United States District Court, N.D. Illinois, Western Division
September 28, 2004.
HEIDI L. MAUERMAN, Plaintiff,
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Heidi Mauerman ("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 Supplemental Security Income ("SSI") pursuant to
Title XVI of the Social Security Act (the "Act").
42 U.S.C. § 1381(a). This matter is before the Magistrate Judge pursuant to
consents filed by both parties on February 9, 2004. See
28 U.S.C. § 636(c); Fed.R. Civ. P. 73.
Plaintiff filed for SSI on May 16, 2002 (Tr. 88), and her
application for benefits was denied on June 26, 2002. (Tr. 54).
Plaintiff filed a request for reconsideration on August 1, 2002
(Tr. 59), and was subsequently denied reconsideration on October
28, 2002. (Id.). Plaintiff then filed a request for a hearing
before an Administrative Law Judge ("ALJ") on November 14, 2002.
(Tr.66). Plaintiff appeared, with counsel, before an ALJ on July
10, 2003. (Tr. 21). In a decision dated August 29, 2003, the ALJ
found that Plaintiff was not entitled to SSI. (Tr. 13-18). On September 2, 2003, Plaintiff requested a review of the ALJ's
decision by the Appeals Council. (Tr. 9). The Appeals Council
denied Plaintiff's request for review on October 3, 2003. (Tr.
Plaintiff was born on April 10, 1975, and was twenty-eight
years old at the time of her July 10, 2003, hearing before the
ALJ. (Tr. 21, 24). Plaintiff completed her education through the
eighth grade and has a GED. (Tr. 25). At the time of her hearing,
Plaintiff lived with her mother and her three children, ages
eleven, three, and six. (Tr. 24). Plaintiff is approximately five
foot six inches tall and weighed, at the time of the hearing, 138
pounds. (Id.). Plaintiff claims disability since October 12,
2000, because she was injured in an automobile accident on
October 11, 2001. (Tr. 24, 186). At the time of the hearing,
Plaintiff had the following medically determinable impairments:
degenerative disc disease, adjustment disorder, and pain disorder
associated with both psychological factors and general medical
condition. (Tr. 17).
Plaintiff had no reported income since October, 2000. (Tr. 30).
Plaintiff worked for Goodwill Industries as a receptionist from
February or March, 2000 until October, 2000. (Tr. 25, 96, 108).
Plaintiff answered phones, greeted guests, and paged personnel.
(Tr. 91). Plaintiff worked six hours a day, five days a week, and
she received seven dollars per hour for her services. (Tr. 96).
Plaintiff's work was primarily sedentary, but some walking was
required. (Tr. 108). Plaintiff stated that she stopped working
for Goodwill Industries due to the injuries she sustained in the
October automobile accident. (Tr. 24-25).
Plaintiff also worked part-time as a waitress/hostess in 1995.
(Tr. 108, 110). Plaintiff took orders and carried food to
customers. (Tr. 110). This position required frequent standing, walking, and lifting of objects less than ten pounds. (Id.).
Plaintiff was paid five dollars an hour for her services.
(Id.). It appears that Plaintiff may have also waited tables
part-time in 1993, but the record is inconsistent. (Tr. 96, 108).
Plaintiff described her ability to function around the house as
limited. Plaintiff's mother and children perform most of the
normal household tasks like cooking meals and cleaning. (Tr. 31).
Plaintiff does assist her family with chores by doing dishes and
clearing the dinner table. (Tr. 31, 41). Plaintiff's mother,
however, works during the day, so Plaintiff also has friends and
a sibling that visit her during the day to help out approximately
three days a week. (Tr. 39, 40). Plaintiff cannot engage in
physical activities with her children, but does read to them and
occasionally play board games, (Tr. 41-42). Plaintiff reported
that she does not go out to socialize with her friends anymore.
While Plaintiff has been bothered by pain since her automobile
accident, she testified that some days are better than others.
(Tr. 29). At her hearing, Plaintiff stated that anytime she puts
pressure on a disc in her back, she would experience pain in her
left and right side of her back, her lower back, and upper
thighs. (Tr. 28-29). Plaintiff also noted that her upper thighs
go numb when she sits, and that she sometimes experiences pain in
her leg due to a sciatic nerve. (Tr. 29).
Plaintiff also described an onset of depression since her
accident. (Tr. 30). Plaintiff testified that she feels guilty and
depressed because she cannot do anything with her children and
that she sometimes has outbursts where she starts crying for no
reason. (Tr. 32). Plaintiff stated that sometimes she does not
want to get out of bed in the morning, talk to anyone, or go
outside. (Tr. 32). To treat her depression, Plaintiff takes 40
milligrams of Paxil. (Tr. 33). While Plaintiff reported at her
hearing that the Paxil does make a difference in her emotional
state (Tr. 40-41), she also stated that she is inconvenienced by the side
effects of her medication because it makes her sleepy and
nauseous. (Tr. 33, 36). Additionally, Plaintiff testified that
her medications interfere with her ability to drive (Tr. 36),
noting that she does not drive when she is taking her medication.
At the time of Plaintiff's hearing, she took four prescription
medications, including Paxil, Relafen, Vicodin, and Hydrocodone.
(Tr. 272). Plaintiff represented that she could sit continuously
for thirty to forty-five minutes at a time before needing to get
up (Tr. 33). Plaintiff was unsure how long she could stand at one
time (Tr. 34), but testified that she could walk two blocks at a
time, though she would be in pain. (Tr. 34). Plaintiff also
testified that she could lift a gallon of milk off the table, but
not the floor. (Tr. 34-35).
Vocational expert, Frank Mendrick, testifying before the ALJ
stated that Plaintiff's past work as a telephone receptionist was
classified as semi-skilled and sedentary work. (Tr. 43-44). Mr.
Mendrick found that Plaintiff's waitress/hostess position was a
semi-skilled position with a light exertional level required.
(Tr. 44-45). The ALJ then asked Mr. Mendrick whether a
hypothetical female, with the following characteristics, could
perform work in the economy:
Taking someone of Ms. Mauerman's age which has ranged
from 25 to 28 during the period at issue. Work
experience as you described it. Who for purposes of
this question can lift up to 20 pounds occasionally,
10 pounds frequently. Sit, stand, or walk as
required. Can only occasionally climb, balance,
stoop, kneel, crouch, and crawl. Cannot perform
detailed or complex tasks.
Mr. Mendrick testified that such a hypothetical female could
not do the past work of the Plaintiff, but could work at
unskilled jobs with a light level of exertion in assembly (10,000
positions in the six-county Chicago metropolitan area plus
Winnebago and Boone Counties), inspection (4,000 positions), and hand-packing jobs (8,000
positions). (Tr. 45). The ALJ then added a requirement whereby
the worker would need to change positions every forty-five
minutes to an hour and lift ten pounds only occasionally. (Tr.
45). Mr. Mendrick indicated that such requirements would decrease
the number of jobs available in the economy to 5,000 for assembly
work, 1,000 for inspection, and 2,000 for hand packing. (Tr. 46).
The ALJ then qualified her statement, adjusting the sit-stand
requirement to no more than thirty minutes continuous
sitting/standing at a time and adding difficulty bending from the
waist. (Tr. 46). Mr. Mendrick testified that he would re-classify
the work as sedentary, number one, and reduce the assembly work
positions to 3,000. (Tr. 46). The vocational expert noted that
factory rates are typically set to allow ten minutes out of every
hour to be used for personal rest and stretching at the work
station. (Tr. 47). Finally, the ALJ inquired about the allowable
rate of absenteeism for the remaining jobs. (Tr. 48). Mr.
Mendrick replied that six days a year for illness would be
typical and that the most he had seen was twelve days a year.
(Tr. 48). The ALJ then closed Plaintiff's hearing, but allowed
the record to remain open for thirty days in order to allow
outstanding reports of Dr. Carlson to be added. (Tr. 49-51)
III. MEDICAL HISTORY
Plaintiff's earliest medical records before this court are
diagnostic tests performed at Swedish American Hospital after
Plaintiff was injured in an automobile accident on October 11,
2000. (Tr. 186-190). A CT scan of Plaintiff's abdomen showed that
Plaintiff's liver, spleen, pancreas, and kidneys were normal.
(Tr. 186). An X-ray of Plaintiff's spine revealed a slight lower
cervical kyphosis with no significant spondylosis. (Tr. 187). A
chest X-ray showed potentially some interstitial fibrosis and
scarring, but no acute findings.*fn1 (Tr. 188). A pelvis
X-ray was unremarkable. (Tr. 189). Finally, Plaintiff's lumbar spine
X-ray showed no acute osseous abnormality or spondylosis. (Tr.
190). Plaintiff was discharged after her tests and was given
prescriptions for Vicodin and Soma. (Tr. 230).
After Plaintiff's initial emergency room visit due to her car
accident, Plaintiff was evaluated by Dr. Quarles on several
follow-up visits beginning October 12, 2000. (Tr. 230-231). Dr.
Quarles told Plaintiff she had suffered significant soft tissue
and ligamentous injury, cervical and thoracal lumbar strain, and
a bruising of her spleen. (Id.). Plaintiff reported that the
Vicodin that she had been prescribed to manage her pain made her
drowsy, and was in "obvious discomfort" during this visit. (Tr.
230). Dr. Quarles switched Plaintiff's Viocodin prescription to
Tylenol #3, prescribed Relafen and a soft collar, and
administered a shot of Toradol. (Tr. 230). Plaintiff was advised
to avoid vigorous activity and was told she would need six to
eight weeks to feel normal again. (Tr. 231).
Plaintiff saw Dr. Quarles again on October 24, 2000. (Tr. 228).
Plaintiff reported that she was still wearing her soft collar
because it hurt to hold her head up, and she reported that it was
extremely painful to sit still for more than thirty minutes. (Tr.
228). Dr. Quarles noted that Plaintiff had not started physical
therapy yet and informed her that she would have to do so soon.
(Tr. 228). In a follow-up with Dr. Quarles on November 30, 2000,
Plaintiff reported that she was doing better with the physical
therapy, but that she did not feel back to normal. (Tr. 227).
Plaintiff described neck pain and pain in her lower trapezius and
left sacral region to Dr. Quarles. (Tr. 227). Dr. Quarles
commented that Plaintiff's whiplash was still severe, but
improving. (Tr. 226). He continued her on Tylenol #3 and Relafen
and recommended continued physical therapy. (Tr. 226). On December 28, 2000, Dr. Quarles reported that Plaintiff had
developed lumbosacral strain that was causing Plaintiff pain in
her lower back and sciatica is her leg. (Tr. 226, 224). Though
Plaintiff had been discharged from physical therapy for two
weeks, which had much improved her neck pain, Plaintiff had
continued with compensatory posturing that caused lumbar strain.
(Id.). Dr. Quarles took an X-ray of Plaintiff's spine and noted
spondylolisthesis of L3 on L4, but no acute abnormalities. (Tr.
224). Dr. Quarles recommended that Plaintiff resume physical
therapy. (Tr. 224).
Through January 4, 2001, and February 13, 2001, Plaintiff
attended thirteen physical therapy sessions. (Tr. 162). Plaintiff
also started physical therapy on October 26, 2000, but it is
unclear how many sessions she attended. (Tr. 165). The clinical
impression projected eighteen therapy sessions. (Tr. 165).
Plaintiff returned to see Dr. Quarles on January 26, 2001, after
reentering physical therapy. (Tr. 223). Plaintiff stated that her
pain was not as severe as before, but that she was far from pain
free. (Tr. 223). Plaintiff also asked for a referral to an
orthopedist and chiropractor. (Tr. 223).
Plaintiff was examined by orthopedist, Dr. James Dougherty, on
March 8, 2001. (Tr. 145-46). Her exam revealed her to be fully
ambulatory without a limp or list. (Tr. 145). A repeat lumbar
spine series X-ray revealed no evidence of spondylolisthesis.
(Id.). Dr. Dougherty recommended that Plaintiff proceed with an
MRI and told her she may be a candidate for lumbar epidural
steroids. (Tr. 146).
On March 13, 2001, Plaintiff underwent an MRI of her lumbar
spine. (Tr. 184). The MRI revealed posterior annular tears at
L4-5 and L5-S1 and a small focal central disk protrusions
superimposed upon diffuse disk bulge at the L3-4 interspace
level. (Tr. 184). However, there was no impingement upon traversing or exiting
nerve roots and no spinal canal stenosis. (Tr. 184).
On April 10, 2001, Plaintiff was seen by Dr. Weiss for possible
facet injection therapy at the Rockford Ambulatory Surgery
Center. (Tr. 154-56). Dr. Weiss's exam revealed tenderness around
Plaintiff's lumbrosacral junction. (Tr. 155). Plaintiff's range
of flexion back motion was limited to seventy degrees at which
point her pain would increase, while her range of extension was
limited to ten degrees. (Tr. 156). Dr. Weiss diagnosed mechanical
right-sided back pain and administered a facet injection during
the visit. (Id.). Plaintiff reported approximately two weeks of
fairly dramatic pain reduction after this injection. (Tr. 161).
On May 10, 2001, Plaintiff underwent a second facet injection.
Plaintiff again saw Dr. Weiss of Medical Pain Management
Services on July 5, 2001. (Tr. 194). Dr. Weiss informed Plaintiff
that she was a excellent candidate for a radio-frequency
denervation of her lumbar facet joints, and Plaintiff expressed
her desire to proceed. (Id.). On September 10, 2001, Plaintiff
again met with Dr. Weiss after receiving the radio-frequency
procedure on July 25, 2001. (Tr. 193). Plaintiff reported that
she received no benefit from the procedure. (Id.). Dr. Weiss
recommended diagnostic discography as another option for
treatment, and Plaintiff said she would think about it. (Id.).
Dr. Weiss stated that Plaintiff's impairments "would not
necessarily be amenable to surgical intervention with the
exception of possibly a complex fusion process." (Id.).
On July 2, 2001, an ultrasound of Plaintiff's pelvis revealed a
three centimeter complex right ovarian cyst. (Tr. 183). Plaintiff
saw a Dr. Nika on July 9, 2001, for treatment of the cyst, which
was causing Plaintiff right-sided abdominal pain. (Tr. 221). Dr.
Nika recommended a follow-up in six weeks to see if Plaintiff's cyst has changed in
size or if Plaintiff was still in pain. (Tr. 220). Another
ultrasound on August 21, 2001 showed resolution of the cyst, but
a cyst was spotted on Plaintiff's left ovary. (Tr. 182).
Plaintiff followed-up with a Dr. Ackerman on August 24, 2001,
because her right abdominal pain had moved to the left. (Tr.
218). Plaintiff described the pain as sharp and pulling, and she
was very emotional during the visit, occasionally tearing up.
(Tr. 218). Dr. Ackerman suspected cervical cancer, but
Plaintiff's pap smear was negative. (Tr. 217-218). After
examining Plaintiff, Dr. Ackerman referred Plaintiff to Dr.
Soleanicov for a repeat ultrasound and prescribed Tylenol #3.
(Tr. 218). An ultrasound on September 4, 2001, revealed a
hemorrhagic cyst or endometrioma. (Tr. 181). Later testing was
recommended. (Tr. 181).
Plaintiff saw Dr. Lopez on January 29, 2002, due to continued
back pain. (Tr. 214). Plaintiff noted that she had participated
in physical therapy for three months, which provided some
temporary relief, but that she was never free of pain. (Tr. 214).
Plaintiff stated that she had not taken much medication for her
pain in the past month, but also that she thought she needed to
start doing so again. (Tr. 214). Dr. Lopez prescribed Tylenol #3
and Relafen. (Tr. 214). Dr. Lopez also ordered a chest X-ray and
recommended that Plaintiff resume physical therapy and pain
management. (Tr. 214).
Plaintiff saw Dr. Lopez again on March 12, 2002, for chronic
back pain. (Tr. 213). Dr. Lopez noted that Plaintiff was
frustrated with her continued pain and was requesting to see a
neurosurgeon. (Tr. 213). Plaintiff was able to bend approximately
thirty degrees at the waist. (Tr. 211). Dr. Lopez mentioned
changing pain medications, but Plaintiff refused, stating that
other medications made her drowsy. (Tr. 213). When Plaintiff saw Dr. Lopez on May 14, 2002, she complained of
a new leg pain on the anterior aspect of her thigh that was
exasperated when she was sitting. (Tr. 208). Plaintiff stated
that Tylenol #3 alleviated this pain, but that she was worried
about taking medications that made her drowsy while she was
taking care of her children. (Tr. 208). Plaintiff described her
mood as depressed and frustrated and stated that she slept four
to five hours a night due to waking in pain. (Tr. 208). However,
Plaintiff stated that her concentration, appetite, and energy
were "okay," and she denied any suicidal ideations. (Tr.
208-207). At this visit, Dr. Lopez prescribed Paxil for
Plaintiff's depression. (Tr. 207). He also noted that Plaintiff's
new leg pains were consistent with her injuries and continued her
on Tylenol #3 because Plaintiff refused stronger medications.
(Id.). Finally, Dr. Lopez recommended pain management. (Id.).
On May 23, 2002, Plaintiff presented for reevaluation with Dr.
Weiss. (Tr. 191). Dr. Weiss noted that Plaintiff should consider
a diagnostic discography to treat the annular tear noted on a
past MRI and medical management through chronic opiate therapy.
Plaintiff saw a Dr. Varghese on July 24, 2002, for lower back
pain and upper leg pain. (Tr. 203). Plaintiff indicated the same
symptoms as her prior visit with Dr. Lopez in May, but noted that
her energy level was extremely down. (Tr. 203). Plaintiff noted
that she did not feel like she could be a good mother due to her
chronic pain, but did state that she felt much better with the
Paxil. (Tr. 203). Dr. Varghese doubled Plaintiff's dosage of
Paxil, and also switched Plaintiff from Tylenol #3 to MS
Contin.*fn2 (Tr. 203-04).
Dr. Varghese completed a Lumbar Spine Residual Functional
Capacity Questionnaire on December 23, 2002. (Tr. 264). Dr.
Varghese reported that he was Plaintiff's primary physician, having treated her three time previously. (Tr. 264). Dr. Varghese
diagnosed Plaintiff with lumbar radiculopathy, chronic back pain,
and depression. (Tr. 264). He stated Plaintiff's pain was severe
enough to interfere with her ability to concentrate and that
drowsiness would also affect her ability to work. (Tr. 265). The
doctor also opined that Plaintiff could walk one block and
continuously sit and stand thirty minutes at a time. Further, he
stated that Plaintiff would need a job which would allow her to
shift positions at will, and which would require her to
walk/sit/stand each for no more than five hours total a day with
normal breaks. (Tr. 266). Dr. Varghese also limited Plaintiff's
lifting capabilities to occasionally lifting less than ten
pounds. (Tr. 267). Finally, the doctor stated that Plaintiff
would need to be absent from work about four times a month. (Tr.
On June 18, 2002, Dr. William Conroy, a state agency physician,
reviewed Plaintiff's medical records and found that Plaintiff
could perform light work with occasional postural limitations and
avoidance of concentrated exposure to heights. (Tr. 195-202).
Specifically, Dr. Conroy opined that Plaintiff could occasionally
lift twenty pounds, frequently lift ten pounds, and
stand/sit/walk about six hours a day with normal breaks. (Id.).
Plaintiff saw Dr. Gerald Hoffman for a consultive psychological
evaluation on October 8, 2002, at the request of the state
disability examiners. (Tr. 233-34). Plaintiff told Dr. Hoffman
that she became depressed six months prior and that her symptoms
were that she didn't want to get up and face the day,
preoccupation with her back pain, sad feelings, sleep
disturbance, and sexual frustration. (Tr. 233). Plaintiff also
stated that her Paxil prescription did not make her feel much
better. She could not explain the difference between her report
to Dr. Hoffman and her report to Dr. Varghese on July 24, 2002.
(Id.). Dr. Hoffman noted that Plaintiff's depression largely
stemmed from her feelings of inadequacy in being able to have a
normal relationship with her children. (Id.). Plaintiff's perception,
concentration, judgment, abstract thinking, recall, and memory
were ok or good. (Tr. 234). The doctor's diagnostic impression
was Pain Disorder associated with both psychological factors and
a general medical condition; Adjustment Disorder with depressed
mood secondary to the chronic stressor of feeling inadequate in
the care taking role; and Musculoskeletal Disorder secondary to
trauma. (Tr. 234).
A state agency psychologist, Dr. MacLean, completed a
Psychiatric Review Technique form for Plaintiff on October 17,
2002. (Tr. 235). Dr. MacLean reported that Plaintiff had an
adjustment disorder that created a mild restriction on her daily
living activities, her social functioning, and her ability to
maintain concentration/persistence/pace. (Tr. 238, 245). In
addition, Dr. MacLean completed a Mental Residual Functional
Capacity Assessment for Plaintiff. (Tr. 249). He opined that
Plaintiff was not significantly limited in most of the tested
areas including understanding and memory, sustained
concentration, social interaction, and adaption. (Tr. 249-50).
Plaintiff was found to be moderately limited in her ability to
remember and carry out detailed instructions, and her ability to
respond appropriately to changes in her work setting. (Id.).
Plaintiff met with Dr. Carlson on February 21, 2003, but the
record of the meeting is unreadable. (Tr. 256). On April 21,
2003, Plaintiff underwent an MRI ordered by Dr. Carlson. (Tr.
263). No significant changes to prior MRI's were noted. (Id.).
Plaintiff discussed her MRI results with Dr. Carlson on May 28,
2003, but again, these records are illegible. On July 15, 2003,
Plaintiff met with Dr. Carlson, and Dr. Carlson referred
Plaintiff to Dr. Mansell of Medical Pain Management
Services.*fn3 (Tr. 274). According to Plaintiff's testimony
before the ALJ, Plaintiff was given an option of surgery during one of her
visits with Dr. Carlson. (Tr. 28). Because the records cannot be
deciphered, the best account of the surgery option is the
Plaintiff's, and she describes the surgery as one where little
pins would be inserted in the bottom of her back to limit her
motion. (Id.). Plaintiff stated that she felt she was too young
for surgery. (Id.).
Plaintiff met with Nurse Ackerman on July 2, 2003, due to an
increase in lower back pain.*fn4 (Tr. 277). Plaintiff
reported that she thought Dr. Varghese had switched her to MS
Contin, but that her prescription was still for Vicodin, which
she takes four to six times per day.*fn5 (Id.). Plaintiff
stated that the Vicodin decreases her pain to a "tolerable level,
down to six or seven" on a scale of ten. (Id.). Plaintiff
stated that she missed her last two physical therapy appointments
due to her increased pain and a death in the family. (Tr. 277).
Plaintiff also reiterated her desire to defer surgery as long as
possible. (Tr. 278). Nurse Ackerman continued Plaintiff on
Flexeril and Vicodin until she could meet again with Dr. Carlson.
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 ALJ concluded that Plaintiff did not meet the Act's
definition of "disabled," and accordingly denied her application
for benefits. "Disabled" is defined as the inability "to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than twelve months."
42 U.S.C. § 1382(c)(3)(A). A physical or mental impairment is one
"that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques."
42 U.S.C. § 1382(c)(3)(C); see also Clark v. Sullivan, 891 F.2d 175, 177
(7th Cir. 1988).
The Commissioner proceeds through as many as five steps in
determining whether a claimant is disabled.
20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f) (1998).*fn6 The Commissioner
sequentially determines the following: (1) whether the claimant
is currently engaged in substantial gainful activity; (2) whether
the claimant suffers from a severe impairment; (3) whether the
impairment meets or is medically equivalent to an impairment in
the Commissioner's Listing of Impairments; (4) whether the
claimant is capable of performing work which the claimant
performed in the past; and (5) whether the claimant is capable of
performing any other work in the national economy. At Step One, the Commissioner determines whether the claimant
is currently engaged in substantial gainful activity.
20 C.F.R. § 404.1520 (a)(b). Substantial gainful activity is work that
involves doing significant and productive physical or mental
duties that are done, or intended to be done, for pay or profit.
20 C.F.R. § 404.1510. If the claimant is engaged in substantial
gainful activity, he or she is found not disabled, regardless of
medical condition, age, education, or work experience, and the
inquiry ends; if not, the inquiry proceeds to Step Two.
Step Two requires a determination whether the claimant is
suffering from a severe impairment.*fn7 A severe impairment
is one which significantly limits the claimant's physical or
mental ability to do basic work activities.
20 C.F.R. § 404.1520(c). The claimant's age, education, and work experience
are not considered in making a Step Two severity determination.
20 C.F.R. § 404.1520(c). If the claimant suffers from severe
impairment, then the inquiry moves on to Step Three; if not, then
the claimant is found to be not disabled, and the inquiry ends.
At Step Three, the claimant's impairment is compared to those
listed in 20 C.F.R. Ch. III, Part 404, Subpart P, Appendix 1. The
listings describe, for each of the major body systems,
impairments which are considered severe enough per se to
prevent a person from doing any significant gainful activity.
20 C.F.R. §§ 404.1525(a). The listings streamline the decision
process by identifying certain disabled claimants without need to
continue the inquiry. Bowen v. New York, 476 U.S. 467 (1986).
Accordingly, if the claimant's impairment meets or is medically equivalent to one in the listings, then the claimant is found to
be disabled, and the inquiry ends; if not, the inquiry moves on
to Step Four.
At Step Four, the Commissioner determines whether the
claimant's residual functional capacity allows the claimant to
return to past relevant work. Residual functional capacity is a
measure of the abilities which the claimant retains despite his
or her impairment. 20 C.F.R. § 404.1545(a). Although medical
opinions bear strongly upon the determination of residual
functional capacity, they are not conclusive; the determination
is left to the Commissioner, who must resolve any discrepancies
in the evidence and base a decision upon the record as a whole.
20 C.F.R. § 404.1527(e)(2); Diaz v. Chater, 55 F.3d 300, 306 n.
2 (7th Cir. 1995). Past relevant work is work previously
performed by the claimant that constituted substantial gainful
activity and satisfied certain durational and recency
requirements. 20 C.F.R. § 404.1465; Social Security Ruling 82-62.
If the claimant's residual functional capacity allows him to
return to past relevant work, then he is found not disabled; if
he is not so able, the inquiry proceeds to Step Five.
At Step Five, the Commissioner must establish that the
claimant's residual functional capacity allows the claimant to
engage in work found in significant numbers in the national
economy. 20 C.F.R. §§ 404.1520(f), 404.1566. The Commissioner may
carry this burden by relying upon vocational expert testimony, or
by showing that a claimant's residual functional capacity, age,
education, and work experience coincide exactly with a rule in
the Medical-Vocational Guidelines (the "grids"). See 20 C.F.R.
Ch. III, Part 404 Subpart P, Appendix 2; Walker v. Bowen,
834 F.2d 635, 640 (7th Cir. 1987); Social Security Law and Practice,
Volume 3, § 43:1. If the ALJ correctly relies on the grids,
vocational expert evidence is unnecessary. Luna v. Shalala,
22 F.3d 687, 691-92 (7th Cir. 1994). If the Commissioner establishes
that sufficient work exists in the national economy that the claimant
is qualified and able to perform, then the claimant will be found
not disabled; if not, the claimant will be found to be disabled.
The court will proceed through the five step analysis in order.
A. Step One: Is the claimant currently engaged in substantial
In performing the Step One Analysis, the ALJ found that
Plaintiff had not engaged in any substantial gainful activity at
any time relevant to the decision issued on August 29, 2003. (Tr.
14). The finding of the ALJ as to Step One of the Analysis is not
challenged by either party, and the court finds no reason to
disturb this finding. The ALJ's determination as to Step One of
the Analysis is affirmed.
B. Step Two: Does the claimant suffer from a severe
In performing the Step Two Analysis, the ALJ found Plaintiff
suffered from severe impairments. Specifically, the ALJ found
Plaintiff suffered from degenerative disc disease, adjustment
disorder, and pain disorder associated with both psychological
factors and general medical condition. (Tr. 17).
Substantial evidence exists to support the ALJ's determination
that Plaintiff suffers from severe impairments. This finding is
not challenged by either party, and the court finds no reason to
disturb it. The ALJ's finding as to Step Two of the Analysis is
C. Step Three: Does claimant's impairment meet or medically
equal an impairment in the Commissioner's listing of
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, C.F.R. § 404.1520(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Tr. 14). The
ALJ found that Plaintiff's "condition does not satisfy that
standard." (Id.). The ALJ also addressed Plaintiff's mental
disorder more specifically, noting that Plaintiff had no more
than mild limitations in all functional areas, even considering
the combination of Plaintiff's impairments. (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 Rice v. Barnhart, No. 03-3830, slip op. at 11 (7th Cir.
Sept. 14, 2004) (declining to find that failure to reference
relevant listing necessitates reversal and remand); 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 if remand is necessary given the medical
record. The problem with the latter is that it necessitates that
the court weigh evidence, which is not an appropriate role for
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 12.04 states:
Affective Disorders: Characterized by a disturbance
of mood, accompanied by a full or partial manic or
depressive syndrome. Mood refers to a prolonged
emotion that colors the whole psychic life; it
generally involves either depression or elation. The
required level of severity for these disorders is met
when the requirements in both A and B are satisfied,
or when the requirements in C are satisfied.
A. Medically documented persistence, either
continuous or intermittent, of one of the following:
1. Depressive syndrome characterized by at least four
of the following:
a. Anhedonia or pervasive loss of interest in almost
all activities; or b. Appetite disturbance with
change in weight; or c. Sleep disturbance; or d.
Psychomotor agitation or retardation; or e. Decreased
energy; or f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or h.
Thoughts of suicide; or i. Hallucinations, delusions
or paranoid thinking; or
2. Manic syndrome characterized by at least three of
a. Hyperactivity; or b. Pressure of speech; or c.
Flight of ideas; or d. Inflated self-esteem; or e.
Decreased need for sleep; or f. Easy distractibility;
or g. Involvement in activities that have a high
probability of painful consequences which are not
recognized; or h. Hallucinations, delusions or
paranoid thinking; Or
3. Bipolar syndrome with a history of episodic
periods manifested by the full symptomatic picture of
both manic and depressive syndromes (and currently
characterized by either or both syndromes);
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living;
or 2. Marked difficulties in maintaining social
functioning; or 3. Marked difficulties in maintaining
concentration, persistence, or pace; or 4. Repeated
episodes of decompensation, each of extended
C. Medically documented history of a chronic
affective disorder of at least 2 years' duration that
has caused more than a minimal limitation of ability
to do basic work activities, with symptoms or signs
currently attenuated by medication or psychosocial
support, and one of the following:
1. Repeated episodes of decompensation, each of
extended duration; or 2. A residual disease process
that has resulted in such marginal adjustment that
even a minimal increase in mental demands or change
in the environment would be predicted to cause the
individual to decompensate; or 3. Current history of
1 or more years' inability to function outside a
highly supportive living arrangement, with an
indication of continued need for such an arrangement.
Listing 1.04 states:
Disorders of the spine (e.g., herniated nucleus
pulposus, spinal arachnoiditis, spinal stenosis,
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); or
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; or
C. Lumbar spinal stenosis resulting in
pseudoclaudication, 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.
Plaintiff's impairments do not appear to meet or equal Listing
12.04. While Plaintiff does demonstrate some of the symptoms of
an affective disorder such that she meets the requirements of
section A of the Listing (See Tr. 233), she does not
demonstrate a marked restriction of any of the activities under
section B of the Listing, nor does Plaintiff's affective disorder
meet or equal the requirements of Section C of the Listing.
Plaintiff's depression has simply not restricted Plaintiff's
activities to the extent required by Listing 12.04. (See Tr.
245 (Plaintiff's functional limitations considered mild or
non-existent by Dr. MacLean), Tr. 249-50 (Plaintiff's Mental RFC
showing Plaintiff is only moderately limited or not significantly
limited in memory, concentration, social interaction, and
adaption), Tr. 234 (Dr. Hoffman notes Plaintiff's concentration,
judgment, abstract thinking, and memory are ok)).
Plaintiff's degenerative disc disease also does not meet or
equal Listing 1.04. Under the Listing, Plaintiff must demonstrate
compromise of a nerve root or the spinal cord. Plaintiff has not
demonstrated such a compromise. Plaintiff's lumbar spine X-rays
revealed no evidence of spondylolisthesis (Tr. 145), and an MRI
revealed no nerve root impingement and no spinal stenosis. (Tr.
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, the ALJ's
determination as to Step Three of the Analysis is affirmed. D. Step Four: Is the claimant capable of performing work which
the claimant performed in the past?
In performing the analysis for Step Four, the ALJ determined
that Plaintiff is unable to perform any of her past relevant
work. (Tr. 16). Before doing so, the ALJ determined Plaintiff's
RFC. The RFC is what the claimant can still do despite his or her
limitations. See 20 C.F.R. § 416.945. In determining a Mental
RFC, the first step in the procedure is to assess the nature and
the extent of the Plaintiff's mental limitations and
restrictions. 20 C.F.R. § 416.945(c). This information is then
used to determining the Mental RFC. In order to properly assess
an individual's level of functioning due to a mental disorder,
evaluation of the impairment must take into account the severity
of the impairment over a period of time. 20 C.F.R. Ch III, Part
404, Subpart P, Appendix 1, 12.00(d). This information is then
used to complete Plaintiff's vocational assessment. After
considering the entire record, the ALJ found Plaintiff's RFC to
preclude the following work related activities:
lifting more than 10 pounds occasionally; sitting,
standing and/or walking for more than five hours each
in an eight hour workday; more than occasional
climbing; balancing, stooping, kneeling, crouching or
crawling; bending from the waist; and sitting or
standing for more than half an hour without the
opportunity to change position.
Under the RFC determined by the ALJ, the ALJ found that
Plaintiff could not perform her prior work activities "since even
[her] least demanding past relevant job required her to perform
work activities inconsistent with the [RFC]." (Tr. 16). The
finding of the ALJ as to Step Four of the Analysis is not
challenged by either party, and the court finds no reason to disturb this finding. Therefore, the ALJ's determination as to
Step Four of the Analysis is affirmed.
E. Step Five: Is the claimant capable of performing any work
existing in substantial numbers in the national economy?
The ALJ determined at Step Five that, based on Plaintiff's RFC,
Plaintiff could perform a limited range of sedentary work. (Tr.
16). Specifically, the ALJ found, according to the evidence
presented by the vocational expert, that Plaintiff could perform
the jobs of assembler (5,000 jobs), inspector (1,000 jobs), and
hand packager (2,000 jobs). (Id.). In support of the holding,
the ALJ found that Plaintiff's complaints of disabling symptoms
and limitations were not entirely credible. (Tr. 17).
Specifically, the ALJ noted no clinical findings that supported
Plaintiff's new complaints of pain as Plaintiff's MRI in early
2003 revealed no significant changes. (Tr. 15).
The ALJ also found that Plaintiff's RFC was supported by
Plaintiff's day to day activities because Plaintiff takes part in
some rudimentary child care and household tasks. (Tr. 15).
Additionally, the ALJ noted that Plaintiff has not been
specifically advised to not work. (Id.). Plaintiff's treating
physician, Dr. Varghese, found that Plaintiff could
walk/sit/stand for a total of five hours a day each in an eight
hour work day with normal breaks, continuously sit/stand for
thirty minutes, and occasionally lift up to ten pounds. (Tr.
Plaintiff sets forth two main arguments against the ALJ's
decision. First, Plaintiff argues that the ALJ did not properly
consider records forwarded to the ALJ following Plaintiff's
hearing. Second, Plaintiff argues that the ALJ failed to
accurately account for Plaintiff's subjective complaints of pain
and the RFC submitted by Dr. Varghese when the ALJ formulated Plaintiff's RFC. Specifically, Plaintiff argues that the ALJ did
not sufficiently articulate reasons, supported by evidence in the
record, for the ALJ's unfavorable credibility determination and
for rejecting portions of Dr. Varghese's RFC.
Defendant argues that the ALJ's finding is supported by
substantial evidence in the record. First, Defendant notes that
Plaintiff has not demonstrated how evidence submitted to the ALJ
and Appeals Council after Plaintiff's hearing warrants remand of
Plaintiff's case. Second, Defendant argues that the ALJ opinion
did give specific reasons for her adverse credibility finding.
Specifically, Defendant notes that the ALJ relied on (1) the
reports of Plaintiff's treating physician, Dr. Varghese; (2) the
lack of objective medical evidence (such as evidence of nerve
root impingement or spinal canal stenois) supporting Plaintiff's
subjective complaints of pain; and (3) Plaintiff's performance of
household chores and her care of children. Defendant further
argues that the ALJ did not reject the portion of Dr. Varghese's
RFC regarding unscheduled breaks. Rather, Defendant argues the
ALJ reasonably concluded, based on the vocational expert's
testimony, that assembly, inspection, and packaging jobs could
accommodate an unscheduled break every one to two hours as
suggested for the Plaintiff by Dr. Varghese's report.
As to Plaintiff's first issue regarding new evidence, this
court finds that the records submitted after Plaintiff's hearing
do not entitle her to a remand The single two page report
submitted by Dr. Carlson (Tr. 274-75) referring Plaintiff to
Medical Pain Management Services does not constitute a new line
of evidence, and the ALJ was not required to address it
individually in her opinion. Nothing new or striking was
contained in the report as Plaintiff had participated in pain
management previously. Also, the records were very brief and
unreadable at points. The three pages of records from Nurse Eve Ackerman (Tr. 276)
were never submitted to the ALJ and are not considered for
purposes of substantial evidence review. See Eads v. Sec'y of
Health and Human Servs., 983 F.2d 815, 817-18 (7th Cir. 1993).
The documents could entitle Plaintiff to a sentence six remand
(42 U.S.C. § 405(g)) if Plaintiff demonstrated that "there is new
evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior
proceeding." (Id.). For the evidence to be considered material,
there must be a "reasonable probability that the [ALJ] would have
reached a different conclusion had the evidence been considered."
(Id.). Plaintiff has not shown that the report by Nurse
Ackerman created a reasonable probability of influencing the
ALJ's decision. Plaintiff previously addressed most of the
material contained in the report at her hearing,*fn8 and
much of the material is repetitive of other instances where
Plaintiff described her back pain to a physician. Thus, under §
405(g), Plaintiff is not entitled to a remand for reconsideration
of the July 2, 2003, appointment with Nurse Ackerman.
As to Plaintiff's second argument, the court finds that the
ALJ's RFC and the ALJ's finding that Plaintiff is not disabled
are supported by substantial evidence in the record. In this
case, not one of Plaintiff's physicians ever indicated that
Plaintiff is disabled. Plaintiff's own treating physician
indicated in his RFC that Plaintiff is capable of working. (Tr.
264-68). In addition, the state agency physician found Plaintiff
capable of work, as did the state agency psychologist. Besides
the physicians' reports, other evidence in the record supports
the ALJ's findings. Plaintiff is fully ambulatory (Tr. 145), and
Plaintiff's MRI's revealed no evidence of nerve root impingement
or spinal stenosis to support her claims of pain, nor has
Plaintiff had any back surgery. (Tr. 185, 263). Also, Plaintiff indicated on July
24, 2002, that she felt much better after beginning treatment
with Paxil. (Tr. 203). Though Plaintiff later claimed on October
8, 2002, that the Paxil did not help much, Plaintiff could not
explain her change in opinion from July. (Tr. 233).
While Plaintiff attempts to raise discrepancies between the
ALJ's RFC and Dr. Varghese's report in light of the vocational
expert's testimony, her distinctions do not hold water. Even
excluding all other RFC reports but Dr. Varghese's, there is
still no limitation that would warrant a contrary finding at Step
Five. Each of Plaintiff's arguments against the ALJ citing lack
of specificity in rejecting portions of Dr. Varghese's RFC falter
because even Dr. Varghese's RFC supports a finding under Step
Five that Plaintiff is capable of performing work existing in the
national economy. Dr. Varghese reported that Plaintiff could lift
up to ten pounds occasionally; complete repetitive reaching,
handling without significant limitation; and sit, stand, and/or
walk five hours each during an eight-hour work day with normal
breaks, provided Plaintiff could change positions as needed every
thirty minutes. (Tr. 266-67). Dr. Varghese's additional finding
that Plaintiff would need unscheduled breaks every one to two
hours also does not conflict with the production schedule of
factory jobs, which the vocational expert stated set aside
approximately ten minutes out of very work hour for a short
break. (Tr. 47).
The only true area of conflict between the ALJ's RFC and Dr.
Varghese's findings relates to the number of days Plaintiff would
need to be absent due to her medical impairments. Dr. Varghese
found that Plaintiff would need, on average, four days of absence
per month. (Tr. 268). The vocational expert testified that
factory jobs had an allowable rate of absenteeism of six to
twelve days a year. (Tr. 48). The ALJ apparently concluded that
Plaintiff would not need four days a month off for medical reasons based on her finding that
Plaintiff's complaints of disabling pain were not entirely
While treating physician opinions are entitled to significant
weight, opinions not well-supported by substantial evidence in
the record do not control the decision of the ALJ.
20 C.F.R. § 416.927(d). The fact that Plaintiff's physician checked a box in
one question posed about predicting Plaintiff's future work
absence rate is only one piece of evidence for the ALJ to
consider. (Tr. 268). The ALJ could also see from the record that
Plaintiff did not provide any medical records relating to her
impairments from September 10, 2001, to January 29, 2002, when
Plaintiff returned to see Dr. Lopez, noting that she had not
taken much medication in the past month and thinking she should
start again. (Tr. 214). Given the ALJ's supported decision for
finding Plaintiff's complaints of pain not entirely credible and
a holistic view of Plaintiff's medical record, this court finds
that it was reasonable for the ALJ to conclude that Plaintiff
would not need more medical absences than allowed by the
vocational expert's testimony.
Rational minds may disagree as to the outcomes flowing from
testimony presented, but the ALJ is given the power to weigh the
evidence and make an appropriate decision. See Farrell v.
Sullivan, 878 F.2d 985, 990 (7th Cir. 1989). This court will
uphold such a decision if substantial evidence underpinning it
exists. (Id.). In this case, the court finds that there is
substantial evidence to support the ALJ, and therefore, the ALJ's
determination as to Step Five of the Analysis is affirmed.
For the foregoing reasons, the ALJ's decision to deny benefits
to Plaintiff is sustained. The ALJ is affirmed at all steps of
the disability determination process as outlined above. Defendant's Motion for Summary Judgment is granted. Plaintiff's
Motion for Summary Judgment on the administrative record and
pleadings is denied.