United States District Court, N.D. Illinois, Western Division
June 25, 2004.
LISA STITZER, Plaintiff,
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Lisa Stitzer ("Plaintiff") seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration ("Commissioner"). See 42 U.S.C. § 405(g),
1383(c)(3). The Commissioner's final decision denied Plaintiff's
application for Disability Insurance Benefits ("DIB") pursuant to
Title XVI of the Social Security Act (the "Act").
42 U.S.C. § 1381(a). This matter is before the Magistrate Judge pursuant to
consents filed by both parties on December 30, 2003. See
28 U.S.C. § 636(c); Fed.R.Civ.P. 73.
Plaintiff filed for DIB on April 21, 2000, alleging disability
on September 30, 1999. (Tr. 149). Plaintiff's application for
benefits was denied on September 21, 2000. (Tr. 111). On October
24, 2000, Plaintiff filed a request for reconsideration. (Tr.
119). Plaintiff's request for reconsideration was denied on
February 9, 2001. (Tr. 118). Plaintiff then filed a request for a
hearing before an Administrative Law Judge ("ALJ") on February
27, 2001. (Tr. 121). Plaintiff appeared, with counsel, before an
ALJ on May 1, 2002. (Tr. 31). In a decision dated November 29,
2002, the ALJ found that Plaintiff was not entitled to DIB. (Tr.
28). On January 23, 2003, Plaintiff requested a review of the ALJ's decision by the Appeals Council.
(Tr. 11). On May 22, 2003, the Appeals Council denied Plaintiff's
request for review. (Tr. 10).
Plaintiff was born June 9, 1962 and was thirty-nine years old
at the time of her May 2002 hearing. (Tr. 46). Plaintiff
graduated from high school but did not pursue any further
education. Plaintiff testified she has trouble with reading and
arithmetic but is able to write short messages and perform basic
addition and subtraction. (Tr. 47). Additionally, Plaintiff
stated that since March 2002 she could not drive due to a seizure
she suffered in March 2002. Plaintiff's husband drove her to her
May 2002 hearing. At the time of her hearing, Plaintiff was
living with her husband and her teenage daughter. (Id.).
Plaintiff suffers from asthma, seizure disorder, depression and
anxiety. (Tr. 18). It is for these reasons, and some others, that
Plaintiff claims to be disabled.
Plaintiff suffers from seizures. The severity of Plaintiff's
seizures varies. In March 2002 Plaintiff suffered what she called
a "grand mal seizure." (Tr. 49). In addition to the grand mal
seizure, which appears to only happen once or twice a year,
Plaintiff testified that she suffers from "petit mal seizures" a
few times a week. (Id.). With a petit mal seizure, Plaintiff
stated she just sits and stares while other times she physically
jerks uncontrollably. (Id.). The petit mal seizures first
started after Plaintiff's surgery in September 30, 1999. With
regards to the grand mal seizures, Plaintiff stated she had one
in 2002 (as of May 2002), two in 2001, two in 2000 and two in
1999. (Tr. 49-50).
Plaintiff's most recent job was performing home care for a Ms.
Miller. From late 1997 to September 1999, Plaintiff testified
that she would feed, bathe and generally take care of Ms. Miller.
(Tr. 51). General care included such household duties as
vacuuming and washing the dishes. Plaintiff testified that her job at Ms. Miller's sometimes
required lifting of fifty pounds or more. Plaintiff worked on the
weekends for forty eight hours (Ms. Miller had another person
during the week). A normal work day at Ms. Miller's would require
Plaintiff to spend about twenty five percent of her time on her
feet and the rest of the day sitting down. (Tr. 52).
Prior to working for Ms. Miller, Plaintiff performed general
office work through a temporary service. Plaintiff's temporary
jobs usually included filing, general reception work and data
entry. (Id.). Plaintiff was usually not required to lift more
than ten pounds at these jobs. (Id.). Plaintiff's temporary
work required Plaintiff to sit for seven hours. (Tr. 53).
Plaintiff testified that she would normally work about an hour
before standing up to take a break. (Id.). When asked by the
ALJ, Plaintiff stated that she cannot perform the above mentioned
duties now because of her seizures, which Plaintiff stated
prevent her from being able to concentrate and have created
memory problems for Plaintiff. (Id.). Plaintiff was unable to
clearly describe what she meant by memory problems when asked by
Prior to her temporary work, Plaintiff worked for a couple of
months at Swiss Colony in 1997. (Tr. 54). At Swiss Colony,
Plaintiff answered the telephone and did data-entry. (Id.).
Plaintiff's job at Swiss Colony required no lifting or carrying
but, like her temporary work, did require Plaintiff to sit for
seven hours with hourly breaks. (Tr. 55).
Between 1993 and July 1996, Plaintiff worked for the Keen
Company. (Id.). Plaintiff's job at the Keen Company consisted
of data-entry, general customer service, general office work,
filing and tracking packages. (Id.). Like her subsequent jobs,
Plaintiff's job at Keen Company required no lifting or carrying
but did require Plaintiff to sit for seven hours with occasional
Between 1984 and 1993, Plaintiff worked as a transportation
clerk for Sharp Electronic. (Tr. 56). At Sharp Electronic, Plaintiff performed data-entry and
general customer service which consisted of telephone use and
filing. (Id.). Plaintiff's job at Sharp Electronic required no
lifting or carrying but, like her job at the Keen Company, did
require Plaintiff to sit for seven hours with occasional breaks.
A normal day for Plaintiff usually starts with her waking up
around 6:30 a.m. (Tr. 57). After waking, depending on the day,
Plaintiff testified that she does simple housework such as
sweeping, vacuuming (once a month), laundry (once a week), and
grocery shopping. (Id.). Plaintiff does not visit friends or
family or engage in hobbies. Additionally, on a normal day,
Plaintiff will spend an hour or so on the internet. (Tr. 58).
Plaintiff stated she does not watch television during the day,
but instead, when not on the computer or doing housework,
Plaintiff stated she just "sit[s] on the couch and maybe think
about stuff." (Id.).
On a normal day, Plaintiff usually feels tired, fatigued and
weak. According to Plaintiff, these physical feelings have been
the same since her September 1999 accident. (Id.).
Additionally, Plaintiff stated she suffers from tension and
headaches and her bones ache all over her body. (Tr. 61).
Plaintiff's headaches, like some of her other physical ailments,
started after her 1999 surgery. These headaches, which Plaintiff
described as migraines, occur a few times a month and last most
of the day. (Tr. 62). Lastly, Plaintiff stated she suffers from
anxiety type symptoms or depression on a daily basis. (Tr. 67).
Plaintiff's husband, Arthur Stitzer ("Mr. Stitzer"), appeared
before the ALJ during Plaintiff's May 2002 hearing. (Tr. 87). Mr.
Stitzer first testified about Plaintiff's grand mal seizures. Mr.
Stitzer stated Plaintiff usually has a grand mal seizure "six,
seven, eight times a month on an average, maybe one or two a
week, almost always in the evening at night." (Tr. 88). When
asked how he knew the difference between a grand mal and a petit mal, Mr.
Stitzer stated Plaintiff shakes all over and she loses control of
her arms and legs. (Id.). Mr. Stitzer stated Plaintiff usually
does not know she had a seizure. With regards to Plaintiff's
petit mal seizures, Mr. Stitzer stated those usually occur during
the day when he observes Plaintiff "space out for very briefs
periods of time." (Tr. 89). According to Mr. Stitzer, Plaintiff's
petit mal seizures occur "maybe on a monthly basis, eight, nine
times, something like that." (Id.). With regards to daily
activities, Mr. Stitzer testified that he does all the driving
because Plaintiff is unable to drive due to her seizures. (Tr.
91). Additionally, Mr. Stitzer stated that he helps Plaintiff
with the housework and occasionally with dinner. (Id.).
Vocational Expert, Christopher Yep, appeared before the ALJ
during Plaintiff's May 2002 hearing. (Tr. 94). Mr. Yep first
testified that Plaintiff's prior home care position would be an
unskilled position performed at a medium level of exertion.
(Id.). Plaintiff's general office work would be semi-skilled
and her work as the traffic coordinator and transportation clerk
would be skilled. (Id.). Both the general office work and the
traffic coordinator and transportation clerk jobs would be
performed at the sedentary level of exertion. (Id.). The ALJ
then asked Mr. Yep to assume the following:
I.'m going to ask you to assume a hypothetical female
individual who is 39 years of age. . . . Has a high
school education with the ability to read, write, and
use numbers. Let's say basic numbers. All right.
Simple addition and subtraction. Has some prior work.
The same prior work history as [Plaintiff] in this
case with the capacity to perform work with the
following and no other additional limitations. May
perform a full range of work at all exertional
levels, but must avoid concentrated exposure to
allergens, concentrated exposure in the work place to
allergens which would include pollen. I believe dog
and cat hair and mold. . . . And must also avoid
exposure, or concentrated exposure to fumes, odors,
dust, gases, and other pulmonary irritants. The
individual must also avoid exposure to hazards such
as exposed unprotected heights or excavations and exposed unprotected dangerous machinery. And the
individual may not operate a motor vehicle as part of
assigned work duties.
(97-98). Based on the above, Mr. Yep stated that there would be
no impact on past relevant work. (Tr. 98). The ALJ next asked Mr.
Yep to further assume the following modifications:
[l]ifting and carrying is limited to up to 20 pounds
on an occasional basis and ten pounds frequently with
sitting, standing, and walking limited respectively
and with normal breaks up to six hours each in an
eight hour day. The individual may not climb ladders,
ropes or scaffolds. May otherwise climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl on
no more than occasion [sic] basis.
(Tr. 98-99). Based on the further limitations, Mr. Yep stated
such an individual could not do the home care work. However, the
individual could perform all of Plaintiff's other prior work.
(Tr. 99) The ALJ then asked Mr. Yep to assume further the
All right. You are to assume further the individual
does not possess the capacity to, let's say recall
and carry out complex or detailed instructions, or to
maintain such extended attention or concentration as
would be required for the performance of complex or
detailed tasks at a sustained workman like pace. The
individual would however retain the capacity to
understand, recall, and carry out short simple
instructions and to focus upon and attend to and
carry out simple tasks at a sustained workman like
pace. Let's also, we didn't add in there that the
individual should not have to perform more than
minimum use of basic math skills.
(Id.). Based on the above, Mr. Yep stated that such limitations
would eliminate the remainder of the prior work because of
Plaintiff's remaining jobs were semi-skilled to skilled. (Id.).
Focusing on the area of unskilled work within the region of the
State of Illinois, the ALJ asked Mr. Yep whether, based on the
limitations stated above, an individual could perform any work.
In response, Mr. Yep stated that, at both the sedentary and light
level, the individual could perform assembly (32,747 positions), sorting (12,228 positions) and
packaging (22,371 positions). (Tr. 100). While the packaging
position listed by Mr. Yep would only be light work, the assembly
and sorting positions would be forty percent sedentary
(approximately 12,800 positions and 4,800 positions respectively)
and sixty percent light. (Id.).
Again, the ALJ asked Mr. Yep to further assume
that lifting and carrying would be limited to ten
pounds on an occasion [sic] basis and to lighter
items such as small hand tools, individual case
files, could be performed on a frequent basis. And
let's further state that standing and walking would
be limited to a combined total of two hours in an
eight hour day.
(Tr. 101). Based on these last limitations, Mr. Yep stated such
limitations would eliminate the packaging position and the light
work assembly and sorting positions, but would not eliminate the
sedentary assembly and sorting positions. (Tr. 101-102). The ALJ
then asked Mr. Yep to assume further that
standing and walking would be limited to let's say a
maximum of 15 minutes continuously without being able
to sit down for one or two minutes. It could still be
up to two hours in an eight hour day, but 15 minutes
continuously without being able to sit for a minute
(Tr. 102). Mr. Yep stated that such further limitations would not
effect the remaining jobs because they are primarily sedentary.
Finally, the ALJ asked Mr. Yep to assume, separate and apart
from any previous hypothetical, the following:
she cannot stand for any duration continuously. . . .
That sitting is less than two hours in an eight hour
day. Must be able to shift positions at will from
sitting, standing, or walking. Would require
unscheduled breaks at approximately 30 to 45 minute
intervals. Would require rest periods, apparently at
that for as long as one hour. Could lift less than
ten pounds on an occasional basis. . . . Can use the
hands to grasp, turn, and twist objects ten percent of the day. Use
the fingers for fine manipulation ten percent of the
day. Reaching, including overhead with the upper
extremities for only five percent of the day. Can
bend and twist at the waist five percent of the day.
Also limited exposure to cold, extremes of heat and
cold, high humidity, chemicals, solvents, cleaners,
soldering fluxes, cigarette smoke, perfumes, fumes,
odors, dust, and gases, pollen, dog and cat hair, and
mold. And does not have the capacity to tolerate even
low stress jobs.
(Tr. 103-104). Based on the above, Mr. Yep stated such individual
could not perform Plaintiff's prior work or perform any of the
previously mentioned sedentary jobs because of the restrictions
on breaks and the ten percent use of the hands. (Tr. 104).
III. MEDICAL HISTORY
In September 1999, while driving her car, Plaintiff began to
realize that she could not move her right leg and had no
sensation in her right leg. Plaintiff apparently blacked out and
woke up after her car had gone off the road and rolled over. (Tr.
319). Plaintiff was brought to the Saint Anthony Medical Center
Emergency Room in Rockford, Illinois. (Id.). A CAT scan of
Plaintiff's brain was taken. The CAT scan revealed a "hyperdense
mass in the left frontal lobe with a surrounding area of edema."
(Tr. 321). Additionally, a localized mass effect with mild
subfalcine herniation and compression of the lateral ventricle
was noted. (Id.). No acute hemorrhage or hematoma was noted.
(Id.). Contrast scans of Plaintiff's brain were then taken
which revealed the mass in Plaintiff's left frontal lobe to be a
large cerebral arteriovenous malformation ("AVM"). (Tr. 319).
After the CAT scan, Plaintiff saw Dr. M.M. Soriano. (Id.).
Dr. Soriano's physical exam of Plaintiff revealed Plaintiff's
Cranial nerves II through XII were intact, her lungs were clear,
normal S1 and S2, and her reflexes, sensory and motor exam was
normal. (Id.). Dr. Soriano's impressions of Plaintiff, based on
his physical exam and Plaintiff's CAT scan, were that Plaintiff
had a "giant AVM." (Id.). Ultimately, Dr. Soriano ordered an ambulance
transport Plaintiff to Dr. Gerald Brune at the University of
Illinois, Chicago for treatment. (Id.).
On October 1, 1999, Plaintiff began testing at the University
of Chicago, Illinois. (Tr. 307). Specifically, Plaintiff first
had a Weinberg catheter positioned in her right common carotid
artery. Selective injection showed filling of the distal common
carotid, internal carotid artery cervical portion and external
carotid artery. (Id.). An aneurysm was noted at the C2 level of
the vertebral body measuring approximately 7 mm in diameter. The
distal common and external carotid arteries appeared normal.
(Id.). Another Weinberg catheter was placed in Plaintiff, this
time in her right internal carotid artery. (Id.). Selective
injection showed filling of the distal internal carotid and
anterior middle cerebral arteries. A gross enlargement of the
left anterior cerebral artery A2 segment and the pericallosal
arteries was noted. The pericallosal artery measured
approximately five times its normal size and had two fusiform
aneurysms along its path. (Id.). Another Weinberg catheter was
positioned in Plaintiff's left common carotid artery. (Tr. 308).
Selective injection showed filling of the left carotid cervical
circulation. (Id.). The distal common and external carotid
arteries appeared normal and the left internal carotid artery
appeared diffusely enlarged and tortuous. (Id.). A final
Weinberg catheter was positioned in Plaintiff's left vertebral
artery. (Id.). Selective injection showed filling of the
posterior circulation intracranially. (Id.). The left vertebral
artery and basilar trunk were enlarged diffusely and some
enlargement of the left posterior cerebral artery was noted.
(Id.). In conclusion, radiologist Dr. Vicotr Aletich reported
the cerebral angiography demonstrated a high flow arteriovenous
fistula supplied predominantly by the left pericallosal artery in
an antegrade manner. (Tr. 309). This finding, according to Dr.
Aletich, was associated with diffuse enlargement of both carotid
arteries as well as the vertebral arteries and basilar trunk.
Multiple aneurysms situated on both internal carotid arteries and the left
pericallosal artery were also noted, presumably related to the
increase flow. (Id.).
On October 5, 1999, Dr. John Hughes, of the University of
Illinois at Chicago Medical Center's Department of Radiology,
issued an electroencephalographic report. (Tr. 310). In his
report, Dr. Hughes wrote the following:
The background rhythm in this record consists of well
organized and moderately well developed waves of 9½
to 10 per second bilaterally synchronous and
symmetrical. Intermixed are 2 to 3 second waves on
the left temporal area, diffuse 3 to 5 per second
waves and slow transients on the right temporal
area. . . . IMPRESSION: The sharp waves on the
temporal areas indicate the presence of discharging
foci within those regions. In addition a moderate
degree of focal slow wave abnormality was seen on the
left temporal area and a mild to moderate degree on
the right temporal area indicating a
neurophysiological disturbance within those regions.
Finally a mild to moderate degree of diffuse disorder
is seen indicated a generalized cerebral involvement.
Also on October 5, 1999, Dr. Michael Thorton, of University of
Illinois at Chicago's Medical Center, performed a cerebral
angiogram and embolization of her left parenchymal arteriovenous
fistula. (Tr. 312). Dr. Thorton reported that "two injections of
pure glue were performed into the arteriovenous fistula fed from
the left pericallosal artery. This resulted in apparent large
decrease flow through the fistula." (Id.). The fistula,
according to Dr. Thorton, remained patent and ultimately Dr.
Thornton recommended Plaintiff incur another angiography in one
month. (Tr. 315).
Plaintiff saw Dr. Rajeev Deveshwar, of University of Illinois
at Chicago's Department of Radiology, for another cerebral
angiogram. (Tr. 300). Dr. Deveshwar noted, after a Weinberg
catheter was positioned in Plaintiff's right internal carotid
artery, filling of the left anterior cerebral artery which was enlarged and dilated in its A2 and A3 segments.
(Tr. 301). Dr. Deveshwar then positioned the Weinberg catheter in
Plaintiff's left common carotid artery. After doing this, an
aneurysmal formation at the origin of the left external carotid
artery was noted. (Id.). Finally, Dr. Deveshwar positioned the
Weinberg catheter in Plaintiff's left internal carotid artery.
Selective injection of the left internal carotid artery
demonstrated an enlarged and dilated ACA on the left involving
the A2 and A3 segments. (Id.). Additionally, Dr. Deveshwar
noted lateral meningeal and pial collateral flow with filling of
the venous side of the previously defined arterial venous fistula
with a large pouch adjacent to the side of the fistulous
communication. (Id.). Ultimately, Dr. Deveshwar's impressions
were that a small residual fistulous communication persists which
is fed principally by a left meningeal collateral from the pial
collaterals of the middle cerebral artery. (Id.).
The very next day Dr. James Ausman, of the University of
Illinois at Chicago, performed a craniotomy and occlusion of
Plaintiff's fistula. (Tr. 295). The craniotomy consisted of Dr.
Ausman using a 3M perforator to place bur holes anteriorly first
and then posteriorly, and then connect them with a high speed
Midas drill. (Tr. 296). Dr. Ausman then exposed Plaintiff's
cerebral cortex, specifically the mesial aspect of the left
frontal lobe was exposed and retracted. (Id.). Dr. Ausman
proceeded with the dissection until the large ACA feeder, which
was the major and almost exclusive feeder for the fistula, was
seen. (Id.). The dissection then proceeded from proximal to
distal towards Plaintiff's fistula. An area in the vessel was
seen which was filled partly with glue. Dr. Ausman attempted to
clip the vessel but the only possible site to do so was proximal
to a cortical branch. (Id.). Further dissection revealed a
large varix in the site where the varix were emptying into the
superior sagittal sinus. (Id.). Dr. Ausman dissected the
fistula further at this point. (Id.). Before Dr. Ausman could
complete the procedure, Plaintiff was found to have a platelet
count of 70,000 with the possibility of her developing heparin induced
thrombocytepenia. Therefore, the procedure ended. (Id.).
ACT brain without contrast procedure was done on Plaintiff on
November 19, 1999. (Tr. 293). The CT revealed a mild decreased
density and size in Plaintiff's previously demonstrated left
frontal hematoma. (Id.). However, air was still seen along the
resection site on the left. Otherwise, no significant changes in
Plaintiff's condition were seen. (Id.).
Also on November 19, 1999, Dr. Ausman wrote a letter to Dr.
Soriano, Plaintiff's physician in Rockford. (Tr. 292). In his
letter, Dr. Ausman wrote: "[Plaintiff] came into the hospital and
had a midline arteriovenous fistula. We took her to surgery
yesterday and coagulated all the feeders into the fistula and
also what we thought was the vessel going into the fistula."
(Id.). Ultimately, Dr. Ausman wrote that Plaintiff may have to
undergo another angiogram after her surgery. (Id.). Plaintiff
did undergo another procedure on November 24, 1999, but that one
failed as well. (Tr. 276).
On November 20, 1999, Plaintiff had an MRI and MRA of her
brain. (Tr.290). Specifically, the MRI of Plaintiff's brain was
performed utilizing sagittal T1, axial proton and T2, axial T1,
and post Gadolinium T1 axial and coronal pulse sequences.
(Id.). The MRA of the major intracranial vascular structures
also was performed using 3D time of flight. (Id.). Plaintiff's
MRI revealed low T1 and T2 signal intensity in her left high
frontal lobe with surrounding hyperintense T1 and T2 signal
consistent with acute and chronic blood. (Tr. 291). Additionally
noted was a mild mass effect of the left lateral ventricle with
mild shift of the midline to the right. (Id.). Plaintiff's MRA
revealed that Plaintiff's previously noted large left anterior
cerebral artery had decreased in size. (Id.). However,
tortuosity of the vessel and tortuosity of the multiple left
middle cerebral artery branches were noted. (Id.).
Plaintiff underwent a speech/language assessment on November
26, 1999. (Tr. 276). Plaintiff was first tested on auditory
verbal comprehension. She answered 15/15 yes/no questions
correctly, was 35/35 correct with word recognition and 11/11 in
sequential commands up to three steps. (Id.). With regards to
repetition, Plaintiff was 10/10. Plaintiff was 20/20 in naming.
Plaintiff was 7/8 in sentence completion for short
sentences/paragraphs. (Id.). Plaintiff was also able to write
her own name, address and several words to dictation. (Id.).
Plaintiff underwent the final stage of a multi-stage occlusion
of her arteriovenous fistula on November 30, 1999. (Tr. 267). Dr.
Ausman reported that prior attempts at this procedure had
decreased the amount of flow to the AV fistula but with only
minimal residual. (Id.). Unlike the prior procedure, Dr. Ausman
was able to clip the varix with a curved #72 Sugita clip in
attempt to stop the flow. (Id.).
Plaintiff underwent another CT brain scan without contrast on
December 1, 1999. (Tr. 264). The CT scan revealed, as compared to
the November 30, 1999 scan, left frontal postoperative changes.
Specifically, surgical clips in the region obscured some
parenchymal detail. Additionally, areas of both high density as
well as areas of adema were noted in the left frontal lobe which
extended to the deep left frontal area and anterior left corpus
callosum. (Id.). Ultimately, no definite change in the overall
amount of mass effect centered in the left frontal area was
On December 2, 1999, Dr. Hughes issued another
electroencephalographic report. (Tr. 264). In his report, Dr.
Hughes wrote the following:
IMPRESSION: Compared to the previous record taken 2
months ago this record show a slight change in that
more diffuse slow waves were seen and not a moderate
degree of diffuse slow wave abnormality is noted indicating a generalized cerebral involvement.
As before sharp waves were again seen but now only on
the right temporal area indicated a discharging focus
within that region. As before a moderate degree of
slow wave abnormality is again seen on the left
temporal area and a mild to moderate degree on the
right temporal area indicated a neurophysiological
disturbance within those regions.
Plaintiff underwent another speech/language assessment on
December 7, 1999. (Tr. 241). As before, Plaintiff was first
tested on auditory verbal comprehension. She answered 15/15
yes/no questions correctly, was 54/54 correct with word
recognition and 11/11 in sequential commands up to three steps.
(Id.). With regards to repetition, Plaintiff was 10/10.
Plaintiff was 20/20 in naming and was able to name nine animals
in one minute and four fruits in one minute. With regards to
Plaintiff's cognitive memory, Plaintiff was 4/4 in immediate four
word recall and 3/4 in delayed four word recall. (Id.).
Also on December 7, 1999, Plaintiff underwent an MRA of her
cervical and intracranial vasculature and phase contrast study in
conjunction with her neurosurgery. (Tr. 236). Plaintiff's MRA of
her neck revealed normal caliber of the common carotid and
internal carotid arteries. (Id.). Both vertebral arteries were
normal in caliber also. (Id.). Plaintiff's MRA of her
intracranial vasculature revealed normal caliber of the anterior
and posterior circulation. (Id.).
Dr. Ausman wrote Dr. Soriano again on December 13, 1999. (Tr.
235). This time, Dr. Ausman wrote that "we were able to
completely obliterate [Plaintiff's] AV fistula." (Id.). After
numerous attempts to embolize and remove the feeders from
Plaintiff's fistula, Dr. Ausman wrote it was occluded. (Id.).
Ultimately, Dr. Ausman wrote "I think she will do well." (Id.).
About a month later, Dr. Ausman wrote, in another letter to Dr.
Soriano, that Plaintiff was improving. (Tr. 233). Specifically, Dr. Ausman wrote her AVM is completely
treated and Plaintiff's only complaint was itching at the
incision site. (Id.). Dr. Ausman also indicated Plaintiff was
suffering from anxiety for which Dr. Ausman prescribed Neurontin.
(Id.). Lastly, Dr. Ausman indicated Plaintiff complained of
ankle pain from the accident for which Dr. Ausman recommended an
orthopaedic surgeon in Rockford. (Id.).
Plaintiff saw an orthopaedic surgeon on January 18, 2000 in
regards to her ankle. (Tr. 366). Dr. Philip Eckstrom, of the
Monroe Clinic in Monroe, Wisconsin, took three x-rays of
Plaintiff's right foot. (Id.). The x-rays revealed no acute
fracture and Plaintiff's ankle mortise was intact. (Id.). A
small posterior calcaneal spur was noted with a lucency across
the base of the spur which, according to Dr. Eckstrom, could
represent a fracture at that location. (Id.). Also, Dr.
Eckstrom reported probable bipartite sesamoid adjacent to the
first metatarsal head. (Id.).
Plaintiff returned to Saint Anthony Medical Center in Rockford
on March 2, 2000 for an EEG. (Tr. 231). The reason for the EEG is
that Mr. Stitzer notified Dr. Ausman that Plaintiff had an
episode of numbness involving the right side of her nose, the
right side of her cheek, and her right hand (Tr. 232). While Mr.
Stitzer stated the episode lasted forty five minutes, Plaintiff
later stated it only lasted fifteen minutes. (Id.). Regardless,
the hospital advised Plaintiff to have an EEG, which she did on
March 2, 2000. The EEG revealed "an abnormal EEG due to sharp
wave activity in the left frontal region that indicates the
presence of a focus of cortical hyperexcitability but is not
necessarily diagnostic of epilepsy." (Tr. 231).
On May 3, 2000, Dr. Ausman filled out neurological report and
an epilepsy report for the Bureau of Disability Determination
Services. (Tr. 209-212). On the neurological report, Dr. Ausman
indicated Plaintiff has no sensory, reflex or motor changes as a
result of her neurological treatment. (Tr. 209). Additionally, Plaintiff's gait was normal
and Plaintiff was able to ambulate more than 50 feet without
assistance. (Id.). Plaintiff's manipulative abilities were
intact. (Tr. 210). Plaintiff oriented as to time, person and
place and Plaintiff indicated she was able to handle funds on her
own behalf. (Id.). On the epilepsy report, Dr. Ausman indicated
Plaintiff's EEG findings revealed left frontal sharp waves for
which Plaintiff is taking Neurontin. (Tr. 211). With regards to
major motor seizures, Dr. Ausman indicated Plaintiff has one to
two seizures a month (although he reported he has never witnessed
one), with the typical seizure effecting Plaintiff's face.
(Id.). When asked to describe Plaintiff's ability to do
work-related activities, Dr. Ausman indicated Plaintiff is not
able to lift more then ten pounds, cannot drive and has
difficulty with concentration. (Tr. 212).
Plaintiff filled out an Activities of Daily Living
Questionnaire on May 19, 2000. (Tr. 166). On the Questionnaire,
Plaintiff indicated she can perform the following household
chores: cleaning, vacuuming, dusting and laundry. (Id.). In
terms of some daily activities, Plaintiff indicated she often
pays bill and does finances and she sometimes goes to church,
watches television, talks on the phone and goes out to eat, but
Plaintiff rarely drives, reads, watches children, fixes things,
plays games, performs hobbies, goes to sports events, talks to
neighbors, volunteers, goes to movies or goes to classes. (Tr.
Plaintiff started to see Dr. Regina Bielkus, a neurologist, on
June 12, 2000. (Tr. 444). Dr. Bielkus' examination revealed
Plaintiff to be pleasant and in no acute distress. (Id.).
Plaintiff's motor examination was normal and her strength was
intact and symmetric in both upper and lower extremities.
(Id.). Dr. Bielkus' impression were Plaintiff was suffering
from a seizure disorder status post AVM resection. (Tr. 445).
Plaintiff saw Dr. Bielkus again on July 12, 2000. (Tr. 443). On that date, Dr. Bielkus reported Plaintiff was on Depakote 250
mg a day and Neurontin 400mg a day. (Id.). Dr. Bielkus reported
that Plaintiff had not had any seizures since Plaintiff's June
12, 2000 visit and that Plaintiff was tolerating the medication
well. (Id.). A CBC with differential and SGOT was unremarkable.
Dr. Bielkus also indicated an examination revealed no evidence of
nystagmus or ataxia. (Id.). Ultimately, Dr. Bielkus reported
Plaintiff was stable on the current dosages of Depakote and
Dr. Francis Vincent, a medical consultant on behalf of
Disability Determination Services, assessed Plaintiff's physical
residual functional capacity ("RFC") on September 15, 2000. (Tr.
213-219). Specifically, Dr. Vincent indicated Plaintiff has no
exertional limitations, no manipulative limitations, no visual
limitations, no communicative limitations and no environmental
limitations except that Plaintiff should avoid concentrated
exposure to hazards such as machinery and heights. (Tr. 217).
Additionally, Dr. Vincent noted that because "evidence does not
substantiate weight restrictions" (tr. 218), Plaintiff is
"capable of heavy work" with restrictions on heights and hazards.
Plaintiff saw Dr. Bielkus again on October 11, 2000. (Tr. 442).
Dr. Bielkus indicated Plaintiff was still on Depakote and
Neurontin without any side effects. (Id.). Plaintiff's CBC with
differential and SGOT were again unremarkable. (Id.). An
examination of Plaintiff by Dr. Bielkus revealed Plaintiff was
alert and oriented, her speech was intact and she had no evidence
of ataxia on "finger-finger nose." (Id.).
On December 20, 2000, Dr. Bielkus filled out, per the request
of Disability Determination Services, a Stroke Residual
Functional Capacity Questionnaire for Plaintiff. (Tr. 220). On
the Questionnaire, Dr. Bielkus indicated Plaintiff's symptoms
include the following: balance problems, poor coordination, loss of manual dexterity, weakness, numbness,
pain, fatigue, headaches, difficulty remembering, confusion,
depression, personality change, difficulty solving problems,
problems with judgment and speech/communication difficulties.
(Id.). Dr. Bielkus also indicated, in response to a question on
the Questionnaire, that Plaintiff's pain is constant and her
impairments are expected to last at least twelve months. (Tr.
221). With regards to Plaintiff's functional limitations, Dr.
Bielkus indicated Plaintiff can walk a block without rest, sit
continuously for fifteen minutes, not stand for any length of
time and sit for less than two hours in an eight hour workday
with normal breaks. (Id.). Dr. Bielkus also reported that
Plaintiff needs a job which permits shifting positions at will
from sitting, standing or walking and that Plaintiff will
sometimes need to take unscheduled breaks, usually every thirty
to forty-five minutes. (Tr. 222). In terms of weight, Dr. Bielkus
reported Plaintiff can lift less than ten pounds occasionally.
(Id.). Plaintiff has significant limitations in doing
repetitive reaching, handling or fingering, and in an eight hour
day, Dr. Bielkus reported Plaintiff can use her hands to grasp
and turn objects only ten percent of the time in an eight hour
day, perform fine manipulations ten percent of the time in an
eight hour day, and reach only five percent of the time in an
eight hour day. (Id.). Dr. Bielkus reported Plaintiff should
avoid exposure to extreme cold, extreme heat, high humidity,
chemicals, solvents/cleaners, soldering fluxes, cigarette smoke,
perfumes, fumes, odors and dust. (Tr. 224). Lastly, Dr. Bielkus
indicated Plaintiff is incapable of even low stress jobs.
Dr. Mark B. Langgut, a clinical psychologist, performed a
clinical interview, a psychological consultation and a mental
status examination of Plaintiff on January 5, 2001. (Tr. 435).
Dr. Langgut's initial observations were that Plaintiff's speech
was clear but hesitant and she had problems with comprehension
and seemed to struggle with questions asked of her. (Id.). Dr. Langgut's mental status examination/psychological consultation
revealed Plaintiff has feelings of depression, ranking seven on a
one-to-ten scale with ten being the most extreme depression. (Tr.
437). Plaintiff's depressive symptoms include lethargy, sleep
problems, anhedonia, decreased concentration, irritability and
impaired decision making. (Id.). Plaintiff has moderate feeling
of anxiety (again seven on a one-to-ten scale) and feels anxious
about most things. (Id.). According to Dr. Langgut, Plaintiff's
short-term memory was intact and her long-term memory was
adequate. (Id.). Dr. Langgut also found Plaintiff's speed of
thinking to be slowed while Plaintiff's thought processes were
characterized by average coherence and a normal level of
suggestibility. (Tr. 438). Plaintiff shifted topics with some
difficulty and her insight into her own situation was impaired.
(Id.). With regards to Plaintiff's responsibility, Dr. Langgut
indicated Plaintiff demonstrated adequate judgment,
responsibility and arithmetic reasoning skills as well as an
ability to understand the effects of her actions on herself and
others. (Id.). Ultimately, Dr. Langgut diagnosed Plaintiff as
suffering from Dysthymic Disorder, Anxiety Disorder, NOS and
Dementia post status head injury. (Id.).
Plaintiff saw Dr. T.R. Perry, of the Monroe Clinic, on March
21, 2001. (Tr. 330-332). Dr. Perry's neurological exam revealed
Plaintiff was mildly anxious with fluent speech and good
vocabulary. (Tr. 331). Plaintiff was alert, attentive and
oriented and demonstrated good recent and remote memory on
recitation of history. (Id.). Plaintiff's head and neck were
normocephalic and Plaintiff's cranial nerves II-XII were intact.
(Id.). Plaintiff's cerebellar movements (i.e. finger-to-nose,
heel-to-shin, etc.) were intact. (Id.). Plaintiff's station and
gait were normal. (Id.). Based on his observations, Dr. Perry
stopped the Depakote medication and started Plaintiff on one
enteric-coated baby aspirin a day due to Plaintiff's
pseudoaneurysms. (Tr. 332). Dr. Perry also suggested Plaintiff start Lamictal in the future as her preferred
anti-seizure medication. (Id.).
Plaintiff underwent surgery again on her left internal carotid
artery pseudoaneurysm on June 5, 2001 at the University of
Illinois at Chicago Medical Center. (Tr. 413). Specifically, the
operation consisted of a subluxation of Plaintiff's left
temporomandibular joint and removal of rigid fixation. (Id.).
Two days later, on June 7, 2001, again at the University of
Illinois at Chicago Medical Center, Plaintiff underwent an MRI
study of her brain with and without contrast. (Tr. 416). The MRI
revealed a left frontal craniotomy site with resection of left
posterior frontal lobe AVM. (Tr. 417). A hyperintense T2 signal
was noted in the posterior frontal lobe extending anteriorly
along the midline. (Id.). No evidence of mass effect or midline
shift or extra-axial fluid collection was found and no evidence
of acute ischemic infarction was noted. (Id.).
Plaintiff's counsel referred Plaintiff to Michelle Marino, M.A,
QMRP, of Malcolm Eaton Enterprises, on January 7, 2003 for a
vocational evaluation. (Tr. 524-533). Specifically, Plaintiff
completed the McCarron-Dial Vocational Evaluation System ("MDS")
which is used to objectively and effectively predict vocational
competency based on five different measures: verbal-cognitive as
measured by the Peabody Picture Vocabulary Test ("PPVT"), sensory
as measured by the Bender Visual Motor Gestalt Test ("BVMGT"),
gross motor coordination as measured by the McCarron Assessment
of Neuromuscular Development ("MAND"), integration-coping as
measured by the Street Survival Skills Questionnaire ("SSSQ") and
the Behavior Rating Scale ("BRS") and emotional as measured by
the Emotional Behavioral Checklist ("EBC"). (Tr. 525).
Ms. Marino first addressed the MAND. The MAND was designed to
assess fine and gross motor abilities. The fine motor portion of
the MAND includes the following subtests: 1) beads in a box; 2)
beads on rod; 3) finger tapping; 4) nut and bolt; and 5) rod
slide. (Id.). The gross motor portion includes the following subtests: 1) hand strength; 2)
finger-nose-finger; 3) jumping; 4) heel-to-toe walk; and 5)
standing on one foot. Ms. Marino indicated Plaintiff was unable
to complete the jumping subtest because of her severe lack of
lower body balance and coordination. (Id.). Additionally, Ms.
Marino noted Plaintiff completed the tasks on the MAND with
significant pain and discomfort. (Tr. 526). Overall, according to
Ms. Marino, Plaintiff obtained a fine motor standard score of 15,
a gross motor standard score of 32 and a total standard score of
44 as compared to the general population mean of 100 (Ms. Marino
indicated the general population would be expected to score
anywhere from 85 to 115). (Id.). According to Ms. Marino, the
MDS indicates that "individuals within this range (i.e. 44) have
difficulty performing even the simplest motor activities related
to work." (Id.). Plaintiff had weakness with bimanual speed and
coordination, right fine motor speed, left fine motor speed and
left upper body strength. (Tr. 527). Ms. Marino also reported
Plaintiff had severe weakness in left side balance, right side
balance, lower body coordination and balance with eyes closed.
Next was the PPVT. (Tr. 528). The PPVT is an individually
administered test of receptive vocabulary where the examinee's
task is to select a picture which best illustrates the meaning of
a stimulus word spoken by the examiner. (Id.). Plaintiff
obtained a standard score of 80 where the general population
average score is measured as 100. Ultimately, Plaintiff's score
fell within the "moderately low score" range with a percentile
rank of 9%. (Id.). According to Ms. Marino, the MDS indicates
individuals scoring a factor standard score of 79-85
have verbal-spatial-cognitive skills associated with
the community level of employment. Individuals within
the lower spectrum . . . are generally capable of
reading and writing at a minimum fourth grade level.
These individuals have little or no difficulty in
transferring skills, making precise measurements, telling time, handling
money or improving their skills with experience. They
have the capacity to understand analogies and form
concepts from their experience.
Ms. Marino performed the BVMGT next. The BVMGT is administered
to test visual motor integration, attention to visual detail, and
organization of the work environment. (Id.). The examinee is
asked to copy a series of 9 drawings which are presented by the
examiner after which the examiner rates these items for errors on
the following attributes: distortion, disproportion, integration,
perseveration and rotation. (Id.). Plaintiff made 0 out of 30
errors possible. This corresponds to a score of 100 as compared
to the general population mean of 100. Thus, Ms. Marino reported
"It appears that [Plaintiff] does not display any visual-motor
integration difficulties." (Id.).
The HVDT was next. The HVDT is an instrument used to measure an
individual's haptic visual sensory integration skills. This
instrument is useful in identifying moderate to severe
neurological dysfunctions. (Id.). The HDVT requires the
examinee to identify in a tactile manner dimensions including
size, shape, texture and configuration with first the left hand
and then the right hand (Id.). Plaintiff obtained a standard
score of 78 with her right hand and a standard score of 81 with
her left. Plaintiff's total average was 79 as compared to the
general population mean of 100. (Tr. 529). The Sensory factor is
comprised of both the BVMGT and the HVDT. Plaintiff's overall
Sensory factor score was 89.7. According to Ms. Marino, the MDS
indicates that "individuals scoring a Sensory factor standard
score of 86 to 94 have tactile-visual and kinesthetic sensory
perception at the community level of vocational functioning. They
tend to receive information well and accurately perceive their
environment. They tend to acquire or learn new tasks more rapidly
than average." (Id.). The SSSQ was next. The SSSQ is an adaptive behavior rating
scale which evaluates an individual's functional knowledge and
skills important for independent living in the community.
(Id.). The SSSQ assesses adaptive behaviors in nine areas of
daily living: basic concepts, functional signs, tools, domestics,
health and safety, public services, time, monetary concepts and
measurements. (Id.). Ms. Marino reported Plaintiff scored
average to above average on the SSSQ.
Next, in order to gain a more comprehensive understanding of
the "debilitating behavioral and emotional effects which
[Plaintiff's] medical condition appears to have created,"
Plaintiff completed the BRS. (Id.). The BRS is used to provide
an assessment of personal, social and work adjustment behaviors
that relate to vocational placement, adjustment to work and
personal-social adjustment. (Id.). Plaintiff obtained a
standard score of 48 with a standard score of 100 being at the
general population mean. Ms. Marino reported specific behaviors
which reflect Plaintiff's relative strength include:
demonstration of good table manners, dressing neatly and
appropriately for the situation, the ability to recognize and
name colors, understanding time concepts and number concepts.
(Id.). On the other hand, specific behaviors which require
intervention include restrictions of physical stamina for lifting
or prolonged standing, the ability to stand up to stressful
situations, the ability to travel independently, and the ability
to handle living arrangements independently. (Tr. 530).
Lastly, the EBC. The EBC is an assessment instrument used to
determine emotional and social effectiveness. (Id.). The EBC
identifies the frequency of observed behaviors which include the
following factors: impulsivity, anxiety depression,
socialization, self-concept, aggression and reality orientation.
(Id.). Ms. Marino reported the EBC indicated Plaintiff
experienced several significant emotional problems. The EBC
indicated a standard score of 37 with a standard score of 100 being at the general population mean. According to Ms.
Marino, the MDS indicates that "individuals with an Emotional
standard score of 49 and below may have severe emotional problems
which require immediate intervention." (Id.). Additionally, Ms.
Marino indicated that during her four hour administration of the
MDS she witnessed the following behavioral factors by Plaintiff:
impulsivity, anxiety, depression, self concept and reality
Overall, Plaintiff's MDS factor score was 53.3. This score,
according to Ms. Marino, placed Plaintiff in the "low extended
work training/prevocational competency range." (Tr. 531). In
terms of areas of greatest need to improve her functioning and
level of vocational competency, Ms. Marino reported the MDS
indicated the following in order of priority: 1) gross and fine
motor skills; 2) emotional/coping skills; 3) sensory abilities;
and 4) verbal abilities. (Id.).
In summary, based on review of the collateral medical
documentation and the results of the MDS, Ms. Marino opined
Plaintiff "is unable to maintain supportive nor competitive
employment at the current time." (Tr. 532). An individual must
demonstrate an overall score of 70 to be considered potentially
successful for employment, whereas Plaintiff's score of 53.3
places her well below that minimum number. (Id.).
IV. STANDARD OF REVIEW
The court may affirm, modify, or reverse the ALJ's decision
outright, or remand the proceeding for rehearing or hearing of
additional evidence. 42 U.S.C. § 405(g). Review by the court,
however is not de novo; the court "may not decide the facts
anew, reweigh the evidence or substitute its own judgment for
that of the [ALJ]." Binion v. Charter, 108 F.3d 780, 782 (7th
Cir. 1997); see also Maggard v. Apfel, 167 F.3d 376, 379 (7th
Cir. 1999). The duties to weigh the evidence, resolve material
conflicts, make independent findings of fact, and decide the case accordingly are entrusted to the commissioner; "[w]here
conflicting evidence allows reasonable minds to differ as to
whether a claimant is entitled to benefits, the responsibility
for that decision falls on the Commissioner." Schoenfeld v.
Apfel, 237 F.3d 788, 793 (7th Cir. 2001). If the Commissioner's
decision is supported by substantial evidence, it is conclusive
and this court must affirm. 42 U.S.C. § 405(g); see also Scott
v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). "Substantial
evidence" is "evidence which a reasonable mind would accept as
adequate to support a conclusion." Binion, 108 F.3d at 782.
The Seventh Circuit demands even greater deference to the ALJ's
evidentiary determinations. So long as the ALJ "minimally
articulate[s] his reasons for crediting or rejecting evidence of
disability," the determination must stand on review. Scivally v.
Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992). Minimal
articulation means that an ALJ must provide an opinion that
enables a reviewing court to trace the path of his reasoning.
Clifford v. Apfel, 227 F.3d 863, 874 (7th Cir. 2000), Rohan v.
Chater, 98 F.3d 966, 971 (7th Cir. 1996). Where a witness
credibility determination is based upon the ALJ's subjective
observation of the witness, the determination may only be
disturbed if it is "patently wrong" or if it finds no support in
the record. Pope v. Shalata, 998 F.2d 473, 487 (7th Cir. 1993),
Imani v. Heckler, 797 F.2d 508, 512 (7th Cir. 1986), cert.
denied. "However, when such determinations rest on objective
factors of fundamental implausibilities rather than subjective
considerations, [reviewing] courts have greater freedom to review
the ALJ decision." Herron v. Shalala, 19 F.3d 329, 335 (7th
Cir. 1994), Yousif v. Chater, 901 F. Supp. 1377, 1384 (N.D.
V. FRAMEWORK FOR DECISION
The ALJ concluded that Plaintiff did not meet the Act's
definition of "disabled," and accordingly denied her application for benefits. "Disabled" is
defined as 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 twelve months." 42 U.S.C. § 1382c(3)(A).
A physical or mental impairment is one "that results from
anatomical, physiological, or psychological abnormalities which
are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques." 42 U.S.C. § 1382c(3)(C). See Clark v.
Sullivan, 891 F.2d 175, 177 (7th Cir. 1988).
The Commissioner proceeds through as many as five steps in
determining whether a claimant is disabled.
20 C.F.R. § 404.1520(a)-(f), 416.920(a)-(f) (1998).*fn1 The Commissioner
sequentially determines the following: (1) whether the claimant
is currently engaged in substantial gainful activity; (2) whether
the claimant suffers from a severe impairment; (3) whether the
impairment meets or is medically equivalent to an impairment in
the Commissioner's Listing of Impairments; (4) whether the
claimant is capable of performing work which the claimant
performed in the past; and (5) whether the claimant is capable of
performing any other work in the national economy.
At Step One, the Commissioner determines whether the claimant
is currently engaged in substantial gainful activity.
20 C.F.R. § 404.1520 (a),(b). Substantial gainful activity is work that
involves doing significant and productive physical or mental
duties that are done, or intended to be done, for pay or profit.
20 C.F.R. § 404.1510. If the claimant is engaged in substantial
gainful activity, he is found not disabled, regardless of medical
condition, age, education, or work experience, and the inquiry ends; if not, the inquiry proceeds to
Step Two requires a determination whether the claimant is
suffering from a severe impairment.*fn2 A severe impairment
is one which significantly limits the claimant's physical or
mental ability to do basic work activities.
20 C.F.R. § 404.1520(c). The claimant's age, education, and work experience
are not considered in making a Step Two severity determination.
20 C.F.R. § 404.1520(c). If the claimant suffers from severe
impairment, then the inquiry moves on to Step Three; if not, then
the claimant is found to be not disabled, and the inquiry ends.
At Step Three, the claimant's impairment is compared to those
listed in 20 C.F.R. Ch. III, Part 404, Subpart P, Appendix 1. The
listings describe, for each of the major body systems,
impairments which are considered severe enough per se to
prevent a person from doing any significant gainful activity.
20 C.F.R. § 404.1525(a). The listings streamline the decision
process by identifying certain disabled claimants without need to
continue the inquiry. Bowen v. New York, 476 U.S. 467, 470-71
(1986). Accordingly, if the claimant's impairment meets or is
medically equivalent to one in the listings, then the claimant is
found to be disabled, and the inquiry ends; if not, the inquiry
moves on to Step Four.
At Step Four, the Commissioner determines whether the
claimant's residual functional capacity allows the claimant to
return to past relevant work. Residual functional capacity is a
measure of the abilities which the claimant retains despite his
impairment. 20 C.F.R. § 404.1545(a). Although medical opinions
bear strongly upon the determination of residual functional
capacity, they are not conclusive; the determination is left to the
Commissioner, who must resolve any discrepancies in the evidence
and base a decision upon the record as a whole.
20 C.F.R. § 404.1527(e)(2); Diaz v. Chater, 55 F.3d 300, 306 n. 2 (7th Cir.
1995). Past relevant work is work previously performed by the
claimant that constituted substantial gainful activity and
satisfied certain durational and recency requirements.
20 C.F.R. § 404.1565; Social Security Ruling 82-62. If the claimant's
residual functional capacity allows him to return to past
relevant work, then he is found not disabled; if he is not so
able, the inquiry proceeds to Step Five.
At Step Five, the Commissioner must establish that the
claimant's residual functional capacity allows the claimant to
engage in work found in significant numbers in the national
economy. 20 C.F.R. § 404.1520(f), 404.1566. The Commissioner may
carry this burden by relying upon vocational expert testimony, or
by showing that a claimant's residual functional capacity, age,
education, and work experience coincide exactly with a rule in
the Medical-Vocational Guidelines (the "grids"). See 20 C.F.R.
Ch. III, Part 404 Subpart P, Appendix 2; Walker v. Bowen,
834 F.2d 635, 640 (7th Cir. 1987); Binion v. Shalala, 13 F.3d 243,
246 (7th Cir. 1994); Social Security Law and Practice, Volume 3,
§ 43:1. If the ALJ correctly relies on the grids, vocational
expert evidence is unnecessary. Luna v. Shalala, 22 F.3d 687,
691-92 (7th Cir. 1994). If the Commissioner establishes that
sufficient work exists in the national economy that the claimant
is qualified and able to perform, then the claimant will be found
not disabled; if not, the claimant will be found to be disabled.
The court will proceed through the five step analysis in order.
A. Step One: Is the claimant currently engaged in substantial
gainful activity? In performing the Step One Analysis the ALJ found that
Plaintiff had not engaged in any substantial gainful activity at
any time relevant to his decision issued on November 29, 2002.
(Tr. 18). Specifically, the ALJ stated "[t]here is no evidence of
work after the alleged onset date in this case." (Id.).
Under ordinary circumstances, a claimant is engaged in
substantial gainful activity if the claimant's earnings averaged
more than seven hundred and eighty dollars per month for years
after January 1, 2001. (20 C.F.R. § 1574 (b)(2) Table 1, as
modified by 65 FR 82905, December 29, 2000).
The finding of the ALJ as to Step One of the Analysis is not
challenged by either party and the court finds no reason to
disturb this finding. The ALJ's determination as to Step One of
the Analysis is affirmed.
B. Step Two: Does the claimant suffer from a severe impairment?
In performing the Step Two Analysis the ALJ found Plaintiff
suffered from severe impairments. Specifically, the ALJ found the
impairments in issue are asthma, fracture of the left ankle,
status post repair of asteriovenous fistula, pseudoanverysms
right and left, seizure disorder, depression and anxiety.
Substantial evidence exists to support the ALJ's determination
that Plaintiff suffers from severe impairments. This finding is
not challenged by either party and the court finds no reason to
disturb it. The ALJ's finding as to Step Two of the Analysis is
C. Step Three: Does claimant's impairment meet or medically
equal an impairment in the Commissioner's listing of impairments?
In performing the analysis for Step Three the ALJ determined
that Plaintiff's impairments do not meet or equal any impairment in Appendix 1 to Subpart P of
Regulations number 4. (Id.). Specifically, the ALJ found
Plaintiff's asthma is under control and Plaintiff has not had any
attacks despite prescribed treatment as required under Listing
3.03. Additionally, the ALJ found Plaintiff's seizure condition
appears well controlled with medication and thus does not satisfy
Listing 11.02, 11.03 or 11.04. (Id.). Finally, with regards to
the severity of Plaintiff's mental impairment (i.e. depression
and anxiety) the ALJ found that, under Listing 12.04 and 12.06,
Plaintiff has mild limitation in her performance of activities of
daily living and in maintaining social functioning and moderate
limitation in maintaining concentration, persistence and pace.
(Tr. 19). Therefore, with no evidence of decompensation and no
"C" criteria met, the ALJ found Plaintiff did not satisfy any of
the Listings with regards to her depression and anxiety.
This court has some concerns with the ALJ's conclusion at Step
Three with regards to Plaintiff's seizure disorder. Specifically,
this court is confused with the ALJ's statement that Plaintiff's
"seizure condition appears well controlled with
medication, . . ." (Tr. 18). However, this court will proceed
through Step Five at which time it will fully discuss its
concerns with the ALJ's statement at Step Three.
D. Step Four: Is the claimant capable of performing work which
the claimant performed in the past?
Before proceeding to Step Four, the ALJ first needed to
determine Plaintiff's RFC. In determining a mental RFC, the first
step in the procedure is to assess the nature and extent of the
claimant's mental limitations and restrictions
(20 C.F.R. § 416.945 (c)). This information is then used to determine the
Mental RFC. In order to properly assess an individual's level of
functioning due to a mental disorder, evaluation of the
impairment must take into account the severity of the impairment over a period of time. (20 C.F.R. Ch. III, Part 404,
Subpart P, Appendix 1 12.00(d)). This information is then used
to complete claimant's vocational assessment. After considering
Plaintiff's entire medical record, including Plaintiff's
allegations of disabling symptoms, the ALJ found Plaintiff's
medically determinable impairments precluded the following:
lifting/carrying up to 10 pounds more than
occasionally, and lifting lighter items such as small
hand tools and individual case files more than
frequently; standing and/or walking for more than a
combined total of 2 hours in an eight hour day, or
for longer than 15 minutes continuously without being
able to sit for 1 to 2 minutes; sitting, with normal
breaks, for more than 6 hours in an eight hour day;
may not climb ladders, ropes, or scaffolds; but, may
otherwise climb ramps and/or stairs, balance, stoop,
kneel, crouch, or crawl no more than occasionally;
must avoid concentrated exposure, in the workplace,
to the following allergens: pollen, molds, dog and
cat hair; must avoid concentrated exposure, in the
work place, to extremes of heat, cold, and humidity;
and must avoid concentrated exposure, in the work
place, to fumes, odors, dusts, gases and other
pulmonary irritants; must avoid exposure to hazards,
such as exposed-unprotected heights, excavations and
dangerous machinery; may not drive a motor vehicle in
the performance of assigned duties; and, does, not
possess the capacity to recall, and carry out complex
or detailed instructions or to maintain such extended
attention and concentration as is required for the
performance of complex or detailed tasks at the
sustained workmanlike pace, but retains capacity to
understand, recall and carry out short simple
instructions, and to focus upon, attend to and carry
out simple tasks at a sustained workmanlike pace;
and, may not perform work which requires more than
minimal use of basic math.
(Tr. 19). Based on the above limitations, the ALJ found that
Plaintiff cannot perform any past relevant work because even
Plaintiff's least demanding past relevant job required her to
perform work activities inconsistent with the RFC determined
above. (Tr. 26). This court agrees.
The finding of the ALJ as to Step Four of the Analysis is not
challenged by either party and the court finds no reason to
disturb this finding. The ALJ's determination as to Step Four of
the Analysis is affirmed. (Id.).
E. Step Five: Is the claimant capable of performing any work
existing in substantial numbers in the national economy?
At Step Five The ALJ determined that although Plaintiff's RFC
did not allow her to perform the full range of light work, there
existed a significant number of jobs in the national economy that
Plaintiff can perform. Before proceeding, the ALJ first noted
that Plaintiff's past relevant work ranged from semi-skilled
sedentary to heavy to medium unskilled. (Id.). Based on
Plaintiff's RFC, the ALJ determined Plaintiff can perform a
limited range of sedentary work. (Id.). Specifically, the ALJ,
with assistance from a vocational expert, determined that
Plaintiff can perform the following unskilled sedentary jobs:
assembler and sorter. Additionally, the ALJ noted that,
"[a]ccording to the vocational expert, if (as the [Plaintiff] and
her husband testified) an individual would be off task a few
times per week for less than one minute on average (due to petit
mal seizures), the above jobs would remain." (Id.) (emphasis
added). Therefore, although the Plaintiff's limitations prevent
Plaintiff from performing a full range of sedentary work, there
still exists a significant number of jobs remaining that
Plaintiff can perform at the limited sedentary range. (Id.).
This court now addresses its concerns at Step Three and Step
Five. This court starts with the most logical starting point
the Listings. Specifically, putting aside all Plaintiff's other
ailments, this court focuses on the Listings for seizure
disorders. Section 11.00 (Neurological) provides, in pertinent
A. Convulsive disorders. In convulsive disorders,
regardless of etiology degree of impairment will be
determined according to type, frequency, duration,
and sequelae of seizures. At least one detailed
description of a typical seizure is required. Such
description includes the presence or absence of aura,
tongue bites, sphincter control, injuries associated with the attack, and postictal
phenomena. The reporting physician should indicated
the extent to which description of seizures reflects
his own observations and the source of ancillary
information. Testimony of persons other than the
claimant is essential for description of type and
frequency of seizures if professional observation is
. . . Under 11.02 and 11.03, the criteria can be
applied only if the impairment persists despite the
fact that the individual is following prescribed
anticonvulsive treatment. Adherence to prescribed
anticonvulsive therapy can ordinarily be determined
from objective clinical findings in the report of the
physician currently providing treatment. . . .
. . . Section 11.02 Epilepsy major motor seizures,
(grand mal or psychomotor), documented by EEG and by
detailed description of a typical seizure pattern,
including all associated phenomena; occurring more
frequently than once a month, in spite of at least 3
months prescribed treatment. With:
A. Daytime episodes (loss of consciousness and
convulsive seizures) or
B. Nocturnal episodes manifesting residuals which
interfere significantly with activity during the day.
Section 11.03 Epilepsy Minor motor seizures (petit
mal, pscyhomotor, or focal), documented by EEG and by
detailed description of a typical seizure pattern,
including all associated phenomena; occurring more
frequently than once weekly in spite of at least 3
months of prescribed treatment. With alteration of
awareness or loss of consciousness and transient
postictal manifestations of unconventional behavior
or significant interference with activity during the
At Step Three, the ALJ concluded Plaintiff did not fit the
criteria listed above because "as her seizure disorder appears
well controlled with medication, this condition does not satisfy
section 11.02, 11.03 or 11.04." (Tr. 18). However, this statement
seems contradictory given the ALJ's statement that Plaintiff can
perform substantial gainful activity even if she "would be off
task a few times per week for less than one minute on average
(due to petit mal seizures), . . ." (Tr. 26). There appears to
be a problem. First, and foremost, the ALJ failed to thoroughly
analyze Plaintiff's seizure disorder at Step Three. As this court
has stated, in adherence to the Seventh Circuit, the ALJ must build a "logical bridge from evidence to conclusion." See Elliot
v. Barnhart, 2003 WL 21696198, at *15 (N.D. Ill. July 18, 2003)
(citing Clifford v. Apfel, 227 F.3d 863
, 872 (7th Cir. 2000).
There is nothing logical about the ALJ's conclusions. If
Plaintiff's seizure disorder is controlled by medication, then
why inquire of the vocational expert the hypothetical of a person
who suffers petit mal seizures "a few times a week." Even more
troublesome is if, as the ALJ appears to have alluded to,
Plaintiff does suffer petit mal seizures a few times a week for
less than one minute on average, then why is Plaintiff not
disabled at Step Three. Specifically, if the ALJ is concerned
about an individual being off task a few times (few assumingly
meaning at least two) a week due to petit mal seizures then it
would seem that Plaintiff is suffering from petit mal seizures
more frequently than once weekly in spite of at least 3 months of
prescribed treatment. Why does Plaintiff not then satisfy Listing
11.03? Again, this court does not know the answer because the ALJ
concluded Plaintiff does not satisfy Listing 11.02, 11.03 or
11.04 because her seizures are controlled by medication even
though all the evidence seems to the contrary, given Plaintiff's
own testimony (Tr. 49), that of her husbands (Tr. 89), numerous
doctors (Tr. 211, 220, 225, 230, 231 and 423) and the
hypothetical given to the vocational expert.
Plaintiff's testimony regarding her seizures, as well as her
husbands testimony regarding Plaintiff's seizures, is consistent
with the medical treatment and medical condition of Plaintiff.
Specifically, Dr. Bielkus, one of Plaintiff's neurologists,
reported Plaintiff suffers from the following as a result of her
conditions: balance problems, poor coordination, loss of manual
dexterity, weakness, numbness, pain, fatigue, headaches,
difficulty remembering, confusion, depression, personality
change, difficulty solving problems, problems with judgment and
speech/communication difficulties. (Tr. 220). Dr. Bielkus also
indicated Plaintiff's pain is constant and her impairments are expected to last at least twelve months. (Tr. 221). With
regards to Plaintiff's functional limitations, Dr. Bielkus
indicated Plaintiff can walk a block without rest, sit
continuously for fifteen minutes, not stand for any length of
time and sit for less than two hours in an eight hour workday
with normal breaks. (Id.). In terms of weight, Dr. Bielkus
reported Plaintiff can lift less than ten pounds occasionally.
(Tr. 222). Plaintiff also has significant limitations in doing
repetitive reaching, handling or fingering, and Dr. Bielkus
reported Plaintiff can use her hands to grasp and turn objects
only ten percent of the time in an eight hour day, perform fine
manipulations ten percent of the time in an eight hour day, and
reach only five percent of the time in an eight hour day.
(Id.). Lastly, Dr. Bielkus indicated Plaintiff is incapable of
even low stress jobs. (Tr. 224). Dr. Bielkus' report is
consistent with Plaintiff's testimony.
Moreover, on one instance, Plaintiff claimed to have
experienced a seizure and after being examined at Saint Anthony
Medical Center on March 2, 2000, an EEG revealed "an abnormal EEG
due to sharp wave activity in the left frontal region that
indicates the presence of a focus of cortical hyperexcitability
but is not necessarily diagnostic of epilepsy." (Tr. 231). On
another occasion, Dr. Ausman filled out a neurological report and
epilepsy report on which he indicated Plaintiff is not able to
lift more then ten pounds, cannot drive and has difficulty with
concentration. (Tr. 212). The ALJ has put forward not a scintilla
of evidence to justify setting aside Plaintiff's and her
husband's testimony. The ALJ must point to the areas of the
record which would support ignoring this testimony.
Finally, this court believes the ALJ should have the
opportunity to evaluate the January 7, 2003 findings of Ms.
Marino of Malcolm Eaton Enterprises. This report came two months
after the ALJ's opinion and the Appeals Counsel ignored it on
review. While this court does not designate any weight to Ms. Marino's report, it does deserve consideration
given its adverse findings to that of the ALJ's. (Tr. 532) ("It
would appear to his evaluator, based on review of the collateral
medical documentation and in conjunction with the results of the
McCarron Dial System, that [Plaintiff] is unable to maintain
supportive nor competitive employment at the current time.")
For the above stated reasons, Plaintiff's Motion for Summary
Judgment is granted in part and denied in part. The case is
remanded. This court recommends the ALJ determine whether
Plaintiff's petit mal seizures qualify her for disability at Step
Three, and if not, this court recommends the ALJ consider
establishing a new RFC. Defendant's Motion for Summary Judgment