United States District Court, N.D. Illinois, Western Division
September 15, 2004.
KIM BARONE, 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
Kim Barone ("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 II of the Social Security Act (the "Act"). 42 U.S.C. § 416,
423. 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 April 27, 2001 (Tr. 112A), and her
application for benefits was denied on July 2, 2001. (Tr. 86).
Plaintiff filed a request for reconsideration which was accepted,
but her application was denied after reconsideration on October
22, 2001. (Tr. 14). Plaintiff then filed a request for a hearing
before an Administrative Law Judge ("ALJ") on November 9, 2001.
(Tr. 94). Plaintiff appeared, with counsel, before an ALJ on May
14, 2002. (Tr. 22). In a decision dated June 28, 2002, the ALJ
found that Plaintiff was not entitled to DIB. (Tr. 14-19). On August 19, 2002, Plaintiff requested a review of
the ALJ's decision by the Appeals Council. (Tr. 8). On June 19,
2003, the Appeals Council denied Plaintiff's request for review.
Plaintiff was born on February 22, 1970, and was thirty-two
years old at the time of her May 14, 2002, hearing before the
ALJ. (Tr. 26). Plaintiff completed her education through the
twelfth grade. (Id.). At the time of the hearing, Plaintiff
lived with her husband and two children, ages three and five.
(Tr. 26-27). Plaintiff is approximately five foot two inches tall
and weighed, at the time of the hearing, 150 pounds. (Tr. 27).
According to Plaintiff, she had gained twenty-five pounds over
the previous two years. (Id.). At the time of the hearing,
Plaintiff's primary impairments were an unidentified autoimmune
deficiency, bilateral knee arthritis, migraines, sleep problems,
hair loss, and hip and back pain. (Tr. 25-26, 28, 43).
Plaintiff had no reported income since July 10, 2000. (Tr.30).
Plaintiff worked for Conseco Services ("Conseco") as a customer
service representative from October 1996 until July 2000. (Tr.
29-30). Plaintiff answered phones, completed data entry, and
performed some audit work. (Tr. 91). Plaintiff received eleven
dollars per hour for her services. (Tr. 128). Plaintiff's work
was primarily sedentary, but Plaintiff could stand and stretch
when needed. (Tr. 31). Plaintiff stated that she stopped working
for Conseco due to a worsening of her knee and back pain which
inhibited how long she could sit and stand (Tr. 28, 31).
Plaintiff worked for Dodge City Toyota between 1993 and 1996 as
a receptionist. (Tr. 127). Plaintiff answered the telephone and
greeted customers. (Tr. 22). This position was also primarily sedentary, but Plaintiff was free to walk around if she
wanted. (Id.). Plaintiff was paid eight dollars an hour for her
services. (Tr. 129).
Plaintiff worked from 1990-93 as a bank teller for Home Bank
and was paid at a rate of seven dollars an hour. (Tr. 127, 130).
Plaintiff was required to stand for much of the workday and
performed some lifting, sometimes up to ten pounds. (Tr. 33).
Plaintiff also testified that she was required to stand
continuously for three hours at a time when she worked as a
Plaintiff also held two different cashier positions, paying six
dollars an hour from 1985 to 1990. (Tr. 127, 131, 132). In
addition to checking-out customers, Plaintiff did inventory,
stock work, and answered phones. (Tr. 34). She was occasionally
required to lift twenty pounds and to stand two hours at a time.
Plaintiff described her typical day since she stopped working
as beginning at 4:00 a.m. because she wakes early due to her
pain. (Tr. 37). Plaintiff then lies in bed until her children
wake up. (Tr. 38). Plaintiff then fixes her children a simple
breakfast like cereal. (Id.). Plaintiff's children watch
movies, play PlayStation, and read with their mother. (Tr. 38).
Plaintiff states that she cannot engage in physical activities
with the children, but she instead lays down on the couch.
Plaintiff's husband performs most of the normal household tasks
like cooking meals, cleaning, laundry, yard work, and grocery
shopping. (Tr. 39). Plaintiff does assist her husband with the
dishes, which she stated takes her ten minutes a day. (Id.).
Plaintiff also occasionally runs the vacuum and goes grocery
shopping, but the couple usually orders cooked food. (Id.).
During the day, Plaintiff sometimes takes her kids to visit her
mother who lives five minutes away and to the McDonald's Playland
for fun. (Tr. 40-41). Plaintiff's mother also visits Plaintiff's home almost daily to help care for the children. (Tr.
49). In addition, Plaintiff's mother-in-law and husband care for
the children in the evenings. (Id.).
Plaintiff testified that her pain interferes with her daily
routine, though there is no particular schedule as to when her
knees, hips, back, or headaches will flare up. (Tr. 41).
Plaintiff has been bothered by hip pain since the third grade,
but the pain has been more frequent in the last five years. (Tr.
43). When her hips hurt, Plaintiff has difficulty getting dressed
and is greatly restricted in her movement. (Tr. 41-42). Plaintiff
stated at her hearing that her hips usually hurt her once or
twice a week and that the pain lasts approximately two and a half
days. (Tr. 42). When she is in pain, it is hard for her to walk,
sit, and lay down. (Id.). When Plaintiff worked and her hip
pain bothered her, she would use a heating pad and take a hot
bath on her lunch breaks. (Tr. 43.) Plaintiff testified that the
heating pad does not get rid of her pain now. (Id.).
Plaintiff also described almost constant lower back pain at her
hearing. (Tr. 43). Plaintiff stated that this pain began two
years prior to the hearing. (Tr. 44). The pain is off and on, but
requires her to shift her position during the day every twenty to
thirty minutes. (Id.). Plaintiff's migraines started three and
one-half years before her hearing, and come in spurts. (Tr.
44-45). For about two years prior to her hearing, Plaintiff
stated that her migraines occurred once a week and sometimes more
frequently, up to every day of the week. (Tr. 45). Plaintiff was
taking there different headache medications, including Imitrex,
at the time of her hearing, but stated that they were ineffective
at fully relieving her pain. (Tr. 44).
Plaintiff also testified that she has difficulty sleeping at
night due to her pain. (Tr. 46-47). Before bed at 9:00 p.m.,
Plaintiff would take Amitriptyline and other medications to help her sleep, but still would only sleep for two hours at a time.
(Tr. 47). Plaintiff reported that she slept with heating pads,
but noted they would only take the edge off her pain. (Id.).
Plaintiff reported that she takes a hot bath every night when she
cannot get back to sleep, sometimes two or three. (Tr. 48).
Plaintiff also takes baths during the day (usually twice) to help
with her pain. (Tr. 56).
Additionally, Plaintiff suffers from knee pain. She stated that
her knee pain had worsened over the years and that during the two
years prior to her hearing, her knees were swollen and sore so
that she has difficulty bending and straightening her legs three
to four days a week. (Tr. 54-55). She stated that she has to
scoot on her butt to navigate stairs. (Tr. 54). Plaintiff's
doctor aspirated her knees to relieve swelling about once a month
for one and a half years prior to Plaintiff's hearing. (Tr.
At the time of Plaintiff's hearing, she took ten prescription
medications,*fn1 many of which were for pain, but Plaintiff
also saw her doctor for shots of Demerol when her medications
were not working. (Tr. 49-50). Plaintiff represented that she
could sit continuously for twenty minutes before she needed to
adjust her position (Tr. 58), stand for twenty minutes before
needing to sit, lie down, or take a hot bath (Tr. 59), and walk
two to three blocks at a time. (Id.).
Vocational expert, Christopher Yep, testifying before the ALJ
stated that Plaintiff's work history ranged from light to
sedentary work and unskilled to skilled work. (Tr. 70). Mr. Yep
found that Plaintiff's cashier positions were unskilled positions
with a light exertional level required. (Tr. 70). Plaintiff's
position with Conseco was a skilled job with a sedentary
exertional level (Id.), while her position as a teller was
light and semi-skilled (Tr. 72), and her position with Anderson Dodge was a semi-skilled sedentary
occupation (Tr. 71). The ALJ then questioned Mr. Yep about the
existence of positions in the region that were sedentary, but
allowing the employee to sit/stand as needed. Mr. Yep stated that
such an "at will" requirement would significantly reduce the
number of positions available to the Plaintiff, but that such
positions did exist in the region (the state of Illinois). (Tr.
With that in mind, the ALJ asked Mr. Yep whether a hypothetical
female, with the following characteristics, could perform prior
Is 32 years of age, has a high school education with
the ability to read, write, and use numbers, has the
same prior work history as the Claimant with the
capacity to perform work with the following and no
other additional limitations. . . . say lift and
carry up to a maximum of 10 pounds on an occasional
basis and five pounds frequently. Let's say stand and
walk for up to a combined total of two hours in an
eight-hour day. Sit for a total of six hours in an
eight-hour day. May not climb ladders, ropes, or
scaffolds, may otherwise climb ramps and stairs. Be
able to stoop, kneel, crouch, or crawl no more than
an occasional basis.
Mr. Yep testified that such a hypothetical female could still
perform the work at Conseco and Anderson Dodge. (Tr. 74). The ALJ
then added the "at-will" sit/stand requirement to the
hypothetical and inquired as to the impact on the two jobs. (Tr.
74-75). Mr. Yep replied that the restriction would have no impact
as to the jobs. (Tr. 75). Mr. Yep also qualified his statement,
noting that semi-skilled occupations would require at least
thirty minutes continuous sitting. (Tr. 79). The ALJ then
inquired into other jobs besides the two previously held by
Plaintiff, and Mr. Yep testified that 29,601 other receptionist
positions would be available as well as 10,707 telephone
solicitation positions. (Tr. 81). Finally, the ALJ added to the
hypothetical the requirement that one has to bathe two or three
times during the day, and Mr. Yep responded that their would be no employment for such a person. (Tr. 81-82).
III. MEDICAL HISTORY
Plaintiff's earliest medical records before this court are
office visits to an orthopaedic and arthritis clinic dating
August 25, August 26, September 3, and September 13, 1999. (Tr.
270-72, 280). Twenty-seven years of age at the time, Plaintiff
sought treatment for bilateral knee pain which she claimed had
been present for years, but which had become more progressive in
her right knee. (Id.). On the 25th, Plaintiff was treated
for a right knee effusion and a rash. (Tr. 272). On the 26th,
Dr. Steven Mull recorded a 2 effusion of Plaintiff's right knee.
(Tr. 271). During a follow-up on September 3rd, Dr. Mull
recorded a 4 knee effusion despite Plaintiff's taking Anaprox,
then Vicoprofen. (Id.). Dr. Mull prescribed Indocin and Vicodin
instead. (Id.). On September 13, Plaintiff's knee was aspirated
and injected with cortisone. (Tr. 280).
On September 22, 1999, Dr. Mull examined Plaintiff, noted a
remaining effusion of Plaintiff's knee, and tested for rheumatoid
arthritis and meniscal pathology. (Tr. 148). During this visit,
Dr. Mull also reviewed the past medical history of Plaintiff,
noting that Plaintiff underwent a meniscectomy approximately
seventeen years previously and that Plaintiff suffered
intermintent bilateral hip pain. (Tr. 147). In a follow-up visit
with Dr. Mull on October 6, 1999, Plaintiff's right knee had
improved, but her left knee showed joint effusion. (Tr. 148). Dr.
Mull recommended that Plaintiff continue stretching and that if
problems continued, he would administer another intraarticular
injection. (Tr. 149). Plaintiff tested negative for rheumatoid
arthritis at this visit. (Tr. 148).
On February 16, 2000, Plaintiff saw a Dr. Olson for knee pain
in both her right and left knees and her right elbow. (Tr. 155).
Dr. Olson noted Plaintiff's previous problems with knee and hip
pain and noted that she had tested positive for rheumatoid factor
in the past. (Id.). Dr. Olson also noted that Dr. Mull had administered six to eight knee
aspirations and injections for the Plaintiff. (Tr. 155). Dr.
Olson also recommended treatment via aspirations and injection
with corticosteroids. (Id.). In a follow-up visit with Dr.
Olson on March 10, 2000, Plaintiff had responded well to the
injections and was nearly asymptomatic. (Tr. 156). The doctor,
however, suggested a full liver panel as he suspected Plaintiff
could have hepatitis. (Tr. 157). In another visit with Dr. Olson
on April 7, 2000, Plaintiff reported pain in her knees, hips, and
elbow which caused her discomfort, but not severe pain. (Id.).
Plaintiff reported taking Tylenol and rarely Tylenol #3 for her
pain. (Tr. 157). Dr. Olson prescribed Sulfasalazine for Plaintiff
and continued her on Vioxx. (Id.).
Plaintiff visited Dr. Mull several times in 2000 and 2001. On
February 8, 2000, Dr. Mull reported 3 effusion in Plaintiff's
right knee and 2 in her left knee. (Tr. 177). On March 10, 2000,
Mr. Mull discussed treatment for loss of libido with Plaintiff.
(Id.). On August 3rd and August 9th, 2000, Plaintiff
saw a Dr. Mueller in Dr. Mull's office for skin dermatitis that
did not respond to Kenalog cream. (Tr. 176). Plaintiff met with
Dr. Mull on February 27, 2001, with complaints of cervical lumbar
back pain. (Tr. 174). Dr. Mull prescribed a muscle relaxant,
Amitriptyline, and referred Plaintiff to the Mayo Clinic to see
if they could link Plaintiff's problems because they all appeared
to be autoimmune problems. (Id.). Plaintiff was prescribed
crutches on April 3, 2001, by Dr. Mull for help with her knee
effusions and arthritis. (Tr. 173). On April 19, 2001, Plaintiff
reported to Dr. Mull knee pain and insomnia due to waking in
pain. (Tr. 172). Plaintiff noted that she was only getting three
or four hours of sleep even with Ambien. (Id.). Dr. Mull
continued treatment with Ambien. (Id.). Plaintiff was also seen
for hair loss, knee arthritis, and abnormal B12 levels on May 14,
2001. (Tr. 288). Dr. Mull sent Plaintiff to the University of Wisconsin Hospital
for consultation on April 24, 2001, due to her perplexing
symptoms. (Tr. 180). Dr. Malone, Professor of Medicine at
Wisconsin, filed an extensive report that is before the court.
(Tr. 192). In his report to Dr. Mull, Dr. Malone noted
Plaintiff's intermittent hip, knee, and back pain, stating:
The pain is severe enough to require narcotics, but
she finds the at the narcotics are not very helpful,
only take the edge off the pain and allow her to
function. She has tried Vioxx and sulfazine, which
did not help. She has had corticosteriod injections
into both knees. This apparently has no effect on
subsequent arthritic episodes and does not terminate
the current episode. She has tried oral prednisone.
This has had no effect on her knee swelling.
In addition to Plaintiffs joint pains, Plaintiff suffers from
Alopecia which has caused major hair loss all over her body since
age sixteen. (Tr. 192). Dr. Malone also noted Plaintiff's sleep
disruption and continuous daytime fatigue. (Id.). The doctor's
physical examination revealed hip limitation "that appears to be
mechanical to internal and external rotation, and also to
abduction." (Tr. 194). Examination of Plaintiff's knees revealed
bilateral moderate-to-large knee effusions. (Id.). Dr. Malone
characterized Plaintiff's symptoms as a "difficult to describe
neuro-endocrinological-immunilogical problem" and referred her to
an endocrinologist. (Id.).
Plaintiff was seen at the University of Wisconsin endocrine
clinic on May 31, 2001. (Tr. 187-89). Dr. Melissa Meredith noted
that Plaintiff's hip problems since about the third grade were
attributed to a congenital deformity of the hip and also noted
that X-rays were consistent with degenerative disease in the
hips. (Tr. 187). Dr. Meredith also commented on Plaintiff's
fatigue and anemia, noting that is had increased in the last two
to three years, that her activities had decreased, and that
Plaintiff had gained about twenty pounds in the last year.
(Id.). Dr. Meredith's assessment was that Plaintiff did have some underlying
autoimmmune syndrome and recommended thyroid testing. (Tr. 189).
Plaintiff saw Dr. Kamlesh Ramchandani at the request of state
disability examiners on June 12, 2001. (Tr. 184-86). Dr.
Ramchandani noted the Plaintiff's gait was normal unassisted,
that she is able to walk, squat, and get on and off the
examination table without difficulty. (Tr. 185). Plaintiff was
also able to pick up objects, make a fist, and turn pages.
(Id.). Dr. Ramchandani's physical examination revealed minimal
tenderness on the medial aspect of both knee joints and that
range of motion was painful at the knees and hips. (Id.). The
doctor recorded his impression as "1. Autoimmune syndrome, of
undetermined category, with polyarthalgias and alopecia. 2.
Arthritis of the hip joints and the knee joints." (Tr. 185).
On June 25, 2001, a state agency physician examined Plaintiff's
medical records and found that Plaintiff could perform medium
work with occasional postural limitations. (Tr. 215-21).
Specifically, the physician found that Plaintiff could
occasionally lift fifty pounds, frequently lift twenty-five
pounds, and stand/walk/sit (with normal breaks) for about six
hours a day. (Tr. 215).
Plaintiff has also been treated for headaches by Dr. Mull's
office. On August 22, 2001, Plaintiff complained of a classic
migraine that lasted two days despite taking OxyContin, Tylenol
#3, and Imitrex. (Tr. 205). At the August visit, Plaintiff stated
that she had been getting migraines more frequently, usually one
or two a week, and that they would last for one to two days.
(Id.). Dr. Mueller prescribed Inderal. (Id.). On September
11, 2001, Plaintiff saw Nurse Helmond with another migraine, her
first since taking the Inderal, and described her pain as a nine on a nine-to-ten scale. (Tr. 204). Plaintiff was given
Demerol and Vistaril for her pain. (Id.).
An endocrinologist, Dr. Gordon from Loyola University Medical
Center, consulted with Dr. Mull on Plaintiff's case on October
18, 2001, but was unable to find evidence of an endocrine
disease. (Tr. 211-13). Dr. Aileen Lorenzo Pangan, a
Rheumatologist also at Loyola evaluated Plaintiff on October 23,
2001. (Tr. 250). Plaintiff's knees were aspirated and blood work
was done because the doctor suspected C1 esterase inhibitor
On April 8, 2002, Dr. Mull issued the following as his opinion
on Plaintiff's disability:
Kimberly was a patient of mine until the beginning of
the year when she had an insurance change. She has
been treated for chronic hip and knee pain. It has
appeared arthritic associated with effusions of the
knees. She has been severely debilitated by her
illness. This has not been clearly defined despite
evaluations at the University of Wisconsin, Loyola
Medical Centers, and by a local Rheumatologist. Her
condition would certainly preclude most forms of
work, especially anything that required standing or
walking and she would likely experience problems even
with sitting when her hip symptoms are flaring up.
(Tr. 313). Dr. Werckle, Plaintiff's most recent treating
physician in the record, issued the following as his opinion on
May 10, 2002:
It is of my medical opinion, my patient is disabled
due to her knee swelling and pain, and pain in her
hips bilaterally. . . . She also has a history of
migraine headaches and back pain that interfere with
her ability to be employed. She also has insomnia.
She presently is on pain medication and sleep
(Tr. 314). Dr. Werckle has also referred Plaintiff to the Mayo
Clinic. (Tr. 315).
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.
Charter, 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, 988 F.2d 473, 487 (7th Cir. 1993);
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.
Id. VI. ANALYSIS
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. 15). Neither party disputes this first
determination by the ALJ, and there is substantial evidence to
support the determination of the ALJ. Thus, it is the Magistrate
Judge's Report and Recommendation that the ALJ's determination as
to Step One of the Analysis be affirmed.
B. Step Two: Does the claimant suffer from a severe
In performing the Step Two Analysis, the ALJ found that
Plaintiff suffered from severe impairments. Specifically, the ALJ
found that Plaintiff suffered from autoimmune syndrome,
degenerative disease of the knees and hips, alopecia totalis, and
migraine headaches. (Id.).
Substantial evidence exists to support the ALJ's determination
that Plaintiff suffers from severe impairments. Though the
finding does not mention Plaintiff's complaints of back pain, the
finding is not challenged by either party and the court finds no
reason to disturb it. It is the Magistrate Judge's Report and
Recommendation that the ALJ's determination as to Step Two of the
Analysis be affirmed.
C. Step Three: Does claimant's impairment meet or medically
equal an impairment in the Commissioner's listing of
In performing the analysis for Step Three, the ALJ determined
that Plaintiff's impairments do not meet or equal any impairment
in the Listing of Impairments. 20 C.F.R. § 404.1520(d); 20 C.F.R.
Pt. 404, Subpt. P, App. 1. (Tr. 15). The ALJ found, in one
conclusory sentence, that Plaintiff's "condition does not satisfy
that standard." (Id.). As this court has seen on numerous occasions, the ALJ failed to discuss, or even cite
the listing relevant to Plaintiff's disability claim. Depending
on the circuit, this omission alone would dictate remand
Compare Burnett v. Commissioner, 220 F.3d 112, 119-20 (3d Cir.
2000) (remanding where the ALJ "`merely stated a summary
conclusion that appellant's impairments did not meet or equal any
Listed Impairments,' without identifying the relevant listed
impairments, discussing the evidence, or explaining his
reasoning.") (citing Clifton v. Chater,, 79 F.3d 1007, 1009)
(10th Cir. 1996)), with Senne v. Apfel, 198 F.3d 1065, 1067
(8th Cir. 1999) (holding that the conclusory form of the ALJ's
decision alone does not justify remand).
However, the Seventh Circuit has not decided whether failing to
discuss or even cite a Listing at step three justifies remand
See Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)
(stating the Seventh Circuit need not address the tension between
the circuits as to whether a conclusory statement at Step Three
is fatal because the ALJ's decision could not stand even if she
cited the correct rule). Even though the Seventh Circuit has not
provided guidance on this issue, principles of administrative law
require the ALJ to rationally articulate the grounds for his/her
decisions thereby building "an accurate and logical bridge from
the evidence." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). This then allows the court to confine review to the
reasons supplied by the ALJ. See Johnson v. Apfel,
189 F.3d 561, 564 (7th Cir. 1999); Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996).
The question then remains whether this court should remand
because of the ALJ's failure to cite the listing or whether this
court should determine whether remand is necessary given the
medical record. The problem with the latter is that it
necessitates that this court weigh evidence when that is not the
role of this court in this process. However, because the findings
at Step Three are so conclusory it is difficult to ascertain the process
of this ALJ. Therefore, for the sake of judicial efficiency, this
court will adopt a standard to handle conclusory Step Three
analysis. That standard will be whether a reasonable ALJ could
find that Plaintiff's impairments meet or medically equal an
impairment in the listings.
Listing 1.02 states:
Major dysfunction of a joint(s) (due to any cause):
Characterized by gross anatomical deformity (e.g.,
subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness
with signs of limitation of motion or other abnormal
motion of the affected joint(s), and findings on
appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankylosis of
the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing
joint (i.e., hip, knee, or ankle), resulting in
inability to ambulate effectively, as defined in
B. Involvement of one major peripheral joint in each
upper extremity (i.e., shoulder, elbow, or
wrist-hand), resulting in inability to perform fine
and gross movements effectively, as defined in
Listing 14.09 states:
Inflammatory arthritis. Documented as described in
14.00B6, with one of the following:
A. History of joint pain, swelling, and tenderness,
and signs on current physical examination of joint
inflammation or deformity in two or more major joints
resulting in inability to ambulate effectively or
inability to perform fine and gross movements
effectively, as defined in 14.00B6b and 1.00B2b and
B. Ankylosing spondylitis or other
spondyloarthropathy, with diagnosis established by
findings of unilateral or bilateral sacroiliitis
(e.g., erosions or fusions), shown by appropriate
medically acceptable imaging, with both: 1. History
of back pain, tenderness, and stiffness, and 2.
Findings on physical examination of ankylosis
(fixation) of the dorsolumbar or cervical spine at
45° or more of flexion measured from the vertical
position (zero degrees); or C. An impairment as
described under the criteria in 14.02A. or D.
Inflammatory arthritis, with signs of peripheral
joint inflammation on current examination, but with
lesser joint involvement than in A and lesser extra-articular
features than in C, and: 1. Significant, documented
constitutional symptoms and signs (e.g., fatigue,
fever, malaise, weight loss), and 2. Involvement of
two or more organs/body systems (see 14.00B6d). At
least one of the organs/body systems must be involved
to at least a moderate level of severity; or E.
Inflammatory spondylitis or other inflammatory
spondyloarthropathies, with lesser deformity than in
B and lesser extra-articular features than in C, with
signs of unilateral or bilateral sacroiliitis on
appropriate medically acceptable imaging; and with
the extra-articular features described in 14.09D.
Both Listing 1.02 and 14.09 require the inability of claimant
to ambulate effectively or to perform fine and gross movements
effectively. Though Plaintiff testifies about her use of crutches
and inability to climb stairs three or four days of the week (Tr.
54), the record does reflect several instances when Plaintiff's
doctors have found that she is able to ambulate effectively.
See, e.g., Tr. 184-86. In addition, Listing 1.02 requires gross
anatomical deformity which is not clearly established in this
record. Plaintiff's knee X-rays revealed no significant joint
space narrowing or osteophyte formation. (Tr. 147). Finally,
neither party challenges the ALJ finding under Step Three.
Therefore, this court finds that no reasonable ALJ could find
that Plaintiff is disabled under the Listings. Substantial
evidence exists to support the ALJ's Step Three finding and this
court finds no reason to disturb it. Therefore, it is the
Magistrate Judge's Report and Recommendation that the ALJ's
determination as to Step Three of the Analysis be affirmed.
D. Step Four: Is the claimant capable of performing work which
the claimant performed in the past?
In performing the analysis under Step Four, the ALJ determined
that Plaintiff is capable of performing her past jobs in customer
service at Conseco and as a receptionist at Anderson Dodge. (Tr. 15). Before doing so, the ALJ determined Plaintiff's
RFC. (Id.). The RFC is what a claimant can still do despite his
or her limitations. See 20 C.F.R. § 416.945. After considering
the entire record, the ALJ stated that Plaintiff's medically
determinable impairments precluded the following:
[l]ifting and/or carrying up to 10 pounds more than
occasionally or five pounds more than frequently,
standing and/or walking for more than a combined
total of two hours in an eight hour workday or for
longer than 15 minutes continuously; sitting for more
than six hours with normal breaks in an eight hour
workday, but must be allowed to alternate between
standing and sitting positions as needed during the
course of the workday; may not climb ladders, ropes
or scaffolds, but may otherwise climb ramps/stairs;
and balance, stoop, kneel, crouch, crawl no more than
(Tr. 15). In support of the RFC statement, the ALJ expressed that
Plaintiff's "complaints of disabling symptoms are not considered
entirely credible." (Tr. 18). Further, the ALJ found that the
opinions of Plaintiff's treating physicians (Dr. Mull and Dr.
Werckle) were "not fully supported by the longitudinal record of
treatment and evaluation." (Tr. 17).
The finding of the ALJ as to Step Four of the Analysis is
challenged by Plaintiff. Specifically, Plaintiff argues that the
ALJ erred, as a matter of law, in failing to give controlling
weight to the treating source's medical opinions regarding
Plaintiff's RFC and for failing to articulate specific and
legitimate reasons for not giving controlling weight to the
opinions. First, Plaintiff argues that the ALJ should have given
more weight to Plaintiff's treating sources because they found
Plaintiff's limitations greater in severity then the non-treating
sources who the ALJ appeared to follow in the limitation
assessment. In support of this argument, Plaintiff points to her
longtime treating relationship with Dr. Mull and the many
treatment records from treating and consulting sources describing Plaintiff's condition.
Plaintiff also relies on the opinion of Dr. Werckle, who became
Plaintiff's treating physician due to insurance changes.
Defendant argues that substantial evidence in the record
supports the ALJ's decision not to give controlling weight to the
opinions of Drs. Mull and Werckle.*fn2 First, Defendant
notes that the ALJ did give "significant deference" to Dr. Mull's
opinion in setting Plaintiff's RFC. (Def.'s Mem. Supp. Summ. J.
at 13). It does appear that the ALJ did restrict Plaintiff's jobs
to primarily sedentary jobs based on Dr. Mull's opinion (rather
than to medium work, recommended by the state agency physician).
Second, Defendant argues that the ALJ's decision that Dr. Mull's
opinion was not entitled to controlling weight was based on
Plaintiff's "longitudinal treatment record which included several
reports which described her symptoms as responding favorably to
treatment." (Id. at 14). Specifically, Defendant cites: (1) Dr.
Olson's report that Plaintiff was nearly asymptomatic after a
steroid injection and ambulating normally (Tr. 156), (2) the fact
that Plaintiff's medications were somewhat effective at
controlling her pain (Tr. 157), (3) the fact that favorable
findings were reported by Plaintiff's consulting sources and that
she was treated conservatively by them (Tr. 172, 174, 188,
193-94, 212-13), and (4) Dr. Ramchandani's report. (Tr. 185).
The Seventh Circuit is not clear on the weight given a treating
physician over a non-treating physician. In fact, there appears
to be some conflict in the Seventh Circuit on the weight a treating physician should receive in determining whether an
individual is disabled or not. Compare Clifford v. Apfel,
227 F.3d 863, 870 (7th Cir. 2000) (stating "the ALJ properly noted
that more weight is generally given to the opinion of a treating
physician because of his greater familiarity with the claimant's
conditions and circumstances"); Shramek v. Apfel, 226 F.3d 809,
814 (7th Cir. 2000) (stating "A physician's opinion regarding the
nature of severity of an impairment will be given controlling
weight if it is well supported by the medically acceptable . . .
techniques."), with Hawkins v. First Union Corp. Long-Term
Disability Plan, 326 F.3d 914, 917 (7th Cir. 2003) (stating
"physicians naturally tend to support their patients' disability
claims, and so we have warned against `the biases that a treating
physician may bring to the disability evaluation'") (citing
Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001));
Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir. 1985)
(explaining that "the patient's regular physician may want to do
a favor for a friend and client, and so the treating physician
may too quickly find disability").
Nonetheless, this court, and the code, give due deference to
the treating physicians over non-treating physicians. However,
that does not necessarily mean that in every case the treating
physicians' opinion will be given controlling weight, regardless
of non-treating sources. Rather, a balance must be done between
the two sources. "The ALJ's reasonable resolution of conflicts in
the evidence is not subject to review, as we do not reweigh the
evidence." Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1989).
The ALJ's Step Four analysis did not clearly designate the
medical evidence specifically relied upon in deciding that
Plaintiff could perform past work. However, the opinion does show
that the ALJ's decision in Step Four was influenced by
Plaintiff's positive responses to treatment for her migraines and
knee pain, the instances where Plaintiff reported to her doctors
that her pain was not severe, and the doctors' descriptions of
Plaintiff as "asymptomatic" or "walking with a normal gait." (Tr. 16-17). The ALJ also noted that Dr.
Mull's opinion of April 8, 2002, was issued with no physical
examination and no office visit since January, 2002. (Tr. 17).
The court's own review of the record for substantial evidence
supporting the ALJ's decision denying Plaintiff benefits revealed
some evidence that Plaintiff could possibly return to prior work.
In particular, on September 22, 1999, a doctor at the Orthopaedic
and Arthritis Clinic of Rockford stated that Plaintiff's social
history is significant for a job which requires sitting at a desk
which she is able to do without difficulties. (Tr. 147). There
are also instances of Plaintiff's favorable response to
treatments. For example, on August 26, 1999, Plaintiff's knee
pain/swelling responded over night to treatment with Vicoprofen
(Tr. 271), and on March 10, 2000, Dr. Olson reported that
Plaintiff responded well to knee injections and was nearly
asymptomatic. (Tr. 156). On April 7, 2000, Plaintiff told Dr.
Olson that her pain was not severe, but that it did make her
uncomfortable when she was caring for her children. (Tr. 157).
Also supportive of the ALJ's findings are the June 12, 2001,
report by Dr. Ramchandani finding Plaintiff's gait normal
unassisted, and that Plaintiff could squat, get on and off a
table without difficulty, pick up objects, and flip pages and the
June 25, 2001, state agency physician report finding that
Plaintiff could perform medium work with occasional postural
limitations specifically that Plaintiff could occasionally lift
fifty pounds, frequently lift twenty-five pounds, and
stand/walk/sit (with normal breaks) for about six hours a day.
On the other hand, a fair review of the record also reveals
evidence contradicting the ALJ's findings and limiting the
persuasiveness of the factors supporting the ALJ's decision. For
example, even though Plaintiff responded well to some of her
treatments, the overwhelming evidence shows that Plaintiff's
treatments provided no long-term relief. (See, e.g., Tr. 187 (report of Dr. Meredith noting steroid injections not providing
relief); Tr. 250 (Plaintiff returns for another knee aspiration
on October 23, 2001); Tr. 252 (Dr. Gordon reports that Plaintiff
underwent a six month course of steroids which did not
significantly affect her disorder); Tr. 192 (Dr. Malone reports
that Plaintiff's knee swelling accumulates once a week, then
spontaneously resolves only to return days later)).
Along the same lines, even though Defendant is correct that
Plaintiff did characterize her pain as less than severe on one
occasion in April of 2000, there are several more instances where
Plaintiff's pain is characterized as severe. For example,
Plaintiff stated that her migraine pain is usually a nine or ten
on a scale of ten, and Plaintiff's migraines have been severe
enough for treatment with Demerol injections. (Tr. 204). On April
24, 2001, Dr. Malone stated that Plaintiff's knee swelling is
accompanied by severe pain. (Tr. 192). Dr. Mull noted on April
19, 2001, that Plaintiff is awakened at night by her joint pain
(Tr. 172), and Dr. Gordon noted on October 18, 2001, that
Plaintiff was frequently incapacitated with pain lasting two days
at a time. (Tr. 211).
Also, the fact that Plaintiff noted she could work at a desk
without trouble in September of 1999 lends very little support to
the ALJ's findings. First, Plaintiff did not allege disability
until 2000. Second, since 1999, Plaintiff developed migraines and
back pain, and her knee pain progressed. (Tr. 289-90, 55).
Further, even though Plaintiff worked through hip pain in 2000
largely equivalent to her current hip pain, this is not
indicative of her present ability to also work through new back
pain, knee pain, and migraines. Throughout the ALJ's analysis, there is little consideration of
how Plaintiff's pain restricts her capabilities. Instead, the ALJ
concluded that Plaintiff's "complaints of disabling symptoms and
limitations are not considered entirely credible."*fn3 (Tr.
18). However, this court is unable to find anything in the ALJ's
opinion or in the record that undermines Plaintiff's claims of
disabling pain. In fact, the record is replete with instances of
Plaintiff seeking treatment for her pain symptoms and being
prescribed powerful pain medications by multiple doctors. While
the ALJ found that the longitudinal record of treatment and
evaluation did not fully support Plaintiff's two treating
physicians' reports of disabling pain, this court finds the
opposite. The few instances referenced in the ALJ's opinion that
could appear to contradict Plaintiff's case do not undermine
Plaintiff's claims when viewed as a whole.
Even though rational minds may disagree as to the outcomes
flowing from testimony presented, the court will uphold the ALJ's
decision if substantial evidence underpinning it exists. See
Farrell v. Sullivan, 878 F.2d 985, 990 (7th Cir. 1989). In this
case, the ALJ's findings derive from a very narrow view of the
record that does not take account of Plaintiff's pain. Neither
does the ALJ point to evidence that contravenes Plaintiff's
claims. Considering that the court's own review of the record
found very little evidence indicating that Plaintiff could resume
prior work, this court cannot hold that substantial evidence
exists in the record supporting the ALJ's finding that Plaintiff
is capable of performing work which she performed in the past. It is the Magistrate Judge's Report and Recommendation that on
remand the ALJ's determination as to Plaintiff's RFC be
reevaluated in light of Plaintiff's subjective complaints of
pain, with due attention to the complete range of medical
evidence present in the record.
E. Step Five: Is the claimant capable of performing any work
existing in substantial numbers in the national economy?
Having found that Plaintiff was capable of performing work that
Plaintiff had performed in the past, the ALJ did not proceed to
Step Five. It is the Magistrate Judge's Report and Recommendation
that on remand, the ALJ should proceed to Step Five.
In accordance with the above, it is the Magistrate Judge's
Report and Recommendation that Plaintiff's Motion for Summary
Judgment be granted in part and denied in part and Defendant's
Motion for Summary Judgment on the administrative record and
pleadings be denied. The Magistrate Judge further recommends that
on remand, the ALJ determine the extent of Plaintiff's pain in
light of the complete record and whether any weight should be
given to her subjective complaints, and if so, determine a new
RFC incorporating her pain. The ALJ should proceed to Step Five.