United States District Court, N.D. Illinois
April 13, 2004.
ELEANOR COPPAGE, on behalf of MICHAEL C. OSBORNE, a minor, in the claim of MICHAEL E. OSBORNE, deceased, 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, Eleanor Coppage ("Plaintiff' or "Coppage"), bringing suit
on behalf of the minor child of Michael E, Osborne ("Osborne" or
"Claimant"), seeks judicial review of the decision of Jo Anne B.
Barnhart, the Commissioner of Social Security ("Commissioner"), who found
Claimant not disabled and denied him Social Security Benefits under
42 U.S.C. § 416(i), 423. This case is before this Court on cross-motions
for summary judgment. Plaintiff argues that the Appeals Council erred in
applying the wrong listing in reviewing Claimant's claim, that the
Administrative Law Judge ("ALJ") erred in failing to adopt the opinion of
Claimant's examining physician, that the ALJ's step five determination
was not supported by substantial evidence, and that the ALJ ignored
evidence favorable to Claimant. At oral arguments Plaintiff's counsel
waived his objection to the Appeals Council's reliance on listing 1.04. 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 an award
of benefits based on an onset date of March 23, 2000.
I. BACKGROUND FACTS
A. PROCEDURAL HISTORY
Claimant filed an application for Supplemental Security Income ("SSI")
and Disability Insurance Benefits ("DIB") on May 13, 1999, alleging a
disability effective as of June 2, 1998 due to sciatic nerve confusion
from a gunshot wound, R. 115-17, 125, 254-56, The application was denied
initially and upon reconsideration. R. 102-11. On January 26, 2000,
Claimant filed a request for a hearing before an ALJ, which was granted
on February 1, 2000.
On July 20, 2000, and March 27, 2001, after two postponements due to
Claimant's inability to secure legal counsel, Claimant had a hearing
before ALJ Lovert Basset, at which Claimant was represented by counsel.
R. 44-101, At the hearing, Claimant and vocational expert ("VE") Meyer
Klein testified. The ALJ denied Claimant's request for SSI and DIB on
July 27, 2000. R, 16-31. Claimant's request for review was denied by the
Appeals Council on March 10, 2003. R. 7-10. Consequently, the ALJ's
decision became the final decision of the Commissioner, Claimant passed
away in the interim. Coppage, the mother of Claimant's minor child,
Michael C, Osborne, filed a timely complaint with this Court, on the
child's behalf, for review of the ALJ's decision. B. HEARING TESTIMONY
1. Claimant's Hearing Testimony
Claimant was born on April 3, 1950 and was fifty years old at the time
of the hearing. R, 115, Claimant worked for Brunswick Corporation for
sixteen years in the mailroom and as an accounting analyst until June 2,
1998, R. 57, when he was laid off due to a corporate reorganization. R.
46, Claimant never returned to work. R. 57. Prior to his termination,
Claimant had taken excessive breaks on the job, had missed work two to
three times a month for doctor appointments, and had not been able to sit
at his desk for long periods of time. R, 58. After Claimant was laid off,
he decided not to look for another job because his health was getting
worse. R, 46.
Claimant's first significant injury was in 1968 due to a gunshot wound
in his right leg during the Vietnam War, R. 59. The injury resulted in
sciatic nerve confusion. Id. As a result, Claimant could not stand for
more than three or four minutes at a time. R. 60. Claimant also had a
vascular surgery problem in his left leg, which prevented him from
walking more than three-quarters of a block, R, 59. Claimant's right leg
bothered him when he stood for too long, and his left leg troubled him
when he walked, R. 60-61. Claimant could sit for about an hour before he
had to stand, stretch his back, and walk because otherwise his leg would
stiffen up. R. 61. He believed that he could lift about ten or twenty
pounds but would get fatigued after lifting something heavy. Id. In March 2000, Claimant went on a train trip to California. R. 63.
While in California, Claimant drove from Los Angeles to Las Vegas in
order to attend a family reunion with a friend, who did most of the
driving, R, 64, 66. During the trip, Claimant injured his back, causing a
disc herniation. R. 64-66. He did not know how he had injured himself,
but he felt "tremendous back pains." R. 65.
Claimant was diagnosed with Hepatitis C in 1991. R. 67, 358. As a
result, he suffered stomach problems and fatigue. Id. Additionally,
Claimant took several strong medications for pain and high blood
pressure, R. 324.
A normal day for Claimant consisted of waking up, taking pills for
blood pressure and pain, eating breakfast, and laying down to sleep for
several hours. R. 62. However, Claimant drove about ten miles a week and
was able to feed and to bathe himself. R. 63, He also visited his mother
daily for about fifteen to thirty minutes, and some friends would come to
visit him occasionally. R. 70-71. Otherwise, Claimant had no social life.
2. Vocational Expert's Testimony
Meyer Klein testified as the VE. R. 76-100. He classified Claimant's
past mailroom and accounting clerk work as light and sedentary
semi-skilled work. R. 80. The ALJ posed to the VE the following
hypothetical: A worker who is forty-nine years of age has an eleventh
grade education, has semi-skilled past relevant work, and has no
transferable skills to other jobs. Further, he can lift twenty pounds
occasionally and ten pounds frequently. The individual can stand and walk
for one hour during an eight-hour shift but should not be exposed to vibrations and must not climb stairs, ramps, ladders,
ropes, or scaffolds. He should not be placed in a job situation that
requires balancing, and he can crouch and crawl occasionally. R. 81-82.
The VE stated that such an individual is confined to sedentary work. R.
82, Such work would be assembly work or cashier work, R. 32-84. In order
to determine the jobs available to Claimant, the VE utilized the
Dictionary of Occupational Titles ("DOT") numbers. R. 82. There were
1,500 jobs for assembly work and 2, 000 jobs for cashier work in the
Chicago metropolitan area. R. 83. The VE also stated that, based on the
hypothetical posed, and including the bookkeeping skills that Claimant
had attained during his career, such a person would be able to perform
some bookkeeping or billing clerk position s. R. 85-89. There were 2,500
such positions available in the Chicago metropolitan area. The VE did not
have the DOT number for a billing clerk available at the hearing, but it
was made available to Plaintiffs counsel and the ALJ before the ALJ' s
decision was rendered. R. 151.
On cross examination, The VE stated he used his judgment in order to
make an estimation as to the 2,500 billing clerk jobs. R. 93. He stated
that the number would actually be larger, but he limited it based on his
understanding of Claimant and the use of his judgment R. 93. Some
sedentary jobs require no standing throughout the day, R. 94. However, if
a worker could only stand for three or four minutes at a time that would
compromise his ability to work at billing clerk or assembler jobs, R. 95.
Also, spending over two hours per day laying down because of fatigue and
pain would eliminate all substantial gainful activity. R.96. Being able to sit for less than six hours
per day also would eliminate the sedentary work activity that generally
exists. R. 98. The VE agreed that if the Claimant was required to take a
five minute break every thirty to forty-five minutes in order to
alleviate pain, then Claimant would be taking excessive breaks that an
employer would not tolerate. R. 98-99.
C. MEDICAL EVIDENCE
1. Nalini Ahluwalia, M.D. Examining Physician
Dr. Nalini Ahluwalia performed a consultative examination of Claimant
in September 2000. R. 355-58. Claimant's chief complaints were:
1) Hypertension for ten years that was medically
2) Lower back pain due to a herniated disc, which
was diagnosed in March 2000;
3) A history of Hepatitis C, which was diagnosed
in 1991; and
4) Pain in the left hip and both lower extremities
An examination of the lower extremities revealed decreased sensation
throughout the right posterior thigh. R, 357, This decreased sensation
"extend[ed] from the right posterior thigh up to the bottom of the foot."
Id. The left lower extremity was "minimally colder to touch" compared to
the right. Id. There was also a "loss of tibialis posterior in the left
foot," however the dorsalis pedis was palpable bilaterally. Id. Dr.
Ahluwalia also found "atrophy of the muscles of the left lower extremity." Id.
During the examination, Claimant was wearing a brace around the
lumbosacral spine area where there was "mild tenderness." Id. An
examination disclosed a gunshot entry wound in the left hip and a gunshot
exit wound of the right hip. Id. The gunshot wound caused residual
decreased sensation in the right lower extremity and involvement of
arteries causing mild circulatory involvement on the left lower
extremity, and some atrophy on the left lower extremity muscles. R. 358.
The gait was found intact, there was minimal decrease in sensation in the
right thigh and the motor system was intact, R. 357, Dr. Ahluwalia' s
impressions included: a history of Hepatitis C since 1991, hypertension
that was under fair control, chronic lower back pain with a history of
herniated disc, but no motor deficit due to the herniation. R. 358.
Dr. Ahluwalia submitted a Medical Source Statement of Ability to do
"Work-Related Activities (Physical) to the ALJ. R, 350-53, Dr. Ahluwalia
opined that Claimant's limitations were: (1) occasionally lifting twenty
pounds and frequently lifting ten pounds, (2) standing or walking less
than two hours in an eight-hour workday, (3) sitting less than six hours
in an eight-hour workday, (4) pushing or pulling limited in the lower
extremities, and (5) no climbing or balancing, with only occasional
crouching or crawling. R. 350-52.
2. Boyd E. McCracken, M.D., and, E.G. Bone, M.D. State Agency
Dr. Boyd McCracken and Dr. E.C. Bone evaluated Claimant's record in
October 1999 and January 2000 respectively. R. 221-228; 102-03, In
October 1999, Dr. McCracken completed a Medical Residual Functional Capacity Assessment. R. 228, He
concluded that Claimant could carry twenty pounds occasionally and ten
pounds frequently, could stand for at least two hours and sit for six
hours out of an eight-hour workday, had unlimited capacity to push or
pull, and had some limitations in climbing, R. 222. Dr. Bone affirmed this
opinion in January 2000 in a Disability Determination and Transmittal
Report. R. 102-03. Neither of these doctors personally examined the
3. Other Medical Treatments and Examinations
In June 1999, Claimant entered the Veterans Administration Hospital
("VA") complaining of right leg cramps after walking a half a block, with
the pain growing worse over the previous three months. R. 152, In March
2000, Claimant was treated for lower back pain that radiated down the
back of his legs. R. 334-35. The pain medication did not provide relief.
Id. ln April 2000, an x-ray revealed mild dextroscoliosis of the
lumbosacral spine. R. 243. An electromyographic ("EMG") exam was
performed and disclosed abnormal spontaneous activity in the left leg
consistent with L5-S1 radiculopathy. R. 250. ln June 2000, treatment
notes refer to an MRI that indicates disc herniation at the lumbar spine
L5-S1 with a disc bulge at L4-5, as well as degenerative disease at
L5-S1. R. 344, 349. Claimant complained at that time of "back pain that
irradiates to the back of his left leg." R. 344, However, Claimant was
hesitant to have surgery. Id.
D. ALJ's DECISION
The ALJ issued a decision on July 27, 2001, R. 16-31, He followed the
familiar five-step disability analysis, At step one the ALJ found that
the Claimant had not engaged in substantial gainful activity since the alleged onset of disability.
R. 30, At step two he determined the Claimant had the following severe
impairments: peripheral vascular disease, status post gunshot wound, back
pain, hypertension, and Hepatitis C, R. 21. At step three, the ALJ
determined that the impairments did not meet or medically equal one of
the listed impairments, R. 23-24, The ALJ determined at step four that
Claimant had the residual functional capacity to lift twenty pounds
occasionally and ten pounds frequently, that he could stand and/or walk
for one hour within an eight-hour workday, that he could sit for seven
hours, that he could crouch or crawl occasionally, kneel frequently, but
that he could not be "exposed to vibrations or climb ramps, stairs,
ladders, ropes, scaffolds, or balance on uneven or slippery surfaces," R.
At step five, the ALJ found that Claimant could not perform any past
relevant work but that he had transferable skills from his previous work
and that his RFC allowed him to do a significant range of sedentary work,
R. 30-31. Examples of jobs the ALJ found Claimant able to perform
included: a hand assembler, electric stem mounter, lamp shade assembler,
cashier, and billing clerk, R. 31, The ALJ concluded that Claimant was
not under a disability and therefore, was not entitled to benefits under
the Act, Id.
The ALJ reasoned that Claimant had severe impairments including
"peripheral vascular disease, status post gunshot wound, back pain,
hypertension, and [H]epatitis C." R. 21. He noted that Dr. Ahluwalia
believed that Claimant could stand less than two hours, R. 22, However,
Dr. Ahluwalia gave no specific explanation for the restriction. Id. The ALJ stated that
there is no medical information from Dr. Ahluwalia
that would oppose requiring [Claimant] to be on his
feet for an hour. Furthermore, Dr. Ahluwalia does not
necessarily rule out standing for a period of time
which might be less than two hours. Thus, requiring
[Claimant] to be on his feet for an hour is not
explicitly forbidden by Dr. Ahluwalia.
Id. The ALJ also noted that Dr. Ahluwalia stated Claimant could only sit
less than six hours a day, however no explanation was given. Id.
The ALJ found that Claimant first began complaining of leg pain in June
1999 and made his first complaints of back pain in March 2000, R. 25.
After a year, Claimant was no longer complaining of claudication type leg
pains. Id. Claimant did, however, continue to complain about his back.
Id. Notes from a June 28, 2000 VA visit indicated that Claimant's
symptoms had improved. R. 26. The ALJ noted that Dr. Ahluwalia found that
Claimant had a history of chronic low back pain due to a herniated disc,
however there were no motor deficits. R. 26.
The ALJ also noted the gunshot wound Claimant suffered and the
resultant nerve damage. R, 25. However, he commented that the
examinations "reveal that [Claimant] has normal range of motion in all
joints, normal gait without a need for assistive devices and normal
neurological findings." Id.
The ALJ also made note of Claimant's hypertension and Hepatitis C. R.
26. The ALJ commented that the hypertension is under control. Id.
Claimant complained of fatigue connected to his Hepatitis C, however the
medical evidence only indicated a few complaints of fatigue in 1998 and that most of the medical evidence indicated that
Claimant was feeling fine and had no serious complaints. Id.
The ALJ found Claimant's testimony about being bedridden "totally out
of sync" with the case record. R, 27, The ALJ stated that the train trip
to Los Angeles and the car trip to Las Vegas "are patently inconsistent
with the rather extreme sitting and ambulatory limitations professed by
[Claimant] and his claims of being a virtual invalid." Id. The ALJ found
these activities to require extended sitting, standing, and ambulating.
The ALJ also made personal observations about Claimant. R. 27. He
commented that during the four times he observed Claimant, which were
short-lived interactions, there was no obvious discomfort during
sustained periods of sitting. Id. Further, Claimant walked "briskly from
the hearing room" on the occasions that the ALJ observed him. Id.
The ALJ determined that Claimant had acquired skills transferable to
the job of billing clerk that Claimant could perform such tasks as a
billing clerk or other sedentary unskilled jobs recommended by the VE. R.
E. APPEALS COUNCIL DECISION
The Appeals Council denied Claimant's request for review on March 10,
2003. R. 7. The Council considered the reasons Claimant disagreed with
the decision of the ALJ and found that the "information does not provide
a basis for changing" the ALJ's decision. R. 8. The Council also
considered regulations effective as of February 19, 2002, which
implemented new listings for musculoskcletal impairments. Id. The Appeals
Council stated that the "new regulations do not provide a basis to
change" the ALJ's decision. Id. II. LEGAL STANDARDS
A. STANDARD OF REVIEW
The "findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive."
42 U.S.C. § 405(g). An ALJ's decision becomes the Commissioner's final
decision if the Appeals Council denies a request for review. Wolfs v.
Shalala, 997 F.2d 321, 322 (7th Cir. 1993). Under such circumstances, the
decision reviewed by the district court is the decision of the ALJ. Eads
v. Sec'y of the Dep't of Health & Human Servs., 983 F.2d 815, 816 (7th
Judicial review is limited to determining whether the ALJ applied the
correct legal standards in reaching his decision and whether there is
substantial evidence in the record to support the findings. Scivally v.
Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992). Substantial evidence is
"such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)
(citing Richardson v. Perales, 402 U.S, 389, 401 (1971)). A mere
scintilla 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. Chater, 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, 966 F.2d at 1073. 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),
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).
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).
The Commissioner uses a five-step sequential process in order to
determine if an individual is disabled. 20 C.F.R. § 404.1520(a). The
sequential evaluation ends if the ALJ, al any step of 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 1, (4) whether the claimant is able to perform his past relevant work, and (5) whether the claimant's age,
education, and past relevant work experience in reference to his residual
functional capacity, enables him to do other work. id. §
404.1520(a)(4)(i)-(v). 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 his ability to
perform work-related activities. Id. § 404.1545. The burden of proof is on
the claimant through step four; the burden shifts to the Commissioner
only at step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000),
At step five of the disability analysis, the Commissioner has the burden
of proving that the Claimant has the ability to engage in other work
existing in significant numbers in the national economy. Young v. Sec'y
of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
C. CREDIBILITY DETERMINATIONS AND ARTICULATION
Credibility determinations of the ALJ are given particular weight and
will be reversed only if patently wrong. Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000). A court can not properly sustain an ALJ's
credibility findings regarding pain that are supported by incorrect
information or illogical reasoning. Ynocencio v. Barnhart,
300 F. Supp.2d 646, 654 (N.D. Ill. 2004)
If the ALJ rejects an entire line of reasoning, he must give his
reasoning 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. Schweiker, 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 Amox Coal Co. v. Beasley, 957 F.2d 324, 327
(7th Cir. 1992)).
Claimant presents three principle issues on review; 1) whether the ALJ
erred in failing to adopt that portion of the opinion of Dr. Ahluwalia
that limited Claimant to sitting for less than six hours in an eight-hour
workday, 2) whether the ALJ ignored evidence favorable to the Claimant
and failed to properly consider Claimant's pain, and 3) whether the ALJ's
step five determination was supported by substantial evidence. This Court
will discuss each in turn.
A. THE ALJERRED IN FINDING THAT CLAIMANT COULD SIT FOR SEVEN HOURS IN AN
EIGHT HOUR WORKDAY
Three physicians rendered opinions concerning Claimant's ability to sit
in the workplace. The state agency physicians agreed that prior to his
back injury Claimant could sit for six hours, but not more, in an
eight-hour workday. The examining physician determined that, after the
onset of the back injury, Claimant could sit less than six hours in an eight-hour workday. The ALJ determined that the Claimant could
sit for seven hours in an eight-hour workday. No physician or report
supports this conclusion. This case turns on the interpretation and
acceptance of the conclusions reached by Dr. Ahluwalia after his
examination of Claimant. Plaintiff contends that the ALJ was required to
adopt the opinion of Dr. Ahluwalia in his evaluation of Claimant's RFC.
The Commissioner argues that the ALJ properly used his discretion to
reject portions of the opinion of Dr. Ahluwalia.
The determination of a claimant's RFC is reserved for the
Commissioner. 20 C.F.R. § 404, 1527(e). ln making a RFC determination,
the ALJ generally must give greater weight to the opinion of an examining
physician than to non-examining physicians. See Id. § 404.1527(d)
("Generally, we give more weight to the opinion of a source who has
examined you than to the opinion of a source who has not examined you.")'
However, medical evidence and opinions may be discounted if "specific,
legitimate reasons constituting good cause are shown for rejecting"
them. Knight v. Charter, 55 F.3d 309, 313 (7th Cir. 1995); SSR 96-5p,
1996 WL 374183, at *4. ALJs are required to "weigh medical source
statements under the rules set out in 20 C.F.R. § 404.1527 and 416.927,
providing appropriate explanations for accepting or rejecting such
opinions," SSR 96-5p, 1996 WL 374183, at *5.
Dr. Ahluwalia opined that Claimant was limited to walking and/or
standing for less than two hours and limited to sitting less than six
hours in an eight-hour workday. R. 350-52, According to this conclusion,
Claimant would be limited to working less than a full eight-hour workday,
Any physical limitation that prevents a claimant from working a full
eight-hour workday, not including lunch or reasonable breaks, is a disability under
the Act. Rousey v. Heckler, 771 F.2d 1065, 1071 (7th Cir. 1985); See SSR
96-8p, 1996 WL 374184, at *1 (Claimant is not disabled if he is able to
work a full day). There was no conflicting medical evidence with Dr.
Ahluwalia's opinion. Both slate agency physicians, prior to the onset of
the back injury, concluded that Claimant could only sit for six hours in
an eight-hour work day. Dr. Ahluwalia was the only physician to examine
the Claimant after the onset of his back injury. It is reasonable that a
severe back injury would further limit Claimant's ability to sit. Dr.
Ahluwalia was in the best position to make a determination about
Claimant's RFC. However, without explanation, the ALJ determined that
Claimant could sit for seven hours and stand for one hour in an
eight-hour workday. There was nothing in the medical record for the ALJ
to deviate from Dr. Ahluwalia's assessment and make his own determination
as to Claimant's ability to sit.
Dr. Ahluwalia was not Claimant's treating physician, but rather an
examining physician sought out by the Commissioner to provide a Medical
Source Statement to assist the ALJ in making his determination. Dr.
Ahluwalia was an independent physician with no bias or allegiance to
Claimant, The ALJ noted that DR. Ahluwalia's opinion was entitled to
greater weight than that of the non-examining physicians. R. 26-27.
However, the ALJ rejected Dr. Ahluwalia's conclusion that Claimant was
limited to sitting for less than six hours in an eight-hour workday, and
concluded that he could sit for seven hours. In rejecting Dr. Ahluwalia's opinion and determining Claimant's
limitations as to sitting, the ALJ looked to a trip that Claimant took in
March 2000 from Chicago to Los Angeles. On that trip Claimant rode on a
train, drove in a car, went to a family reunion in Las Vegas, and looked
for a job. However, all of this occurred prior to the back injury that
caused Claimant's herniated disc. Dr. Ahluwalia examined Claimant in
September 2000, after Claimant returned from the trip. It is illogical to
reject Dr. Ahluwalia's opinions and to determine that Claimant could sit
for seven hours during a workday based on conduct prior to a major
injury. On a train, Claimant would be able to stand, sit, walk around and
sleep whenever needed. Taking a train trip is not inconsistent with Dr.
Ahluwalia's opinion that Claimant could only sit for less than six hours
in an eight-hour workday. Also, the ALJ should have considered that the
injury occurred after the trip, and that such an injury could affect
Claimant's ability to sit for a prolonged time during the day,
Further, the ALJ rejected Dr. Ahluwalia's opinion about Claimant's
sitting limitation because Claimant testified that he drove ten miles per
week. Concluding that Claimant was able to sit for seven hours in an
eight-hour workday is simply not related to Claimant's ability to drive
ten miles per week. Ten miles per week is not a significant distance and
can be covered in under an hour. Being able to drive for ten miles per
week is in no way inconsistent with Dr. Ahluwalia's conclusion that
Claimant was limited to sitting for less than six hours in an eight-hour
workday. The ALJ did not build an accurate and logical bridge from the
evidence to his conclusion. Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000). B. THE ALJ IGNORED EVIDENCE FAVORABLE TO THE CLAIMANT AND FAILED
TO PROPERLY CONSIDER CLAIMANT'S PAIN
The ALJ used his subjective observations and Claimant's testimony in
order to determine that Claimant was not credible regarding his pain,
while ignoring an EMG exam and other evidence indicating fatigue. There
was medical evidence to support Claimant's complaints of pain. There was
an EMG examination, which showed nerve root damage (radiculopathy) at L5
and SI. R. 250. This supports Claimant's testimony about the amount of
pain he was in and why it was difficult for him to work a full day. The
ALJ failed to discuss the EMG, An ALJ is required to discuss evidence
that contradicts his opinion. Godbey, 238 F.3d at 808. Further, an ALJ
must discuss the strongest piece of evidence. See Brindisi ex. el.
Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003) (reversing and
remanding because the ALJ did not discuss the strongest piece of
evidence). Claimant testified that he could sit for an hour before
feeling discomfort, he could stand for three to four minutes at a time,
and he could walk three quarters of a block because either his legs or
back were in too much pain, Nerve root damage could give rise to pain and
be the reason Claimant had such limitations, ln this case, the EMG
directly supports Claimant.
Further, Claimant suffered from several different medical and health
problems. If a Claimant has one or more severe impairments, the ALJ must
"consider the aggregate effect of this entire constellation of ailments
including those impairments that in isolation are not severe,"
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (citing
20 C.F.R. § 404.1523). The ALJ did not consider all of Claimant's
ailments in the aggregate. Claimant suffered from Hepatitis C, a gunshot wound to his right hip and left
leg, hypertension, and a disc herniation that caused nerve root damage at
L5 and SI. The ALJ failed to discuss the effects of Claimant's Hepatitis
C, which tends to cause fatigue, The ALJ did not discuss the side effects
of Claimant's medication, which caused him to sleep for a large portion
of the day, All of the symptoms in the aggregate indicate that Claimant
suffered severe pain and other physical limitations. At the very least,
the ALJ should have considered all of these potentially debilitating
ailments in the aggregate.
C. THE VE TESTIMONY WAS SUFFICIENT AT STEP FIVE
Although this case will be reversed on the basis of the first two
issues, this Court will discuss the remaining issue in the event of later
Plaintiff argues that the ALJ could not properly rely on the testimony
of the VE to meet the Commissioner's burden of production at step five in
the evaluation because the VE did not have sufficient and specific data
to render an opinion. At step five, the Commissioner has "the burden of
proving that there are jobs in the national economy that claimant can
perform.'" Herron v. Shalala, 19 F.3d 329, 333 n.8 (7th Cir. 1994). ln his
opinion, the ALJ adopted the VE's testimony and determined that Claimant
was "capable of making a successful adjustment to work that exists in
significant numbers in the national economy." R. 29.
Claimant stipulated to the VE's qualifications as an expert at the
hearing, R. 76, The VE used his judgment and made an estimation that was
based on a limitation not contemplated by the DOT numbers in determining how many jobs he believed
would be available for a billing clerk with the limitations set forth by
the ALJ. An expert witness is not only called upon to simply recite
information available in a text or document. If that were the case, ALJ's
would not need to call vocational experts to testify because they would
simply be able to go to the texts themselves and find the information
needed pertaining to available jobs. Personal experience and judgment are
a valid foundation for the VH's estimation. The ALJ was proper in
adopting the testimony of the VE pertaining to the number of jobs
available for Claimant.
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. The decision of the ALJ is reversed and Claimant is
awarded benefits based on an onset date of March 23, 2000, which is when
Claimant first began complaining of back pains. SO ORDERED THIS 13th DAY
OF APRIL, 2004.
JUDGMENT TN A CIVIL CASE
? Jury Verdict. This action came before the Court for
a trial by jury. The issues have been tried and the
jury rendered its verdict.
Decision by Court. This action came to hearing
before the Court. The issues have been heard and a
decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that Claimant's motion for summary
judgment is granted, and the Commissioner's motion for summary judgment
is denied. The decision of the ALJ is reversed and Claimant is awarded
benefits based on an onset date of 03/23/2000, which is when Claimant
first began complaining of back pains.
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