United States District Court, N.D. Illinois, Eastern Division
July 23, 2004.
TONIA DENHAM, Plaintiff,
JO ANNE BARNHART, Commissioner for Social Security, Defendant.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff Tonia Denham's
("Denham") motion for summary judgment and on Defendant Jo Anne
B. Barnhart's ("SSA") motion for summary judgment. For the
reasons stated below, we deny both motions and remand this case
to the Social Security Administration ("SSA") for further
proceedings consistent with this opinion.
On September 22, 1998, Tonia Denham injured her back in an
automobile accident. Before her accident, Denham earned an
associate's degree and held several jobs, including positions as
an assistant funeral director from 1991 to 1993, a frozen food packer in 1994 and 1995, and a jewelry salesperson
and office manager from 1995 to 1998. Since her accident, Denham
has held several part-time jobs, such as a position as a phone
interviewer from January to August of 2000. However, Denham has
not worked at all since August of 2000.
In the months and years following her accident, Denham has
undergone numerous medical examinations and received treatment
from numerous physicians. Immediately following her accident,
Denham received roughly one month of physical therapy for her
back injury. In March and April of 1999, Denham experienced
swelling and strain in her right wrist and had a mass surgically
removed from her left thumb. In late April and early May of 1999,
doctors twice diagnosed Denham with situational depression. Then
in October of 1999, her doctors diagnosed her with asthma and
fibromyalgia, a chronic condition that causes tenderness and pain
in muscle and soft tissue.
In January of 2000, Denham saw Dr. Ellens, her family
physician, for a knot in her right hand Dr. Ellens diagnosed
right hand arthralgia and back pain and ordered more physical
therapy for Denham's right arm, hand, and back. However, Denham
made little progress in therapy and her therapist recommended
referral to a pain clinic in March of 2000. That same month, Dr.
Ellens diagnosed carpal tunnel syndrome in Denham's right wrist
and back pain and instructed Denham to wear a brace on her right
wrist. However, another test conducted the previous month had
found no such evidence of carpal tunnel syndrome.
In late March 2000, an x-ray of Denham's lower back produced
substantially normal findings, although it also revealed that Denham's L5
vertebrae had anomalously fused with her sacrum, the five fused
vertebrae at the base of her spine. In early April, Denham saw
Dr. Labanauskas, an orthopedic surgeon, who diagnosed exaggerated
lumbar lordosis, or abnormal inward curvature of the lower spine,
as well as limited flexion and extension due to pain. He
recommended a new lumbosacral corset, epidural steroid
injections, Vioxx, and Flexeril.
Denham again saw Dr. Ellens in May 2000, who again diagnosed
back pain and asthma, prescribing a back brace, asthma
medication, and continued treatment with Vioxx and Flexeril. Upon
return visits in July, Dr. Ellens also diagnosed edema and knee
strain and instructed Denham to stop taking Flexeril. In early
August, Denham again visited Dr. Labanauskas, who prescribed a
cane for her swollen knees, writing "arthritis" on the
Also in early August, Denham underwent an MRI of her lumbar
spine, which produced normal results. Later that month, Denham
saw Dr. Burnet, who diagnosed back pain, mild depression,
obesity, controlled asthma, stable irritable bowel syndrome, and
insomnia. However, Dr. Burnet's exam found no tenderness in
Denham's spine or joint swelling, unlike Denham's prior exams
with Dr. Ellens. Dr. Burnet suggested that weight reduction and
other non-pharmaceutical methods might aid with Denham's pain.
Dr. Burnet also offered to refer Denham for treatment of her
depression, but Denham declined.
From August to September 2000, Denham received another round of
physical therapy for her back pain. During this period, she
received a transcutaneous electrical nerve stimulation ("TENS") unit to reduce her back
pain, which increased Denham's mobility and tolerance of daily
In late September, another x-ray of Denham's cervical spine
found bilateral cervical ribs. When Denham consulted with Dr.
Jayasanker, a hand surgeon, in late October, he found no
conclusive evidence of carpal tunnel syndrome, but suggested that
her bilateral cervical ribs might be causing pressure on a nerve
and producing her pain.
Denham returned to Dr. Ellens in late September, reporting
improved mobility. Dr. Ellens diagnosed lumbar strain,
hypertension, and asthma, prescribing Flexeril again and
instructing Denham to continue using her TENS unit. She returned
to Dr. Burnet in mid December 2000 and again in March 2001. At
the latter examination, Burnet again noted edema in Denham's
extremities and recommended elastic stockings for the problem.
Dr. Burnet also advised Denham to continue using her TENS unit
and Amitriptyline for her back pain.
Denham applied for Disability Insurance and Supplemental
Security Income disability benefits on May 11, 2000, but the SSA
denied her claims. She requested a hearing and appeared before an
Administrative Law Judge ("ALJ") on August 21, 2001. At the
hearing, the ALJ heard testimony from Denham as well as a
vocational expert ("VE"). Denham testified that she suffers from
chronic neck and back pain with spasms, arthritis in both knees,
asthma, and significant depression, resulting in frequent crying
spells and a significantly decreased ability to concentrate.
As evidence of her pain, Denham testified she is severely
limited in her ability to do ordinary housework and daily tasks, describing a daily
routine of driving her children to school, preparing food in the
microwave, watching television, and talking with her aunt. She
testified that she could not clean vegetables or wash more than a
single dish. When sitting or laying down, Denham claims that she
must prop herself up because of her persistent pain. In addition,
Denham testified that she can barely sweep her floor and that she
cannot mop at all. Finally, she estimated that she could stand
for ten minutes, sit for thirty minutes, walk one and one-half
blocks, and lift only a gallon jug without using both hands.
To support her claim of decreased concentration, Denham
testified that she has only been able to read three chapters of a
90-page book over the past three months. In addition, she
testified that she often forgets things on the stove and that she
sleeps poorly at night, resulting in feelings of tiredness and
occasional napping. Denham claims that she has crying spells
every other day and that her depression interferes with her
ability to care for her children.
The ALJ denied Denham's claim again on August 30, 2001 and the
Appeals Council thereafter denied her request for review. Denham
now asks this court to review her claim. LEGAL STANDARD
A reviewing court will uphold an ALJ's decision if it is
supported by "substantial evidence" in the record and the ALJ
applied the correct legal standards. Clifford v. Apfel,
227 F.3d 863, 869 (7th Cir. 2000). Deference should be given to an
ALJ's determinations relating to credibility and should be
reversed only if the determinations are "patently wrong." Powers
v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000) (quoting Herr v.
Sullivan, 912 F.2d 178, 181 (7th Cir. 1990)). However, an ALJ
must provide some explanation that would allow the parties to
understand his reasoning for his decision. See Clifford, 227
F.3d at 872 (stating that an ALJ "must build an accurate and
logical bridge from the evidence to his conclusion.").
The SSA employs a five-step process to evaluate applicants for
federal disability benefits. First, if an applicant is engaged in
substantial gainful employment, that applicant does not qualify
for disability insurance. 20 C.F.R. § 404.1520(a)(4),
416.920(a)(4). Second, if the applicant does not have a
sufficiently severe physical or mental impairment, the SSA will
deny disability insurance. Id. Third, if the applicant's
impairment or combination of impairments satisfies or is
medically equivalent to one of a series of enumerated disability
"listings," the SSA will find that the applicant is disabled.
Id. Fourth, the SSA calculates the applicant's "residual
functional capacity" ("RFC") with the impairment, and if the SSA
finds that the applicant can still perform the same relevant work
after the impairment as before, the SSA will deny benefits. Id. Finally,
using the same RFC along with the applicant's age, education and
work experience, the SSA determines whether the applicant can
adjust to other work, in which case the SSA will deny disability
This process is structured so that if an applicant satisfies
steps one through three, the inquiry ends and the SSA finds the
applicant disabled. Knight v. Chater, 55 F.3d 309, 313 (7th
Cir. 1995). However, if the applicant satisfies the first two
steps but does not satisfy the third, the inquiry proceeds to the
fourth and, possibly, fifth steps. Id. Denham claims that the
ALJ in her case erred at three points in his analysis. First, she
suggests that he failed to evaluate the credibility of her
testimony accurately in light of the medical evidence presented.
Second, she argues that the ALJ did not adequately consider
whether her combined impairments were medically equivalent to a
disability listing at step three. Finally, Denham also contends
that the ALJ failed to consider all of the necessary medical and
vocational evidence in calculating and applying her RFC at step
The ALJ in Denham's case did not find her testimony credible
regarding both the intensity of her physical pain and the
severity of her mental impairment. Applicants for disability
insurance cannot rely solely upon their own claims of pain or
other symptoms to establish their disability, but must also
produce medical evidence of an underlying impairment which could
"reasonably be expected" to produce those symptoms. 20 C.F.R. § 404.1529(a), 416.929(a). If
medical evidence supports the applicant's complaints, the ALJ
must consider the applicant's subjective symptomatic claims as
well. Clifford, 227 F.3d at 871. In considering these claims,
the ALJ should also consider other relevant factors, including
the applicant's daily activities, precipitating and aggravating
factors, medications and other treatment, and functional
limitations and restrictions. 20 C.F.R. § 404.1529(c),
416.929(c). However, a discrepancy between the applicant's claims
and the degree of impairment suggested by the medical evidence is
"probative that the witness may be exaggerating her condition."
Powers, 207 F.3d at 435-36.
At the hearing before the ALJ Denham complained about severe
pain. Where the medical evidence presented by an applicant is
either internally inconsistent or inconsistent with other
evidence in the record, the ALJ may discount that medical
evidence. Knight, 55 F.3d at 314. As the ALJ notes in his
decision, the objective medical evidence in this case is
conflicting at best in establishing any underlying medical
impairments that could cause Denham's pain. In particular, the
ALJ notes that Denham's doctors never actually found any
conclusive medical evidence of bilateral osteoarthritis in her
knees or carpal tunnel syndrome in her wrists, although she makes
some claims regarding both conditions. We therefore find no error
in the ALJ's disposition of those claims.
The ALJ treats Denham's claims of chronic neck and back pain
with greater deference, in light of more substantial medical
history for that condition, although he still discounts the
degree of pain that Denham claims from this impairment. First, the ALJ notes that a series of doctors have prescribed various
treatments for Denham's back pain, while also noting that her
objective tests were "basically normal," showing only a "slight
curvature of the spine and L5 sacralization." R. at 14-15.
Because of this discrepancy, the ALJ notes that "no objective
findings" support the breadth of treatment prescribed by Denham's
treating physicians. Id. at 14. While Denham contends that the
ALJ improperly substituted his own judgment for a medical opinion
in reaching this conclusion, we disagree. Where medical evidence
does not fully support a doctor's diagnosis, the ALJ need not
afford "great weight" to that diagnosis. Veal v. Bowen,
833 F.2d 693, 699 (7th Cir. 1987); see also Diaz v. Chater,
55 F.3d 300, 308 (7th Cir. 1995) (stating that an ALJ may place less
emphasis on portion of doctor's report that is based only on
applicant's own statements about functional restrictions).
The ALJ did not rely solely upon this assessment, however, and
considered the other factors set out in 20 C.F.R. § 404.1529(c),
416.929(c) as well. In his decision, the ALJ summarizes Denham's
testimony regarding her condition, including a detailed
description of her daily activities and some discussion of her
work history following the accident. R. at 14-15. He also notes
Denham's medications, TENS treatment, and other relief measures,
including her need to prop herself up while sitting or laying
down to alleviate her pain. Id. Finally, the ALJ considered the
functional limitations stated in a report from Dr. Young-Ja Kim,
a physician who reviewed the medical evidence in the record. R.
at 15, 106-13. Ultimately, the ALJ concluded that this evidence
supported a claim of "chronic neck and back pain," although not of the degree claimed by Denham, and
we find no reversible error in the ALJ's conclusion.
Finally, the ALJ discounted several of Denham's claims
regarding her mental state, such as her claims of frequent crying
spells and a significantly impaired ability to concentrate. The
ALJ relied upon several pieces of evidence in this conclusion.
First, he notes that Denham has previously refused treatment for
her depression, claiming that she did not feel such treatment was
necessary because she was "not suicidal." R. at 15. Where the
level or frequency of treatment for a condition is inconsistent
with the applicant's claims of symptoms, the ALJ may find those
statements discreditable, so long as the ALJ considers the
applicant's alternative explanations for failure to seek
treatment. Soc. Sec. Rul. 96-7p. Here, Denham's only explanation
is that she did not feel her depression was severe enough to
warrant treatment. In light of her refusal of treatment, the ALJ
did not err by giving less weight to Denham's statements.
The ALJ also felt that Denham's daily activities suggested that
her concentration was less impaired than she claimed. These
activities include driving her children to school, driving
herself to doctor's appointments, watching television, and
attending church for two hours on Sundays. R. at 14. While we
note that the Seventh Circuit is "skeptical" that watching
television indicates a significant ability to concentrate, we
agree with the ALJ that daily driving does necessitate a degree
of concentration. See Powers, 207 F.3d at 435. While Denham
argues that the ALJ erred by failing to consider expressly
whether her prescribed Amitriptyline regimen contributed to her decreased concentration, we note that the ALJ
need not address every piece of evidence in his decision. See,
e.g. Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir. 2002). We
find that Denham's daily driving while taking Amitriptyline is
significant enough evidence to support the ALJ's conclusion that
Denham's concentration was only "mildly impaired." R. at 15.
In addition, the ALJ twice reiterates Denham's statements that
she has no problems getting along with others, suggesting that
her social functioning is not significantly impaired by her
depression. In light of these facts, the ALJ found that Denham
suffered only from "mild depression" and a "mildly impaired"
ability to concentrate related to her chronic pain, and we do not
find that this determination was patently wrong. Id.
II. Listings and Medical Equivalence
Denham also contends that the ALJ failed at step three of the
evaluation process which requires the ALJ to determine if the
applicant's impairment or combination of impairments satisfies or
is medically equivalent to one of a series of enumerated
disability listings. Denham argues that the ALJ failed to
adequately consider her claim that her combined impairments were
medically equivalent to a listing under 20 C.F.R. § 404 App. 1.
The applicant has the burden of proving medical equivalency at
step three. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir.
1999). Equivalency must be based on "medical findings," which
consist of "symptoms" (applicant's description of the
impairment), "signs" (clinically diagnosed abnormalities), and "laboratory findings"
(abnormalities diagnosed by laboratory techniques).
20 C.F.R. § 404.1526, 416.926, 404.1528, 416.928.
We first note that, at the hearing before the ALJ, Denham
limited her assertion of equivalency to a global statement
without pointing to any particular listing or drawing the ALJ's
attention to the particular impairments raised in her summary
judgment motion. Because the applicant has the burden of proving
equivalency, a more specific claim of equivalency would have been
appropriate. In particular, we note that if the SSA had obtained
an opinion against medical equivalency, Denham's argument on this
point would likely fail. See Steward v. Bowen, 858 F.2d 1295,
1299 (7th Cir. 1988) (stating that where consulting physicians
finds against equivalency, the ALJ may adopt consulting opinion
without significant explanation if applicant presents no
contradictory medical evidence specifically supporting
equivalency). However, we find no such equivalency opinion in the
record for either party and must therefore evaluate the specific
conditions that Denham raises.
We find that the ALJ erred by failing to analyze two of
Denham's alleged impairments: 1) her obesity, and 2) her
decreased flexion. Although the ALJ considered the aggregate
effect of Denham's controlled asthma, chronic neck and back pain,
mild depression, and inability to concentrate in assessing
medical equivalency, the record makes no mention of Denham's
obesity or spinal flexion. Even though the ALJ does not have to
discuss every piece of evidence in his decision, he "may not
ignore an entire line of evidence that is contrary to the ruling"
because that prevents the reviewing court from determining
whether substantial evidence supports his opinion. Golembiewski v. Barnhart,
322 F.3d 912, 917 (7th Cir. 2003). We cannot determine from the
record whether the ALJ considered Denham's obesity or flexion in
his decision and thus, we cannot be sure that substantial
evidence supports the conclusion and must remand Id.
While obesity is no longer a separate listing in the C.F.R.
the SSA still requires adjudicators to consider the effects of
obesity on an applicant's disability claim. Soc. Sec. Rul. 02-1p;
see also Clifford, 227 F.3d at 873. In fact, the listings for
both musculoskeletal and respiratory impairments specifically
note the potential impact of obesity on those conditions.
20 C.F.R. § 404 App. 1 at 1.00(Q), 3.00(I). While the issue of
Denham's obesity was not as prominent in the record as many of
her other impairments, we still find that it was sufficiently
raised to alert the ALJ that it was relevant to the inquiry. See
Clifford, 227 F.3d at 873 (stating that an ALJ should consider
impairments raised by the evidence, even if not claimed in the
applicant's disability report). Dr. Burnet diagnosed Denham's
obesity on August 21, 2000, and suggested that it aggravated her
back pain. R. at 139. This diagnosis became part of the record,
as did Denham's own hearing testimony regarding her weight and
weight gain. R. at 215. By completely excluding any mention of
obesity from his decision, the ALJ has not shown that substantial
evidence supports his conclusion regarding medical equivalency,
and we therefore remand for consideration of Denham's obesity.
Clifford, 227 F.3d at 873.
We also find that the ALJ erred by ignoring the conflicting
analyses of Denham's flexion, particularly the conflict between
Dr. Labanauskas and Dr. Kim. While the ALJ may discount contradictory evidence, he also has an
"obligation" to resolve conflicting assessments of impairments
that have a significant impact on the applicant's claimed
disability. Golembiewski, 322 F.3d at 917. In Golembiewski,
as here, the ALJ did not address conflicting doctors' reports
regarding the applicant's ability to bend. Id. The Seventh
Circuit found this omission significant because it bore directly
upon the applicant's ability to perform the type of work
suggested in the ALJ's opinion. Id.
In this case, the ALJ apparently accepted Dr. Kim's analysis as
a non-treating, non-examining physician over that of Dr.
Labanauskas, who actually examined and treated Denham. Dr. Kim
found that Denham could lift 50 pounds occasionally and 25 pounds
frequently, that she had unlimited push/pull ability, and that
she could stoop, kneel, crouch and crawl frequently. AR. 107-08.
In contrast, Dr. Labanauskas found that Denham had limited
flexion and extension and recommended a rigorous course of
treatment for her back problems. R. at 141. The ALJ cannot simply
ignore Dr. Labanauskas' opinion where it could have such a
substantial impact on the outcome. Golembiewski, 322 F.3d at
917. While substantial evidence may support the ALJ's decision to
give Dr. Kim's report controlling weight, we cannot determine the
ALJ concluded so from the record before us. Accordingly, we
direct the ALJ to address this discrepancy on remand as well.
III. Residual Functional Capacity
Denham also claims that the ALJ made several errors at step
four of the evaluation process which requires the ALJ to evaluate the SSA's
calculation of the applicant's "residual functional capacity"
("RFC") with the impairment. Denham first challenges the ALJ's
finding that Denham has the RFC to perform medium work, as Dr.
Kim's report suggested, noting that the ALJ did not consider
Denham's obesity or possibly limited flexion. In addition, she
claims that the ALJ's hypothetical question to the vocational
expert ("VE") at her hearing was deficient both because it did
not accurately capture her impairment and because it did not
specifically address her past employment duties.
We agree with Denham's contention that the ALJ did not
specifically consider her obesity or possible limited flexion. On
remand, the ALJ may establish substantial evidence for giving
controlling weight to Dr. Kim's report on the flexion dispute,
but such evidence is lacking at present. In addition, it does not
appear that Dr. Kim's report included Denham's obesity as a
factor because it predates Dr. Burnet's diagnosis of obesity by
roughly two months and because Dr. Kim never actually examined
Denham. In addition, the record shows that Denham was gaining
weight during the relevant period, suggesting that even if Dr.
Kim considered Denham's weight, Denham likely weighed more by the
time that Dr. Burnet examined her. Therefore, if the ALJ again
reaches step four on remand, he should independently consider
Denham's obesity at that step as well. III. Use of Hypothetical Questions
During Denham's hearing the ALJ posed hypothetical questions to
the VE. We agree with Denham's contention that the ALJ's
hypothetical questions to the VE did not include all of her
relevant limitations. An ALJ may use hypothetical questions posed
to a VE to ascertain an applicant's ability to perform past
relevant work at step four of the evaluation process, but that
question must incorporate all of the applicant's relevant
limitations. Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir.
2002). However, a hypothetical question need not include claims
for which there is no medical evidence, and if the VE indicates
that he has reviewed the pertinent documentary evidence in the
case, omitting that evidence from the question itself does not
create reversible error. Cass v. Shalala, 8 F.3d 552, 556 (7th
Since we cannot tell from the record whether the ALJ gave
appropriate consideration to Denham's obesity, we also cannot
tell whether the RFC assessment posed in the hypothetical to the
VE is supported by substantial evidence. In addition, the ALJ
gives no attention to the effect of Denham's "mildly impaired"
concentration on her RFC. We note that while Dr. Kim found no
such mental impairment in her report, the ALJ did, and should
therefore consider its impact on Denham's RFC.
Denham argues that the ALJ's hypothetical about her RFC was too
general regarding her specific job duties. We disagree. An ALJ
cannot describe a job generally by its exertional category and
then conclude by merely conducting an analysis of the applicant's RFC that the applicant can return to
that job. E.g. Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir.
1991). However, in this case, despite the VE's references to
Denham's previous jobs by their exertional classification,
substantial evidence suggests that both the VE and ALJ conducted
a deeper inquiry into the requirements of those positions. First,
the VE disqualified some positions because they required exposure
to dust, fumes, odors and temperature extremes, which requires a
more detailed analysis than mere exertional categories alone
would provide. R. at 243.
In addition, while we cannot say whether substantial evidence
supported the ALJ's decision to accept Dr. Kim's findings, we
note that none of Denham's duties at either her jewelry sales or
funeral director positions exceeded the RFC limitations assessed
by Dr. Kim. R. at 96-97 (Denham's own description of her job
duties). We believe that the ALJ considered Denham's job
descriptions and found that nothing therein exceeded the
suggested RFC, making specific job duty questions redundant. We
do not expect an ALJ to establish in a hypothetical that an
applicant can lift a maximum of 50 pounds only to require him to
ask in the next question whether the applicant can lift 40
pounds. In short, the ALJ should ask questions about specific job
duties where the record suggests specific limitations that are
contrary to the applicant's assessed RFC. On remand, if the ALJ
finds that Denham's obesity, flexion, or impaired concentration
call into question Denham's ability to perform specific job
duties, he should specifically address such limitations in his
hypothetical questions to the VE. CONCLUSION
Based on the foregoing analysis, we deny the motions for
summary judgment and remand this case to the ALJ for proceedings
in accordance with this opinion.
© 1992-2004 VersusLaw Inc.