United States District Court, N.D. Illinois, Eastern Division
October 13, 2004.
DOROTHY CLEMONS, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
This case arises out of the final decision of the Commissioner
of Social Security (hereinafter, the "Commissioner") denying
Plaintiff's application for a period of disability, disability
insurance benefits ("DIB"), and Supplemental Security Income
("SSI") under 42 U.S.C. §§ 416(i), 423, and § 1382(c)(3)(A).
Before the Court is Plaintiff's motion to reverse the final
decision of the Commissioner and Defendant's motion for summary
judgment. The Court treats Defendant's motion as a motion for an
order affirming the Commissioner's decision. For the following
reasons, the Court denies Plaintiff's motion and grants
Plaintiff Dorothy Clemons applied for DIB and SSI on March 9,
2000, alleging disability that began on June 8, 1995. Plaintiff's
claims were denied initially on October 10, 2000. Plaintiff's application for reconsideration was denied on March 23, 2001.
Subsequently, Plaintiff was granted a hearing before an
Administrative Law Judge (the "ALJ") on April 12, 2002. The ALJ
conducted a de novo review of Plaintiff's claim and issued a
written opinion denying Plaintiff's application for DIB and SSI
on February 11, 2003. The Appeals Council declined Plaintiff's
request for review. Consequently, the ALJ's decision became final
and Plaintiff filed the instant action seeking judicial review.
A. Vocational and Medical History
Plaintiff has ten years of education. She has not worked since
1995, but was previously employed as a packer (roper) at a meat
packing company from 1977 to 1995. Plaintiff also worked as a
cashier and stocker in a shoe store.
On November 10, 1995, Plaintiff was involved in a motor vehicle
accident and went to the emergency room for pain in her right
thigh, knee, back and buttocks. (R. 146-49). Plaintiff's C-spine
and neurology examination were normal, but she was diagnosed with
a knee and finger contusion.
Since the accident in 1995, Plaintiff has frequently sought
medical attention for a variety of alleged medical ailments,
primarily relating to pulmonary infections and back and hand
pain. On January 10, 2000, Plaintiff was seen for chills and a
sore throat. She was not taking any medications at the time. Her
physician indicated that she was not obese, and described her as
a woman who "enjoyed general good health with a history of
pneumonia approximately three years ago." (R. 154, 159).
Plaintiff was diagnosed with right upper lobe pneumonia,
nonspecific bronchial hyperactivity, influenza and arthritis in
her left knee. In late January, tests revealed that Plaintiff had
a minimal obstructive lung defect and a mild decrease in
diffusing capacity. Plaintiff said she felt better in a follow-up
On May 10, 2000, at the request of the Bureau of Disability
Determination Services (the "DDS"), Plaintiff was examined by Dr.
Roopa Karri. (R. 194-97). Plaintiff complained to Dr. Karri that
she had arthritis of the knees and hands for the past 7 years.
After examining Plaintiff, Dr. Karri reported that "the claimant
has no problems with dressing, cleaning or toileting. She drives
and shops rarely. She cooks quick meals. She can stand and sit.
She cannot walk even a block without getting short of breath. She
can go up 3-4 stairs at a time. She can pick up a coin from the
ground." (R. 195). Dr. Karri determined that Plaintiff could
"walk 50 feet without support. She can stand on his [sic] heals
and toes and squat. She can get off and on the table with no
problem . . . Hips, ankles, cervical spine, knees, lumbar spine;
normal." (R. 196). Although Dr. Karri indicated that Plaintiff's
grip strength was reduced to 4/5 in right hand, he determined
that she didn't need an assistive device because she is
left-handed. Dr. Karri also concluded that her neurologic and
mental status examinations were normal, and there were "no signs of depression,
agitation, irritability or anxiety." Id. Dr. Karri's Clinical
Impressions were as follows: "Problem #1: Asthma and emphysema;
Problem #2: Arthritis of the knees, wrists and hands; Problem #3:
Hypertension; Problem #4: History of recent pneumonia." Id.
On July 17, 2000, Dr. Virgilio Pilapil prepared a Physical
Residual Function Capacity Assessment for Plaintiff. This report
concluded that Plaintiff's exertional limitations were lifting
twenty pounds occasionally, ten pounds frequently, standing
and/or walking and/or sitting for six hours in an eight-hour day,
and unlimited pushing and pulling. Her postural limitations were
that she should only occasionally climb, kneel, or crawl, but
that she could frequently balance, stoop, and crouch. Plaintiff's
environmental limitations were unlimited except for the avoidance
of fumes, odors, dusts, gases and poor ventilation. (R. 211,
In August, Plaintiff was seen for a follow-up visit where she
reported that she had no chest pain, cough, palpitations or
edema. Plaintiff's chest x-ray was within normal limits. (R.
205). On May 2, 2001, Dr. Liske diagnosed Plaintiff with acute
bronchitis. Her asthma was controlled. (R. 227). Dr. Liske
continued to examine Plaintiff throughout 2002. On January 9,
2002, Plaintiff had a Spirometry test that revealed a mild
obstruction with small airway response but no air trapping. (R.
230). On January 14, 2002, she was diagnosed with a cough and
bronchitis. On March 18, 2002, Plaintiff was seen by the doctor for complaints of back
pain. On April 10, 2002, two days before the hearing, Plaintiff
had an MRI, which revealed mild back problems. Specifically, the
MRI revealed . . . "mild disc bulging with possible tiny central
disc protrusion and mild facet degenerative . . . caus[ing] mild
central stenosis and minimal, if any, left sided neural foraminal
narrowing . . . asymmetric left side disc bulging . . . that does
not cause significant stenosis . . . disc desiccation . . .
without herniation." (R. 231-232).
B. ALJ Hearing
The ALJ conducted a hearing on April 12, 2002 to review
Plaintiff's application for DIB and SSI. The ALJ questioned
Plaintiff at length regarding her various health-related
complaints, which primarily consisted of asthma, and knee, back
and hand pain. Plaintiff testified that she had not been
hospitalized for her asthma and had not had many asthma flare-ups
because she was prescribed medicine. She testified that, despite
telling her doctor otherwise, she smokes four cigarettes a day.
She indicated her knee was in constant pain and it grew worse in
cold weather. Plaintiff testified that her back pain has become
worse over the past year and she takes any available pain
medicine to relieve her back pain. Plaintiff does not use a cane
for either her back or knee pain. Plaintiff, who is left-handed,
testified that she had right-hand pain, but she told the ALJ that
such pain did not prevent her from using her hand (R. 42). Plaintiff estimated
that she could walk about two hundred feet, stand for about
thirty minutes, sit for about twenty minutes, and reach over head
with her right arm. (R. 45). Plaintiff testified that she cooks,
washes dishes, cleans, dusts, does laundry, talks on the phone,
does personal grooming, visits with people, attends church, and
goes out to eat. (R. 45-48).
The ALJ also interviewed William Schweihs, a vocational expert
(the "VE"). The VE testified about Plaintiff's previous work
experience, classifying her roper-work as heavy and her
cashier-work as light. The ALJ asked the VE:
Q. . . . Let's assume we had a person the same age,
education, and work experience as the claimant and
that person had residual functional capacity for
light work with the following restrictions. They
could only occasionally climb anything, kneel or
crawl, and they would have to avoid concentrated,
prolonged exposure to pulmonary irritants, fumes,
odors . . . Would that person be capable of
performing claimant's past work? (Tr. 59).
The VE testified that such a person could perform other packing
positions and other industrial positions, as well as cashier work
at a light level, which are all unskilled jobs. The VE estimated
that there were 7,000 roping (packing) jobs at the light-level
and in excess of 10,000 cashier jobs at the light-level in the
metropolitan Chicago area that would adhere to the limitation
criteria outlined above. (R. 59-60). The VE also confirmed that his testimony was consistent with the information
contained in the Dictionary of Occupational Titles.
C. ALJ Decision
After a hearing and a thorough review of the record, the ALJ
issued a written opinion denying Plaintiff's DIB and SSI
application on February 11, 2003. The ALJ addressed the issue of
whether Plaintiff was under a "disability" as defined under the
Social Security Act (20 C.F.R. § 404.1520(a) and 416.905(a)) (the
"SSA"). The ALJ conducted the five-part evaluation process
required by 20 C.F.R. § 404. Although the ALJ determined that
Plaintiff had severe osteoarthritis and asthma, the ALJ concluded
that such impairments are not "attended with the specific
clinical signs and diagnostic findings requirement to meet the
requirements . . . of the Listing of Impairments." (R. 13).
The ALJ reviewed Plaintiff's medical history, including her
subjective complaints and objective medical evidence, and
concluded that Plaintiff's subjective allegations were not
credible. As described more fully in the discussion section,
there was at least one instance where Plaintiff may have been
less than forthcoming or provided incomplete information to a
treating physician. In addition, Plaintiff's subjective reports
of pain were not consistent with the underlying medical record.
The ALJ noted that Plaintiff had a residual function capacity
("RFC") for light work and standing for up to six hours of an
eight-hour day, without exposure to pulmonary irritants. Although Plaintiff could no
longer perform her heavy work as a roper, the ALJ concluded that
the Commissioner had met its burden to "show that there are other
jobs, existing in significant numbers in the national economy,
that the claimant can perform, consistent with her RFC, age,
education, and work experience." (R. 14). The ALJ, relying on the
VE's testimony, determined that the Plaintiff has the mental and
physical ability to do a significant number (an estimated 7,000
packing jobs and 10,000 cashier jobs) in the metropolitan Chicago
area alone. Consequently, the ALJ held that Plaintiff had not
been under a "disability" at any time relevant to the decision,
and accordingly the ALJ denied Plaintiff's application for DIB
The ALJ's decision became the final decision of the
Commissioner when the Appeals Counsel declined Plaintiff's
request for review. Plaintiff now seeks to reverse the
Commissioner's decision and Defendant seeks to affirm the
II. LEGAL STANDARD
The Court is limited to reviewing only whether the record
contains substantial evidence to support the agency's decision,
and whether the agency applied proper legal standards. See
Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534,
538 (7th Cir. 1992). Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). A
reviewing court will not "re-evaluate the facts, reweigh the evidence, or
substitute [its] own judgment for that of the Secretary." Luna v.
Shalala, 22 F.3d 687, 689 (7th Cir. 1994).
An individual is "disabled" if he "is unable 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. § 1382c(a) (3) (A). Further, a person is "under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy. . . ." Id. § 1382c(a)
Pursuant to 20 C.F.R. § 404.1520, the ALJ conducts the
following five-part inquiry to determine whether a claimant is
"disabled." First, the ALJ determines if the claimant is
performing substantial gainful activity. Second, the ALJ
determines whether the claimant has a severe
medically-determinable physical or mental impairment for the
duration requirement. Third, the ALJ determines whether the
claimant's severe medically determinable physical or mental
impairment meets or equals one of the listings of Appendix 1 and
the duration requirement. Fourth, the ALJ assesses the claimant's RFC and past
relevant work. If the ALJ determines that the claimant can still
do his/her past relevant work, the claimant is not disabled.
Finally, the ALJ assesses the claimant's RFC, age, education, and
work experience to see if claimant can make an adjustment to
other work, and if so, the claimant is not disabled.
Plaintiff alleges that the Commissioner's decision should be
reversed because the ALJ was patently wrong in his subjective
credibility conclusion, step-three analysis, and step-four
determination. Plaintiff first alleges that the ALJ was wrong in
concluding that Plaintiff's subjective allegations were not
credible and was not sufficiently specific. Defendant responds
that the ALJ's credibility determination should be upheld because
it was supported by the record. Defendant argues that the ALJ
reasonably considered that Plaintiff lied to her consultative
examiner about her smoking habit . . . [which] weighed adversely
on her credibility." (Mem. In Opp. At 13). Further, the ALJ
reasonably considered that Plaintiff had not sought medical
treatment for her alleged disabling knee pain since 1995, and
that Plaintiff testified that her asthma was under control.
The Plaintiff correctly notes that an ALJ's credibility
determination will only be disturbed if patently wrong. The
determination of subjective credibility must "contain specific
reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewer the weight
the adjudicator gave to the individuals' statements and the
reasons for the weight." Griffin v. Calahan, 138 F.3d 1150, 1152
(7th Cir. 1998). Here, the ALJ cited the following specific
reasons for his conclusion that Plaintiff's subjective
allegations were not credible:
The claimant has asthma but medical records and
testimony show she continues to smoke. Nevertheless,
she told a consultative examiner that she was not
smoking. Her treating physician reported in 2000 that
the asthma was under control . . . a pulmonary
function study (PFS) had not shown demonstrable
airway obstruction . . . a [later] PFS was
interpreted as showing only mild obstruction. . . .
The claimant's description of her limitations exceeds
the degree of limitation one would expect to form the
medically determinable underlying pathology. She
testified to severe knee pain . . . but there is no
imaging evidence showing any pathology, and . . . she
has not had any medical treatment of the knee since
. . . 1995. The consultative examiner reported a
non-antalgic gait and no need for an assistive
device. Moreover, the back condition is mild
according to the MRI, and . . . she had a full range
of motion of the hips, ankles and spine, and straight
leg raising was negative for pain. Moreover, there
were no neurological deficits. (R. 14).
The Court concludes that the evidence in the record supports the
ALJ's conclusion regarding Plaintiff's credibility.
Plaintiff also contends that the ALJ's step-three determination
was patently wrong because he "failed to determine the criteria of the listed impairment and compare each individual
point with the medical evidence contained in the administrative
record." (Supp. Mem. at 16). Plaintiff cites as support Brindisi
v. Barnhart, 315 F.3d 783, 786-787 (7th Cir. 2003), a case in
which the Seventh Circuit concluded the ALJ inadequately
supported its step-three determination.
Defendant initially responds that Plaintiff's reliance on
Brindisi is misplaced because unlike Brindisi, here the ALJ
"clearly indicated which listings he considered in his step-three
analysis, namely 1.00 and 3.00. Moreover, ALJ Boyle discussed
Plaintiff's musculoskeletal complaints and the lack of objective
findings to support them as well as Plaintiff's benign pulmonary
impairments." (Def. Mem. at 6). Further, "there is no other
evidence in the record which could have led the ALJ to conclude
that Plaintiff's impairments met or equaled a listing." Id.
Plaintiff did not assert in the hearing or her supporting
memorandum that her conditions met or equaled a specific listing.
Further, there is no evidence that Plaintiff's impairments
actually meet or equal a listing. To the contrary, the "state
agency physicians, who are experts in the disability program,
opined that Plaintiff's impairments did not meet or equal a
listing . . . Plaintiff points to no medical evidence which
contradicts this conclusion such that any of her conditions met
all of the elements of any listing." Id. Here, as previously discussed, the ALJ articulated the
rationale for his conclusions regarding the seriousness of
Plaintiff's medical complaints and the credibility determination.
The ALJ specifically mentioned two listings that he considered
under the step-three analysis. The Court concludes that the
evidence in the record supports the ALJ's conclusion.
Plaintiff finally contends that ALJ step-four determination was
patently wrong because the ALJ ignored evidence favorable to
Plaintiff's condition such as obesity, "dyspnea, thrombocythemia,
pneumonia, recent pneumonia, granulomatous disease and airway
obstruction" (Supp. Mem. at 17). Plaintiff contends that the ALJ
"played doctor" and "succumbed to the temptation to utilize his
own medical hunches in lieu of proper medical authority . . .
Some if the most important medically demonstrated symptoms
expressed by the claimant and supported in the medical record are
not mentioned at all. Accordingly, a false picture of Dorothy's
RFC and her capacity for work was presented in the hypothetical
question." Id. at 18-19, 22.
Defendant responds that the ALJ considered both the objective
medical evidence and Plaintiff's subjective complaints in
assessing her limitations. As to Plaintiff's complaint about back
pain, the ALJ "reasonably considered that the objective findings
showed only `mild' disk bulging with possible `tiny' central disk
protrusion; `mild' degenerative change causing `mild' central
stenosis; `minimal if any' foraminal narrowing; asymmetric left side disc
bulging . . . at L5-S1 that did not cause significant stenosis
but may affect the left S1 nerve root as it exists the thecal
sac; and disc dessication (drying) at the T10-11 level without
herniation." (Def. Mem. at 7).
The Court concludes that the ALJ considered both Plaintiff's
and the VE's testimony at the hearing and conducted a thorough
review of the record in making its decision. The ALJ also applied
the proper analysis in adhering to the five-part test as is
required by the SSA. The Court concludes that there is sufficient
evidence in the record to support the ALJ's decision.
Accordingly, the Court grants Defendant's motion to affirm the
Commissioner's decision, and denies Plaintiff's motion to reverse
the Commissioner's decision.
For the foregoing reasons, the Plaintiff's motion for an order
reversing the Commissioner's decision is DENIED and the
Defendant's motion for an order affirming the decision is
IT IS SO ORDERED.
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