United States District Court, N.D. Illinois, Eastern Division
July 23, 2004.
DENNIS MANGUS, Plaintiff,
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge
MEMORANDUM OPINION AND ORDER
The plaintiff, Dennis Mangus, seeks judicial review of a final
decision denying his application for disability insurance
benefits, under 42 U.S.C. § 405(g) of the Social Security Act
(the "Act"). On October 1, 2001, Mr. Mangus applied for a period
of disability and disability insurance benefits ("DIB") for
alleged disorders of the back (discogenic and degenerative) (R.
64), with an onset date of November 1, 2000. An administrative
hearing was held before the Administrative Law Judge (the "ALJ")
on July 2, 2002, during which Mr. Mangus, a medical expert ("ME")
and a vocational expert ("VE") testified regarding his alleged
back disorders (R. 24-63). Mr. Mangus's claim was denied by
written decision of the ALJ on August 1, 2002 (R. 11-18). Mr.
Mangus then brought a request for review before the Social
Security Administration Appeals Council on September 26, 2002,
which included new evidence submitted by his attorney (R. 7). The
council denied the request for review on March 10, 2003 (R. 4-6).
The ALJ's decision therefore became the final decision of the
Commissioner. Mr. Mangus filed a timely complaint for administrative review
before this Court on April 7, 2003. The parties now have filed
cross motions for summary judgment: Mr. Mangus seeks reversal or
remand of the Commissioner's decision (doc. # 11), and the
Commissioner seeks a judgment affirming the decision (doc. # 14).
For the reasons set forth below, the Court denies the
Commissioner's motion for summary judgment, and grants Mr.
Mangus's summary judgment motion seeking a remand*fn1
The following facts are taken from the administrative record,
the administrative hearing transcript, and the ALJ's written
decision. The Court will first discuss Mr. Mangus's personal and
medical history. Next, the Court will summarize the hearing
testimony and the ALJ's written decision.
Mr. Mangus is 53 years old and is married (R. 30). He lives
with his wife and step-daughter (R. 38). Mr. Mangus has completed
8-1/2 years of education and can read and write (R.30). Prior to
filing for disability, Mr. Mangus worked as a recycler from
August 1991 to December 1992 and as a water meter reader from
January 1994 to August 1997 (R. 104). Mr. Mangus has not been
employed since August 1997, but he has worked as a homemaker
during that time (R. 31).
Mr. Mangus testified that the pain in his back began bothering
him while he worked as a recycler (using an end loader), between
August 1991 and December 1992 (R. 33). In August 1997, soon after
he lost his job as a water meter reader, Mr. Mangus's back pain
began to intensify (R. 33). On November 13, 2000, Mr. Mangus went to see Dr. Cichowicz, a
naprapath,*fn2 who treated Mr. Mangus with hot packs,
electrical muscle stimulation, and naprapathic manipulation (R.
140). Dr. Cichowicz' treatment decreased Mr. Mangus's pain for
short periods of time, but the pain returned upon extended
periods of sitting (R. 140). As a result, Dr. Cichowicz referred
Mr. Mangus to an orthopedist (R. 140).
Dr. Brackett, an orthopedic surgeon, began seeing Mr. Mangus in
August 2001 (R. 147). On August 22, 2001, Mr. Mangus went to the
emergency room at MacNeal Hospital, complaining of back pain; he
was diagnosed with sciatica and given Vicodin (R. 15). In
September 2001, Mr. Mangus underwent an MRI (R. 150), which
showed degenerative disc disease at L5-S1 with a small extruded
fragment and disc bulges at L3-4 and L4-5 (R.15). Mr. Mangus
visited Dr. Brackett almost monthly from August 2001 through
January 2002 (R. 145); during this time period, Mr. Mangus
perceived that his back pain lessened (R. 145-46).
At the administrative hearing, Mr. Mangus testified that he has
not done any work for which he has been paid since November 1,
2000, his alleged onset date (R. 31). Mr. Mangus testified that
he lost his last job as a water meter reader in 1997 because he
stopped making political contributions (R. 32), although the
reason given to him by the City of Berwyn was that he was unable
to do the work (R. 12). Prior to working for Berwyn, Mr. Mangus
worked for Waste Management in Cicero, where he worked as a
recycler, operating an end loader (R. 32). Mr. Mangus testified
that at this job he had to do some lifting from time to time, including lifting
over twenty pounds*fn3 (R. 32-33). Mr. Mangus's job with
Waste Management ended in December 1992 because his back began
bothering him, although he did not know he had a back problem at
the time because the pain was not as persistent (R. 33). After
the Berwyn job ended in August 1997, Mr. Mangus did not look for
work because he "really . . . started having trouble with [his]
back" (R. 33). He did not seek employment outside the home after
leaving that job.
Mr. Mangus testified that he has current health problems which
would interfere with working. These problems include pain in his
back and right leg (R. 34). For example, Mr. Mangus testified
that his right leg is half numb and certain movement, such as
turns of the leg, causes a "jabbing pain" in his back (R. 34).
Mr. Mangus testified that he is able to sit for forty to
forty-five minutes at most before he needs to walk again (R. 35).
After walking for ten to fifteen minutes, he then can resume
sitting for another thirty minutes (R. 35). Mr. Mangus indicated
similar problems with standing (R. 35).
When the ALJ asked Mr. Mangus how far he can walk, Mr. Mangus
testified that he is able to walk his dog about one block three
times per week, at most (R. 35). Climbing stairs is difficult for
him, and although he is able to bend at the knees, if he stoops
to his feet, he cannot stand up again because his right leg has
grown weak; he does not bend at the back (R. 36). Mr. Mangus
testified that in May 2002 he hurt his back while cutting the
grass (R. 36). When the ALJ asked if Mr. Mangus could lift twenty
pounds, Mr. Mangus answered that, although he does the laundry
(R. 39), he does not carry a basket of laundry, which he thinks is less
than twenty pounds, because he thinks this activity might hurt
his back (R. 37).
Mr. Mangus testified that he keeps his daily routine simple
because his back feels different depending upon what activity he
does (R. 41). Mr. Mangus's day-to-day activities include watching
television and planning the evening meal (R. 40). Mr. Mangus is
also able to tend to his personal hygiene (R. 38); fix minor
things around the house (R. 39); and drive, although he uses both
feet because his right leg is numb and he fears his right foot
will not respond quickly enough in an emergency (R. 42).
Additionally, he drives to do grocery shopping but is unable to
sit long enough to drive long distances (R. 43). He recently
purchased a cane, although he has not used it (R. 44).
The ALJ then questioned Mr. Mangus about his medical history.
Mr. Mangus testified that his medications include Zocor for
cholesterol, Vasotec for blood pressure, and Darvocet for his
back, when needed (R. 37). With respect to actual use, Mr. Mangus
indicated that he had not taken Darvocet in "six weeks to a
month" (R. 37), but he periodically takes Aleve (R. 37).
Mr. Mangus has been seeing Dr. Brackett for his back problems
(R. 37-38). He testified that he had not had any testing done
since an MRI, taken in September 2001 (R. 38). Mr. Mangus
testified that Dr. Brackett recommended surgery after the MRI,
but Mr. Mangus declined to have surgery because he was
apprehensive about the risks of not being able to walk and being
confined to a wheelchair (R. 40). Mr. Mangus indicated, however,
that he knows that back surgery is not "a matter of if; it is a
matter of when" (R. 40).
At the administrative hearing, the ALJ gave a Medical Examiner
("ME") from the Social Security Administration ("SSA") permission
to question Mr. Mangus about his physical condition (R. 48-52). The ME asked Mr. Mangus about his medications; when
Mr. Mangus last had taken Darvocet; whether Mr. Mangus had been
prescribed a back brace; and about the numbness in Mr. Mangus's
leg (R. 49-50). Mr. Mangus told the ME that Dr. Brackett
prescribed Darvocet for back pain, but that he has not needed to
take one in six weeks (R. 49). Mr. Mangus also indicated that he
bought a back support, even though no one has prescribed a back
support (R. 50). Mr. Mangus indicated that his leg was numb in
patches (R. 50).
After the ME finished his examination, the ALJ and Mr. Mangus's
attorney questioned the ME about his conclusions regarding Mr.
Mangus's physical condition (R. 52-56). The ME said that Mr.
Mangus has "established Degenerative Disk Disease of the lumbar
spine, as evidenced by the MRI, which showed L-2, L-3, L-4-5,
L-5, S-1" (R.53). The ME testified that "this manifests itself
particularly with neurological findings at L-5, S-1 in the form
of absent right ankle jerk" (R. 53). The ME also indicated that
Mr. Mangus has one half-inch atrophy of the right calf and
continued numbness in the fifth toe (R. 53). He indicated that
Mr. Mangus's pain is "valid" because it is "within the dermatomal
patterns for L-5, S-1" (R. 53). The ME testified that Mr.
Mangus's condition meets the impairment listed in 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 1.04 ("Listing 1.04") (R. 53-54).
After the ME testified that Mr. Mangus's condition "meets"
Listing 1.04 "[b]ased on the objective medical evidence," the
following exchange between the ALJ and the ME took place:
Q And to what extent did the testimony at the hearing
play a role in your reaching that conclusion?
A It played a role in that if I have . . . a
gentleman with an asymptomatic herniated disk with
these findings, no pain, he certainly could work. But
coupled with the pain he's having and looking at him,
he's in discomfort.
(R. 54). The ALJ then asked the ME for an RFC assessment on the
assumption that Mr. Mangus did not have an impairment that met or
equalled Listing 1.04 (R. 54), which the ME provided (R. 54-55).
In so doing, the ME cited to an RFC assessment prepared by Dr.
Robert Patey on December 5, 2001, and which Dr. Vidya Madala
concurred in on January 24, 2002 (R. 156-63).
In his written opinion, the ALJ rejected the ME's testimony
that Mr. Mangus had a condition that met or equalled an
impairment level in Listing 1.04, as well as the ME's RFC
assessment. The ALJ's discussion of these points is set forth
The medical evidence indicates that the claimant has
a back impairment, high blood pressure, and a history
of marijuana and alcohol abuse impairments that at
least in combination are "severe" within the meaning
of the Regulations, but that do not, even in
combination, meet or medically equal any impairment
listed in Appendix 1, Subpart P, Regulations No. 4.
For example, the claimant's back disorder is not
accompanied by signs and findings as required by
Listing 1.04 and his blood pressure is under control
with medication. While the medical expert was of the
opinion that Listing 1.04 is met, the record fails to
include the necessary findings. Indeed, claimant's
testimony indicated minimal use of medication for
pain and activities that are also inconsistent with
disabling pain, including family grocery shopping
and, until recently, cutting the grass. Further, not
only are his treating physician's records not
indicative of an impairment of listing level
severity, but the residual functional capacity
assessment of the medical expert at the hearing
reflects greater limitations than even claimant
testified to. For example, the medical expert opined
that the claimant could only lift 5 pounds
frequently, 10 pounds occasionally, and medically
required a hand-held device to assist with
instability. Yet, the claimant testified that he can
lift 20 pounds and had only recently obtained a cane
"just in case," a cane which he has not used yet.
The ALJ concluded that Mr. Mangus had the residual functional
capacity ("RFC") to perform work that exists in significant
numbers in the economy (R. 16). As a result, the ALJ concluded
that Mr. Mangus is not disabled. II.
We begin with a brief overview of the relevant legal standards.
To establish a "disability" under the Act, a claimant must show a
"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. § 423(d)(1)(A)(2004). A
claimant must demonstrate that his impairments prevent him from
performing not only his past work, but also any other work that
exists in significant numbers in the national economy. See
42 U.S.C. § 423(d)(2)(A). The social security regulations prescribe
a sequential five-part test for determining whether a claimant is
disabled. See 20 C.F.R. § 404.1520 (2004). Under this rule,
the ALJ must consider: (1) whether the claimant is presently
unemployed; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the claimant's impairment
meets or equals any impairment listed in the regulations as being
so severe as to preclude substantial gainful activity; (4)
whether the claimant is unable to perform his past relevant work;
and (5) whether the claimant is unable to perform any other work
existing in significant numbers in the national economy. See
20 C.F.R. § 404.1520; see also Young v. Sec'y of Health and Human
Services, 957 F.2d 386, 389 (7th Cir. 1992).
A finding of disability requires an affirmative answer at
either Step 3 or 5. A negative answer at any step other than Step
3 precludes a finding of disability. Id. The claimant bears the
burden of proof at Steps 1 through 4, after which the burden of
proof shifts to the Commissioner at Step 5. Id.
In reviewing the Commissioner's (here the ALJ's) decision, this
Court may not decide facts anew, reweigh the evidence, or
substitute its own judgment for that of the Commissioner.
Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). The Court
must accept the findings of fact which are supported by
"substantial evidence," 42 U.S.C. § 405(g) (2004), which is
defined as "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Herron, 19 F.3d at
333 (quotations omitted). Where conflicting evidence allows
reasonable minds to differ, the responsibility for determining
whether a claimant is disabled falls upon the Commissioner (or
the ALJ), not the courts. See Herr v. Sullivan, 912 F.2d 178,
181 (7th Cir. 1990). See also Stuckey v. Sullivan,
881 F.2d 506, 509 (7th Cir. 1989) (the ALJ has the authority to assess
medical evidence and give greater weight to that which the ALJ
finds more credible). The Court is limited to determining whether
the Commissioner's final decision is supported by substantial
evidence and based upon proper legal criteria. Ehrhart v. Sec'y
of Health and Human Services, 969 F.2d 534, 538 (7th Cir.
1992). A finding may be supported by substantial evidence even if
a reviewing court might have reached a different conclusion. See
Delgado v. Bowen, 782 F.2d 79, 83 (7th Cir. 1986) (per
That said, the Commissioner (or ALJ) is not entitled to
unlimited judicial deference. The ALJ must consider all relevant
evidence, and may not select and discuss only that evidence which
favors his or her ultimate conclusion. See Herron, 19 F.3d at
333. Although the ALJ need not evaluate in writing every piece of
evidence in the record, the ALJ's analysis must be articulated at
some minimal level and must state the reasons for accepting or
rejecting "entire lines of evidence." Id. See also Young, 957
F.2d at 393 (ALJ must articulate reason for rejecting evidence
"within reasonable limits" if there is to be meaningful appellate
review). The written decision must provide a "logical bridge from
the evidence to [the] conclusion" that allows the reviewing court
a "glimpse into the reasoning behind [the] decision to deny
benefits." See, e.g., Zurawski v. Halter, 245 F.3d 881, 887,
889 (7th Cir. 2001) (quoting Clifford v. Apfel,
227 F.3d 863, 872 (7th Cir. 2000)). This is especially true regarding credibility determinations, since both
the case law and the regulations require an ALJ to minimally
articulate the specific reasons for the credibility finding.
Zurawski, 245 F.3d at 887. Specific reasons are required so
that the reviewing Court can ultimately assess whether the ALJ's
determination was supported by substantial evidence or, if not,
was "patently wrong." Id. (quoting Powers v. Apfel,
207 F.3d 431, 435 (7th Cir. 2000)).
Mr. Mangus challenges the ALJ's findings at Steps 3, 4 and 5 of
the sequential analysis. We begin and end our analysis with Step
3, for the reasons stated below.
A Step 3 finding requires the ALJ to determine whether a
claimant's limitations (which were found severe at Step 2) meet
or equal a listed disability found within 20 C.F.R. Part 404,
Appendix 1, Subpt. P. At this step, the burden of proof rests
with the claimant, who must show that his impairments meet or
equal any impairment listed in the regulations as being so severe
as to preclude substantial gainful activity. See Young, 957
F.2d at 389.
This Court is required to test whether an analysis at least
"minimally" discusses and considers the evidence on the issue of
disability, including evidence that would contradict the
Commissioner's final conclusion. Zurawski, 245 F.3d at 888;
Clifford, 227 F.3d at 870. As the Seventh Circuit has
repeatedly held, this analysis must build an "accurate and
logical bridge from the evidence to [the] conclusion." Id.
Mr. Mangus contends that the Step 3 analysis failed to "build
an accurate and logical bridge between the evidence and the
result" reached by the ALJ: that Mr. Mangus did not have an
impairment that met or equalled a Listing 1.04 impairment (Pl.'s
Mem. at 11). Specifically, Mr. Mangus argues that, although the
ALJ found that the ME's opinion that Mr. Mangus met Listing 1.04 was not supported by the requisite signs and findings, the
ALJ did not indicate which findings were missing (Pl.'s Mem. at
10-11). Mr. Mangus also argues that the reasons that the ALJ did
give for finding that Listing 1.04 was not met are not supported
by substantial evidence (Pl.'s Mem. at 10-11).
Each of Mr. Mangus's challenges turn on an application of the
evidence to Listing 1.04, which states in relevant part:
1.04 Disorders of the spine (e.g., herniated nucleus
pulposus, spinal arachnoiditis, spinal stenois,
osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in
compromise of a nerve root (including the cauda
equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized
by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive
straight-leg raising test (sitting and supine);
B. Spinal arachnoiditis, confirmed by an operative
note or pathology report of tissue biopsy, or by
appropriate medically acceptable imaging, manifested
by severe burning or painful dysesthesia, resulting
in the need for changes in position or posture more
than once every 2 hours;
C. Lumbar spinal stenosis resulting in
pseudocludication, established by findings on
appropriate medically acceptable imaging, manifested
by chronic nonradicular pain and weakness, and
resulting in inability to ambulate effectively, as
defined in 1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04. Thus, to satisfy the
requirements of Listing 1.04, the claimant must have: (1) a
disorder of the spine, resulting in compromise of a nerve root or
the spinal cord; an (2) symptoms that meet Subpart A, B, or C.
The ALJ offered the following reasons for rejected the ME's
testimony that Listing 1.04 was met: (1) the conclusory statement
that "the record fails to include the necessary findings," (2)
the equally conclusory statement that Mr. Mangus's "treating
physician's record [was] not indicative of an impairment of listing level severity," and (c) claimant's
testimony about his activities and "minimal use of mediation for
pain and activities . . . are also inconsistent with disability
pain" (R. 14). For the reasons stated below, we conclude that the
ALJ's opinion fails to build a logical bridge between the
evidence in the record and the conclusion so that a reviewing
court can trace the path of the ALJ's reasoning. See Zurawski v.
Halter, 245 F.3d 881 (7th Cir. 2001).
The ALJ's conclusory statement that the record lacked the
"necessary findings" for the ME's opinion suffers, at the onset,
from a failure to address the evidence in light of criteria in
Listing 1.04. The ALJ's opinion includes no discussion of Listing
1.04's requirements, nor does it indicate whether Mr. Mangus met
any or none of the Listing's requirements. This alone is a
serious deficiency in the opinion. See Scott v. Barnhart,
297 F.3d 589, 595 (7th Cir. 2002) ("By failing to discuss the
evidence in light of [the Listing's] analytical framework, the
ALJ has left this court with grave reservations as to whether his
factual assessment addressed adequately the criteria of the
listing"). This deficiency is compounded by the ALJ's failure
otherwise to explain what findings were necessary, or in what
respect that were lacking. With Step 3 determinations, an ALJ
must mention the specific listing that applies, and then discuss
the evidence related to a claimant's alleged impairments that
satisfy (or fail to satisfy) that listing. See Brindisi v.
Barnhart, 315 F.3d 783, 786 (7th Cir. 2003). This, the ALJ
simply failed to do.
The ALJ's reference to the record of the treating physician is
also conclusory. We are left to wonder what in that record the
ALJ had in mind, or how it was inconsistent with Listing 1.04.
The Seventh Circuit has consistently held that an ALJ cannot
reject a doctor's medical conclusion without other evidence, see Clifford, 227 F.3d at 869-70; nor
can an ALJ draw medical conclusions about a claimant without
relying on objective medical evidence elsewhere in the record.
See, e.g., Green v. Apfel, 204 F.3d 780, 782 (7th Cir.
2000). The ME testified that there was objective medical evidence
to support a finding of disability at Step 3 under Listing 1.04
(e.g., an MRI showing degenerative disk disease of the lumbar
spine, manifesting itself "particularly with neurological
findings at L-5, S-1 in the form of a[n] absent right ankle jerk"
and a "one half-inch atrophy of the right calf" as well as
numbness in the fifth toe) (R. 53). The ME also noted that Mr.
Mangus's complaints of pain followed a "typical pain pattern" for
such a condition (i.e., "pain sitting and standing, which comes
and goes") (R. 53). The ME further found that Mr. Mangus would
eventually need back surgery (i.e., a "diskectomy" and a
"lumbosacral fusion"); that he would not get his reflex or
atrophy back; and that the numbness would never go away (R.
"[P]roper resolution . . . requires that the ALJ [the
claimant's] proffered medical evidence and articulate specific
reasons for accepting or rejecting it. After doing so, he must
discuss his factual findings in light of [the listing]." Scott,
297 F.3d at 596. If the ALJ wished to reject the ME's testing
based on something in the treating physician's record, it was
incumbent on him to explain what in that record undermined the
ME's testimony. The ALJ failed to do so.
Finally, the ALJ's reference to Mr. Mangus's testimony about
his infrequent use of pain medication, and his level of
activities, is insufficient at least without more to serve as
a basis for rejecting the ME's testimony. First, the ME made
clear that Mr. Mangus's description of his pain is consistent
with the objective medical evidence of his condition (R. 53-54).
Second, the ALJ fails to explain how his view of Mr. Mangus's
level of pain and activity precludes application of Listing 1.04, because the ALJ never cites the Listing or discusses the
evidence "in light of [its] analytical framework." Scott, 297
F.3d at 595.
In summary, we find that the deficiencies in the ALJ's Step 3
analysis require a remand in this case. We express no view as to
what the ultimate outcome should be on remand in the Step 3
analysis. We also express no view on the challenges to the ALJ's
findings at Steps 4 and 5. We leave it open for the ALJ, on
remand, to take new evidence and reconsider all aspects of the
Accordingly, the Commissioner's motion for summary judgment
(doc. # 14) is denied and Mr. Mangus's motion for summary
judgment (doc. # 11) is granted. This case is remanded pursuant
to sentence four of 42 U.S.C. § 405(g), for further
administrative proceedings consistent with this Order.