United States District Court, N.D. Illinois
April 8, 2004.
HAZEL TUCKER, Plaintiff
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
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
A. PROCEDURAL HISTORY
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
B. HEARING TESTIMONY SEPTEMBER 24, 2002
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.
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
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
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
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.
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.
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.
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.
C. HEARING TESTIMONY FEBRUARY 18, 2003
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
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
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.
D. MEDICAL EVIDENCE
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
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
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.
E. DECISION OF THE ALJ
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
A. STANDARD OF REVIEW
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.
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).
B. DISABILITY STANDARD
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).
C. ARTICULATION REQUIRED
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.
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.
A. DUTY TO RECONTACT
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. §§
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.
B. OTHER ARGUMENTS
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
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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