United States District Court, N.D. Illinois
May 5, 2004.
RICHARD BURNETT, Plaintiff,
JO ANNE B. BARNHART Commissioner of Social Security, Defendant
The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Richard Burnett ("Burnett" or "plaintiff"), has brought a
motion for summary judgment seeking judicial review of the final decision
of the Commissioner of the Social Security Administration ("Commissioner"
or "defendant"), who denied Burnett's claim for disability insurance
benefits ("DIB") and Supplemental Security Income ("SSI") under the
Social Security Act ("Act"), 42 U.S.C. § 416(i), 423(d), 1381a.
Defendant, Barnhart, filed a cross motion for summary judgment asking
that we uphold the decision of the Administrative Law Judge ("ALJ"), We
have jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g) and
1383(c)(3). For the following reasons, we grant plaintiff's motion and
deny defendant's motion, remanding this case to the ALJ for further
proceedings consistent with this opinion.
Burnett filed an application for DIB and SSI on August 20, 1999,
alleging disability since July 4, 1999, without regard to his substance
abuse. (R. 146-9). Prior to this application, plaintiff had been awarded
benefits based on his dependence on drugs. (R. 45). However, his benefit eligibility ceased in January, 1997
after the enactment of Public Law 104-121, the "Contract With America
Advancement Act of 1996." On March 1, 2001, ALJ Helen G. Copper conducted
a hearing on plaintiffs current petition. Mr. Burnett, Dr. Ellis
Johnson, a psychiatrist, and Mr. Edward Steffan, a vocational expert,
testified at the hearing. (R. 37). Afterwards, plaintiff supplemented the
ALJ's record with additional medical evidence. (R. 142) The ALJ closed
the record and issued an opinion denying plaintiff's claim. The Appeals
Council denied plaintiff's request for review and ALJ Copper's decision
became the final decision of the Commissioner. See Zurawski v. Halter,
245 F.3d 881 (7th Cir. 2001); Reg. § 416.1481.
Richard Burnett, now fifty-four years old, is an Air Force veteran with
a twelfth-grade education. (R. 47-8). Burnett was honorably discharged
from the Air Force under special conditions and his past work experience
includes employment as a security guard, food assembler, and telephone
installer/repairman. (R. 48, 95).
At the hearing, plaintiff testified that, physically, his main problem
was his back, and pain in his elbow and knee joints. (R. 50). He also
stated that lately he had been having bad cramps in his legs and that he
experienced daily pain in various locations. (R. 50, 71). He further
stated that his condition had progressively worsened. If he worked one
day, the next day, his body was too sore to go to work. (R. 50). He also
stated that his body was just too tired after a day's work and that he
had difficultly finishing tasks assigned at work. (R. 50-1). At the time
of the hearing, plaintiff was on a daily regimen of extra strength
Tylenol for pain, blood pressure medication, and Mirtazapine for depression. (R. 68-9, 73). Plaintiff also used an
inhaler for breathing problems. (R. 69).
Burnett testified that he had trouble remembering doctor's appointments
and remembering to take his medication. (R. 52). At times, he felt like
someone was watching him and trying to harm him. He also felt guilty
about his way of life and not being there for his son. (R. 52-3). He
watched TV for enjoyment, but sometimes had problems following the
programs. Id. He testified that he had trouble sleeping and had been
prescribed medication to help him sleep. (R. 54). He also stated that
sometimes he had thoughts of suicide and thought about harming his
girlfriend, but he never acted on those thoughts. (R. 55).
At the time of the hearing, plaintiff had also been in a Methadone
program for drug dependency for the prior two years. (R. 73-4). He stated
that he did not miss more than a day of his Methadone treatments because
if he did, he became depressed, sick, and weaker. Id. He also testified
that he still occasionally used drugs and had used them the previous
night. Id. His biggest problem was cocaine and marijuana. He obtained
drugs by making purchases for others who gave him some as payment. (R.
75). Plaintiff had positive urine drops throughout 2000, and he testified
that the longest time he had gone without using was "[a] few weeks
maybe." (R. 76).
Plaintiff supported himself with food stamps, occasional work through
Earnfair, a government job program, and financial help from his aunt and
Uncle. (R. 57). His most recent Earnfair job lasted about a month and
involved cleaning and letting cars in and out at a car glass replacement
shop. Id. Prior to that, plaintiff worked unloading trucks for a retailer
for approximately four months. Id. Plaintiff did not have any other
sources of income. (R. 60). At home, plaintiff did chores around his apartment,
including sweeping and making his bed, however, it hurt to sweep. (R.
At the hearing, plaintiff stated that he did not think he could
currently work. (R. 66). Plaintiff thought that he could comfortably lift
ten to twenty pounds, and could comfortably stand in place for about
twenty to thirty minutes before his back would start to hurt. (R. 78).
Plaintiff also stated that he could walk a block before having to rest.
(R. 78-9). He stated that he had trouble using his hands because his
fingers became cold very easily and he had less feeling in them than in
the rest of his body. (R. 79).
After Burnett, Dr. Ellis Johnson testified as a medical expert and
Edward Steffen testified as a vocational expert. Mr. Burnett's
representative stipulated that both witnesses were competent to testify
as experts in their respective fields. (R. 80). Before the ALJ asked the
witnesses for their opinions, she allowed them to question the
plaintiff. (R. 81). Thereafter, Dr. Johnson testified that, in his
opinion, Burnett suffers from the mental impairment of depression, but
that it does not meet or equal a listed impairment. (R. 89). As a basis
for his opinion, Dr. Johnson stated that Dr. Piszczor "listed about five
different eight different characterizations of depression under
affective order."*fn1 (R. 90). Then, Dr. Johnson testified that Dr.
Piszczor found that "under the degree of limitations of those problems,
. . . [plaintiffs] restrictions of activities of daily living was
slight, [and] difficulties in maintaining social functioning was slight."*fn2 Dr. Johnson further testified that "on the basis of
that report, and that is the only report that I saw, he caused me to feel
that he does not meet or equal a listed ." Id.
Thereafter, the ALJ informed Dr. Johnson that she thought he was
looking at Dr. Tomassetti's report and not Dr. Piszczor's report because
Dr. Piszczor did not complete a PRTF. Dr. Johnson then stated that he was
in fact looking at Dr. Tomassetti's PRTF. not Dr. Piszczor's report, and
that he agreed with Dr. Tomassetti. Dr. Johnson further opined that
plaintiffs functional capacity would improve if he were 100% sober for an
extended period of time. He based that opinion on the statements that
plaintiff used drugs and is in a Methadone program. (R. 91). He opined
that "[i]f [plaintiff] were not using at all, I think that he would be
able to function better, and be able to work at a more acceptable pace
than he has been." The ALJ did not ask Dr. Johnson any questions about
Dr. Piszczor's March, 2000 evaluation of plaintiff. However, Burnett's
representative asked Dr. Johnson whether he disagreed with Dr. Piszczor's
report. Dr. Johnson responded that he did "not disagree with Dr.
Pizszcor's report. If fact [he] was reading from his report ." That was
the end of Dr. Johnson's testimony.
Finally, Edward Steffen, a vocational expert, testified. Re stated that
plaintiff's past relevant jobs included security guard, food assembler
and telephone installer/repairman. (R. 95). The security guard position
was considered light, unskilled employment, and the food assembler and
phone installer/repairman positions were considered medium employment.
Id. Mr. Steffan responded to the ALJ's hypothetical about possible
employment for a person with the residual functional capacity ("RFC"),
"to perform the full range of work at the light exertional level, with
the following exceptions or limitations; that he should never climb
ladders, ropes or scaffolds, that he can occasionally climb ramps and
stairs, occasionally balance, stoop, kneel crouch and crawl, that he
should avoid exposure to extreme coldness, to concentrated respiratory
irritants, to unprotected heights, or unguarded hazardous equipment, and
that he is moderately limited in his ability to understand, remember and
carry out complex or detailed instructions or tasks," by stating that
such a person could perform work as a food assembler and security guard.
The ALJ also asked Mr. Steffan if it would affect his opinion if the
hypothetical person was moderately limited in his ability to sustain
concentration. Id. Mr. Steffan opined that it would not affect the food
assembler position, but could affect the security guard position because
being a security guard requires a higher degree of attention and
concentration. Id. The ALJ then asked Mr. Steffan to identify other
occupations, with sufficient positions in this economy, that the
hypothetical person could perform. Id. Mr. Steffan responded with
assembler, cashier and general office clerk. Id. Mr. Steffan was also
asked to identify positions for the hypothetical person if he was limited
to sedentary work. Id. Mr. Steffan stated sedentary assembler, file
clerk, and general office clerk. (R. 98).
Finally, Mr. Steffan said that if the hypothetical person was
distracted by feelings of pain, fatigue, depression or any other kind of
distraction for less than five percent of the work day outside of
ordinary breaks he could still perform the previously cited jobs. Id. Mr. Steffan also stated that people in these types of jobs are
generally off-task about 20 percent of the day and that is considered to
be within adequate production levels. However, being off-off task more
than twenty percent of the day would interfere with a person's ability to
perform those jobs. (R. 99).
In addition to the testimony of the three witnesses, the ALJ considered
plaintiff's extensive medical record. Plaintiff received treatment at the
VA West Side Facility ("VAWS") on October 24, 1996 for drug dependence.
(R. 200-1). At the time, he reported a long history of dependence on
alcohol, cocaine, heroin, and marijuana. Id. He was cleared for the
Methadone maintenance program and began receiving Methadone. (R. 203),
However, he was discharged from the program for noncompliance and
nonattendance on February 26, 1997. (R. 216). Plaintiff was readmitted in
February, 1998, but again had poor compliance with the treatment. (R.
On May 25, 1999, a case technician at VAWS referred Burnett to Dr.
Joseph Piszczor, a psychiatrist. Id. Dr. Piszczor treated Burnett once or
twice a month from July, 1999 through the time of the ALJ's hearing.*fn3
(R. 547). During their entire treatment relationship, plaintiff reported
rather consistent drug usage. At their first visit, plaintiff reported
that he had been depressed the prior six months "over his drug usage, his
living situation, his financial situation and his relationship with his
significant other." Id. He also stated that was not sleeping or eating well and could not
concentrate. Id. He had frequent crying spells and occasional feelings of
helplessness and hopelessness. Id. He also admitted to frequent drinking
and frequent use of small quantities of cocaine, heroin, and marijuana.
Id. Dr. Piszczor diagnosed major depression; opiate, cocaine, and
cannabis dependence; and opiate withdrawal. (R. 549). He prescribed a low
dose of an anti-depressant and increased Burnett's Methadone dosage. Id.
At their August visit, Dr. Piszczor prescribed an additional
anti-depressant, Trazedone, and increased plaintiff's anti-depressant
dosage. (R. 553). The Trazedone was discontinued a week later due to side
effects. Id. At a November visit, Dr. Piszczor's found that plaintiff's
depression was generally improved and would improve more when his
homelessness problem was resolved. (R. 305). In the end of November,
plaintiff returned, complaining of poor sleep, poor concentration, and
frequent crying spells due to his depression. (R. 307). He also
occasionally considered hurting himself or his girlfriend, but was able
to refrain from doing so. Id.
In a January 21, 2000 progress note, Dr. Piszczor wrote that he had
advised plaintiff "again that he needs to stop illicit drug usage
completely, particularly since this probably contributes to his
depression." (R. 315). On March. 6, 2000, plaintiff reported that he had
not taken his anti-depressant medicine for about one week and that his
mood had been "poor" and "sluggish." (R. 295). He experienced poor
sleep, poor concentration and thoughts of suicide four days earlier. Id.
Dr. Piszczor found him "mildly depressed" and noted that his depression
was "worse off his medication." Id. He re-prescribed anti-depressant medication and increased plaintiffs
Methadone dose because Burnett complained of cravings for heroin.
At the March 13 visit, plaintiff asked Dr. Piszczor to fill our a
Psychological/ Psychiatric Impairment Report, which he did. (R. 248).
Dr. Piszczor found that plaintiff suffered from depression with the
following symptoms; anhedonia, weight loss, sleep loss, psychomotor
retardation, decreased energy, feelings of guilt, feelings of
worthlessness, acting without regard to likely painful consequences,
infrequent suicidal thoughts and difficulty concentrating or thinking,
(R. 250). Dr. Piszczor found that these symptoms were triggered or caused
by encounters with people, being at home with family, and that they were
worsened by his occasional cocaine use. (R. 252). Dr. Piszczor found that
plaintiff's depression restricted his daily activities and that he
"isolates" when depressed. Id. He also found that plaintiff's illness
caused repeated episodes of deterioration or decompensation in work or
worklike situations, specifically problems with concentration. (R. 253).
Dr. Piszczor further opined that Burnett would not be able to work in a
non-sheltered work setting. Id. Specifically, he stated that "problems
with concentration, his tendency to isolate and problems dealing with
people would prevent [non-sheltered work] at present." Id.
On May 15, 2000, Dr. Piszczor found that plaintiff's depression was
still significant, Id. In July, Dr. Piszczor found that Burnett's
depression was "well-controlled." (R. 405). In August, Dr. Piszczor found
that plaintiff's depression was worse because he was worried about
possibly having a serious medical illness. (R. 403). In October, Dr.
Piszczor found that plaintiff's depression was well controlled since starting Mirtazapine. (R, 389). At a March 7, 2001 appointment, Dr.
Piszczor recommended an increase in Burnett's anti-depressant dosage. (R.
In October, 1999, plaintiff also underwent a psychiatric consultative
exam performed by Dr. David Gehlhoff. (R. 230). Dr. Gehlhoff found
plaintiff to be a "very depressed appearing man." Id. Plaintiff told him
his drug habit was $10.00 to $20.00 a day three or four months ago and is
now about $5.00 twice a week. Id, Plaintiff also stated that he had been
depressed for the past six months, but not suicidal. Id. He stated that
he was depressed generally and because he had lost his place to live and
possessions. Id. His mental status exam showed a depressed mood and
limited recent memory. (R. 231-2). Plaintiff had difficulty with serial
seven subtraction. Id. Dr. Gehlhoff diagnosed a substance abuse history,
though minimal at the present time, and adjustment reaction with a very
significant depressed mood. (R. 232).
Plaintiff was admitted to VAWS in December, 1998 for peptic ulcer
disease. (R. 219). In September, 1999, Burnett was admitted for
observation and discharged with a diagnosis of gastritis. (R. 229).
Plaintiff underwent a colonoscopy and endoscopy, which were negative.
(R. 270). In October, Dr. Ghanim Kassir examined plaintiff on behest of
the Commissioner. (R. 234). Dr. Kassir noted plaintiffs musculoskeletal
and neurological exams as normal. (R. 236). He diagnosed musculoskeletal
lower pain, gastroescophageal reflux disease, previous history of peptic
ulcer, arthralgia in both elbow joints, and illicit substance abuse
including heroin and cocaine for the past twenty years. Id.
Then in February, 2000, plaintiff injured himself at work and sought
treatment at VAWS. Plaintiff complained of foot, back, neck, elbow, and knee pain, but
his primary complaint was lower back pain from the injury. (R. 263).
Plaintiff reported that he was injured at work when the chair he was
sitting in collapsed. Id. He returned to the clinic the next day and
requested that they fill out worker's compensation forms. (R. 261). The
results of plaintiff's physical exams were generally normal. (R. 261-3).
In March, plaintiff reported unusual sensations affecting both his
hands when they were exposed to cold temperatures. (R. 319-21). The
examiner found decreased sensation to pinpricks in both arms and
fingertips, but plaintiff's hand strength was normal. (R. 321). The
examiner prescribed a low dose of hypertension medication for plaintiff's
elevated blood pressure. Id.
On March 14, 2000, plaintiff had a lumbar x-ray. (R. 287). The x-ray
showed some degenerative joint disease and suggested possible metastatic
neoplasm (cancer) at the L4 to L5 level. Id. Plaintiff also had a chest
x-ray, which showed chronic obstructive pulmonary disease ("COPD"). Id.
An April electrodiagnostic exam of plaintiff's elbow showed a "focal
injury" to the left ulnar nerve. (R. 456).
On May 15, a doctor evaluated plaintiff's chart and recent test
results, and found that plaintiff's abnormal lumber x-ray was unlikely to
be metastatic cancer. (R. 460). The doctor also noted a positive urine
test for heroin and cocaine. Id. In August, follow-up chest and lumbar
x-rays showed that plaintiff's condition was stable. (R. 401). The doctor
noted increased sclerosis in L4 to L5, which was likely a degenerative
change, and ordered a bone scan for evaluation. Id. Plaintiff's bone scan
suggested likely degenerative changes. (R. 421). Plaintiff was advised to
have a repeat scan in three to six months. Id. In November, plaintiff had a lumbar MRI, which showed "mild disc bulge
. . . at L5-S1" and atrophy of the psoas muscle. (R. 520). In December,
Plaintiff sought treatment for pain, but the attending physician refused
to prescribe narcotic strength pain medication due to plaintiff's history
of drug use. (R. 617-19). A straight leg raising exam ("SLR") was
negative and Dr. Duvel noted that plaintiff November, 2000 MRI showed
degenerative disc disease at L4 to L5 and at L5 to S1, with a mild bulge
and no significant stenosis. (R. 619). The doctor advised plaintiff to
continue taking other pain medication and made a physical therapy
evaluation referral. Id.
In January, 2001, plaintiff still complained of low back pain and an
abnormal sensation in his right neck and shoulder that traveled down his
right arm. (R. 621). Dr. Matthews examined him, finding that his cervical
spine was tender and his reflexes were equal bilaterally. Id. Dr. Matthews
noted that plaintiff's symptoms were "described in a dermatomal fashion
across the right rotator cuff muscle group." Id. A straight leg raising
exam ("SLR") was reported positive at 75 degrees. Id. Dr. Matthews found
that plaintiffs neck pain was likely cervical in origin and he ordered an
x-ray and cervical MRI. Id. This was the first time a cervical MRI had
been performed. Dr. Matthews also refused to prescribe Tylenol #3 despite
plaintiff's request and instead prescribed Neurontin. Id.
On January 24, plaintiff sought treatment for a persistent cold. (R.
623). Dr. Medina prescribed antibiotics and advised plaintiff to stop
smoking. Id. Plaintiff returned a few days later with continued cold
symptoms. (R. 625). The doctor found that plaintiff's upper respiratory
infection was improving slowly. (R. 627).
In February, plaintiffs cervical MRI showed degenerative disc disease,
worse at C4 to C5, where there was a large central osteophyte and associated disc
herniation. Id. The report also indicated "moderate central stenosis" and
ischemic (decreased blood flow) changes in the middle part ofthe brain
stem. Id. After reviewing the cervical MRI, Dr. Matthews found
degenerative disc disease, worse at C4 to C5 and C5 to C6, and moderate
central stenosis. (R. 629). He also found central disc herniation and a
bone spur at C4 to C5, some narrowing of the foramen (passage for the
nerve) at C4 to C5, and a disc bulge at C5 to C6 and C6 to C7. (R. 631).
Dr. Matthew diagnosed bilateral cervical radiculopathy with other
degenerative changes in the bone and discs, and advised plaintiff to
continue to take Neurontin and prescribed Tylenol #3. Id. He also noted
the need for a neurosurgical evaluation and made a physical therapy
referral. Id. He prescribed Salsalate for arthritic pain control and
recommended Aspercreme for neck pain. Id. Dr. Matthews found that
plaintiff was unable to perform even sedentary work due to his cervical
disease and that "a major cause of the patient's substance abuse is due
to chronic debilitating pain from the patient's neck." (R. 475-478). Dr.
Matthews also noted that plaintiff "may require neurosurgery for his neck
arthritis, spinal cord compression, [and] nerve impairment." (R. 476).
Based on the testimony at the March 1, 2001 hearing and the medical
evidence in the record, the ALJ issued her decision on April 27, 2001.
The ALJ found that plaintiff's disability did not meet or equal any
listed impairments and that he had the physical RFC to perform and
sustain a wide range of light work. She also found that plaintiff lacked
the mental RFC to sustain even simple, unskilled work, but would be able
to sustain such work if he were able to achieve and maintain full
sobriety. Additionally, the ALJ concluded that there would be a
significant number of jobs in the national economy that plaintiff could perform if he achieved and
maintained sobriety, including assembler, cashier, and general office
clerk. On that basis, the ALJ found plaintiff not disabled and denied his
request for benefits.
Standard of Review
We must affirm the ALJ's decision if it is supported by substantial
evidence and free from legal error, 42 U.S.C. § 405(g); Steele v.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). Substantial evidence is more
than a scintilla of evidence and is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Diaz
v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). The ALJ need not weigh every piece of
evidence, however, when the Commissioner's "decision lacks evidentiary
support or is so poorly articulated as to prevent meaningful review, the
case must be remanded." Steele, 290 F.3d at 940. Generally, we cannot
substitute our judgment for that of the ALJ by deciding facts anew,
reweighing the evidence, resolving conflicts in evidence, or deciding
questions of credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir.
A person is disabled under the Act if he or she has an "inability to
engage in any substantial gainful activity by reason of a 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 twelve months."
42 U.S.C. § 423(d)(1)(A). In determining whether a claimant is disabled,
the ALJ conducts a five step analysis: (1) whether the claimant is
presently unemployed, (2) whether the claimant's impairment is severe, (3)
whether the impairment meets or exceeds any of the specific impairments listed in the regulation, (4) whether the
claimant is unable to perform his or her previous occupation and (5)
whether the claimant is unable to perform any other work in the national
economy given his or her age, education, or work experience. Cichon v.
Barnhart, 222 F. Supp.2d 1019, 1025 (N.D. Ill. 2002) (citing
20 C.F.R. § 416.920(a) (f)). Affirmative answers at steps three and
five will lead to a finding that the claimant is disabled. Zalewski v.
Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). A negative answer at any
step, other than three, will result in a finding that the claimant is not
disabled. Id. The claimant carries the burden of proof for steps one
through four. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). If
the analysis reaches step five, the burden shifts to the Commissioner to
show that there are other jobs in the economy that plaintiff is capable
of performing. Id.
Additionally, the ALJ must "build an accurate and logical bridge from
the evidence to [her] conclusions so that [the Court] may afford the
claimant meaningful review of the [Commissioner's] ultimate findings."
Blakes ex rel. Wolfe v. Bamhart, 331 F.3d 565, 569 (7th Cir. 2002).
Therefore, the record must contain evidence to support the ALJ's
findings, and the ALJ must rationally articulate a basis for those
findings. Steele, 290 F.3d at 941.
In this case, the ALJ applied the five-step analysis outlined above,
finding at step one that plaintiff was not engaged in substantial gainful
activity and had not been since the alleged onset of his disability. (R.
18). At step two, the ALJ noted that plaintiff had been treated for
depression, substance dependence, and various physical complaints, and
found that his mental impairments were severe because "they impose at
least minimal restrictions on [plaintiffs] ability to perform work
related activities." (R. 19). At step three, the ALJ considered both plaintiff's metal and physical
impairments. As to plaintiff's mental impairments, the ALJ found that the
record did not establish that plaintiff met listings 12.04 or 12.09, and
additionally, that "in the event [plaintiff] were able to achieve and
maintain sobriety, his mental functioning would improve significantly, to
the extent that he would be only slightly limited in his ability to
perform and sustain the mental demands of work." (R. 20). As for
plaintiff's physical impairments, the ALJ found that they did not meet or
equal listing 1.05, (R. 21).
At step four, the ALJ found that plaintiff could not perform his past
relevant work. (R. 30). Specifically, the ALJ found that "during the
period [plaintiff] admittedly has continued to use street drugs
frequently, he has lacked, and will continue to lack, the mental RFC to
sustain simple unskilled work, because his reliability and ability to
keep to a daily and weekly schedule are markedly impaired by his drug
use." (R. 30). However, the ALJ further stated that "if [plaintiff] were
able to achieve and maintain sobriety, and to improve his treatment
compliance for his mild underlying depression, [plaintiff] would be only
slightly limited in his ability to perform the mental demands of work."
Id. As for the plaintiffs physical RFC, the ALJ found that he could
perform and sustain a wide range of light work. (R. 32).
Finally, the ALJ determined that at the fifth step, considering the
plaintiff's age, educational background, work experience and RFC, if he
were able to achieve and sustain sobriety, he would be capable of making
a successful adjustment to work that exists in significant numbers in the
national economy and that his substance dependence is a contributing
factor material to any disability. (R. 34). Therefore, the ALJ concluded
that plaintiff was not disabled under the Act. Id. As stated above, the ALJ must build an accurate and logical bridge from
the evidence to his conclusion. Green v. Apfel, 204 F.3d 780, 781 (7th
Cir. 2000). The ALJ must "sufficiently articulate his assessment of the
evidence to `assure us that the ALJ considered the important evidence .
. . [and to enable] us to trace the path of the ALJ's reasoning.'"
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (per curium)
(quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985). "An ALJ
may not simply select and discuss only that evidence which favors his
ultimate conclusion. Rather, an ALJ's decision must be based upon
consideration of all relevant evidence." Smith v. Apfel, 231 F.3d 433,
438 (7th Cir. 2000) (internal citations omitted). Further, "[m]ore weight
is generally given to the opinion of a treating physician because of his
greater familiarity with the claimant's conditions and circumstances."
Clifford v, Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
In Burnett's case, the ALJ found that "the objective evidence does not
establish that claimant's combined substance dependence and resulting
moderate major depression are currently so severe as to medically meet or
equal listings 12.09 or 12.04." (R. 20). In support, the ALJ cites Dr.
Johnson's testimony that "claimant's mental impairments currently impose
only slight limitations on claimant's daily and social activities." The
ALJ's also cites Dr. Johnson's opinion that "claimant has not had
documented episodes of decompensation," and "his mental function would
improve if claimant were able to achieve and maintain full sobriety for
an extended period." The ALJ further relies on Dr. Tomassetti's
consultative exam results which state that plaintiffs mental impairment
"is not so severe as to meet or equal listing 12.09 and/or 12.04, since
it imposes only slight limitations on [his] daily and social activities,
and often (but not frequently) interferes with claimant's concentration."
As support for his conclusion, the ALJ stated that he primarily relied
on Dr. Piszczor's contemporaneous progress notes. However, the ALJ
completely ignored Dr. Piszczor's Psychological Psychiatric Impairment
Report, dated March 13, 2000. In that report, Dr. Piszczor found that
plaintiff suffered from the following affective disorders; anhedonia,
weight loss, sleep loss, psychomotor retardation, decreased energy,
feelings of guilt, feelings of worthlessness, acting without regard to
likely painful consequences, infrequent suicidal thoughts, and difficulty
concentrating or thinking. Dr. Piszczor found that these symptoms were
triggered or caused by "encounter[s] with people", being "at home with
family" and "other," namely that "occasional cocaine usage worsens [the
depression]." Dr. Piszczor further found that plaintiffs illness caused
repeated episodes of deterioration or decompensation and that he needs a
highly structured and supportive living situation. He also opined that
plaintiff was not able to work in a non-sheltered work setting because of
his problems with concentration, his tendency to isolate, and his
problems dealing with people. (R. 253).
In making his decision, the ALJ never addressed this March, 2000 report
from Dr. Piszczor and his findings therein. The ALJ completely ignored
the findings of plaintiff's treating physician for over a year. Instead,
the ALJ relied on the contrary findings of Dr. Tomassetti, a DDS doctor,
and the testimony of a confused medical expert, Dr. Johnson. At the
hearing, Dr. Johnson testified that Dr. Piszczor indicated that
plaintiff's restrictions on daily living activities and maintaining social
functioning were slight. He also testified that Dr. Piszczor stated that
plaintiff never had episodes of deterioration or decompensation in work or
worklike settings. Dr. Johnson was referencing the findings of Dr. Tomassetti, which directly contradicted
the findings of Dr. Piszczor. Failure to address the findings of
plaintiff's treating physician and adopting contrary findings of
non-treating physicians without explanation constitutes error and
requires that we remand the case to the ALJ for further review. See
Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001).
The ALJ also did not address the confusing testimony of Dr. Johnson,
the medical expert. The ALJ accepted Dr. Johnson's testimony without
referencing or explaining away its internal inconsistencies. Dr. Johnson
opined that plaintiff had not had documented episodes of decompensation
and did not require a sheltered work environment. Dr. Johnson further
testified that he did not disagree with Dr. Piszczor's findings. However,
Dr. Piszczor's records included findings that plaintiff did in fact have
episodes of decompensation and did require a sheltered work environment.
Dr. Johnson cannot make conclusions contrary to Dr. Piszczor's findings
and still completely agree with them. The ALJ never addressed this issue.
Having found all of this, it is important to note that ultimately, the
ALJ may well be correct regarding plaintiff's mental impairments. His
substance abuse may very well turn out to have been a material
contributing factor to his depression and any disability may stem in a
material way from his substance abuse. However, on the record before us,
we cannot sustain such a conclusion. The ALJ must address the opinion of
Dr. Piszczor, plaintiff's treating physician, and must provide a more
well reasoned basis for adopting the findings of Dr. Johnson. The ALJ has
not provided us with an accurate and logical bridge from the evidence to
Plaintiff also contends that the ALJ erred because she did not give
appropriate weight to the findings of Dr. Matthews, his treating physician, regarding
the severity of his neck problems. Dr. Matthews opined that plaintiff was
"unable to perform even sedentary work due to his cervical disease, and
that `a major cause of [his] substance abuse is due to chronic
debilitating [neck] pain'." Dr. Matthews found that plaintiffs cervical
MRI showed severe cervical arthritis and moderate central stenosis, which
may require surgery.
The ALJ found that she could not give Dr. Matthews' opinion controlling
weight. In support of that finding, the ALJ cited the fact that plaintiff
only had three documented visits with Dr. Matthews as of the date he
completed the RFC form. The ALJ also stated that Dr. Matthews' notes did
not document that plaintiff made frequent or consistent complaints to him
about severe and persistent back or neck pain, or about significant
problems affecting his ability to stand or walk. He also noted that Dr.
Matthews' RFC opinion was inconsistent with plaintiff's statements to his
other doctors, and with their more detailed and extensive objective exams
and findings. In support, the ALJ cited to a number of findings from
other physicians, all of which predated plaintiffs February, 2001
cervical MRI. The ALJ also found that Dr. Matthews' opinion that
plaintiff's substance abuse was caused by his long history of debilitating
neck pain was not consistent or supported by the other evidence in the
record. Finally, the ALJ mentioned the fact that Dr. Matthews was an
internist, "apparently early in his medical career, and apparently [did]
not have orthopedic, neurological or psychiatric specialty training."
Dr. Matthews' findings were in large part based on plaintiff's
February, 2001 cervical MRI. Dr. Matthews found that plaintiff's MRI
showed degenerative disc disease, worse at C4 to C5 and C5 to C6, and moderate central stenosis.
He also found central disc herniation and a bone spur at C4 to C5, some
narrowing of the foramen (passage for the nerve) at C4 to C5, and a disc
bulge at C5 to C6 and C6 to C7. Based on those determinations, Dr.
Matthews found that because of plaintiff's cervical disease, he was not
eligible for even sedentary work. (R. 631). From the record, it appears
that plaintiff's first cervical MRI was performed in February, 2001 and
that Dr. Matthews was the first and only physician to review that MRI and
make medical findings based on its results. Plaintiffs prior treating
physicians and the DDS doctors never ordered or reviewed a cervical MRI.
While internal inconsistencies within plaintiff's medical record may
provide good cause to deny controlling weight to a treating physician's
opinion, the ALJ must adequately articulate his reasoning for discounting
the opinion. Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000)
(holding that the ALJ erred in discounting a treating physician's
findings because he did not adequately articulate how that opinion was
inconsistent with other evidence in the record). In this case, the ALJ
did not adequately articulate his reasoning for discounting Dr. Matthews'
opinion. The ALJ cited to plaintiff's prior complaints of back pain and
his extensive April, 2000 exam following an abnormal lumbar x-ray. The
ALJ also noted Dr. Duvel's December, 2000 finding that plaintiff's
neurological exam was essentially normal. However, none of this evidence
is necessarily inconsistent with Dr. Matthews' evaluation of plaintiff's
February, 2001 cervical MRI. Prior to Dr. Matthews, plaintiffs doctors
appear to have focused on his back, not his neck. The ALJ did not
adequately articulate his reasoning for discounting Dr. Matthews' opinion
concerning plaintiff's cervical disease. Therefore, we remand this case to the ALJ to further explore plaintiff's possible work limitations
based on the results of his February, 2001 cervical MRI
For the reasons set forth above, the Court finds that the ALJ's
findings at Step three are not supported by substantial evidence, and
that the ALJ failed to build an accurate and logical bridge between the
record evidence and his conclusions that Burnett was not disabled, that
his additions were a material contributing factor in his mental
impairments, and that if sober he would be capable of performing other
jobs in the national economy. The Court, therefore, grants Burnett's
motion for summary judgment, and denies the Commissioner's. This Court
remands this case to the Commissioner for further proceedings consistent
with this opinion. It is so ordered.