United States District Court, N.D. Illinois
May 26, 2004.
JAMES REED, JR, Plaintiff,
JOANNE BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Plaintiff James Reed, Jr. ("Reed") seeks judicial review of a decision
by the Commissioner of Social Security ("Commissioner") denying him
Disability Insurance Benefits ("DIB") and Supplemental Security Income
("SSI"). The parties have filed cross-motions for summary judgment. For
the following reasons, Defendant's Motion for Summary Judgment is
GRANTED; Plaintiff's Motion for Summary Judgment is DENIED.
Reed was born on May 30, 1950 and has a high school education. From
1966 through 1996, he worked steadily and held a variety of jobs,
including truck driver, heavy equipment operator, landscape worker, and
In December 1996, Reed experienced serious medical problems. He was
hospitalized for seven days due to right hand weakness and slurred
speech. He was diagnosed with acute stroke, secondary to cocaine abuse.
Additionally, he suffered from hypertension. On December 26, 1996, Reed was discharged from the hospital and ordered to seek follow-up
testing, physical therapy, and occupational therapy.
On January 6, 1998, Reed applied for DIB and SSI. The Social Security
Administration ("SSA") denied Reed's initial applications and requests
for reconsideration. On November 9, 1999, Reed received a hearing before
Administrative Law Judge ("ALJ") Percival Harmon. At the hearing, the ALJ
heard testimony from Reed himself, Ellis D. Johnson, M.D. ("Dr.
Johnson"), and Vocational Expert ("VE") Susan Entenberg. After
considering evidence from both the hearing and the written record, the
ALJ found that Reed was disabled for the period of December 18, 1997 to
January 28, 1999, but not thereafter. Reed subsequently sought review by
the Appeals Council, which denied review on July 13, 2001. On July 31,
2001, the Commissioner adopted the ALJ's decision.
On August 6, 2001, Reed commenced this action seeking judicial review
pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). Generally, Reed contends
that the mental and physical problems resulting from his stroke continue
to preclude employment, and therefore his disability status should not be
limited to the period from December 18, 1997 to January 28, 1999. The
parties have filed cross-motions for summary judgment which are fully
briefed and before the court.
A. Standard of Review
When reviewing an ALJ's decision, the court must affirm if it is
supported by substantial evidence and free of legal error. See
42 U.S.C. § 405(g); Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir.
2003) (per curiam). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971). "The findings of the
Commissioner as to any fact, if supported by substantial evidence, shall
be conclusive." Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). Thus, the
reviewing court does not "reweigh the evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgment for that of the
Commissioner.'" Kasarsky, 335 F.3d at 543 (quoting Clifford v. Apfel,
227 F.3d 863, 869 (7th Cir. 2000)). The court's task is limited to
determining "whether the ALJ's factual findings are supported by
substantial evidence." Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir.
2004). If the ALJ's decision is supported by substantial evidence, it
will be upheld even if an alternative position is also supported by
substantial evidence. See Scheck v. Barnhart, 357 F.3d 697, 699 (7th
Where, however, "the Commissioner's decision lacks evidentiary support
or is so poorly articulated as to prevent meaningful review, the case
must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.
2002). The Seventh Circuit requires the ALJ to "build an accurate and
logical bridge from the evidence to [his] conclusions so that [the court]
may afford the claimant meaningful review of the SSA's ultimate
findings," Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 569 (7th Cir.
2003). It is not enough that the record contains evidence to support the
ALJ's decision; if the ALJ does not rationally articulate the grounds for
that decision, then the court must remand. See Steele, 290 F.3d at 941.
In reaching his decision, the ALJ must confront evidence that does not
support his conclusion and explain why it was rejected. See Godbey v.
Apfel, 238 F.3d 803, 808 (2001): see also Heron v. Shalala, 19 F.3d 329,
333 (7th Cir. 1994). With these principles in mind, the court will
examine the parties' motions.
B. Review of the ALJ's Decision
Disability Insurance Benefits and Supplemental Security Benefits are
available only to claimants who can establish "disability" under the
terms of the Social Security Act. The Social Security Act defines "disability" as the inability to engage in any
substantial gainful activity due to physical or mental impairment(s)
which can be expected to either result in death or last for a continuous
period of not less than 12 months. See 42 U.S.C. § 1614(a)(3)(A). The
Social Security Regulations require the ALJ to follow a five-step inquiry
process to determine disability status. See 20 C.F.R. § 416.920(a)-(f).
The following must be analyzed in sequence: (1) whether the claimant is
currently employed; (2) whether he has a severe impairment; (3) whether
his impairment meets or equals one listed by the Commissioner; (4)
whether the claimant can perform his past work; and (5) whether the
claimant is capable of performing any work in the national economy. See
id. A claimant has the burden of proving steps one though four. See Bowen
v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Once the first four steps are
established, the burden shifts to the Commissioner to show that the
claimant is capable of performing work in the national economy. See
Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
In determining Reed's disability status, the ALJ found that Reed met
his burden of proving "disability" under the first four steps of the
evaluation process. At step five, the ALJ found that Reed was disabled
from December 18, 1997 through January 28, 1999; however, he also found
that as of January 29, 1999, Reed had the residual functional capacity
("RFC") to perform some work in the regional economy. Specifically,
relying on testimony of the VE, the ALJ opined that Reed could perform
light work, such as that required of a hotel housekeeper, a light
janitorial worker, and hand packer. Thus, the ALJ determined that as of
January 29, 1999, Reed's RFC had changed and he was no longer disabled
under the Social Security Act.
Reed raises three issues on appeal: (1) whether the ALJ's decision to
the change Reed's physical RFC after January 28, 1999 was supported by
substantial evidence; (2) whether the ALJ's decision to change Reed's mental RFC after January 28, 1999 was supported
by substantial evidence; and (3) whether the ALJ's credibility findings
were proper. The court will address each of these issues in turn.
1. Reed's Physical Residual Functional Capacity
Effective January 29, 1999, ALJ Harmon determined that Reed's physical
condition improved such that it changed his RFC. Prior to January 29,
1999, the ALJ concluded that although Reed could sit without
restriction, he could only walk 4 or 5 blocks slowly before needing to
rest. (R. 22). Given this fact, along with evidence of significant
impairments to the right upper extremity, the ALJ found that Reed was
disabled under the Social Security Act, (R. 23). However, after January
29, 1999, the ALJ concluded that Reed could walk/stand up to 6 hours in
an 8 hour period. (R. 24, 26). Based on this change in Reed's physical
condition, the ALJ ruled that as of January 29, 1999 Reed had the RFC to
perform unskilled work on a sustained basis. (R. 24). Reed argues that the
ALJ's decision to change Reed's physical RFC was not supported by
The ALJ based his decision to change Reed's physical RFC on numerous
grounds. First, the ALJ relied on the medical report submitted by Dr.
Fauzia A. Rana to support his conclusion. Dr. Rana, who examined Reed on
January 29, 1999, noted that Reed had no back spasms, tenderness, or
difficulty moving; however, Reed did have sight limitation on his right
side due to muscle weakness, (R. 185-86). Dr. Rana also noted that Reed's
lumbar and lower extremity motion was full, except for a reduction of the
right hip flexion. (R. 185). He observed Reed's gait*fn1 as abnormal, in
that he walked with a limp favoring his right side. (R. 185). He
diagnosed Reed with residual right-sided weakness, resulting from stroke. (R. 185). Additionally, Dr.
Rana's report indicates that Reed related he could walk one mile without
the use of an ambulatory aid, although he drags his right foot somewhat
while walking. (R. 183).
Second, the ALJ considered Reed's hearing testimony in determining his
physical RFC. On November 9, 1999, Reed testified about his abilities and
limitations. For example, despite the fact that he lives on the third
floor of an apartment building with no elevator, he expressed some
difficulty climbing stairs. (R. 51). Additionally, Reed stated that he
cleans his own apartment and currently performs maintenance chores for
his landlord (R. 38-41); he worked part-time for a trucking company
sweeping floors, removing trash, and answering telephones (R. 41-44); his
right leg is not as strong as it once was, and it is weaker than the left
leg (R. 51); and he could only walk 4 or 5 blocks before having to stop
and rest. (R. 50), Additionally, although he stated he does not have a
cane, he expressed his belief that he needs one. (R. 50). Reed also
stated he can sit for a long time; however, he frequently has to move his
right leg while doing so to avoid stiffness. (R. 55). Further, he
testified that he continues to have problems with his right-hand grip,
alleging he cannot hold a cup of water, and must use his left hand for
most manipulations. (R. 55).
Finally, the ALJ considered the November 9, 1999 testimony of Dr. Ellis
Johnson, a Board-certified psychiatrist and neurologist who served as
medical advisor to the ALJ. After hearing Reed's testimony and reviewing
the medical evidence of record, Dr. Johnson opined that Reed was post
status cardiovascular accident ("CVA"). (R. 66). He stated that Reed has
residual right-sided hemiparesis*fn2, which is more severe in the upper
than the lower extremity, and that there is also slight expressive dysphasia.*fn3 (R. 65). Dr. Johnson stated that Reed
was still experiencing mild-to-moderate weakness of the right upper
extremity, and he also has some slight memory problems. (R. 65-66). He
also indicated that Reed's abnormal gait and limp could be caused by
weakness in the right leg, due to his post status CVA. (R. 68-69). Dr.
Johnson concluded by noting that Reed has made a noticeable improvement
since his stroke in 1997, and that further rehabilitation should enhance
the level of improvement. (R. 67).
After weighing the evidence, the ALJ concluded that Reed's medical
condition improved since he first had his stroke in 1997. Recognizing
that this medical improvement affected Reed's ability to work, the ALJ
Although [Reed] was still demonstrating a slight limp
at the time of the internal medicine consultative
evaluation on January 29, 1999, there is no objective
basis for concluding he could not stand and/or walk
consistent with ability to perform light work activity
by that time. He could, after all, walk independently
at the time of the evaluation, and has apparently
never used a cane or other assistive device for
ambulation. I should also note that [Reed's] lower
extremity weakness has never been that significant,
and that he has had almost two years to adjust to his
residual upper extremity weakness. Hence, with
reasonable precautions, there is nothing to preclude
[Reed] from standing and/or walking up to 6 hours per
Thus, the ALJ clearly considered all of the relevant evidence regarding
Reed's physical condition, including that which was favorable to Reed.
See Godbey, 238 F.3d at 808. Despite some evidence to the contrary, the
ALJ found that with reasonable precautions Reed is capable of standing
and/or walking up to 6 hours a day. While the ALJ need not articulate his
reasons for rejecting every piece of evidence, he is required to at least
minimally discuss evidence that contradicts his conclusions. See Godbey, 238 F.3d at 808. Here, the only evidence which
contradicts the ALJ's conclusion is Reed's testimony that he can only
walk 4 or 5 blocks slowly before having to stop and rest. (R. 50).
However, the ALJ found this statement incredible because it is
disproportionate to the clinical signs, laboratory findings, or the
evidence of the record. (R. 24). The ALJ's finding is evinced by Dr.
Rana's January 29, 1999 report which indicates that he is capable of
walking at least one mile without the use of an ambulatory aid. (R.
183). It is also established through Reed's testimony indicating that
from July through November 1998, he worked for a trucking company for up
to five hours a day doing office work and light cleaning. (R. 41-44),
Additionally, Reed testified that he currently does maintenance chores
for his landlord, albeit on a limited basis. (R. 38-41). Thus, the ALJ's
finding on the issue is supported by the record. As such, the court is
satisfied with the ALJ's basis for discrediting Reed's contradictory
statement. See Diaz, 55 F.3d at 308 (the court will not disturb ALJ's
credibility findings unless they are patently wrong).
After weighing the evidence, the ALJ concluded that Reed's physical RFC
had improved and he regained the ability to perform unskilled work on a
sustained basis. (R. 24). Based on the record before the court, the ALJ's
conclusion to change Reed's physical RFC as of January 29, 1999 was
supported by substantial evidence. See Johansen v. Barnhart, 314 F.3d 283,
288 (7th Cir. 2002) (indicating that a claimant who performs daily
activities such as home exercises, grocery shopping, laundry, and walking
one mile per day is not likely disabled).
2. Reed's Mental Residual Functional Capacity
Reed also argues that the ALJ's decision to change Reed's mental RFC
was not supported by substantial evidence. Prior to January 29, 1999, the
ALJ found that Reed's memory "would often (i.e., up to one-third of a
normal workday) interfere with concentration, persistence, and pace on the job." (R. 22). After January 29, 1999, the ALJ determined that
Reed had the capacity for concentration, persistence and pace sufficient
to perform unskilled work activity on a sustained basis. (R. 24, 26).
Ultimately, the ALJ concluded that Reed's capacity of concentration and
memory had improved by January 29, 1999 so that he could then perform
unskilled work on a sustained basis. (R. 24).
In reaching this conclusion, the ALJ ultimately relied on evidence
submitted by two doctors. First, the ALJ relied on a report submitted by
Dr. Rama Embar, who conducted a psychiatric consultation with Reed on
January 29, 1999. In her report, Dr. Embar specifically opined on Reed's
mental capacity. Citing Dr. Embar's findings, the ALJ stated:
[Reed] reported some problems with memory since his
stroke. Although there was no evidence of depression,
or any gross psychopathology, Dr. Embar noted the
claimant had to pause before he could answer
questions, and had some problems finding words. His
short and long term memories seemed fairly intact,
however, and Dr. Embar diagnosed him with memory
difficulty. Dr. Embar also felt that the Claimant
could manage his own funds. . . .
(R. 21). Thus, the ALJ acknowledged Dr. Embar's diagnosis of Reed's
continued memory difficulties, including his tendency to pause before
answering questions and his difficulty finding words.
Despite this diagnosis, however, what the ALJ found more compelling was
Dr. Embar's determination that Reed's short and long term memories were
fairly intact. This is a reasonable conclusion given entirety of Dr.
Embar's report. For example, her report states that Reed was able to
recall four digits forward, but not backward; was able to recall two out
of three objects; was able to recall what he last ate for dinner and
breakfast; and was able to recall the name of his high school and his
birthplace. (R. 190). Additionally, Dr. Embar's report indicates that
Reed could perform simple arithmetic problems and that he could perform serial threes with
some difficulty. (R. 190). He also had accurate memory for various types
of information, such as how many nickels are in a dollar, how many weeks
are in a year, and the names of large cities and famous people. (R,
190). Although Dr. Embar noted that Reed had difficulty remembering
names, he did know the names of both the current and former president of
the United States, as well as the name of the mayor of the city of
Chicago. (R. 190). These findings support Dr. Embar's conclusion that
despite Reed's memory difficulties, his short and long term memories
were fairly intact as of January 29, 1999. (R. 190). Hence, the ALJ
accurately stated Dr. Embar's conclusions and reasonably relied on them
to find that as of January 29, 1999, Reed was capable of performing
unskilled work activity on a sustained basis. (R. 24, 26).
The ALJ also adopted the opinion Dr. Charles S. Morris, the state
agency examiner who examined Reed on March 29, 1999. (R. 22). Dr. Morris
opined that Reed had slight limitations on his daily living activities
and his social functioning. (R. 218). He found that Reed often had
deficiencies of concentration, persistence or pace resulting in failure
to complete tasks in a timely manner. (R. 218). In adopting Dr. Morris'
decision, the ALJ did not elaborate on any of Dr. Morris' findings.
Dr. Morris found that Reed often suffers deficiencies in concentration,
persistence, or pace. Reed argues that the ALJ's decision to adopt Dr.
Morris' finding is inconsistent with the ALJ's finding that, as of
January 29, 1999, Reed had the capacity for concentration, persistence,
and pace sufficient to perform unskilled work activity on a sustained
basis. (R. 218). However, these findings are not inconsistent given the
totality of Dr. Morris' submissions. Dr. Morris indicates that Reed is
moderately limited in his ability to maintain sufficient concentration to
carry out detailed instructions; however, he is not significantly limited in his ability to
understand, remember, and carry out short and simple instructions. (R.
208-09). Thus, Dr. Morris' opinion distinguishes between Reed's ability
to perform simple as opposed to detailed instructions. (R. 208-09). Based
on this distinction, Reed's deficiencies in concentration, persistence,
and pace may not preclude his ability to perform unskilled work on a
sustained basis. See Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003)
(affirming ALJ's finding that a claimant who often experiences
deficiencies of concentration, persistence, or pace is capable of
performing semi-skilled work). As such, Dr. Morris' findings actually
support the ALJ's conclusion that Reed's mental RFC had improved as of
January 29, 1999. Therefore, the ALJ's decision was based on substantial
3. ALJ's Credibility Findings
Finally, Reed argues that the ALJ's credibility determination was
improper. The ALJ addressed Reed's credibility and found that it was
"highly credible" with regard to his condition prior to the medical
improvement, but incredible with regard to his condition after the
medical improvement. (R. 24). Specifically, the ALJ stated:
Finally, and for the reasons noted above, I must
discount any complaints of debilitating residuals on
or after January 29, 1999 as disproportionate to the
clinical signs, laboratory findings, and other
evidence of record. I should reiterate, however, that
I found him highly credible in describing the pain and
limitations that existed prior to medical improvement
(Social Security Ruling 96-7p).
(R. 24). Thus, the ALJ gave less weight to Reed's statements regarding
his condition after January 29, 1999 than he gave to those statements
pertaining to his condition thereafter. Reed argues that such a bifurcated
finding of credibility defies common sense. The court disagrees. The ALJ
simply found that at one time Reed's debilitating residuals were
supported by the medical evidence; however, after some medical
improvement, this was no longer the case. Based on the ALJ's thorough recitation of the medical evidence in his decision, the court
will not disturb his credibility determination. See Sims v. Barnhart,
309 F.3d 424
, 431 (7th Cir. 2002) (refusing to disturb ALJ's finding that
claimant's testimony was not credible where statements made to ALJ were
not reasonably consistent to record as a whole); see also Diaz, 55 F.3d
at 308 (the court will not disturb ALJ's credibility findings unless they
are patently wrong).
For the foregoing reasons, Defendant's Motion for Summary Judgment is
GRANTED; Plaintiff's Motion for Summary Judgment is DENIED. IT IS SO