United States District Court, N.D. Illinois, Eastern Division
September 28, 2004.
BETTY LOWE, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Betty Lowe brings this action pursuant to
42 U.S.C. § 405(g) for judicial review of the final decision of the
Commissioner of the Social Security Administration (the "SSA")
denying her application for Widow's Insurance Benefits ("WIB")
under Title II of the Social Security Act (the "Act"). See
42 U.S.C. § 402(e). The parties have filed cross-motions for summary
judgment in this case: plaintiff asks that we reverse and remand
the decision; the Commissioner asks that we affirm it. For the
following reasons, we grant the plaintiff's motion, deny the
Commissioner's motion, and remand this case to the Commissioner
for further proceedings consistent with this opinion.
Plaintiff applied for WIB on March 16, 1995, alleging that she
been disabled since January 1, 1993, as a result of abdominal
pain and diabetes. (R. 97-99). The SSA denied her application at
the initial levels of administrative review (R. 100-103, 105-07),
and she requested an administrative hearing. (R. 124). On
September 19, 1996, an administrative law judge ("ALJ") conducted
a hearing at which plaintiff, represented by counsel, appeared
and testified. (R. 443-469). In a decision dated November 18,
1996, the ALJ found that plaintiff was not disabled because she retained the ability to
perform her past relevant work as a secretary or interpreter for
the deaf. (R. 248-54). The plaintiff requested review of this
decision, which the Appeals Council granted on August 31, 1998,
remanding the case to another ALJ for further proceedings. (R.
On June 9, 1999, a second ALJ conducted another hearing at
which plaintiff, represented by counsel, and plaintiff's daughter
appeared and testified. (R. 27-96). In addition, Paul Glickman,
M.D., and Robert Marquis, M.D., testified as medical experts (R.
27, 64-79), and Thomas Dunleavy provided vocational expert
testimony. (R. 79-90). In a decision dated September 10, 1999,
the ALJ found that plaintiff was disabled before April 4, 1995,
but that she had the capacity to perform her past relevant work
as an interpreter for the deaf after that. (R. 14-22). This
became the Commissioner's final decision when the Appeals Council
denied plaintiff's request for review of the decision on January
16, 2004. (R. 2-3). See 20 C.F.R. §§ 404.1455; 404.1481.
Plaintiff was born on October 15, 1941, making her fifty-one
years old as of the date she alleges her disability began,
January 1, 1993, and fifty-seven at the time of the ALJ's
decision. (R. 22-23, 98). She has a high school education and
knows sign language, which she learned because her parents were
deaf. (R. 17, 34). Although she is not a certified interpreter,
her work experience has involved her ability to sign. (R. 80-81).
From 1978 until 1990, plaintiff worked as an interpreter for the
deaf at a college. (R. 110, 112). From 1990 until January of
1993, she worked at an apartment building for the deaf or
disabled, where her responsibilities included collecting rent,
typing, assisting tenants with problems, and interpreting. (R. 36-37, 110-11). She quit that job
due to abdominal pain and complications from gall bladder
surgery. (R. 37-38).
The relevant medical evidence in this case indicates that
plaintiff is an insulin-dependent diabetic, and has high blood
pressure. She also suffers from chronic abdominal pain, which
seemingly caused her to experience an alarming weight loss in
1993 and 1994. The medical record consists mostly of clinical
notes many of which are illegible detailing her repeated
doctor visits during this period. Unfortunately, physicians were
apparently unable to determine the etiology of plaintiff's
complaints, and appeared to have little success in treating them.
Plaintiff traces her problems to gallbladder surgery she
underwent on January 28, 1993. (R. 143). In the weeks following
the procedure, plaintiff experienced abdominal pain and loss of
appetite. (R. 145-151). She was chronically nauseous and became
dehydrated. (R. 152-55, 159). By May 5, 1993, plaintiff had lost
a significant amount of weight, going from 125 pounds prior to
surgery, to 95 pounds just four months later. (R. 159). Despite
laboratory and clinical testing, the etiology for plaintiff's
complaints could not be determined. (R. 154-58, 164, 168). As of
August 20, 1993, plaintiff weighed just 85 pounds. (R. 173). Her
abdominal pain seemed to increase after she ate. (R. 173).
On August 22, 1993, plaintiff's diabetes was uncontrolled, with
her blood sugar at 303. (R. 175). It is unclear from the notes
whether plaintiff's doctor had taken her off insulin or she had
stopped taking it herself. (R. 175). By September 13, 1993,
plaintiff's weight began to increase, up to slightly over 99
pounds. (R. 177). She continued to suffer chronic abdominal pain, however. (R. 177). On November 9, 1993,
plaintiff was placed on "regular insulin." (R. 178). Plaintiff
was still complaining of abdominal pain on December 13, 1993, but
her weight had increased to 101 pounds. (R. 180).
She continued to suffer severe pain into the following year.
(R. 186). On January 25, 1994, a colonoscopy revealed no polyps,
masses, ulcerations, or other abnormalities. (R. 189). An upper
GI and small bowel study performed on March 23, 1994, revealed
evidence of possible scarring in the antral and pyloric
channel,*fn1 and delayed gastric emptying; the study was
interpreted as "intrinsically negative." (R. 195). Through the
month of April 1994, plaintiff's pain subsided and she continued
to gain weight. (R. 196-97). Thereafter, her complaints of pain
continued sporadically, but by April of 1995, she weighed 117
pounds, nearly what she weighed prior to surgery. (R. 212).
On May 8, 1996, Norton Knopf, Ph.D., performed a psychological
evaluation of plaintiff at the request of the state disability
agency. (R. 215-24). He noted that plaintiff's complaints were
abdominal pain, diabetes, and hypertension. (R. 215). Plaintiff
also claimed to be depressed and anxious, and said she had
trouble with her memory. (R. 215). Dr. Knopf indicated that
plaintiff was mildly anxious, but that her affect was
appropriate. (R. 216). Plaintiff claimed to sometimes hear
voices. (R. 216). She could remember five digits forward and
three backward. (R. 216). Dr. Knopf felt plaintiff's intellect
was in the low average range. (R. 216). Her abstract thinking was
intact, and she could perform simple mathematics. (R. 217). Her
judgment was good. (R. 218). Plaintiff claimed to suffer from insomnia. (R. 217). Dr. Knopf
characterized plaintiff's personality as dependent and
histrionic. (R. 218). His diagnosis was adjustment disorder with
mixed anxiety and depressed mood, and a pain disorder with
psychological factors. (R. 218). Testing revealed plaintiff's
full scale IQ to be 83, which was low average range. (R. 220).
Plaintiff exhibited poor spatial visualization and visual-motor
capability, and a habit of working slowly. (R. 220). Dr. Knopf
was of the opinion that plaintiff was capable of performing work
related activities, but was significantly limited in her ability
to understand, remember and carry out complex job instructions,
and somewhat limited in her ability to function independently;
deal with work stress; maintain attention, concentration and
persistence; follow detailed instructions; and behave in an
emotionally stable manner. (R.221-24).
Over the next two years, plaintiff continued to gain weight. By
July of 1996, she weighed 154 pounds. (R. 388). She continued to
sporadically suffer abdominal pain and nausea, and exams and
tests continued to reveal no etiology. (R. 371-78, 381). In March
of 1997, physicians arrived at a diagnosis of gastritis, and
prescribed Prilosec. (R. 365-68). While plaintiff continued to
seek treatment for abdominal pain from time to time, her weight
was no longer adversely affected. Through the end of 1997, her
weight ranged between 156 and 161 pounds. (R. 336, 338, 342).
Plaintiff began complaining of right shoulder pain in September
of 1997. (R. 357). An MRI on October 3, 1997, revealed arthritic
changes in the cervical spine, including bone spurring and
possible disc protrusion. (R. 323). A tear of the rotator cuff
was apparent in an MRI study of the right shoulder. (R. 321). On October 16, 1998, Thomas Rizzo, Ph.D., conducted another
psychological evaluation of plaintiff at the request of the state
disability agency. (R. 293-302). Plaintiff could recall five
digits forward and four backward. (R. 294). She could not do
serial sevens or serial threes. (R. 294). She could recall just
one word out of five after five minutes. (R. 294). Plaintiff's
scores on the Minnesota Multiphasic Personality Inventory
("MMPI") suggested that she was "faking bad" responses. (R. 295).
As a result, Dr. Rizzo felt those test scores were invalid. (R.
295-96). He did, however, observe that she was suffering from
depression secondary to chronic pain based on his examination.
(R. 296). IQ testing revealed plaintiff to have a full scale IQ
of 78, which was considered in the borderline range. (R. 296).
She exhibited some mild deficiencies in abstract thinking and
nonverbal problem solving. (R. 296). She was somewhat limited in
her fund of general and school-based knowledge, and in her
ability to perform arithmetic, especially division and
multiplication. (R. 296). Dr. Rizzo found plaintiff markedly
limited in her ability to perform activities within a schedule
and maintain attendance and punctuality. (R. 300). He found her
moderately limited in the ability to sustain an ordinary routine
without supervision. (R. 300). Dr. Rizzo concluded that plaintiff
had low average to borderline intellectual capacity, and
depression secondary to her chronic pain. (R. 302).
Dr. Karen Leone performed a physical examination of plaintiff
on November 12, 1998. (R. 303-311). Plaintiff reported that she
suffered from diabetes, abdominal pain, and hypertension. (R.
303-04). Regarding her diabetes, plaintiff said her toes were
numb, and that she had been told her kidneys were working at half
of normal efficiency. (R. 303). She was insulin dependent. (R.
304). Plaintiff stated that her abdominal pain was due to an error during her gallbladder surgery. (R. 303). She said she
suffers episodes of pain with some nausea six to seven times a
month. (R. 303). Her weight was no longer affected, and Dr. Leone
noted that plaintiff weighed 163 pounds. (R. 303-04). Plaintiff
reported that her hypertension was controlled by medication. (R.
304). She also reported that she had an MRI of her right shoulder
that revealed protruding discs in her neck. (R. 304). Physical
examination was essentially unremarkable. There was a large cyst
on the right shoulder and some limitation of motion there, but
all other joints were normal. (R. 306). There was tenderness in
her knees, however. (R. 306). Range of motion throughout the
spine was normal, but there was tenderness in the neck. (R. 306).
Reflexes were 2 and equal bilaterally; sensation and motor power
were normal. (R. 306). Gross and fine manipulation were normal.
(R. 306). Dr. Leone opined that plaintiff could lift 50 pounds
and carry 25. (R. 308). She felt plaintiff had no limitations on
her ability to sit, stand, or walk. (R. 309). She also felt
plaintiff could climb or balance only occasionally, and should
not work at heights. (R. 310).
Plaintiff testified that she lived on the second floor of a
two-flat with two of her daughters. (R. 34). According to
plaintiff, when she had her gallbladder surgery, the surgeon
damaged a nerve and this led to all of her abdominal problems.
(R. 37-38). Despite taking medication for her pain, plaintiff
said it did not let up and she was constantly going in to see
doctors. (R. 38). Plaintiff testified that she was unable to eat
and lost a great deal of weight. (R. 38). She said she was
essentially bedridden for three years, until about 1997. (R.
38-39, 41). She testified that her abdominal pain was not as
severe currently, (R. 42). Plaintiff testified that she no longer took
medication for her abdominal pain, and had not taken any since
about 1998. (R. 46). She described her current pain as more of a
pressure that was not so unbearable that she could not function.
(R. 46). Plaintiff also testified that she had developed right
shoulder pain and numbness down that arm to her hand (R. 42).
She said the pain in her shoulder prevented her from reaching
over her head. (R. 47). Plaintiff also explained that the problem
in her right shoulder adversely affected her ability to sign with
her right hand (R. 48). When she attempted to sign at a
volunteer event, she was unable to do the entire event because
her hand went numb. (R. 49). She stated that one of her kidneys
was not functioning properly. (R. 43). She also said she got a
tingling sensation from her diabetes. (R. 43-44). Her glucose
level was usually about 200. (R. 43). Plaintiff testified that
she took insulin and blood pressure medication, and formerly took
medication for depression and anxiety years ago. (R. 49).
Plaintiff testified that she became depressed when she lost her
home to foreclosure. (R. 53). According to plaintiff, she had a
"religious experience" in which she saw a vision of an angel that
turned into a man. (R. 51-52).
Plaintiff related her daily routine. She said that she usually
bathed in the morning when she got up, and would help her
daughter a little with housework. (R. 54). She said she watched
television or read, and would sometimes go to the mall. (R. 54).
Plaintiff indicated that she could walk for about a half-hour
before her back would hurt. (R. 55). She might play with her
grandchildren or take care of them for an hour or so. (R. 56-57).
She said that she went to church twice a week for two or three
hours. (R. 59). Medical Experts' Testimony
Dr. Paul Glickman reviewed plaintiff's medical records and
testified as a medical expert ("ME"). (R. 64-70). The doctor
noted that plaintiff had insulin dependent diabetes, with a
number of episodes of elevated blood sugar, but no end organ
damage. (R. 64). He said there was a single incidence of elevated
creatinine*fn2 levels, but no evidence of renal
insufficiency. (R. 64). Dr. Glickman also noted that the medical
evidence demonstrated that plaintiff had cervical disc disease
and a partially torn right rotator cuff. (R. 65). The doctor
reviewed the history of plaintiff's abdominal complaints noting
that, aside from gastritis, there was no documented diagnosis as
to what the problem might be. (R. 65). He indicated that none of
plaintiff's impairments, singly or in combination, met or equaled
a listed impairment. (R. 66). As for plaintiff's exertional
limitations, Dr. Glickman felt that her shoulder problem limited
her ability to lift and perform repetitive motions with her right
arm. (R. 67). He did not feel it should limit her ability to
sign. (R. 67). He did, however, feel that she could probably not
even lift ten pounds repetitively with her right arm and no more
than twenty with her left. (R. 67). Dr. Glickman stated that
there was no evidence of any impairment that would affect
plaintiff's ability to stand or walk. (R. 67)
Dr. Robert Marquis, a psychiatrist, also testified as an ME
after reviewing the record. (R. 70-79, 404-06). He said he had a
difficult time finding that plaintiff had a severe non-exertional
impairment. (R. 70). Dr. Marquis noted that, although plaintiff's
consultative exams had indicated she was depressed, she
demonstrated a full range of affect during the hearing. (R. 70).
There was no history of psychological treatment, but weight loss might have been consistent with depression. (R. 70). The doctor
noted that testing suggested plaintiff tended to exaggerate her
psychological problems. (R. 71). In response to questioning from
plaintiff's attorney, Dr. Marquis indicated that he did not
disagree with the conclusions of the consultative examiners, Drs.
Rizzo and Knopf. (R. 73-74). More specifically, Dr. Marquis said
that he could not disagree with Dr. Rizzo's opinion that
plaintiff was markedly restricted in her ability to perform
activities within a schedule and maintain regular attendance as
of October of 1998. (R. 75). Nor could he disagree with Dr.
Knopf's opinion that in May of 1996, plaintiff had only a fair
ability to deal with work stress, function independently, or
maintain concentration or persistence. (R. 75). He then testified
that he could not find anything in Dr. Rizzo's report that would
indicate the source of a marked restriction in the ability to
perform activities within a schedule and maintain regular
attendance. (R. 75).
Vocational Expert's Testimony
Finally, Thomas Dunleavy testified as a vocational expert
("VE"). (R. 79-90). In response to questioning from the ALJ, the
VE indicated that a person of plaintiff's age, education, and
work experience, and who could perform medium work would be able
to perform plaintiff's past work as a sign language interpreter
and building manager. (R. 85). The VE also indicated that a
person who was limited to simple, unskilled work could not
perform those jobs. (R. 85). He also testified that an individual
limited to lifting 10 pounds occasionally and five pounds
frequently, and who had no restrictions on sitting, standing,
walking, or manipulation could perform plaintiff's past work. (R.
86). The VE further testified that such a person could perform
plaintiff's past work even if she could not lift her right arm over her head. (R. 86). In addition, the VE stated that
a person who was markedly limited in the ability to maintain
regular attendance and perform activities within a schedule would
not be able to perform any of plaintiff's past work. (R. 87). A
person who had a fair ability to maintain attention and
concentration, and persistence at work, according to the VE,
would be able to perform plaintiff's past work. (R. 88-89).
The ALJ's Decision
Based on the record as a whole, the ALJ issued a partially
favorable decision. Accepting the plaintiff's alleged onset date
of January 1, 1993, the ALJ found that plaintiff was disabled
from that date until April 4, 1995, but not disabled thereafter.
(R. 21-22). As such, he granted plaintiff a closed
period*fn3 of disability and WIB from January 1, 1993,
through April 3, 1995. (R. 22). More specifically, during that
period, the ALJ found that plaintiff had the residual functional
capacity ("RFC") to stand or walk no more than two hours a day,
sit for six to eight hours a day with frequent breaks, and lift
not more than ten pounds. (R. 21-22). This, ths ALJ concluded,
was not a capacity that would even allow plaintiff to perform a limited range of sedentary work. (R. 22).
As of April 4, 1995, however, the ALJ determined that plaintiff
could perform any work except for lifting over 50 pounds
occasionally and 25 pounds frequently, as long as there was no
overhead lifting. (R. 22). According to the ALJ, this residual
functional capacity would allow plaintiff to perform her past
relevant work as a sign language interpreter. (R. 22).
The ALJ determined that plaintiff did not have a severe mental
impairment at any point during the relevant period, including
prior to April 4, 1995. (R. 20-21). In so doing, the ALJ
considered Dr. Rizzo's findings, specifically regarding
plaintiff's marked limitation in ability to perform activities
within a schedule and maintain regular attendance, and
plaintiff's borderline intelligence. (R. 20). The ALJ rejected
the marked limitation finding based on Dr. Marquis's testimony
that plaintiff's MMPI score was invalid. (R. 20). He rejected the
finding of borderline intelligence based on plaintiff's work
history as a sign language interpreter, and on Dr. Marquis's
testimony that there was no evidence of a significant
nonexertional impairment. (R. 20). Accordingly, the ALJ did not
consider plaintiff's mental or psychological condition to result
in any limitations on her ability to work.
Standard of Review
The applicable standard of review of the Commissioner's
decision is a familiar one: the court must affirm the decision if
it is supported by substantial evidence. 42 U.S.C. §§ 405(g).
Substantial evidence is such relevant evidence as a reasonable
mind might accept to support a conclusion. Binion v. Chater,
108 F.3d 780, 782 (7th Cir. 1997), citing Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). The
court may not reweigh the evidence, or substitute its judgment
for that of the Commissioner. Binion, 108 F.3d at 782. Where conflicting evidence would allow reasonable
minds to differ as to whether the plaintiff is disabled, the
Commissioner has the responsibility for resolving those
conflicts. Id. Conclusions of law are not entitled to such
deference, however, so where the Commissioner commits an error of
law, the court must reverse the decision regardless of the volume
of evidence supporting the factual findings. Id.
While the standard of review is deferential, the court cannot
act as a mere "rubber stamp" for the Commissioner's decision.
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). In
order for the court to affirm a denial of benefits, the ALJ must
have "articulated" the reasons for his decision at "some minimum
level." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir.
2001). This means that the ALJ "must build an accurate and
logical bridge from [the] evidence to [the] conclusion." Id.
Although the ALJ need not address every piece of evidence, the
ALJ cannot limit his discussion to only that evidence that
supports his ultimate conclusion. Herron v. Shalala,
19 F.3d 329, 333 (7th Cir. 1994). The ALJ's decision must allow the
court to assess the validity of his findings and afford the
plaintiff a meaningful judicial review. Scott, 297 F.3d at 595.
The Social Security Regulations provide a five-step sequential
inquiry to determine whether a plaintiff is disabled:
1) is the plaintiff currently unemployed;
2) does the plaintiff have a severe impairment;
3) does the plaintiff have an impairment that meets
or equals one of the impairments listed as disabling
in the Commissioner's regulations;
4) is the plaintiff unable to perform her past
relevant work; and 5) is the plaintiff unable to perform any other work
in the national economy.
20 C.F.R. §§ 404.1520; Scheck v. Barnhart, 357 F.3d 697
(7th Cir. 2004). An affirmative answer leads either to the
next step or, on steps 3 and 5, to a finding that the plaintiff
is disabled. 20 C.F.R. § 404.1520; Stein v. Sullivan,
892 F.2d 43
, 44 (7th Cir. 1990). A negative answer at any point, other
than step 3, stops the inquiry and leads to a determination that
the plaintiff is not disabled. 20 C.F.R. § 404.1520; Stein,
892 F.2d at 44. The plaintiff bears the burden of proof through step
four; if it is met, the burden shifts to the Commissioner at step
five. Brewer v. Chater, 103 F.3d 1384, 1391 (7th Cir.
The plaintiff finds several faults in the ALJ's opinion. While
the plaintiff does not disagree that there was evidence that her
condition medically improved as of April 4, 1995, she contends
that her condition still did not allow for the performance of
substantial gainful activity. (Memorandum in Support of
Plaintiff's Motion for Summary Judgment, at 6-7). The
plaintiff's contentions focus on the ALJ's evaluation of her
mental or psychological condition. More specifically, she argues
that the ALJ erred in finding she did not have a severe mental
impairment, and failed to determine the mental demands of her
past work as an interpreter for the deaf. (Id., at 7-12).
Finally, the plaintiff calls into question the ALJ's
determination that she has the capacity to perform work involving
lifting 50 pounds occasionally and 25 pounds frequently. (Id.,
Plaintiff's Mental Impairment
In cases where a plaintiff presents evidence that he suffers
from a mental impairment, those regulations prescribe a "special
technique" the ALJ must follow. 20 C.F.R. 404.1520a(a). Under the predecessor to the current
regulation, which is applicable to this case, this included the
requirement that the ALJ complete a "Psychiatric Review Technique
Form" and append it to his decision. Stambaugh v. Sullivan,
929 F.2d 292, 295 (7th Cir. 1991). The ALJ did so here, and as
already noted, indicated that plaintiff had an affective disorder
depression due to chronic pain which resulted in only slight
restrictions on daily living, slight difficulties in maintaining
social functioning, seldom resulted in a failure to complete
tasks in a timely manner, and never resulted in an episode of
decompensation. (R. 25-26). Under the regulations, these levels
of functioning generally indicate that a mental impairment is not
severe, 20 C.F.R. § 404.1520a(d)(1), which is what the ALJ
concluded in this case. A review of the evidence underlying that
conclusion and the manner in which the ALJ addressed it, however,
requires that this case be remanded for another evaluation of
plaintiff's mental impairments.
An impairment is severe if it significantly limits the
plaintiff's "physical or mental ability to do basic work
activities." 20 C.F.R. §§ 404.1520(c). This is not a formidable
threshold. An impairment is not severe if the "medical evidence
establishe[s] only a slight abnormality or combination of slight
abnormalities which would have no more than a minimal effect on
an individual's ability to work." Titles II and XVI; Medical
Impairments That Are Not Severe, Social Security Ruling 85-28. In
addition, in determining whether a plaintiff has a severe
impairment, the ALJ must consider the combined effect of all of a
plaintiff's impairments, without regard to whether any individual
impairment might not be severe. 20 C.F.R. § 404.1523. In this
instance, there is evidence in the record two psychological evaluations that would seem to indicate that
plaintiff has a severe mental impairment.
The evidence regarding plaintiff's mental condition consists of
two consultative examinations; one by Dr. Knopf in May of 1996,
and one by Dr. Rizzo in October of 1998. Dr. Knopf found
plaintiff to be suffering from an adjustment disorder, with
anxiety and depressed mood. (R. 221). His IQ testing revealed
plaintiff to have a full scale IQ of 83, which was low average,
and a performance IQ of 79, which placed plaintiff in just the
eighth percentile. (R. 218-20). Based on his evaluation, Dr.
Knopf felt plaintiff's ability to follow complex job instructions
was seriously limited. (R. 222-23). He also found her abilities
to deal with work stress, function independently, maintain
attention and concentration, persist at tasks, and follow
detailed instruction were all limited but satisfactory. (R.
222-23). Dr. Rizzo found plaintiff to be suffering from
depression secondary to her chronic pain. (R. 296). He, too,
conducted IQ testing, in which plaintiff scored a 78 in full
scale IQ and an 80 in performance IQ. (R. 296). He essentially
concurred with Dr. Knopf insofar as plaintiff's intellectual
capacity was concerned: low average to borderline. (R.
302).*fn4 Dr. Rizzo felt plaintiff's ability to perform
within a schedule and maintain attendance and punctuality was
markedly limited, and that her ability to sustain a routine
without special supervision was moderately limited. (R. 300).
Both Drs. Knopf and Rizzo, then, found plaintiff to suffer from
depression, have an intellectual capacity in the low average to borderline range, and
exhibit some marked or moderate limitations in activities related
to concentration, persistence or pace. Again, these findings
would seem to suggest that plaintiff's mental impairment could
not be cavalierly dismissed as not severe.
The ALJ did not mention Dr. Knopf's report at all in his
decision. Although the ALJ need not provide a written evaluation
of each piece of evidence in the record, neither can he select
and discuss only that evidence that favors his ultimate
conclusion. Herron, 19 F.3d at 333. Here, the ALJ did not even
discuss a piece of evidence that tends to demonstrate that
plaintiff has a severe impairment. Worse, Dr. Knopf's IQ findings
support those of Dr. Rizzo, which the ALJ summarily rejected.
Some discussion of Dr. Knopf's findings, then, was necessary in
this case in order that the ALJ might provide a minimal
articulation of his analysis.
As already noted, the ALJ did discuss Dr. Rizzo's report. In so
doing, he discounted it by relying on Dr. Marquis's testimony and
plaintiff's work history as a sign language interpreter. An ALJ
can reject an examining medical source's opinion only for reasons
supported by substantial evidence in the record. Gudgel v.
Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Under the
regulations, the ALJ must generally consider whether an examining
source's opinion is supported by evidence, is consistent with the
medical record, and whether that source is a specialist in the
relevant area. 20 C.F.R. 404, 1527(d). Here, the ALJ sought to
follow this regulation in a somewhat cursory fashion, by
referring to the testimony of Dr. Marquis. The ALJ indicated that
Dr. Marquis had testified that plaintiff's MMPI score suggested
she had "faked" bad results, and that there was no evidence of
any significant nonexertional impairment. (R. 20). The ALJ also
rejected Dr. Rizzo's test results indicating plaintiff was of
borderline intelligence; the ALJ found that plaintiff could not
have worked as a sign language interpreter if her intellect were
that low. (R. 20). Instead, the ALJ determined that plaintiff did
not have a severe mental impairment.
The twin pillars upon which the ALJ based his conclusion Dr.
Marquis's testimony and plaintiff's past work fail to provide
adequate support for his rejection of Dr. Rizzo's evaluation. In
his testimony, Dr. Marquis did, indeed, call into question the
results of the MMPI that Dr. Rizzo administered; but so did Dr.
Rizzo. In fact, Dr. Rizzo indicated that the MMPI results played
no part in his evaluation of plaintiff. (R. 295-96). Thus, Dr.
Marquis's criticism of the MMPI results does not provide a basis
for rejecting Dr. Rizzo's findings. Beyond that, Dr. Marquis's
overall testimony regarding the record and plaintiff's mental
impairments was, at best, equivocal. He seemed to both agree and
disagree with the doctors' reports, and to the extent he might
have disagreed, his reasoning was questionably supported. Review
of his testimony reveals that it cannot provide substantial
evidence to support the ALJ's rejection of Dr. Rizzo's findings.
First, Dr. Marquis's opinion of plaintiff's mental condition
and his criticisms of the reports of Drs. Knopf and Rizzo appear
to be based, in large part, upon his observations of plaintiff
during the hearing on June 9, 1999. He testified that:
[a]t this time . . . I would have a difficult time
saying that I can find any non-exertional impairment
that would be considered severe . . . At the present
time, she's showing pretty full range of affect. I
don't have history. She had a history of weight loss
that would be consistent with depression, but now
that's returned. And she seems to be able to interact
with other people appropriately.
(R. 70). This opinion, then, would not necessarily conflict with
reports of plaintiff's condition in May of 1996 or October of
1998. As the Seventh Circuit has explained:
It is not inconsistent, particularly when considering
mental impairments, that a claimant might have
periods of psychiatric episode, as well as periods of
remission, yet still be classified as disabled under
the governing regulations.
Sears v. Bowen, 840 F.2d 394
, 400 (7th Cir. 1987). Thus,
plaintiff's failure to manifest any overt symptoms of a
psychiatric disorder at that time of the hearing does not provide
an adequate reason to reject the conclusions expressed in earlier
psychological reports. In fact, Dr. Marquis testified that he had
no reason to disagree with the conclusions of Dr. Knopf or Dr.
Rizzo as to plaintiff's mental condition at the time of their
exams. (R. 73-75).
Finally, we note that elsewhere in his testimony, Dr. Marquis
did express actual disagreement with Dr. Rizzo's report: he said
there was nothing in Dr. Rizzo's report to substantiate his
finding that plaintiff was restricted in her ability to perform
activities within a schedule. (R.75). In so doing, however, Dr.
Marquis failed to consider plaintiff could not complete serial
sevens or threes, or that her borderline IQ might impact upon her
abilities. (R. 77-78). Both of these test results would seem to
provide support for Dr. Rizzo's findings as to plaintiff's
limitations in the area of concentration. persistence, and
As already noted, the ALJ rejected out of hand Dr. Rizzo's
conclusion that plaintiff was limited by her low average to
borderline intellect, despite the fact that it was based on IQ
testing and consistent with Dr. Knopf's testing in 1996.
According to the ALJ, this simply could not be accurate given plaintiff's history of working as an
interpreter for the deaf. It is inappropriate, however, for the
ALJ to rely on plaintiff's work history to dismiss evidence of a
mental impairment. Rohan v. Chater, 98 F.3d 966, 970 (7th
Cir. 1996). Here, there was no suggestion that Dr. Rizzo's IQ
testing was invalid and, in fact, Dr. Rizzo's results were
consistent with those of Dr. Knopf. Furthermore, in any
circumstance, the mere fact that plaintiff might be able to work
despite an impairment does not indicate the impairment is not
severe. Obviously, under the five-step evaluation, it is assumed
there are many severe impairments that do not preclude work;
otherwise, every case would end at step two.
The record in this case contains evidence that plaintiff
suffers from a severe mental impairment, be it borderline
intelligence or depression or a combination of both, consisting
of two psychological evaluations by examining sources. The ALJ
ignored one evaluation and rejected the other. While the ALJ may
reject such evidence, he cannot do so without providing adequate
reasoning, and the reasoning he provides must be supported by
substantial evidence. In this instance, we cannot find Dr.
Marquis's equivocal testimony and the ALJ's observations
regarding plaintiff's past work history provide such evidence. As
such we cannot find that the ALJ's finding at step two regarding
plaintiff's mental condition is supported by substantial
evidence. Accordingly, the court must remand this matter to the
Commissioner for further proceedings.
On remand, should the ALJ properly conclude that plaintiff does
not have a severe mental impairment, the parties agree that her
physical condition would not preclude her from performing her
past work as an interpreter for the deaf. (Memorandum in Support
of Plaintiff's Motion for Summary Judgment, at 14; Plaintiff's
Reply Brief, at 6). Should the ALJ instead conclude that
plaintiff does have a severe mental impairment, he would be
required to determine the effect that impairment would have on
plaintiff's ability to perform her past work. 20 C.F.R. § 404.
1520a(d)(3) (if a mental impairment is severe, but does not meet
the listings, the ALJ must assess the plaintiff's RFC).
Conceivably, the ALJ's analysis might take him or her beyond step
four a conclusion that plaintiff's mental condition prevents
her from performing her past work and on to step five, which
would require a determination as to whether plaintiff could
perform other work. As such, this would implicate the plaintiff's
physical RFC, and the ALJ's finding as to that issue in this case
merits brief comment.
The ALJ determined that the plaintiff had the RFC to perform
all work "except for lifting in excess of 50 pounds occasionally
and 25 pounds frequently so long as there was no significant
overhead lifting involved." (R. 21-22). According to the ALJ's
opinion, this finding was based on Dr. Glickman's testimony at
the administrative hearing. (R. 19). Clearly, however, Dr.
Glickman testified that plaintiff could not even lift 10 pounds
with her right hand, and could not repetitively lift 20 pounds
with either hand (R. 67). Basically, Dr. Glickman felt plaintiff
was limited to sedentary work. (R. 67). This is far more
restrictive than the ALJ's finding. Obviously, the ALJ
mischaracterized Dr. Glickman's testimony and, as such, his RFC
finding is not based on substantial evidence. On remand, should
the plaintiff's RFC be an issue, the ALJ will have to make a new
For the foregoing reasons, the court grants summary judgment in
favor of the plaintiff, Betty Lowe, denies the Commissioner's
motion for summary judgment, and remands this case to the
Commissioner for further proceedings consistent with this