United States District Court, N.D. Illinois
April 19, 2004.
JULIE A. RHODES, Plaintiff,
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Julie A. Rhodes seeks judicial review of a final decision
of defendant Commissioner of Social Security that denied her claim for
Social Security disability benefits. Before the court are the parties'
cross-motions for summary judgment. For the reasons stated below,
plaintiff's motion is granted, and defendant's motion is denied.
I. Procedural History
On April 3, 2001, plaintiff filed an application for Social Security
disability benefits. The claim was denied both initially and on
reconsideration. Plaintiff received a hearing before an Administrative
Law Judge ("ALJ") on December 19, 2002. On January 31, 2003, the ALJ
denied plaintiff's request for benefits. Plaintiff requested review by
the Appeals Council, which was denied on April 24, 2003, leaving the
ALJ's decision as the final decision of the Commissioner. On June 18,
2003, plaintiff filed this action.
II. Factual Background
Plaintiff was born on January 21, 1955, and was 47 years old at the
time of the ALJ's decision. She attended high school through her
sophomore year. Prior to October 1999, plaintiff worked ten to fifteen hours per week, approximately forty weeks per
year, "merchandising," or moving products around in retail stores. In
this job, plaintiff was required to lift as much as thirty to fifty
pounds, depending on the type of merchandise she was moving. Frequently,
the merchandise she was required to lift would weigh less than ten
pounds. Plaintiff earned between $4,000 and $4,600 annually for performing
Prior to the merchandising job, plaintiff worked at a hardware and
lumber store. In that job, plaintiff drove a forklift, and unloaded and
loaded trucks. Plaintiff was required to lift 75 pounds at the hardware
and lumber store. Plaintiff has also worked as an order picker, in which
she was required to lift 25 to 50 pounds. Finally, plaintiff previously
worked as an inventory clerk, which required only light exertion and
Plaintiff claims that she became disabled on October 20, 1999,*fn1
when a neighbor's dog knocked her down. As a result of this incident,
plaintiff fractured her right lateral tibial plateau (knee). Plaintiff
had surgery to repair the fracture on October 26, 1999. Plaintiff was on
crutches after her surgery, and was allowed to bear weight on the leg
with a brace starting January 3, 2000. Plaintiff testified that she had
physical therapy two to three times a week, until April or May 2000.
Plaintiff could walk with a cane as of January 31, 2000, but was
experiencing some secondary strain and pain in her ankle. As of April 12,
2000, plaintiff had some occasional discomfort in her knee, but had full
range of motion and was walking with a minimal limp. As of July 24, 2000,
plaintiff was still experiencing occasional minimal discomfort in her
knee, but was walking with no limp; her physician concluded that the
fracture had healed, and discharged her.
Plaintiff testified that approximately one to two months after her knee
surgery, she began to have problems with her shoulders. Plaintiff
testified that her shoulders hurt constantly, and that the pain increased
over time. At the time, plaintiff assumed that the shoulder problem was
caused by using crutches.
Plaintiff attempted to return to part-time work in June or July 2000.
She testified that at that time, her leg and shoulders still bothered
her. Plaintiff believed that screws that had been placed in her leg
during her knee surgery were rubbing when she moved. Plaintiff's employer
accommodated her by having coworkers help her lift objects, and by
allowing her to go home early some days.
On October 11, 2000, plaintiff sought medical treatment for her
shoulder pain. Plaintiff told her physician that her shoulder pain began
when she started using crutches for her leg injury. Plaintiff initially
was treated with injections of Lidocaine and DepoMedrol, which provided
relief for only two to three weeks. Plaintiff testified that her
physician also sent her to physical therapy for four or six weeks, which
was not effective. Plaintiff stopped working in October or November 2000,
around the time of the usual seasonal layoff in her job. At that time,
she was unable to do much of her work due to shoulder pain.
On December 11, 2000, plaintiff saw her physician with complaints of
occasional discomfort in her knee. Plaintiff's treating physician
theorized that this discomfort could be caused by the screws and other
hardware that had been placed in her leg during surgery in October 1999.
Plaintiff had surgery on her left shoulder on January 25, 2001, to
repair a partial thickness tear of the rotator cuff with impingement. Plaintiff testified that
she had physical therapy two to three times per week for a couple of
months after that surgery. Plaintiff testified that she was unable to
work after this surgery due to pain, and because she had physical
Plaintiff had surgery on her right shoulder on April 19, 2001 to repair
a rotator cuff tear. Plaintiff testified that she had physical therapy
for three or four mouths after the surgery on her right shoulder.
Plaintiff testified that she was unable to return to work after her
second shoulder surgery due to shoulder pain.
On September 10, 2001, plaintiff had surgery to repair a hernia.
Plaintiff testified that she was unable to return to work after her
hernia surgery due to knee and shoulder pain.
The hardware in plaintiff's knee was surgically removed on December 11,
2001. Plaintiff testified that she did not return to work after this knee
surgery due to knee and shoulder pain, and to allow the knee to heal.
At the time of the hearing, plaintiff was able to do some everyday
activities, such as laundry, cooking, and shopping. However, these tasks
took a much longer time to complete than before her injury because she
needed to take breaks. Plaintiff no longer walked her dog or mowed the
lawn. Plaintiff testified that she still experienced pain in her
shoulders and knee. Plaintiff becomes uncomfortable after sitting for a
William Newman, a medical expert, testified that plaintiff's knee never
completely recovered from the October 1999 injury, but that the knee
injury did not equal a listed impairment for twelve months.
Dr. Newman testified that plaintiff would not have been able to do even
sedentary work for three to four weeks after her first shoulder surgery,
and she would have experienced pain for awhile. According to Dr. Newman, plaintiff would have had to keep her arm
in a sling for five weeks after her second shoulder surgery. Plaintiff
would not have been able to do even sedentary work during that time, and
would not have been able to lift even ten pounds one-third of the day for
three months. She would have been able to do some reaching for objects,
with no weight, approximately six weeks after her right shoulder
surgery. Dr. Newman opined that plaintiff would never be able to lift
fifty pounds again. One year after plaintiff's first shoulder surgery,
plaintiff would have been able to lift twenty pounds occasionally, and ten
pounds frequently, and would have been able to do unlimited reaching.
Dr. Newman testified that using crutches could not cause a torn rotator
cuff, because that type of injury results from the opposite type of
motion than is required to use crutches. He further testified that trauma
or usual wear and tear can cause a torn rotator cuff. Dr. Newman
testified that plaintiff had some residual problems with her shoulders
after the surgery, and concluded that the impairments relating to
plaintiff's shoulders lasted for at least twelve months.
Dr. Newman testified that plaintiff would have been unable to do even
sedentary work for approximately one month after her hernia surgery. He
further testified that it would have taken plaintiff six to eight weeks
to recover from the hernia surgery, and that there would have been no
residual impairment unless there were complications.
According to Dr. Newman, plaintiff would have been unable to bear any
weight on her knee for two or three days after the hardware was removed
in December 2001, and would have been unable to do even sedentary work
for ten days. Dr. Newman testified that it would have taken three to four
weeks to recover from the removal of the hardware.
Dr. Newman opined that plaintiff had impairments that lasted at least
twelve months and that these impairments had more than a minimal effect on plaintiff's
ability to work, but that the impairments did not meet or equal in
severity the criteria of the listed impairments. According to Dr.
Newman, plaintiff's medical records indicated that her shoulders healed,
but that they would never be completely normal. As a consequence,
according to Dr. Newman, plaintiff would always be restricted to light
Vocational expert Thomas Dunleavy testified that plaintiff s job as a
merchandiser was semi-skilled, and required a medium level of exertion.
He testified that plaintiff s job at the hardware and lumber store was
semi-skilled, and required a heavy level of exertion. He testified that
her job as an order picker was unskilled, and required a medium level of
exertion. He testified that her job as an inventory clerk was
semi-skilled and required a light level of exertion. Finally, the
vocational expert testified that missing more than twelve days in a year
to recuperate from surgery would seriously erode the occupational base.
III. Legal Standard
Under Section 405(g), a district court may affirm, modify, or reverse
the decision of the Commissioner of Social Security, with or without
remanding the case for a rehearing. 42 U.S.C. § 405(g). The court must
uphold the Commissioner's findings of fact if they are supported by
substantial evidence. Id.; Clifford v. Apfel, 227 F.3d 863, 869 (7th
Cir. 2000). Substantial evidence is evidence that "a reasonable mind
would accept as adequate to support a conclusion." Binion ex rel. Binion
v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). The court may not reweigh
the evidence, resolve conflicts, decide credibility questions, or
substitute its judgment for that of the Commissioner. Clifford, 227 F.3d
at 869. However, the review must be more than an uncritical rubber
stamp. Id. The Social Security regulations provide a five-step inquiry to use in
determining whether a claimant is disabled:
(1) whether the claimant is currently employed;
(2) whether the claimant has a severe impairment;
(3) whether the claimant's impairment meets or equals
one of the impairments listed by the SSA, see
20 C.F.R. § 404, Subpt. P, App. 1;
(4) whether the claimant can perform her past
(5) whether the claimant is capable of performing
work in the national economy.
See Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995) (citing
20 C.F.R. § 404.1520). If a claimant satisfies the first three steps, she
will automatically be found disabled. Id. If a claimant satisfies the
first two steps, but not the third, then she must satisfy step four. Id.
Once step four is satisfied, the burden shifts to the Social Security
Administration ("SSA") to establish step five. Id.
At step one, the ALJ found that plaintiff engaged in substantial
gainful activity in 1999 and 2000, after the amended alleged disability
onset date of October 20, 1999. However, the ALJ stated that he did not
base his decision that plaintiff was not disabled on his findings at this
step of the analysis. Next, at step two, the ALJ accepted the medical
evidence that plaintiff's shoulder problems constituted a severe
impairment. The ALJ found that plaintiff's shoulder impairment lasted at
least twelve months, but found that her other impairments did not. At
step three, the ALJ accepted the medical expert's opinion that plaintiff
did not have an impairment or combination of impairments that met or was
medically equivalent to any listed impairment. At step four, the ALJ
found that plaintiff's shoulder impairment did not prevent her from
performing her past relevant work as an inventory clerk for a continuous
period of twelve months or more during the relevant period. Accordingly, the ALJ concluded
that plaintiff was not disabled, within the meaning of the Social
Security Act, for a continuous period of at least twelve months.
Plaintiff first argues that the ALJ improperly rendered a decision
because he failed to discuss plaintiff's credibility, or to make any
findings with respect to her credibility. Specifically, plaintiff argues
that the ALJ should have considered plaintiff's testimony that she still
was experiencing pain in her knee and shoulders at the time of the
hearing, and her testimony relating to the side effects of taking
An ALJ's decision regarding a claimant's credibility must "contain
specific reasons for the finding on credibility, supported by the evidence
in the case record." Social Security Ruling 96-7p ("SSR 96-7p"); see also
Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir. 2003)
(ALJs must comply with SSR 96-7p). These reasons "must be sufficiently
specific to make clear to the individual and to any subsequent reviewers
the weight the adjudicator gave to the individual's statements and the
reasons for that weight." SSR 96-7p.
In his decision, the ALJ did not explicitly discuss plaintiff's
testimony relating to her current level of pain or her inability to do
sedentary work. Plaintiff testified that she had not returned to work at
the time of the hearing because she did not believe that she could do the
same work that she had been doing. She explained that her shoulders still
hurt, and stated that she would be uncomfortable even doing a job in
which she sat most of the day.
Defendant argues that the ALJ found plaintiff's testimony to be
credible. In support of this argument, defendant cites the ALJ's finding
that the medical expert's opinions, which the ALJ credited, were
"consistent with the claimant's allegations, which reflect her sincere perception of a continuous inability to work at all times." However, the
ALJ made this finding in the context of a discussion regarding whether
plaintiff's multiple impairments could be considered in combination. The
ALJ did not discuss the credibility of plaintiff s testimony that she
would be uncomfortable sitting for long periods of time. Indeed, the ALJ
implicitly rejected this testimony by finding that plaintiff's shoulder
impairment did not prevent her from performing her past relevant work as
an inventory clerk.
Nor did ALJ address plaintiff's testimony regarding the side effects of
her medication. Plaintiff testified that started taking Vicodin before
her first shoulder surgery, but did not specify precisely how long before
the surgery she had done so. Plaintiff testified that she took Vicodin
after every surgery, for "[a]lmost that whole year,"*fn2 although she
acknowledged that there were times during the summer when she did not
take Vicodin. Plaintiff testified that the Vicodin caused her to doze off
for a half-hour to an hour once or twice a day. As of the date of the
hearing on December 19, 2002, plaintiff was no longer taking Vicodin, and
the pain medication that she was taking at that time did not cause
drowsiness like the Vicodin had. The vocational expert testified that
dozing off for an hour at a time once or twice a day would eliminate
Defendant argues that the ALJ's assessment of plaintiff s residual
functional capacity was consistent with plaintiff's testimony relating to
the side effects resulting from taking Vicodin. According to defendant,
plaintiff's testimony that she used Vicodin after every surgery was
consistent with medical evidence that she did not take Vicodin throughout
the relevant time period. Therefore, argues defendant, any side effects from taking Vicodin
would not have persisted for twelve months. The ALJ did not include such
an analysis in his decision, however, and so the court does not find this
argument persuasive. See Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th
Cir. 2003) ("general principles of administrative law preclude the
Commissioner's lawyers from advancing grounds in support of the agency's
decision that were not given by the ALJ").
The court agrees with plaintiff that the ALJ did not articulate his
reasons for discounting plaintiff's statements about her pain and its
functional effects, or the side effects of her medication. Although the
ALJ stated in the findings section of his decision that "[t]he claimant's
allegations of symptoms have been considered in the assessment of her
residual functional capacity," such a conclusory statement is not
adequate to fulfill the ALJ's obligation to offer specific reasons for
the weight given to a claimant's statements. See Zurawski v. Halter,
245 F.3d 881, 887 (7th Cir. 2001) ("it is not sufficient for the
adjudicator to make a single, conclusory statement that `the individual's
allegations have been considered'. . . ."). Since the ALJ's decision
provides no opportunity for meaningful judicial review, the case must be
Because the issue may recur, the court will briefly address plaintiff's
argument that the ALJ erred in finding that plaintiff's shoulder
impairment was unrelated to her fractured knee. The relevant Social
Security regulation provides:
We cannot combine two or more unrelated severe
impairments to meet the 12-month duration test. If
you have a severe impairment(s) and then develop
another unrelated severe impairment(s) but neither
one is expected to last for 12 months, we cannot
find you disabled, even though the two impairments
in combination last for 12 months.
20 C.F.R. § 404.1522(a). The ALJ found that only plaintiff's shoulder
impairment lasted for twelve months, and that plaintiff was able to perform sedentary work
within twelve months after the onset of the shoulder impairment. The ALJ
found that plaintiff's knee injury and hernia did not cause plaintiff to
be disabled for twelve months, and credited the medical expert's
testimony that the shoulder impairment could not have been caused by
using crutches while recovering from the knee injury. The ALJ
characterized plaintiff's various impairments as discrete problems, and
declined to consider them in combination.
Plaintiff argues that the ALJ should have considered her impairments in
combination, because the medical expert testified that they all may have
stemmed from her October 1999 fall. At the hearing, the medical expert
testified that plaintiff's impairments "all may be related to falling
down with the dog. I don't know, even the hernia." However, the medical
expert then re-examined the medical records relating to plaintiff's
treatment after her October 1999 fall to see if plaintiff had complained
about her shoulders or hernia at that time. After reviewing the records,
the medical expert noted that they did not indicate any such complaint.
No other evidence that plaintiff's impairments were related was presented
at the hearing. Given the lack of evidence in the record that plaintiff's
impairments were related, it appears that the ALJ's finding that they
were not related was reasonable.
Finally, plaintiff requests an award of attorney's fees in her motion
for summary judgment. That request is denied on the basis that plaintiff
does not cite any authority to support it.
ORDERED: Plaintiff's Motion for Summary Judgment [6-1] is granted.
Defendant's Motion for Summary Judgment [9-1] is denied. Pursuant to
sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is
reversed, and the case is remanded to the Commissioner for action consistent with this opinion. Judgment in favor of plaintiff
will be set forth on a separate document, and entered in the civil
docket. See Fed.R.Civ.P. 58.