hand or wrist bones to indicate inflammatory arthritis. R. 104-05. 2001 autoimmune studies did not fmd an inflammatory process going on at that time. Id.

  Dr. Stevens stated that findings of functional pain behavior in a medical report by Dr. Ghanim Kassir was not supported by medical evidence. R. 105-06, He also stated that a report of incapacity by Dr. Kassir for the Illinois Department of Public Aid found no abnormalities in Claimant's musculoskeletal system, although no comments were made regarding Claimant's grip, which is the issue here. R. 106-07. 2. Eric Ostrov, Ph.D. — Medical Expert

  Dr. Eric Ostrov, a registered psychologist, testified as a medical expert. R, 109-17, 168. He reviewed Claimant's medical records, R. 109, and concluded that no medically determinable mental impairment was established, R. 110. He never examined her.

  Dr. Ostrov testified that, although Claimant supposedly has a history of psychiatric hospitalizations, the only evidence of these hospitalizations is Claimant's own report. R. 110. Also, these hospitalizations supposedly ended in the 1980s, long before the alleged 1999 onset date, and there has been no psychiatric treatment since that time. Id.

  There are various indications in the record that Claimant currently functions relatively well. She cleans, cooks, and is the backbone of the family in terms of babysitting. Id. Dr. Ostrov stated that although Claimant had reported bizarre experiences, such as seeing window blinds moving up and down, she did not appear frightened or distressed. R.111. Furthermore, although Claimant stated she had concentration difficulties, her concentration was never impaired during her IQ testing. Id.

  Dr. Ostrov found a psychiatric report by Claimant's treating psychologist, Dr. Nicolette Puntini, to be very speculative regarding Dr. Puntini's observation that the stress of normal competitive employment could exacerbate any of Claimant's preexisting psychiatric conditions. R. 114-15. Additionally, Dr. Ostrov stated that Claimant's irritability, anxiety, and impulsivity were insignificant because such symptoms were not observed by a doctor but rather merely were reported by Claimant. R. 116. Finally, Dr. Ostrov stated that Claimant potentially could have a somatoform disorder, or simply could be manipulating her condition for external purposes. R. 112-14. He defined a somatoform disorder as a condition where a person experiences physical symptoms, or believes he or she has physical symptoms, even though there is no organic basis for any such symptomology. R. 111. However, the doctor was skeptical about the existence of a somatoform disorder because of Claimant's reports of bizarre experiences, such as window blinds moving, which do not go hand-in-hand with a somatoform disorder. R. 112-13.


  1. Objective Medical Evidence — X-Ray

  On October 7, 2002, an x-ray was taken of Claimant's right hand and wrist. R. 462. The results indicated no significant abnormality in the right hand except for a small area of erosion. Id. This finding is nonspecific and may be seen in patients with Osteoarthritis, gout, or other erosive-type arthritis. Id. The results for the right wrist were normal. Id.

  2. Medical Consultants

  a. Nicolette Puntini, Ph.D.

  On July 17, 2001, Dr. Nicolette Puntini, a licensed clinical psychologist, conducted a psychological evaluation of Claimant, which included an interview and testing. R. 345-54. Dr. Puntini submitted a ten-page narrative of her findings. Id.

  During the interview portion, Claimant cooperated with the examiner, had a pleasant demeanor, and manifested no signs of depressive symptomatology. R. 346. She reported a history of psychiatric dysfunction, including several hospitalizations. R. 347-48. However, Claimant's ability to recall the symptoms preceding her hospitalizations was limited. R. 348.

  Dr. Puntini gave Claimant an IQ test, on which Claimant showed overall Low Average intellectual functioning scores. R. 352. Claimant exhibited above average immediate verbal memory, but her level of effort on the perceptual-related portion of this same test was poor. Id. A bender motor-gestalt test was not indicative of organic brain damage, and a test for depression indicated that Claimant "endorsed items indicative of moderate depressive symptomatology." Id.

  In her conclusions and recommendations, Dr. Puntini stated that the medical records from the Claimant's previous psychiatric hospitalizations should be reviewed in order to determine the nature of any past psychiatric difficulties. R. 354. If a long-standing psychiatric disorder could be documented, Dr. Puntini opined, then the stress of normal, competitive employment could lead to a recurrence of Claimant's problems. Id.

  On August 4, 2001, Dr. Puntini completed a Psychiatric Review Technique form, in which she stated there was insufficient evidence to draw any conclusions regarding Claimant's psychiatric medical disposition. R. 365-78. She did not diagnose Claimant with somatoform disorder but instead left the form blank with respect to that diagnosis. R. 365. Dr. Puntini also conducted a Mental Residual Functional Capacity Assessment and found that Claimant had moderate limitations in seven different areas of mental activity. R. 360-61. b. Ghanim Kassir, M.D.

  On May 15, 2001, Dr. Ghanim Kassir, a specialist in internal medicine, examined Claimant and completed an Illinois Department of Public Aid Report of Incapacity. R. 332-35. Dr. Kassir diagnosed Claimant with "essential hypertension" and chronic obstructive pulmonary disease. R, 332. He found her respiratory system normal, her musculoskeletal system to have no range of motion deficits, her digestive system to be normal, and her neurological system to be normal. R. 333-34. Dr. Kassir indicated that Claimant had up to a twenty percent reduced capacity for walking, stooping, and pushing. R. 335. Claimant had a twenty to fifty percent reduced capacity in climbing and traveling by public conveyance. Id. Claimant's ability to perform daily physical activities was at full capacity, and she could repeatedly lift up to ten pounds. Id. Dr. Kassir found her mental status to be normal. Id.


  On February 28, 2003, ALJ Templin concluded that Claimant was not disabled because she failed to establish a medically determinable severe physical or mental impairment that met the SSA's durational requirements. R. 10-20. The ALJ followed the familiar five-step disability analysis, but decided the case at step two. At step one, he accepted Claimant's "self-reports of record" and found Claimant had not been engaged in substantial gainful activity since her alleged onset date. R. 16.

  At step two, the ALJ stated there were conflicts in the record as to whether the Claimant had sustained her burden of proof to show a severe impairment. R. 17. The physical evidence that Claimant did have a severe impairment was in conflict. Medical evidence obtained by the DDS, both initially and upon reconsideration, indicated that Claimant "had established the existence of at least one medically determinable severe impairment." Id. However, both reviewing physicians concluded that Claimant's impairment was not of listing level severity.

  Claimant's treating physician opined that Claimant's numerous restrictions in lifting, carrying, walking, and standing were due to Claimant's subjective complaints of symptoms and functional limitations. Id. The ME in internal medicine testified that the medical evidence in the record did not establish the existence of any "severe" medically determinable physical impairment. R. 18. The ME in psychology also testified that the medical evidence in the record did not establish the existence of a "severe" medically determinable mental impairment. Id. According to the ALJ, the ME in psychology stated that the record failed to establish a somatoform or other mental disorder. Id.

  The ALJ adopted the view of the medical experts. Id. He found these opinions to be the most informed and the most consistent with the medical record, Id. He further stated that he did not find the opinions of Claimant's treating source or the opinions of the DDS reviewers to be supported by medical evidence. Id. The ALJ did not discuss the opinions or evaluations of Claimant's treating psychologist. The ALJ concluded that Claimant failed at step two of the five-step process. R. 18-19. Claimant was therefore found "not disabled" at all times material to the ALJ's decision. R. 19. III. LEGAL STANDARDS


  Judicial review of the Commissioner's final decision is governed by 42 U.S.C. § 405(g), which provides that the findings of an ALJ are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Diaz v. Chafer, 55 F.3d 300, 306 (7th Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). A mere scintilla of evidence is not enough. Id. Even if there is adequate evidence in the record to support the decision, the findings will not be upheld if the "reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result." Sarchet v. Chafer, 78 F.3d 305, 307 (7th Cir. 1996).

  A reviewing court may not re-evaluate the facts, re-weigh the evidence, or substitute its own judgment for that of the Social Security Administration. Diaz, 55 F.3d at 305-06. Thus, judicial review is limited to determining whether the ALJ applied the correct legal standards in reaching his decision and whether there is substantial evidence to support the findings. Id.; Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992). The reviewing court has the power to enter a judgment "affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).

  It is the duty of the ALJ to develop a full and fair record. Henderson ex rel. Henderson v. Apfel, 119 F.3d 507, 513 (7th Cir. 1999). Failure to fulfill this obligation is "good cause" to remand for the gathering of additional evidence. Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000).


  An individual is disabled if that individual has 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 12 months." 42 U.S.C. § 423(d)(1)(A), 13 82c(a)(3)(A). However, a disabled individual is eligible for both DIB and SSI benefits only if that individual is under a disability. Id, §§ 423(a), 1382(a)(3)(B). An individual is under a disability if she is unable to do her previous work and can not, considering her age, education, and work experience, partake in any gainful employment that exists in the national economy. Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).

  The Commissioner uses a five-step sequential process in order to determine if an individual is disabled. 20 C.F.R. § 404.1520(a), 416.920. The sequential evaluation ends if the ALJ, at any step in the process, finds that the claimant is not disabled. Id. The ALJ must inquire: (1) whether the claimant is working in any substantial gainful activity; (2) whether the claimant's impairment is severe; (3) whether the impairments meet or equal a listed impairment in 20 C.F.R. pt. 404, subpt. P, Appendix l; (4) whether the claimant is able to perform her past relevant work; and (5) whether the claimant's age, education, and past relevant work experience in reference to her residual functional capacity, enables her to do other work. Id. §§ 404.1520(a)(4)(i).(v), 416.920(a).(f). In order to determine whether the claimant can perform any past relevant work (step 4), the ALJ assesses the claimant's residual functional capacity ("RFC"). Id. § 404.1520(e). The RFC is defined as the most that an individual can do after considering the effects of physical and mental limitations that affect her ability to perform work-related activities. Id. §§ 4 04.1545, 416.945. The burden of proof is on the claimant through step four; the burden of proof shifts to the Commissioner only at step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).


  If the ALJ rejects an entire line of reasoning, he must articulate his reasons in order to provide for a meaningful review. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001). "In the absence of an explicit and reasoned rejection of an entire line of evidence, the remaining evidence is 'substantial' only when considered in isolation." Zblewski v. Schwiker, 732 F.2d 75, 78-79 (7th Cir. 1984). The ALJ is not required to discuss his reasons for rejecting every piece of evidence; he must, however, discuss the claimant's evidence that contradicts the Commissioner's position. Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2001). The required level of articulation is heightened when there is conflicting evidence. Hodes v. Apfel, 61 F. Supp.2d 798, 807 (N.D. Ill. 1999) (citing Amax Coal Co. v. Beasley, 957 F.2d 324, 327 (7th Cir. 1992)).


  Claimant argues that the ALJ erred in finding Claimant did not have any severe impairment and that the ALJ's decision should be reversed, or, alternatively, remanded for five reasons. First, the ALJ improperly disregarded the reports of Claimant's treating psychologist. Second, the ALJ did not give proper weight to the opinions of Claimant's treating physician. Third, the ALJ made a mistake of fact by mischaracterizing ME Dr. Ostrov's testimony regarding the existence of Claimant's somatoform disorder. Fourth, the ALJ committed factual error regarding the number of reports made by Dr. Beran. Fifth, Claimant's allergic rhinitis constitutes a severe impairment. The Court will discuss each of Claimant's arguments in turn.


  Generally, more weight is given to medical sources who have examined a claimant than to sources who have not. 20 C.F.R. § 404.1527(d)(1).(2), 416.927(d)(1).(2). This is especially true on issues concerning the nature and severity of a claimant's impairments. S.S.R.96-5p, 1996 WL 374183, at *4(S.S.A. July 2, 1996). Giving more weight to a treating physician is appropriate because such a source is most able to provide a detailed, longitudinal picture of a claimant's medical impairment and "bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations." 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2).

  A treating physician's opinion, however, is not controlling if unsupported by the objective medical evidence and is inconsistent with other evidence in the record. Id. §§ 404.1527(d)(2), 416.927(d)(2); Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir. 1999). Controlling weight is given to a treating physician's opinion unless it is "not inconsistent" with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). The opinion need not be "consistent" with the record. Ynocencio v. Barnhart, 300 F. Supp.2d 646, 657 (N.D. Ill. 2004). This is not a matter of mere semantics. Id. Under the "consistent" standard, the opinion has controlling weight only if the record supports it. Id. The "not inconsistent" standard presumes that the treating physician's opinion is predominate and requires the ALJ to search the record for inconsistent evidence in order to give the treating source's opinion less than controlling weight. Id.

  When a treating physician's opinion is not given controlling weight, several factors are applied to determine the amount of weight it should be given. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). First, the length of the treatment relationship and the frequency of examination are considered, such that when the treating source has seen the patient numerous times and has obtained a longitudinal picture of the impairment, more weight will be given. Id. §§ 404.1527(d)(2)(i), 416.927(d)(2)(i). Second, the nature and extent of the treatment relationship will be considered, meaning that the treatment that has been provided and the kinds and the extent of examinations and testing that have been provided will be taken into account. Id. §§ 404.1527(d)(2)(ii), 416.927(d)(2)(ii). Third, the more a medical source is able to provide objective medical evidence, such as particular medical signs and laboratory findings, the more weight his or her opinion will be given. Id. §§ 404.1527(d)(3), 416.927(d)(3). Finally, a court will consider other miscellaneous factors in determining how much weight to give to a treating physician whose opinion is not given controlling weight. These other factors include anything a claimant brings to the SSA's attention, such as the amount of understanding an acceptable medical source has regarding the disability program and its evidentiary requirements. Id. §§ 404.1527(d)(6), 416.927(d)(6).

  1. Claimant's Mental Impairments

  a. Claimant's Treating Psychologist's Report Is Unclear Regarding the Existence of a Severe Impairment.

  Claimant argues remand is warranted because the ALJ never discussed the findings of Claimant's treating psychologist, Dr. Nicolette Puntini. She argues that Dr. Puntini's report indicates that Claimant had "moderate limitations" in seven areas of functioning, but the term "moderate limitation" is never defined, and there is insufficient evidence in the record to determine whether these moderate limitations collectively equate to a severe mental impairment. Dr. Puntini also conducted IQ testing on Claimant and found her to be in the low average range of intellectual functioning. R. 351-52. The ALJ made no inquiry as to what impact such findings had on Dr. Puntini's conclusions regarding Claimant's limitations, and the ALJ made no mention of the ten-page written report submitted by Dr. Puntini.

  The ALJ never questioned ME Dr. Ostrov regarding the meaning of "moderate limitation" and whether such a limitation or a combination of such limitations constitutes a severe mental impairment. The ALJ asked no specific questions regarding Dr. Puntini's report and did not consider Dr. Puntini's report but rather gave controlling weight to ME Dr. Ostrov.

  It is rare that a treating psychologist in this type of case submits a ten-page narrative of her findings. Such efforts should not be ignored. Dr. Puntini's report at least should have been discussed by the ALJ. On remand, the ALJ must discuss Dr. Puntini's report and, if necessary, contact Dr. Puntini for any clarification.

  b. Claimant's Alleged Somatoform Disorder

  Claimant alleges she has a somatoform disorder because all of the pain and discomfort she is experiencing seems to lack any organic basis. R. 112-14, 164. Although an ALJ normally is required to order examination of a claimant when there is a lack of sufficient evidence in the record, that is not necessary here. Claimant's allegations of the existence of a somatoform disorder seem to have come out of thin air. In Claimant's initial application for DIB, there is no mention of a somatoform disorder. R. 192-94. Also, Claimant's treating psychologist, Dr. Puntini, made no note or indication that Claimant could be suffering from such a condition. R. 345-54, 360-63. It was not until after the first administrative hearing ended, and after the x-ray of Claimant's hand and wrist came back clear, that any mention of somatoform disorder was made. In a letter to the ALJ regarding the results of that x-ray, Claimant's attorney argued for the first time that Claimant had a somatoform disorder, stating, without any evidence: "It is also my contention that Ms. Tucker suffers from somatoform disorder." R. 163-64.

  Claimant can not create new, unsupported severe impairments when her initial complaints are not found to constitute a severe impairment. She offers no medical evidence to support her somatoform disorder claim. The fact that Claimant was able to get ME Dr. Ostrov to state it is not entirely impossible that Claimant may have a somatoform disorder does not constitute sufficient evidence to support this contention. 2. Claimant's Physical Impairments

  a. The ALJ Should Recontact Claimant's Treating Physician.

  Claimant argues that Dr. Beran's findings and diagnoses of her conditions should have been given greater weight by the ALJ. The ALJ chose to follow the conclusions of ME Dr. Stevens because of the lack of medical evidence behind Dr. Beran's diagnoses. When evidence from a treating physician is inadequate to determine whether a claimant is disabled, the SSA will take certain action to obtain the missing information. 20 C.F.R. § 404.1512(e), 416.912(e). The first action the SSA must take is to recontact the treating physician to determine whether the necessary additional information is readily available. Id. §§ 404.1512(e)(1), 416.912(e)(1).

  On March 5, 2002, the SSA contacted Dr. Beran and asked him to provide Claimant's medical records from September 21, 2002 to the present. R. 401. The SSA also asked him to complete a form entitled, "Medical Source Statement of Ability to do Work-Related Activities (Physical)." R. 413-15. This form instructed Dr. Beran to answer questions regarding Claimant's limitations in various areas of functioning, which would be used in determining her ability to do work-related activities. Id. Dr. Beran completed the form on April 3, 2002, and the only evidence he provided regarding Claimant's limitations involved her subjective complaints of pain. R. 413-15. The Commissioner argues that by sending this form to Dr. Beran, the SSA met its burden in recontacting Claimant's treating physician for purposes of a step two denial. Although the Court is somewhat swayed by the Commissioner's argument, the Medical Source Statement appears not to apply to a step two analysis. The title of the form indicates that it is seeking information that pertains to step four of the analysis, not to step two. At step four, a claimant already has been found to have a severe impairment and the focus shifts to residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The form instructs a physician to "assist us in determining this individual's ability to do work-related activities," and asks questions regarding a claimant's exertional, postural, manipulative, visual and communicative, and environmental limitations. R. 413-15. All of these categories cover areas of functioning important in the workplace. However, Claimant's DIB and SSI claims were denied at step two, where the question is whether a severe impairment exists. 20 C.F.R. § 4 04.1520(a)(4)(ii), 416.920(a)(4)(ii). Given the name of the form, the instructions provided, and the nature of the information gathered, which appears to be geared toward step four of the SSA's disability analysis, Claimant should contact Dr. Beran on remand to further inquire into his reasoning as it applies to step two and submit any new information to the ALJ.

  b. The ALJ Was Conscientious in Developing a Full Record with Regard to Claimant's Physical Impairments.

  It is clear that the ALJ made concerted efforts to develop a full record in this case. At the conclusion of the first hearing, the ALJ ordered Claimant to have her right wrist x-rayed because ME Dr. Stevens stated there was insufficient evidence in the record to draw a conclusion regarding whether Claimant had arthritis. R. 97-98. The ALJ's thorough development of evidence in the record regarding Claimant's physical impairments demonstrates his conscientious attempt in creating a fuIl and accurate record. Unfortunately, there does appear to be some confusion in properly gathering necessary information from Dr. Beran.


  1. The ALJ Did Not Mischaracterize ME Dr. Ostrov's Testimony Regarding the Potential Existence of a Somatoform Disorder.

  Claimant argues that the ALJ committed factual error by mischaracterizing ME Dr. Ostrov's testimony regarding the possibility of Claimant having a somatoform disorder. Remand is warranted where the ALJ makes a decision based upon a mistake of fact on an issue that may have come out differently if that mistake had not been made. Prak v. Chater, 892 F. Supp. 1081, 1087 (N.D. Ill. 1995). Claimant states in her motion for summary judgment that "the ALJ states that Dr. Ostrov testified that there was not a somatoform disorder." Pl. Mot. at 13. This is not what the ALJ said. The ALJ stated that the ME in psychology "opined that no medically determinable mental impairment is established by the medical evidence of record. The ME explained the inconsistencies in the claimant's presentations in the record that failed to establish a somatoform or other mental disorder." R. 18. The ALJ was saying that Dr. Ostrov said there was no medical evidence supporting somatoform, even though a somatoform condition may or may not exist. This is not a mistake of fact or a mischaracterization of the testimony given by Dr. Ostrov. 2. The ALJ Did Not Commit Factual Error Regarding the Number of Reports Made by Dr. Beran.

  Claimant argues that the ALJ committed factual error because his decision suggests there was only one report from Dr. Beran regarding Claimant's limitations. This is incorrect. The ALJ cited to Dr. Beran's report dated April 3, 2002, which was the most recent of the three reports made. R. 17. Nowhere does the ALJ imply that this report was the only one made by Dr. Beran.

  3. Allergic Rhinitis Does Not Constitute a Severe Impairment.

  An impairment is severe only if it limits one's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521 (a). Claimant, without authority, states that her allergic rhinitis constitutes a severe impairment. She does not point to any testimony or objective medical evidence to support this allegation. ME Dr. Stevens testified that allergic rhinitis is not a medically determinable impairment and does not prevent the performance of work-related functions. R. 40. Thus, allergic rhinitis does not constitute a severe impairment.


   The record is not so clear that benefits can be awarded or denied. See Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993). The determination of a benefits award is essentially a factual finding best left to the Commissioner because the record can not yield one supportable conclusion. Id.

   The Court therefore remands this case so that the report and opinion of Dr. Puntini, Claimant's treating psychologist, may be appropriately considered and discussed by the ALJ. On remand the ALJ should address whether Dr. Puntini's findings that Claimant had moderate limitations in seven areas of functioning constitute a severe impairment.

   In addition, Dr. Beran should be recontacted to elicit medical evidence on the issue at step two of whether Claimant has a severe impairment.


   Claimant's entitlement to DIB and SSI turns on whether her limitations determined by Dr. Puntini constitute a severe impairment and also whether there is objective medical evidence from Dr. Beran that relate to the step two determination of severe impairment. The record is insufficient to answer this question with regard to Dr. Puntini, and it is the job of the ALJ, not this Court, to analyze the evidence based on a full record.

   For the reasons set forth in this opinion, Claimant's motion for summary judgment is granted, and the Commissioner's motion for summary judgment is denied. This case is remanded to the Commissioner for further proceedings beginning at step two not inconsistent with this opinion.


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