United States District Court, N.D. Illinois, Western Division
July 14, 2004.
CARLENE E. JONES, Plaintiff,
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
REPORT AND RECOMMENDATION
Carlene E. Jones ("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 for Report
and Recommendation pursuant to Rule 72(b) and
28 U.S.C. § 636(b)(1)(B).
Plaintiff filed for DIB on May 4, 2001. (Tr. 140). Plaintiff's
application for benefits was denied on August 2, 2001. (Tr. 103).
Plaintiff filed a request for reconsideration on August 8, 2001.
(Tr. 107). Plaintiff's request for reconsideration was denied on
March 1, 2002. (Tr. 109). Plaintiff then filed a request for a
hearing before an Administrative Law Judge ("ALJ") on March 11,
2002. (Tr. 113). Plaintiff appeared, with counsel, before an ALJ
on April 15, 2003. (Tr. 26). In a decision dated April 25, 2003,
the ALJ found that Plaintiff was not entitled to DIB. (Tr. 15). On May 1, 2003, Plaintiff requested a review of the
ALJ's decision by the Appeals Council. (Tr. 8). On June 27, 2003,
the Appeals Council denied Plaintiff's request for review. (Tr.
Plaintiff was born on November 5, 1957, and was forty-five
years old at the time of her April 15, 2003 hearing before the
ALJ. (Tr. 76). Plaintiff completed her education through the
eighth grade; she did not graduate from high school or receive
her GED. (Tr. 33). At the time of the hearing, Plaintiff
testified that she lived alone in an apartment. (Tr. 31).
Plaintiff suffers from emphysema, asthma, high blood pressure,
severe headaches, depression, and is HIV positive. For these
reasons, and some others, Plaintiff claims to be disabled.
At the time of her hearing, Plaintiff's most recent employment
was with a convalescent home.*fn1 Plaintiff testified that
during the summer of 2001 she was an activities director at the
convalescent home for about 30-45 days. (Tr. 38). This job was
part-time: Plaintiff worked five hours per day, three days per
week. (Tr. 38-39). As an activities director at this convalescent
home, Plaintiff testified she was on her feet for about three
hours of her five-hour shift. (Tr. 39). Additionally, Plaintiff
pushed people in their wheelchairs and pushed game carts.
(Id.). Plaintiff testified that she made herself take breaks
while working, but would stand continuously for an average of one
to two hours. (Id.).
Prior to working at the convalescent home, Plaintiff worked at
Swiss Colony as a seasonal, third-shift assembly-line packer.
(Tr. 41). This job was full-time: Plaintiff worked eight hours per day, six days per week. (Id.). Her duties
included packing cheeses into boxes to fill orders, and involved
lifting or carrying about ten pounds. (Tr. 41-42). Plaintiff
testified that she sustained a broken nose and injured her
shoulders in an auto accident two weeks after beginning her
employment with Swiss Colony. (Tr. 43). Plaintiff chose not to
return to work following her auto accident because of her
injuries and was subsequently terminated. (Tr. 42).
In 1999, for about a month, Plaintiff worked for a nursing home
as a nurse's aide.*fn2 (Tr. 44). According to Plaintiff's
testimony, her work included lifting patients.*fn3 (Tr. 44).
Plaintiff stated she was "released" from this position because
she was unable to lift patients, unable to stay awake during her
shift, and was found sleeping during her shift. (Id.).
Prior to working as a nurse's aid, Plaintiff was employed for
approximately one month at Anderson Packing in 1997.*fn4
(Tr. 45). Plaintiff's work involved packaging medications.
(Id.). While working at Anderson Packing, Plaintiff lifted less
than ten pounds, and performed her job sitting down. (Id.).
On a typical day, Plaintiff testified that she gets up, eats a
light breakfast, and watches TV. (Tr. 46). Plaintiff stated that
she does not sweep, mop, or vacuum for herself her oldest
daughter helps with these tasks. (Id.). Plaintiff is able to
make her own bed, however, and does that daily. (Id.). From
10:00 a.m. until 1:00 p.m., Plaintiff usually sleeps. (Tr. 66).
Despite her daily mid-day naps, Plaintiff told the ALJ that she always feels
tired. (Id.). Plaintiff is able to do some cooking; she will
boil hot dogs or scramble eggs for herself. (Tr. 74). Plaintiff
occasionally will go to a store, and handles her own cash
transactions at stores. (Id.). Plaintiff does not, however, pay
her own monthly bills because the Crusader Clinic, in Rockford,
Illinois, takes care of her bills for her. (Id.). Plaintiff
testified that, as much as possible, she avoids contact with
others because she does not like people. (Tr. 45, 51, 60).
Throughout the course of a day, Plaintiff testified that she
smokes up to two packs of cigarettes, but denied any use of
illegal drugs since 1997. (Tr. 54).
Vocational Expert, Christopher Yep, appeared before the ALJ
during Plaintiff's hearing on April 15, 2003. (Tr. 77). The
vocational expert testified that Plaintiff's position at Swiss
Colony would be classified as an unskilled job requiring a light
level of exertion and that Plaintiff's position at Anderson
Packaging would be classified as "an unskilled job performed at a
sedentary level of exertion." (Tr. 78, 79). With regard to the
nurse's aid or activity director positions, the vocational expert
testified that those would both be semi-skilled positions
requiring a light level of exertion. (Id.).
The ALJ then presented the vocational expert with the following
Let's assume we have a hypothetical female individual
who's 45 years of age, has an eighth grade education
with the ability to read, write and use basic
numbers, has the same prior work history as the
Claimant in this case with the capacity to perform
work with the following and no other additional
limitations. Lifting and carrying would be limited
to up to a maximum of 20 pounds on an occasional
basis and 10 pounds frequently. Sitting, standing and
walking could be performed respectively and with
normal breaks for up to six hours each within a
normal day. Individual may not climb ladders, ropes
or scaffolds but may otherwise climb ramps or stairs,
balance, stoop, kneel, crouch and crawl on no more
than an occasional basis. The individual must avoid
concentrated exposure to fumes, odors, dust, gases
and other pulmonary irritants. Must likewise avoid
exposure to hazards such as exposed unprotected
heights or excavations and also exposed unprotected dangerous machinery. In terms of
cognitive function let's say the individual would not
have the capacity to focus upon or carry out complex
or detailed tasks or to focus on or attend to or
perform complex or detailed tasks at a sustained
workman-like pace. I think I said before unable to
carry out the complex or detailed instruction. The
individual would however retain the capacity to focus
on, attend to and carry out let's say simple
instructions as well as to focus on, attend to and
perform simple tasks at a sustained workman-like
pace. Let's also indicate that the individual should
not perform work which requires more than incidental
contact with members of the general public. Looking
at those limitations, in your opinion, would any of
the prior work fit within the parameters of those
(Tr. 80). The vocational expert stated that such a hypothetical
person could do work in hand packaging at a light level of
exertion, and assembly and sorting occupations, at both the light
and sedentary levels. (Tr. 81). The ALJ then added the following
modifications to the hypothetical:
Lifting and carrying would be limited to a maximum of
10 pounds on an occasional basis and to lighter items
such as small hand tools, individual case files on no
more than a frequent basis, standing and walking
would be limited to a combined total of two hours
within an eight hour day, and let's say for no longer
than about 15 minutes continuously at any one time.
(Tr. 83). With these changes to the hypothetical, the vocational
expert determined that the individual would still be able to work
in the sedentary assembly and sorting occupations. (Id.).
According to the Vocational Expert, at the time of the hearing
there were 26,198 sedentary assembly jobs and 9,783 sedentary
sorting jobs in the regional economy. (Tr. 81-82).
III. MEDICAL HISTORY
Plaintiff most often sought medical care at the Crusader Clinic
in Rockford, Illinois, but also utilized the emergency
departments at Rockford Memorial Hospital and SwedishAmerican
Hospital when she felt care was needed more urgently. Plaintiff's
medical history, as contained in her medical records, is
difficult to decipher because Plaintiff did not routinely see the
same practitioners and often failed to follow up with
practitioners as recommended. On January 7, 2000, Plaintiff was evaluated by Kersten
Alschoewski, M.D., at the Crusader Clinic. (Tr. 230). At that
time, Plaintiff complained of severe prurits*fn5 on her
lower extremities and reported that she had lesions on her hands
that had resolved. (Id.). Dr. Alschoewski's assessment of
Plaintiff stated that Plaintiff had an allergy/skin rash and was
HIV positive. (Id.). Dr. Alschoewski ordered numerous
laboratory tests, and instructed Plaintiff to return in two to
three weeks. (Id.). Numerous laboratory tests were
conducted,*fn6 but there is no indication of follow-up with
Dr. Alschoewski, or any other practitioner at the Crusader
Clinic, within the recommended time frame. (Id.).
Plaintiff next saw Syed Ali, M.D., at the Crusader Clinic, on
April 20, 2000, for a general physical evaluation a "Social
Security physical" according to Dr. Ali. (Tr. 268). At that time,
Plaintiff complained of shortness of breath for one year with
minimal exertion, being able to walk less than half a block or at
the most one block before tiring and feeling short of breath,
needing to be propped up all the time, and swelling of both feet
which decreases at night. (Id.). She also complained of
abdominal pain located in the upper abdomen with exacerbation
upon eating spicy or greasy food, some nausea but no vomiting,
and increased urination during the day. (Id.). Plaintiff
reported that she smoked three packs of cigarettes a day for
fifteen years but was down to one-half of a pack for the last
year. (Id.). Plaintiff then continued to report that she had
been eating a lot of greasy food and drinking about eight cans of
pop every day. (Id.). Dr. Ali's assessment of Plaintiff noted
that Plaintiff was HIV positive with a past history of prolonged
drug abuse and cigarette smoking. (Id.). He wanted to rule out
any congestive heart failure which could be related to cardiomyopathy*fn7
secondary to drugs or secondary to coronary artery disease, and
rule out diabetes and/or peptic ulcer disease. (Id.). Dr. Ali
ordered several laboratory tests and advised Plaintiff to
restrict her total fluid intake and increase the fiber content of
her diet. (Id.). He also provided Plaintiff with an albuterol
inhaler for her asthma. (Id.).
Plaintiff followed up with Dr. Ali on April 25, 2000. (Tr.
267). At that time, Dr. Ali noted that Plaintiff's laboratory
results were unremarkable. (Id.). Because Plaintiff continued
to experience shortness of breath and coughing, Dr. Ali ordered
chest x-rays and pulmonary function tests ("PFTs"), and advised
Plaintiff to continue with her albuterol inhaler as needed.
(Id.). Plaintiff was instructed to follow up with Dr. Ali
following her x-rays and PFTs. (Id.).
Plaintiff next sought follow-up care with Dr. Ali on May 10,
2000. (Tr. 252). Dr. Ali noted that the PFTs showed that
Plaintiff had an obstructive disease which improved with
bronchodilator therapy. (Id.). Dr. Ali also noted that upon
speaking with Plaintiff further, and looking at her chart more
closely, he became aware of Plaintiff's history of chronic asthma
and prior treatment with albuterol, theophylline, and vanceril in
the past history which was not given to Dr. Ali when Plaintiff
was previously seen. (Id.). Dr. Ali's frustration with the
situation is apparent by his comments that Plaintiff "underwent a
lot of work up for evaluation of shortness of breath" and that
she "continues to smoke up to three packs a day." (Id.). Dr.
Ali determined Plaintiff has asthma exacerbation and bronchitis.
(Id.). Plaintiff was treated with antibiotics and prednisone,
and advised to stop smoking. (Id.).
Plaintiff's next medical treatment occurred at the Emergency
Department of Rockford Memorial Hospital. (Tr. 260). Plaintiff
was seen by George Tsonis, M.D., for chief complaints of headache and dizziness on August 28, 2000. (Id.). While at
Rockford Memorial Hospital, Plaintiff was treated with
intravenous medication for relief of her headache. (Id.). A
head CT was ordered and read as normal. (Tr. 261). The etiology
of Plaintiff's headache was undetermined and could not be studied
further because Plaintiff left the Emergency Department prior to
being formally discharged. (Id.).
On September 5, 2000, Plaintiff was seen at the Emergency Room
of SwedishAmerican Hospital for complaints of shortness of breath
persisting for four days. (Tr. 295).*fn8 The record for this
visit states that Plaintiff achieved "complete resolution of
bronchospasms" and was "feeling fine" after treatments. (Id.).
Chest x-rays were taken, and Plaintiff was discharged. (Id.).
Plaintiff was diagnosed with acute exacerbation of asthma, given
an inhaler and placed on prednisone, and instructed to follow-up
with Crusader Clinic if symptoms recurred or new problems
Plaintiff was next seen at the Emergency Room of
SwedishAmerican Hospital following a motor vehicle accident on
December 1, 2000. (Tr. 300). Plaintiff chiefly complained of pain
in her neck and nose. (Id.). She reported loss of
consciousness, and stated that she did not strike her head during
the accident. (Id.). Plaintiff was diagnosed with a cervical
strain and nasal contusion, and instructed to follow up with her
On January 13, 2001, Plaintiff visited the Emergency Room of
SwedishAmerican Hospital for abdominal pain and shortness of
breath. (Tr. 293).*fn9 During this visit, Plaintiff was diagnosed with acute cholecystitis,*fn10
cholelithiasis,*fn11 and severe pain. (Id.). Plaintiff was
admitted for, and underwent, a laparoscopic
cholecystectomy.*fn12 (Id.). On January 16, 2001,
Plaintiff was discharged to home. (Tr. 315). Plaintiff's
Discharge Summary for this hospitalization states that she
tolerated the surgical procedure well and her vitals remained
stable throughout her hospitalization. (Id.). She was given an
appointment with general surgery in two week's time and also an
appointment with her primary doctor. (Tr. 315). Plaintiff's
discharge medications included inhalers for asthma and
antibiotics and prednisone. (Id.).
Almost six months later, on July 10, 2001, Plaintiff was seen
for examination by Eamlesh Ramchandani, M.D., for complaints of
headaches which had persisted for six months. (Tr. 326).
Plaintiff reported that she experienced dull, aching, continuous
headaches in the frontal region with some relief on taking
aspirin or laying in a quiet room. (Id.). Plaintiff's headaches
were associated with dizziness, photophobia, and nausea. (Id.).
Plaintiff also related her difficulty with asthma and emphysema,
dyspnea on exertion, and backaches to Dr. Ramchandani. (Id.).
At that time, Plaintiff reported that she was smoking two packs
of cigarettes per day. (Tr. 327). Notes of Dr. Ramchandani's
physical exam reveal that Plaintiff was, at that time, in no
acute physical distress. (Id.). Dr. Ramchandani noted that
gait is normal unassisted. She is able to walk on the
heels and toes gingerly. She is able to squat
partially and get up from partially squatting
position with support. She is able to get on and off
the examination table with minimal assistance. She is
able to dress and undress herself without assistance.
(Id.). Dr Ramchandani conducted PFTs, and finally diagnosed
Plaintiff as suffering from (1) tension headaches, (2) lumbar
arthralgia, (3) chronic obstructive pulmonary disease, (4)
hypertension, uncontrolled, and (5) HIV disease with morbid
obesity. (Tr. 328) Before concluding the report, Dr. Ramchandani
added: "Please note patient did not become short of breath on
doing any of the above mentioned activities during the
Plaintiff underwent a psychological assessment on January 25,
2002, by Mark B. Langgut, Ph.D. (Tr. 335). The medical
information contained in the assessment states that Plaintiff
suffered from obesity, hepatitis C, hypertension, asthma, and
sleep apnea, in addition to being HIV positive and in the first
stage of emphysema. (Tr. 336). Plaintiff had reportedly never
engaged in mental health treatment. (Id.). At the time,
Plaintiff was still smoking two packs of cigarettes per day. (Tr.
337). Dr. Langgut's notes state that Plaintiff's gait was
unimpaired both on casual observation and by report. (Id.).
After extensive evaluation, Dr. Langgut diagnosed Plaintiff with
a dysthmic disorder,*fn13 polysubstance abuse in
remission, personality disorder, not otherwise specified, and
noted Plaintiff was a victim of sexual abuse as a child. (Tr.
Plaintiff's next medical record before this court indicates a
visit to the Crusader Clinic on July 30, 2002. (Tr. 344). At that
time, Plaintiff was evaluated by Ernest Kamara, M.D., for a
follow-up evaluation.*fn14 (Id.). At that time, Plaintiff
was complaining of increased urination and burning urination. (Id.). Plaintiff denied any nausea or
vomiting, diarrhea or constipation. (Id.). Dr. Kamara's
assessment noted that plaintiff was (1) HIV positive, (2) had a
urinary tract infection, (3) suffered from high blood pressure,
(4) depression, and (5) allergic reaction/contact dermatitis.
(Id.). With regard to Plaintiff's HIV, the assessment notes
clearly sate, "We'll hold off on continued therapy due to
recurrent drug use." (Id.). With regard to Plaintiff's
depression, the assessment notes clearly state, "[Patient] was to
have been seen by psychiatry. She hasn't followed up . . ." (Tr.
345). While there is some discrepancy in this medical record
about whether Plaintiff had last been seen in May or March, it is
clear that she did not follow up with psychiatric practitioners
in a timely manner. (Tr. 344-345). Plaintiff was provided with
prescriptions to treat her remaining ailments, and was instructed
to return for follow-up evaluation in two weeks. (Id.).
On August 22, 2002, Plaintiff was again seen at the Crusader
Clinic by Dr. Kamara. (Tr. 342). At that time, Plaintiff's only
complaints were of left-sided breast tenderness, generalized
headache, and elevated blood pressure. (Id.). Dr. Kamara's
assessment and plan noted that Plaintiff was HIV positive,
suffering from a headache, and had hypertension. (Id.).
Medications were prescribed as Dr. Kamara saw fit, and Plaintiff
was instructed to return for follow-up evaluation in two weeks.
More than a month later, Dr. Kamara saw Plaintiff at Crusader
Clinic on September 26, 2002. (Tr. 395). Plaintiff's complaints
at that time included difficulty sleeping, difficulty breathing
on occasion, and shortness of breath. (Id.). Plaintiff stated
that she was smoking three packs of cigarettes per day at that
time, and denied any fevers, chills, nausea, vomiting, diarrhea,
or constipation. (Id.). Plaintiff was assessed as suffering
from sinusitis, chronic headaches, and tinea corporis*fn15 in addition to being HIV positive. (Tr.
395-396). Again, medications were prescribed as Dr. Kamara saw
fit, and Plaintiff was instructed to follow-up in four weeks.
Plaintiff's next appointment at Crusader Clinic was with Lynn
Yontz, N.P., on October 28, 2002. (Tr. 393).*fn16 Plaintiff
complained to Ms. Yontz of a persistent headache and some
increased blurred vision. (Id.). Ms. Yontz's initial impression
was that Plaintiff had a sinus infection, but she expressed
concern about other opportunistic infections since Plaintiff was
not on any medication for her HIV. (Id.). Plaintiff's headache
was treated with an injection in the office, and after several
minutes and a brief vagovasal response, Plaintiff was feeling
much better. (Id.). Ms. Yontz's final impression noted that
Plaintiff had HIV disease. (Id.). Plaintiff was treated with
prescription medications and instructed to follow-up in two days.
(Id.). Plaintiff was also cautioned that if her headache failed
to improve she should seek emergency care.
Plaintiff sought follow-up care ten days later on November 7,
2002, with regard to her headache. (Tr. 392). Per the medical
record for this visit, Plaintiff was admitted to SwedishAmerican
Hospital to rule out possible meningitis.*fn17 (Id.).
Plaintiff's MRI report indicates (1) deep white matter changes
most likely representing HIV encephalopathy or possibly CMV, and (2) parasinus disease. (Tr. 389).*fn18
Plaintiff's CT report indicates the presence of mucosal
thickening of the left maxillary sinus, with no intracranial
bleed. (Tr. 390).
Plaintiff's next appointment at the Crusader Clinic, on
November 15, 2002, was with a social worker, Bridget Reddy. (Tr.
403). Plaintiff was apparently referred for counseling and a
psychiatric consultation. (Id.). Ms. Reddy notes that Plaintiff
clearly has depressive symptomology, and scheduled Plaintiff for
a follow up visit with Dr. Rizvi. (Id.). Plaintiff did not keep
her November 21, 2002 appointment with Dr. Rizvi, and was next
seen at the Crusader Clinic on December 9, 2002. (Id.). The
hand-written notes from this visit indicate that Plaintiff was
following up with concerns about headaches, rectal bleeding,
short term memory loss, and a rash on her breast. (Id.). Notes
indicate that Plaintiff was a smoker and had depression. (Id.).
Plaintiff was treated for a rash and hemorrhoids, and was
directed to follow-up with Dr. Rizvi. (Id.).
On July 26, 2001, George Kudirka, M.D., with the Illinois
Disability Determination Services ("DDS"), completed a physical
residual functioning capacity ("RFC") assessment for Plaintiff
based on all the evidence in Plaintiff's file. (Tr. 347). After
reviewing Plaintiff's clinical and laboratory findings, symptoms,
observations, lay evidence, and reports of daily activities,
etc., Dr. Kudirka concluded that Plaintiff could occasionally
lift and/or carry twenty pounds, frequently lift and/or carry ten
pounds, stand or walk with normal breaks for about six hours in
an eight-hour workday, sit with normal breaks for six hours in an
eight-hour workday, and push or pull for unlimited periods of
time with the lift and carry weight limitations. (Tr. 348). Dr.
Kudirka also concluded that Plaintiff could occasionally engage
in climbing, stooping, kneeling, crouching, or crawling, but should never engage in
balancing. (Tr. 349). Dr. Kudirka's assessment noted no
manipulative, visual, or communicative limitations. (Tr.
349-350). With regard to environmental limitations, Dr. Kudirka's
assessment reported that Plaintiff should avoid concentrated
exposure to fumes, odors, dusts, gases, and hazards (such as
machinery, heights, etc.). (Tr. 350). Dr. Kudirka's assessment
also noted that there is not a treating or examining source
statement regarding Plaintiff's physical capacities in the
medical file. (Tr. 351). Further, in the "additional comments"
section, Dr. Kudirka clearly stated:
Claimant has a history of asthma, lumbar arthralgia,
HBP, headaches, and she is HIV positive. She does not
require frequent hospitalizations or ER visits for
treatment of her asthma or other illnesses. PFT's are
within normal limits. She is 66.5 inches tall and
weighs 325 pounds. She has somewhat limited range of
motion in the lumbar spine on current physical
examination. X-ray of the lumbar spine shows
scattered endplate spurring. Her gait is normal,
unassisted. There is no evidence of swelling or
redness. 01/01 records indicate that her HIV was
well-suppressed. She is not currently receiving
ongoing treatment for this condition and does not
have any opportunistic infections related to this
disease. Despite her condition, she should be capable
of performing light work activities with the
additional restrictions mentioned above.
(Tr. 352). A second DDS physician, T. Arjmand, M.D., reviewed and
affirmed this assessment on February 22, 2002. (Tr. 347).
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, re-weigh the evidence or substitute its own judgment for
that of the ALJ." Meredith v. Bowen, 833 F.2d 650, 653 (7th
Cir. 1987) (citations omitted); see also Delgado v. Bowen,
782 F.2d 79, 82 (7th Cir. 1986). The duties to weigh the evidence,
resolve material conflicts, make independent findings of fact,
and decide the case accordingly are entrusted to the
commissioner; "where conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the
Commissioner (or the Commissioner's delegate the ALJ)."
Richardson v. Perales, 402 U.S. 389, 399-400 (1971); Walker v.
Bowen, 834 F.2d 635, 640 (7th Cir. 1987). If the Commissioner's
decision is supported by substantial evidence, it is conclusive
and this court must affirm. 42 U.S.C. § 405(g); also see
Arbogast v. Bowen, 860 F.2d 1400, 1403 (7th Cir. 1988).
"Substantial evidence" is "such relevant evidence as a reasonable
person might accept as adequate to support a conclusion."
Richardson, 402 U.S. at 401.
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). Minimum
articulation means that an ALJ must provide an opinion that
enables a reviewing court to trace the path of his reasoning.
Walker v. Bowen, 834 F.2d 635, 643 (7th Cir. 1987); Stephens
v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985). Where a witness
credibility determination is based upon the ALJ's subjective
observation of a witness, the determination may only be disturbed
if it is "patently wrong" or if it finds no support in the
record. Kelley v. Sullivan, 890 F.2d 961, 965 (7th Cir. 1989);
Stuckey v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989).
"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.
Ill. 1995). V. FRAMEWORK FOR DECISION
The Commissioner has established a sequential five-step process
to evaluate disability claims. 20 C.F.R. § 404.1520 (2003). If
disability or lack of disability is determined at any step in the
process, the evaluation ends. 20 C.F.R. § 404.1520(a). The
Commissioner begins by asking whether a claimant is presently
engaged in employment that qualifies as substantial gainful
activity ("SGA"). 20 C.F.R. § 404.1520(b). If the answer is yes,
the claimant is deemed not disabled. Id. If the answer is no,
the Commissioner next asks whether the claimant has any
impairment or combination of impairments that significantly
limits the claimant's ability to perform basic work activities.
20 C.F.R. § 404.1520(c). If the answer is no, the claimant is
found to be not disabled. Id. If the answer is yes, the
Commissioner then determines whether the claimant's impairments
meets or equals a listed impairment. 20 C.F.R. § 404.1520(d). If
the answer is yes, the Commissioner will find that the claimant
is disabled. Id. If the answer is no, the Commissioner then
inquires whether the claimant's impairments prevent him from
doing past relevant work. 20 C.F.R. § 404.1520(e). If the answer
is no, the claimant is not disabled. Id. If the answer is yes,
the Commission finally asks whether the claimant's impairments
prevent him from doing any other work. 20 C.F.R. § 404.1520(f).
If the answer is yes, a determination of disability is made. If
the answer is no, the claimant is determined not to be disabled.
Id. Plaintiff bears the burden proof in steps one through four.
Young v. Sec'y of Health & Human Services, 957 F.2d 386, 389
(1992). At step five, the burden shifts to the Commissioner.
The court will proceed through the five step analysis in order. A. Step One: Is the claimant currently engaged in substantial
The ALJ found no evidence of work after the Plaintiff's
application date. (Tr. 16). Neither party disputes this first
determination by the ALJ, and there is substantial evidence to
support the determination of the ALJ.
B. Step Two: Does the claimant suffer from a severe
The ALJ then considered whether Plaintiff suffered from a
severe impairment. (Tr. 16). A severe impairment exists where an
impairment or combination of impairments significantly limits a
claimant's physical or mental ability to do basic work
activities. 20 C.F.R. § 404.1520(c). The ALJ determined that
Plaintiff possessed a severe impairment. (Id.). Specifically,
the ALJ found the Plaintiff to "[have] the following medically
determinable impairments: asthma, chronic obstructive pulmonary
disease, HIV, hypertension, degenerative disease of the lumbar
spine, tension and/or migraine headaches, depression, post
traumatic stress disorder, polystubstance dependence (in
remission) and obesity." (Tr. 23-24). Neither party challenges
this second determination, and there is substantial evidence to
support the determination of the ALJ.
C. Step Three: Does claimant's impairment meet or medically
equal an impairment in the Commissioner's listing of
The ALJ next evaluated the severity of Plaintiff's mental
impairment in terms of four broad functional areas: activities of
daily living; social functioning; concentration, persistence or
pace; and episodes of decompensation. (Tr. 16). The ALJ
determined that Plaintiff exhibited a mild limitation in
activities of daily living, and a moderate limitation in social
functioning and maintaining concentration, persistence and pace.
(Tr. 17). The ALJ noted that the Plaintiff exhibited one or two
episodes of decompensation. (Id.). The ALJ determined that
Plaintiff's limitations and infrequent episodes of decompensation did not
meet the level of severity required under section 12.04, 12.06,
12.08 and/or 12.09. (Id.).
The ALJ then considered whether Plaintiff's physical
impairments met or equaled any impairment listed in Appendix 1 to
Subpart P, Regulations No. 4. (Tr. 16). The ALJ determined that
Plaintiff's impairments did not meet or equal any listed
impairment. (Id.). The ALJ, very thoroughly, stated:
No listing provision is met or equaled including
sections 3.02/03 (Asthma/COPD) (which require an FEV1
of 1.45 and/or an FVC of 1.65 or less at claimant's
reported height of 68 inches; similarly the record
does not disclose the requisite number of treatment
interventions for asthma); section 12.04 or 12.06
(re: Depression and PTSD); or section 14.08
(including section 14.08HI, regarding HIV
encephalopathy, characterized by cognitive or motor
dysfunction, which limits function and progress. No
such dysfunction is evident of record).
(Tr. 16). This thorough analysis by the ALJ allows the court to
follow the ALJ's reasoning and proceed without question to the
next step of the disability determination process. Substantial
evidence exists to support the ALJ's determination at this step,
and the court finds no reason to disturb it.
D. Step Four: Is the claimant capable of performing work which
the claimant performed in the past?
Before reaching the step-four analysis, the ALJ established
Plaintiff's RFC. (Tr. 17). The RFC is what the Plaintiff can
still do despite her limitations. See 20 C.F.R. § 416.945. The
ALJ considered Plaintiff's allegations of disabling symptoms and
limitations and the entire record. (Id.). The ALJ found
Plaintiff's claims of total disability not credible. (Tr. 16).
The ALJ determined that
Plaintiff's medically determinable impairments
preclude the following work-related activities:
lifting/carrying up to 10 pounds more than
occasionally, or lighter items such as small hand
tools, individual case files more than frequently;
stand/walk or more than a combined total of 2 hours
in an 8 hour day or for longer than 15 minutes, continuously; sit, with
normal breaks for more than 6 hours in an 8 hour day
but must be allowed to alternate from sitting to
standing position at intervals of (1) hour for a
period of 1 to 2 minutes on each such occasion, may
not perform overhead work more than occasionally;
climbing ropes, ladders, or scaffolds; climbing ramps
or stairs, balancing, stooping, crouching, kneeling
or crawling more than occasionally; performing jobs
in environments containing any respiratory
irritant(s) in concentrated levels; performing work
around exposed unprotected heights or excavations; or
performing work with or near exposed-unprotected
dangerous moving machinery; focusing upon, attending
to and carrying out complex instructions; focusing
upon, attending to or carrying out complex or
detailed tasks at a sustained, workmanlike pace; and
performing work which requires more than incidental
contact with members of the general public. However,
the claimant retains the capacity to focus upon,
attend to and carry out simple instructions and to
focus upon, attend to and perform simple tasks at a
sustained workmanlike pace.
(Tr. 17). The ALJ determined that Plaintiff's medical records did
not indicate the "type of medical treatment one would expect for
a totally disabled individual." (Tr. 22). Further, the ALJ
determined that Plaintiff's medical records revealed treatment
was "generally successful in controlling those [disabling]
symptoms" Plaintiff claimed to suffer from. (Id.). The ALJ went
on to state that "the description of the symptoms and limitations
which the claimant has provided throughout the record [have] not
generally been . . . wholly consistent with the concurrent
medical record. The record similarly does not contain any
opinions from treating or examining physicians indicating that
the claimant is disabled or even has limitations greater than
those determined in this decision." (Id.). The ALJ determined
that Plaintiff, while limited in some respects, "retained the
capacity to focus upon, attend to and carry out simple
instructions and to focus upon, attend to and perform simple
tasks at a sustained workmanlike pace." (Tr. 17).
The ALJ then performed the step-four analysis to determine
whether Plaintiff's severe impairments prevented Plaintiff from
engaging in past relevant work. (Tr. 22). Past relevant work is
SGA that the claimant performed within the previous fifteen years
and that the claimant performed for a period of time sufficient
to learn how to do the work. 20 C.F.R. § 404.1520(e), 404.1560(b)(1). The ALJ determined that Plaintiff could not
"perform any past relevant work, since even the [Plaintiff's]
least demanding past relevant job required her to perform work
activities inconsistent with the residual functional capacity
determined above." (Tr. 22-23).
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.
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 sedentary work,
there existed a significant number of jobs in the regional
economy that she can perform. (Tr. 23). To make his
determination, the ALJ consulted vocational expert Christopher
Yep, who determined that Plaintiff could still perform sedentary
work in assembly and sorting occupations. (Tr. 80). According to
the ALJ, and
in view of the claimant's vocational characteristics
and the [RFC] reported above, two Medical-Vocational
rules are relevant. For the period preceding November
5, 2002, Medical-Vocational rule 201.24 serves as a
framework and indicates a finding of "not disabled."
For the period of time from November 5, 2002 to
[April 25, 2003], rule 201.18 serves as a framework
and also indicates a finding of "not disabled."
Although the claimant's limitations prevent the
performance of the full range of work at the
sedentary level, the impact of the limitations on the
sedentary occupational base is only slight, and there
still remains a significant number of jobs in the
economy that the claimant can perform.
(Tr. 23). Additionally, the ALJ stated that
The [Plaintiff] has described daily activities which
are not limited to the extent one would expect, given
the complaints of disabling symptoms and limitations.
She is able to do light housekeeping chores, cooking
and shopping. Her daughter helps her with tasks that
require sustained effort and exertion. She is very
wary of people and she mistrusts men. The [Plaintiff]
has not generally received the type of medical
treatment one would expect for a totally disabled
individual. Although the [Plaintiff] has received
various forms of treatment for the allegedly
disabling symptoms, which would normally weigh
somewhat in the [Plaintiff's] favor, the record also
reveals that the treatment has been generally
successful in controlling those symptoms. The
claimant cancelled or failed to show up for doctor appointments on a number of occasions. The record
reveals that the [Plaintiff] failed to follow-up on
recommendations made by the treating doctor, which
suggests that the symptoms may not have been as
serious as has been alleged in connection with this
application and appeal. The [Plaintiff's] use of
medications does not suggest the presence of an
impairment(s) which is more limiting than found in
this decision. A review of the [Plaintiff's] work
history shows that the claimant worked only
sporadically prior to the alleged disability onset
date. The description of the symptoms and limitations
which the claimant has provided throughout the record
has not generally been (as discussed above) wholly
consistent with the concurrent medical record. The
record similarly does not contain any opinions from
treating or examining physicians indicating that the
claimant is disabled or even has limitations greater
than those determined in this decision. The residual
functional capacity conclusions reached by the
physicians employed by the State Disability
Determination Services also supported a finding of
`not disabled.' Although those physicians were
non-examining, and therefore their opinions do not as
a general matter deserve as much weight as those of
examining or treating physicians, those opinions do
deserve some weight, particularly in a case like this
in which there exists a number of other reasons to
reach similar conclusions (as explained throughout
(Tr. 22) (emphasis added).
After reviewing Plaintiff's medical record and the ALJ's
opinion, this court finds substantial evidence to support the
ALJ. As the ALJ pointed out in his opinion, "The objective
findings in this case fail to provide strong support for the
[Plaintiff's] allegations of disabling symptoms and limitations."
(Tr. 19). There does not appear to be any conflict between
Plaintiff's treating physicians and other non-treating
physicians. No treating practitioners indicate in Plaintiff's
medical records that she is disabled. There is no indication from
either a treating or non-treating physician that the RFC
determined by the ALJ is incorrect, and the medical record
supports the RFC. Accordingly, because substantial evidence
exists to support the ALJ's finding, the court finds no reason to
disturb it. Therefore, the ALJ's determination as to Step Five of
the Analysis is affirmed. VII. CONCLUSION
For the foregoing reasons, it is the Report and Recommendation
of the Magistrate Judge the ALJ's decision to deny benefits to
Plaintiff be sustained. The ALJ is affirmed at all steps of the
disability determination process as outlined above. Further, this
court recommends that Plaintiff's Motion for Judgment on the
Administrative Record and Pleadings be denied.