United States District Court, N.D. Illinois
May 4, 2004.
DAVID DODGE, etc., Plaintiff
JO ANN B. BARNHART, Commissioner, Social Security Administration, Defendant
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff David Dodge brought this action against the Commissioner of
the Social Security Administration (SSA) seeking judicial review of the
decision by an administrative law judge (ALJ) denying disability
benefits. Both sides now seek summary judgment. For the following
reasons, plaintiff's motion is granted and defendant's motion is denied.
On July 6, 1998, plaintiff's leg went completely numb as he was
performing work for a garbage collection company. He tried to return to
work but the injury forced him to quit his job and seek treatment. Since
that time plaintiff has been diagnosed with numerous back ailments and
has undergone multiple surgeries and treatments. He has attempted
physical therapy in order to return to work, but has had no success. On
June 6, 2000, plaintiff applied for disability benefits from the SSA, but
was denied. He obtained a hearing on the merits of his claim, but the ALJ
issued an opinion denying the claims and that opinion was affirmed by the
SSA's appeals council. Plaintiff seeks review of this final decision
pursuant to 42 U.S.C. § 405. At the ALJ hearing, plaintiff testified that his back problems cause
frequent, serious pain. Specifically, he said that he has trouble sitting
for long periods and cannot stand for more than ten minutes. He stated
that this lack of mobility has greatly limited the number and types of
occupations available to him. The ALJ also received reports from
plaintiff's treating physicians and from Dr. James Graham and Dr. Sandra
Bilinski, both of whom reviewed plaintiff's medical file for the SSA.
The ALJ asked vocational expert Jennie Chin the following hypothetical
Assume a hypothetical claimant age 37, high school
diploma, let's look at light and sedentary work, with
occasional stooping, kneeling, crouching, crawling,
restricted to 15 to 45 minutes of sitting. . . . 10 to
15 minutes of standing and 10 to 15 minutes of limited
lifting, avoid concentrated exposure to unprotected
heights. Forget past work. What exists with that
Chin testified that there were numerous jobs available for this
hypothetical person, without additional training.
Based on the evidence presented at the hearing, the ALJ determined that
plaintiff did not meet the criteria for disability benefits under Titles
II and XVI of the Social Security Act.
In reviewing a factual determination of the SSA Commissioner, we look
for substantial evidence supporting the finding 42 U.S.C. § 405(g). This
means more than a mere scintilla of proof-enough evidence to reasonably
support the conclusion, Diaz v. Chater, 55 F.3d 300, 305 (7th Cir.
1995), In-reviewing issues of law, we overturn any decision in which the
Commissioner makes a legal error. Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002).
In order to determine whether or not a claimant is disabled, the SSA
uses a five-step process set forth by 20 C.F.R. § 404.1520 et seq. A
person is disabled if (1) the applicant has not recently performed substantial gainful activity; (2) the applicant
suffers from a severe impairment; and (3) the applicant's impairment
meets or exceeds the conditions listed in 20 C.F.R. § 404, Appendix 1,
Subpt. P. If the applicant fails to prove the third step, he may be found
disabled if (4) the applicant cannot perform his past work; and (5) the
applicant cannot do other work that amounts to substantial gainful
activity. 20 C.F.R. § 404.1520(b)-(f).
The ALJ determined that plaintiff had not recently performed gainful
activity and that he suffered from a serious impairment, but that his
impairment did not meet the conditions of Subpart P. The ALJ went on to
find that, although the plaintiff could not perform his past work, he was
able to perform a significant range of gainful sedentary work. The
plaintiff now claims that (1) the ALJ committed legal error in failing to
include pain in the hypothetical question; (2) he committed legal error
in failing to discuss his reasoning for finding that the impairment did
not meet the conditions of subpart P; and (3) the credibility findings
were not supported by substantial evidence.
We turn first to plaintiff's second contention, that the ALJ failed to
adequately explain why plaintiff's impairment did not meet the conditions
of subpart P. The ALJ must link all conclusions to evidence in the
record. Groves v. Apfel, 148 F.3d 809, 811 (7th Cir. 1998). In Groves,
the ALJ relied on testimony provided by the SSA's expert, even though
that doctor had not actually examined the applicant. Id. The court
determined that the ALJ's decision must be reversed because he failed to
articulate his reasoning for accepting this testimony over that of the
applicant's treating physicians. Id.
Plaintiff claims that his case is similar to Groves in that the ALJ
ultimately relied on the SSA's doctors rather than those who actually
examined the plaintiff, when the ALJ determined that the impairment did
not qualify under subpart P. In this case, however, the ALJ never actually chose between two sets of physicians. Plaintiff now
points to facts scattered throughout the record indicating that he
suffered from a qualifying ailment, but these facts refer to various time
periods and points in plaintiff's recovery. There is nothing in the record
to indicate that plaintiff presented any evidence establishing that he
met the required elements of subpart P for a 12-month period, as is
required by the Social Security Act, 42 U.S.C. § 423(d)(1)(A). See
Anderson v. Sullivan, 925 F.2d 220, 223 (7th Cir. 1991).
We find that the ALJ committed no legal error in finding that plaintiff
did not meet the criteria of subpart P, He determined that the SSA
doctors presented evidence that plaintiff did not suffer from such an
impairment and that plaintiff failed to present any evidence in favor of
such a finding.
Plaintiff's first and third contentions must be taken together. A
hypothetical question presented by the ALJ to a vocational expert must
fully set forth the claimant's impediments to work that are supported by
evidence. Herron v. Shalala, 19 F.3d 329, 337 (7th Cir. 1994); Brown v.
Chater, 913 F. Supp. 1210, 1216 (N.D. Ill. 1996) (holding that the
failure of the ALJ to include pain in a hypothetical is grounds for
remand). Plaintiff claims that the ALJ's hypothetical question was
erroneous as a matter of law because it did not refer to plaintiff's
pain. In resolving this-question, we must turn to the evidentiary record
and determine whether the ALJ had substantial evidence to formulate such
An ALJ's findings of credibility should not be disturbed unless they
lack support in the record, Diaz, 55 F.3d at 307. The ALJ determined that
while the plaintiff was, overall, credible as a witness, his subjective
complaints were less than fully credible. In reaching this decision, the
ALJ considered plaintiff's medical records, his daily activities, and the
testimony of treating physicians. This included remarks by Dr. Mikhail
Drizin indicating that plaintiff's pain complaints were not always
consistent with the reports from his physical therapists. While he did not specifically mention the report of plaintiff's physical
therapist in his decision, the record indicates that the ALJ considered
all evidence relevant to plaintiff's condition. He determined that this
objective evidence did not provide sufficient support for plaintiff's
testimony about his pain. Because this decision is supported by the
record, we are not in a position to second-guess this credibility
The ALJ did not connect this determination to the hypothetical question
posed to the vocational expert. He stated only that plaintiff's complaints
of severe pain were "not totally credible" in light of the available
objective evidence. It is certainly possible, even in light of that
finding, that plaintiff suffered from back pain that would limit his
employment possibilities. Still, there was no mention of any pain in the
The ALJ may have concluded that plaintiffs complaints were largely
baseless and he was not materially limited by the pain. If he so
concluded, that finding would have been subject to attack here.
Alternatively, he may have believed that plaintiff suffered from some
back pain, but that there was no reason to mention the pain in the
hypothetical question in light of the physical restrictions that were
already listed. But there are no findings respecting pain in the opinion
nothing about its intensity, frequency or duration. Instead, the ALJ
did not connect his credibility findings to the conclusions in the
hypothetical, and that he needed to do.
For the foregoing reasons, plaintiff's motion for summary judgment is
granted and defendant's motion for summary judgment is denied. The matter
is remanded to the ALJ for further proceedings. JUDGMENT IN 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 trial or hearing before the
Court. The issues have been tried or heard and a decision has been
IT IS HEREBY ORDERED AND ADJUDGED that plaintiff's motion for summary
judgment is granted and defendant's motion for summary judgment is
denied. The matter is remanded to the ALJ for further proceedings.
© 1992-2004 VersusLaw Inc.