United States District Court, N.D. Illinois, Western Division
July 22, 2004.
DONNA F. BOYD, 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
Donna F. Boyd ("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 October 27, 2003. See
28 U.S.C. § 636(c); Fed.R.Civ.P. 73.
Plaintiff filed for DIB on October 16, 2000, alleging
disability on January 31, 1995. (Tr. 89-91). Plaintiff's
application for benefits was denied on January 18, 2001. (Tr.
53). On March 7, 2001, Plaintiff filed a request for
reconsideration. (Tr. 57). Plaintiff's request for
reconsideration was denied on April 23, 2001. (Tr. 59). Plaintiff
then filed a request for a hearing before an Administrative Law
Judge ("ALJ") on May 17, 2001. (Tr. 62). Plaintiff appeared, with
counsel, before an ALJ on October 4, 2001. (Tr. 14). In a
decision dated February 22, 2002, the ALJ found that Plaintiff
was not entitled to DIB. (Tr. 81). On February 27, 2002,
Plaintiff requested a review of the ALJ's decision by the Appeals Council. (Tr. 12). On July
25, 2003, the Appeals Council denied Plaintiff's request for
review. (Tr. 6).
Plaintiff's date of birth is December 5, 1956 and was
forty-seven as of this writing. (Tr. 20). At the time of her
hearing in October 2001, Plaintiff lived at a recovery house and
had lived there for approximately ten months. (Tr. 19). At the
recovery house, Plaintiff had a bedroom and shared kitchen and
bathroom facilities with other residents. (Tr. 20). Her assigned
chore in the house was to do the dishes. (Tr. 37). Plaintiff
received a GED and was enrolled in two community college courses
at the time of her hearing. (Tr. 29-30). She does not have a car
nor does she have a driver's license. (Tr. 33). She uses the bus
for transportation. (Id.). Plaintiff claims to be disabled as a
result of the following impairments: hepatitis C, arthritis in
the lumbar spine, scoliosis, dysthymia, varicose veins in the
left leg, and a history of drug and alcohol abuse in sustained
B. Work History
Plaintiff worked as a gum packer at Warner-Lambert from 1998 to
1999. (Tr. 108). The gum packing job consisted of sitting at a
conveyer belt, packing gum coming off the conveyer belt into
boxes, and sliding the boxes along another conveyer belt. (Tr.
22-23). Plaintiff was only required to lift the gum but not the
boxes. (Id.). Because Plaintiff had to stand intermittently
throughout the day, she could not keep up with the flow of the
gum and interrupted the packing process as a result. (Id.).
Additionally, Plaintiff had trained others to perform the job and
was still using illegal drugs during this period of her
For a two week period, Plaintiff worked as a food preparer in a
fast food restaurant. (Tr. 23). She was making sandwiches and deep frying french fries but stated
the job only lasted two weeks because she repeatedly burned her
hands on a deep frier. (Id.).
C. Physical Ailment Testimony
Plaintiff testified her orthopedic doctor prescribed a cane
that she had at the hearing. (Tr. 23-24). She indicated she had
bad pain in her lower back above the tail bone that was always
present but worse in the winter. (Tr. 24-25). Plaintiff said she
was paralyzed when she was younger and had six plastic vertebrae.
(Id.). She also stated her spine was curved. (Id.).
Plaintiff stated she had no sensation in her right hand and arm
and up to her right ear with the exception of some sensation
above her right elbow. (Tr. 25-27). She testified these
impairments resulted from a domestic violence situation six years
prior and were permanent. (Id.). Plaintiff can use her right
hand to pick things up but has to monitor her hand when she does
because she forgets she is holding things and often drops things.
When asked if she had any pain in her neck, Plaintiff responded
that she has an itching pain inside of her head. (Tr. 27-28). She
indicated that a doctor told her the itching was related to scar
tissue from the abuse and that the only remedy is to apply a cold
Plaintiff testified she has problems sleeping. (Tr. 28). She
uses a blanket to prop up her neck instead of a pillow and has
problems both getting to sleep and waking after falling asleep.
(Id.). She indicated she gets approximately four hours of
uninterrupted sleep per night. (Id.).
Plaintiff can only walk roughly half a block before her legs
give out and can only stand for roughly ten minutes before her
back begins to hurt. (Tr. 28-29). She also can sit for
approximately ten minutes before her back pain sets in. (Id.).
Plaintiff indicated she had hepatitis and was depressed. (Tr.
30-31). She claimed to be fatigued as a result of the hepatitis but got no relief from the
fatigue after resting. (Id.). She also indicated she was taking
anti-depressant medication and had access to counseling through
her recovery program. (Id.). Plaintiff did not partake in any
social activities outside of attending school and counseling
sessions. (Id.). She was visibly teary at the hearing. (Tr.
Plaintiff further testified she had swelling in her legs most
of the time and her left leg was an inch and a half larger than
her right. (Tr. 32-34). She claimed part of her ankle bone was
removed when she was younger and her circulation was impaired as
a result of the surgery. (Id.). Plaintiff's legs gave out
approximately nine times in the last year when she was walking,
and she has scarring on her legs from the falls. (Id.).
Additionally, she has constant pain in both knees that gets worse
when she walks more than half a block and in humid or cold
weather. (Tr. 38-39). Her orthopedic doctor has administered
cortisone shots in both knees. (Id.). Plaintiff was taking
Celebrex by prescription because it is covered under her health
care program. (Tr. 40). She also was taking ibuprofen and Aleve
over-the-counter for pain. (Id.).
D. Vocational Expert Testimony
Ronald Gehrig, Vocational Expert ("VE"), testified at the
hearing and decided there were four jobs for the ALJ's first
hypothetical, two jobs for the ALJ's second hypothetical, and no
jobs for the ALJ's last hypothetical. (Tr. 43-46). First, the VE
classified Plaintiff's gum packing job as unskilled sedentary
work because she sat at the conveyer belt. (Tr. 43). The ALJ
presented a first hypothetical to the VE as follows:
Taking someone of Ms. Boyd's age, which is from
forty-three to forty-four during the relevant period,
has a high school equivalency degree, past relevant
work as you've described it. For purposes of this
question, can lift up to twenty pounds occasionally,
ten pounds frequently. Sit for an unlimited amount,
but can stand or walk for no more than two hours out
of an eight hour day if interspersed though the day. Can only occasionally bend, cannot climb ladders
or scaffolds. Cannot avoid dangerous machinery.
Cannot perform detailed or complex tasks.
(Tr. 43). The ALJ asked the VE if there was any work that a
person with those restrictions could perform. (Id.). The VE
responded that the person could perform the job of assembler for
which there were 8,291 jobs in the State of Illinois at the
sedentary level and 18,000 at the modified light level.*fn1
(Tr. 43-44). The person could also perform the job of sedentary
cashier (26,089 jobs in Illinois and 35,000 at the modified light
level), sedentary telephone operator (4,693 in Illinois and 750
at the modified light level), and sedentary hand packer (250 in
Illinois and 6,500 at the modified light level). (Tr. 44-45).
Next, the ALJ modified the hypothetical by adding that the person
must use a cane to walk and asked the VE what effect the
modification would have on the person's ability to do the three
jobs. (Tr. 45-46). The VE responded by stating the telephone
operator or cashier jobs would not be affected significantly, but
the assembler job would be affected significantly. (Tr. 46). The
ALJ further modified the hypothetical by assuming this person can
only walk a half block at a time, can only stand for ten minutes
at a time or sit for ten minutes at a time. The VE stated there
would be no jobs. (Tr. 46).
After further examination by the Plaintiff's attorney, the VE
concluded Plaintiff could not perform her previous gum packing
job. (Tr. 47). Plaintiff's attorney asked the VE if someone who
had to get up with a fair degree of frequency could perform the
unskilled sedentary job of gum packer given that when Plaintiff
stood up at the gum packing job, the gum flew everywhere.
(Id.). The VE initially responded yes, the job could be
performed even if the person had to get up with a fair degree of frequency. (Id.). However, after Plaintiff
further described the specific circumstances of the job and her
failure to keep up with the conveyer line, the VE concluded
Plaintiff could not perform the job if she had to get up suddenly
because of the speed and size of the machines involved in the
packing process and because the process could not be modified.
Next, Plaintiff's attorney returned to the ALJ's second
hypothetical with the modification requiring the person to use a
cane for walking. (Tr. 48). Plaintiff's attorney asked if the
remaining jobs would be affected if the person had to be aware of
her right hand on a constant basis due to parasthesia. (Id.).
The VE stated there would be some effect but people are generally
pretty much aware of what they have in their hands. (Id.).
Plaintiff's attorney then asked the VE what the minimum amount
the person would have to sit to do the sedentary jobs that
remained in the second hypothetical with the cane and how much
the person would have to sit continuously at any one time. (Tr.
48-49). The VE responded that the person would have to sit six
hours in an eight hour day and for at least forty-five minutes
hours continuously. (Id.).
Plaintiff's medical history included extensive vertebral
reconstruction after a fall from a three story building at age 13
in 1970. (Tr. 148). While Plaintiff reported this injury to her
treating physicians multiple times in the record and to the
Social Security Administration, there is no specific discussion
of the injury in the record by any treating physician. She had an
appendectomy in 1993, had never been pregnant, had outpatient
counseling and treatment for cocaine abuse, and had been
hospitalized in 1995 for right arm cellulitis. (Id.).
On July 9, 1997, Plaintiff was admitted to Rockford Memorial
Hospital under the care of Dr. Daniel Herdeman after seeking
emergency room treatment for two blister-like wounds on her right hand; swelling and redness in the right elbow area; and some
malaise, chills, and a sensation of feeling hot. (Tr. 148). Dr.
Herdeman noted in his report Plaintiff had a similar episode in
1995 due to a Staphylococcus aureus cellulitis. (Id.). Dr.
Herdeman's report states Plaintiff's personal history included
daily smoking of two packs of cigarettes and drinking seven or
more beers per day since the age of twelve. (Id.). She was a
regular user of crack cocaine and had last consumed alcohol and
cocaine twenty-four to forty-eight hours prior to admission.
(Id.). He also indicated she was single and unemployed.
(Id.). Upon physical examination, Dr. Herdeman noted Plaintiff
appeared older than her stated years but was in no distress.
(Id.). Her height was 5'4", weight was 163 pounds, temperature
was 99.5 degrees, pulse was 92, respiratory rate 16, and her
blood pressure was 106/68. (Id.). She had several teeth missing
and substantial tooth decay. Her skin had a pasty texture but was
otherwise unremarkable, and her lymph nodes were palpable in the
right axillary region. (Id.). Her chest showed normal
auscultation and excursion, and her heart rate and rhythm were
normal. (Id.). Dr. Herdeman described her abdomen as free from
tenderness. (Id.). Her legs were symmetric and had no evidence
of joint inflammation, and her left arm appeared normal. (Id.).
The right arm showed a redness and swelling at the elbow without
lymphangitic streaks. (Tr. 149). Her right hand had an oval
unroofed blister on the distal thumb measuring approximately one
inch by one and a half inches and an oval unroofed blister on the
thenar eminence with the same measurement. (Id.). She also had
calluses on her thumb and her distal second and third fingers.
Dr. Herdeman's neurologic report indicated Plaintiff was alert
and oriented in all spheres with cranial nerves two through
twelve appearing intact. (Id.). Her speech volume was normal,
content, and fluent. (Id.). Her mobility and strength was
normal in all limbs, but her right arm was substantially
anesthetic with some sensation near the posterior shoulder and
upper arm. (Id.). There was no detectable sensation in the forearm or hand (Id.).
Plaintiff's CBC was normal and had elevated GGT levels, but serum
chemistries were otherwise normal. (Id.).
A culture of the blisters showed Staphylococcus aureus,
Klebsiella, and Strep viridans. (Tr. 145.). Dr. Herdeman
prescribed Cefazolin to treat the infections and the swelling
improved substantially in twenty-four hours. (Id.). Plaintiff
subsequently had the abscess in her elbow area surgically drained
on July eleventh. (Id.). An x-ray showed the infection did not
intrude on the bone in her arm. (Id.). Plaintiff spoke to
substance abuse counselors but indicated to Dr. Herdeman she was
not interested in seeking treatment at that time. (Id.). She
was discharged July 12, 1997 with instructions to take 500
milligrams of Cephalexin four times a day for seven to ten days
at which time she was to come to Crusader Clinic for a wound
check. (Id.). The official diagnosis was right arm abscess,
partial thickness burn of the right hand, cervical neuropathy of
the right arm, and substance abuse. (Id.).
On August 7, 1998, Plaintiff was seen at Swedish American
Health System by Dr. Oscar Habhab for treatment of swelling in
her right hand (Tr. 151). Plaintiff indicated she had a history
of cellulitis to the right hand and had an infection drained two
years prior. (Id.). Physical examination showed some slight
edema to the right hand with no redness, tenderness, deformity,
or skin lesions. (Id.). She had full range of motion in her
right wrist and hand with normal distal sensation and
vascularity. (Id.). Dr. Habhab ruled out acute cellulitis and
prescribed 500 milligrams of Cepahlexin twice a day for five
Dr. Kamlesh Ramchandani saw Plaintiff for a medical assessment
on December 20, 2000 at the request of state disability
examiners. (Tr. 196-200). Dr. Ramchandani's report indicated
Plaintiff complained of cramps and swelling in her left leg for
the past two years that were worse when standing or walking for more than a block. (Id.). She also
complained of neck and back pain that was aggravated when lifting
more than ten pounds, sitting or standing for more than twenty
minutes, or walking more than a block. (Id.). Plaintiff also
reported feeling tired and was unable to do any household
activities. (Id.). Her past medical history listed a one year
diagnosis of hepatitis C and depression. (Id.). At the time,
she was smoking two packs of cigarettes per day, drinking ten to
twelve cans of beer per day, and smoking crack cocaine regularly.
Dr. Ramchandani's physical exam revealed Plaintiff to be alert,
oriented, in no acute physical distress, and with normal vital
signs. (Tr. 197). Plaintiff's gait was normal unassisted, and she
was able to walk on her heels and toes. (Id.). She was able to
squat and get up from a squatting position without assistance as
well as able to get on and off the examination table without
difficulty. (Id.). Her grip was rated good in both hands, and
she was able to pick up objects, open and close the door, oppose
her thumb to fingers, make a fist, and flip pages. (Id.). She
exhibited mild to moderate cervical spine range of motion
limitations and mild lumbar spine range of motion limitations.
(Id.). Plaintiff's head, eyes, ears, nose, throat, neck,
cardiovascular system, respiratory system, and abdomen all tested
normal. (Id.). Her power was also rated as good with normal
tone and muscle mass and she exhibited no range of motion
restrictions. (Tr. 197-200). Dr. Ramchandani did note Plaintiff
has reduced sensation with near absent sensation in the right
upper extremity extending from the posterior aspect of the right
shoulder joint to the tips of her fingers on the right side. (Tr.
197). Dr. Ramchandani's diagnosis was hepatitis C with malaise,
discogenic disease of cervical and lumbar spine, varicose veins
in the left leg, and polysubstance abuse. (Tr. 198).
On January 1, 2001, medical consultant Dr. Barry Free filled
out a residual capacity assessment on Plaintiff for the
Commissioner. (Tr. 201-208). Dr. Free indicated Plaintiff could
lift up to twenty pounds occasionally and up to ten pounds frequently.
(Tr. 202). He also noted she could stand and/or walk with normal
breaks for a total of six hours in an eight hour day, and she
could sit for a total of about six hours in an eight hour day.
(Id.). The only limitation Dr. Free noted in the report was
that Plaintiff should avoid situations requiring feeling on her
right side due to her decreased sensation. (Tr. 204). The doctor
also noted Plaintiff has reduced capacity to do light work as a
result of her fatigue. (Tr. 206).
Dr. William Baxter from Crusader Clinic ordered a lumbar five
view routine imaging exam for Plaintiff that was performed April
30, 2001. (Tr. 222). Dr. Frank Bonelli from SwedishAmerican
Hospital analyzed the test and reported Plaintiff had normal
alignment of five lumbar-type vertebral bodies. (Id.). There
was moderate marked wedge compression of L1 that appeared old due
to osteophytes ventrally. (Id.). There also was associated
kyphosis but no retropulsion. (Id.). Plaintiff's images showed
severe disk space narrowing with vacuum disk phenomenon and
vetral osteophytes as well as endplate changes at L2-3. (Id.).
Additionally, Dr. Bonelli reported on a dorsal/thoracic spine
exam for Plaintiff that showed mild thoracic curve convexed to
the right. (Tr. 223). The thoracic spine was otherwise
unremarkable. (Id.). Dr. Marc Bernstein from SwedishAmerican
Hospital reported on a cervical spine image of Plaintiff's spine
that showed a reversal of the normal lordotic curve of the
cervical spine with degenerative changes at C3-4 and 4-5. (Tr.
224). Dr. Bernstein also reported degenerative changes of the
facet joints, but no fractures or dislocations. (Id.).
Plaintiff was encouraged to seek employment that was low impact
and/or light duty. (Tr. 226).
Plaintiff was treated for substance abuse at Rosecrance on
Harrison from December 18, 2000 to June 1, 2001. (Tr. 254). She
was assessed on October 10, 2000 and diagnosed via the DSM IV with cocaine, alcohol, and cannabis dependence with physiological
dependence. (Id.). She was also diagnosed with sedative,
hypnotic, or anxiolytic abuse. (Id.). The discharge summary
signed by Primary Counselor Shirley Mueller and Dr. Barry Speigal
indicated Plaintiff was able to stay clean and was a role model
for others in recovery. (Id.). Prognosis was listed as very
good for Plaintiff's recovery, and the report indicated she was
physically and mentally stable at the time of discharge. (Tr.
Clinical Psychologist Dr. Harold Best conducted a mental
evaluation on November 1, 2000, at the request of state
disability examiners. (Tr. 174-176). Dr. Best summarized the exam
by stating Plaintiff was a forty-three year old female with a
history of alcohol, cocaine, and opioid dependence and was still
shaking from detox. (Id.). Plaintiff made good eye contact and
related acceptably well during the interview. (Id.). She
exhibited normal posture and gait with normal behavior without
tics or speech disorders. (Id.). Her thought processes were
intact with adequate control and normal speed of thought free of
delusions. (Id.). Orientation was described as adequate, but
memory was deficient, likely affected by chronic alcoholism.
(Id.). Her fund of information was fair, but her attention,
concentration, and calculation were deficient. (Id.).
Additionally, Plaintiff's abstract abilities were fair while her
judgment and insight were deficient. Lastly, Dr. Best indicated
Plaintiff was then currently unable to handle her own funds due
to her substance abuse. (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.
Ill. 1995). 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.
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).*fn2 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.
Step Two requires a determination whether the claimant is
suffering from a severe impairment.*fn3 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.
VI. ANALYSIS The court will proceed through the five step analysis in order.
A. Step One: Is the claimant currently engaged in substantial
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 February 22, 2002.
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
Plaintiff suffered from arthritis in the lumbar spine, scoliosis,
dysthymia, a history of substance dependence in current sustained
remission, hepatitis C, and varicose veins in her left leg. (Tr.
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, Subpart P,
Part 404 of the regulations. (Tr. 84).
The ALJ stated the following:
In this case, for example, the claimant's back
impairment does not satisfy the requirements of
section 1.04. Similarly, the claimant's's dysthymia
results in mild limitation in activities of daily
living and social functioning, moderate limitations
in attention and concentration and has resulted in no
episodes of deterioration or decompensation. Thus,
her affective disorder does not satisfy the severity
requirements of section 12.04. Even when the
claimant's impairments are considered in combination,
her impairments do not satisfy the Listings.
(Tr. 84). This court would have liked to have seen the ALJ
address section 1.05(C) of the Listings that applies to other
vertebrogenic disorders of the spine. However, Plaintiff would
fail under this section using the "reasonable" standard this
court adopted in Pazera. See 20 C.F.R. Ch. III, Part 404
Subpart P, Appendix 1; See Pazera v. Barnhart, 2003 U.S. Dist.
LEXIS 23121, at 35 (N.D. Ill. Dec. 23, 2003). Section 1.05(C)
requires both 1) pain, muscle spasm, and significant limitation
of motion in the spine; and 2) appropriate radicular distribution
of significant motor loss with muscle weakness and sensory and
reflex loss. 20 C.F.R. Ch. III, Part 404 Subpart P, Appendix 1.
Plaintiff fails to meet the first requirement as evidenced in Dr.
Ramchandani's report which did not indicate any evidence of
muscle spasm or significant limitation of motion in the spine.
(Tr. 187, 200). Using the standard this court adopted to handle
incomplete Step Three analyses in Pazera, this court finds a
reasonable ALJ could not find this Plaintiff's spinal impairments
meet or medically equal an impairment in the 1.05(C) listing.
See Pazera, 2003 U.S. Dist. LEXIS 23121, at 35. Because
Plaintiff would fail to satisfy the impairment requirements of
section 1.05(C) of the Listings, this court sees no reason to
Substantial evidence exists to support the ALJ's finding and
this court finds no reason to disturb it. Therefore, the ALJ's
determination as to Step Three of the Analysis is affirmed. D. Step Four: Is the claimant capable of performing work which
the claimant performed in the past?
In performing the analysis for Step Four, the ALJ determined
that Plaintiff is unable to perform any of her past relevant
work. (Tr. 86). Before doing so, the ALJ determined Plaintiff's
RFC as follows:
[Plaintiff] can lift up to twenty pounds occasionally
and ten pounds frequently, stand and/or walk for two
hours in an eight-hour day if interspersed as long as
she is allowed to use a cane for ambulation, sit an
unlimited amount, not operate dangerous moving
machinery or perform detailed or complex tasks.
(Tr. 84). The ALJ went on to state that given Plaintiff's
non-exertional limitations, she cannot perform her past work as
an assembler. (Tr. 86). In support of this assertion, the VE
testified at the hearing the additional restriction of the use of
the cane would eliminate the assembler jobs. (Tr. 45). 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.
E. Step Five: Is the claimant capable of performing any work
existing in substantial numbers in the national economy?
At Step Five, the Commissioner carries the burden to show
Plaintiff's RFC allows her to engage in work found in significant
numbers in the national economy. 20 C.F.R. § 404.1520(f),
404.1566. The ALJ determined that although Plaintiff's RFC did
not allow her to perform a full range of light work, there
existed a significant number of jobs in the national economy that
she can perform. (Tr. 86). The ALJ stated if Plaintiff could
perform a full range of light work, rule 202.20 of the
Medical-Vocational Guidelines, Appendix 2, Subpart P, Regulations
No. 4 would direct a finding of not disabled. (Id.). However, the ALJ found
Plaintiff has the RFC to perform a narrowed range of light work.
(Id.). The VE testified someone with Plaintiff's RFC and
vocational profile*fn4 could perform work as an assembler
(18,290 jobs in Illinois), cashier (62,000 jobs in Illinois),
telephone operator (5,343 jobs in Illinois), and hand packer
(6,750 jobs in Illinois).*fn5 (Id.).
The ALJ's Step Five conclusions are substantially supported by
the medical evidence in the record. Specifically, the ALJ pointed
out Plaintiff was described in June of 2001, at the time of her
discharge from her substance abuse rehabilitation program, as
having achieved excellent progress; possessing a very good
prognosis; being physically and mentally stable; and being an
excellent role model to others in recovery. (Tr. 254-257). She
had earned her GED and was attending community college classes in
October of 2001. (Tr. 29-30). Plaintiff reported a positive
response to medication therapy for depression as a likely result
of her sustained sobriety. (Tr. 92-95). While she was diagnosed
with hepatitis C, her tests showed normal liver function. (Tr.
85). Additionally, even though Plaintiff exhibited some spinal
abnormalities; loss of sensation in her right upper extremity;
and some mild pedal edema affecting the left lower extremity,
upon a December 20, 2000*fn6 physical examination, Plaintiff
was able to heel to toe walk, squat, and get on and off an
examination table without difficulty. (Tr. 196-200). Also on
December 20, 2000, Plaintiff's grip was rated good in both hands,
and she was able to pick up objects, open and close the door,
oppose her thumb to fingers, make a fist, and flip pages. (Id.). Nor was there any
evidence of joint inflamation, low back muscle spasm, or
compromised gait. (Id.). Furthermore, no treating physician had
suggested Plaintiff was disabled. (Tr. 85). On the contrary,
Plaintiff was encouraged to seek employment with low impact/light
duty in April of 2001 by a treating physician. (Tr. 226). Lastly,
there was no evidence any of Plaintiff's treating physicians
prescribed the use of a cane. (Tr. 86).
The ALJ considered several factors in assessing the credibility
of Plaintiff's assertions of disability citing Social Security
Ruling 96-7p and 20 C.F.R. § 416.926. (Id.). First, Plaintiff had
responded well to treatment, especially since reaching sobriety.
Second, she sat for fifty-five continuous minutes at the hearing,
contrary to her assertion she could only sit for ten minutes at a
time. Third and last, the ALJ noted Plaintiff's primary treatment
for pain was over-the-counter medication. (Id.). While this
court accepts the ALJ's conclusion that all of Plaintiff's
assertions cannot be accepted based on evidence in the record,
the court notes that Plaintiff's written statement that she
chooses not to take narcotic pain medication because of her long
history of substance abuse largely mitigates the ALJ's last
reason in assessing Plaintiff's credibility. (Tr. 135).
Plaintiff claims that the ALJ failed to consider the VE's
testimony based on Plaintiff's RFC as indicated by the medical
evidence. (Pl's Mem. at 4). Plaintiff also states the ALJ failed
to reconcile the VE's concessions on cross examination by
Plaintiff's counsel; with the evidence, in rejecting the VE's
conclusion that no jobs remained. (Id.). Both arguments are
predicated on the contention that the ALJ did not accurately
assess Plaintiff's RFC based on Plaintiff's testimony and her
medical records. This contention is false. As discussed above,
the ALJ points to numerous places in the transcript that support
her Step Five determination. For example, the ALJ points to
Plaintiff's highly positive prognosis upon discharge of her
substance abuse program; her mild to moderate spinal range of motion limitations; her ability to walk
on the heels and toes and stand from a squatting position without
assistance; her ability to exhibit full strength and normal
dexterity in her right arm despite her loss of sensation; and the
fact that a treating physician encouraged her to seek light work.
Additionally, the ALJ reasonably assessed Plaintiff's credibility
in light of the medical evidence.
This is a close case with a Plaintiff that has substantial
impairments. This court might have written a different opinion
than the one put forth by the ALJ. No matter. Substantial
evidence in the record supports the ALJ's determination, and the
ALJ has built a logical bridge between the record and the claim.
Substantial evidence exists to support the ALJ's determination
that Plaintiff is capable of performing work existing in
substantial numbers in the national economy. The ALJ's finding as
to Step Five of the Analysis is affirmed.
For the above stated reasons, Plaintiff's motion for summary
judgment is denied. The ALJ's decision to deny benefits to
Plaintiff is sustained and the ALJ is affirmed at all steps of
the disability determination process as outlined above.
Defendant's motion for summary judgment is granted.