United States District Court, N.D. Illinois, Eastern Division
November 22, 2004.
MICHAEL DEPKE, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security Defendant.
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM OPINION AND ORDER
Michael Depke applied to the Social Security Administration for
Disability Insurance Benefits under Title II and Supplemental
Social Security Income benefits under Title XVI of the Social
Security Act. After an administrative hearing, an Administrative
Law Judge denied Depke's application on November 29, 2001. The
Appeals Council denied Depke's request for review and Depke filed
this action to review the ALJ's decision.
On November 23, 1999, Depke filed an application with the SSA
for Title II DIB and on December 9, 1999, he filed an application
for Title XVI SSI benefits, both alleging that he had become
disabled on October 1, 1999, because of his emphysema,
osteoporosis, depression, anxiety disorder, obsessive compulsive
disorder, and hearing loss. (Tr. 23-25). Following a hearing held
on June 6, 2001, an ALJ denied Depke's claim finding that Depke
could not perform any of his past relevant work, but that he had
the residual functional capacity to perform a significant range
of sedentary work or some light exertion work. (Tr. 29). On
September 5, 2003, the Appeals Council denied Depke's request for review, causing the ALJ's decision to
constitute the final decision of the Commissioner of Social
Security. (Tr. 8, 10).*fn1
At the time of his application, Depke was 43 years old. (Tr.
323). Depke had finished ninth grade and had worked for 24 years
(from 1973-1999, excluding a two year period between 1995 and
1997) as a customer service representative in an automotive parts
warehouse. (Tr. 165, 170).
Depke first visited Dr. Greg Daly on June 3, 1999 for a general
physical examination. (Tr. 248). At the time, Depke reported some
hearing loss, chronic knee pain, and requested a chest x-ray, a
knee x-ray, an audiogram, and a referral to an eye doctor. (Tr.
248). A month later, Depke returned to Dr. Daly, who noted that
his chest x-ray showed severe bullous emphysema and recommended
to Depke that he stop smoking. (Tr. 248). Dr. Daly also noted
that Depke appeared to suffer from osteoporosis in his knees and
ordered a dexascan to evaluate Depke's bone density. (Tr. 248).
The results of the dexascan revealed that Depke suffered from
osteopenia in his spine and femoral neck. (Tr. 257).
On October 4, 1999, Depke informed Dr. Daly that he was
experiencing some depression and had periodic bouts of depression
in the past. (Tr. 247). Dr. Daly recommended that Depke seek
psychiatric assistance, prescribed medication to treat his
depression, and wrote a note explaining that Depke should refrain
from work because of his depression and osteoporosis. (Tr. 247).
On October 15, 1999, Depke first visited with Dr. Salvatore
Meccia for his depression (Tr. 220). Dr. Meccia wrote a general
note requesting that Depke's absence from work be excused (but
failing to specify any time-period for the absence), and noting that his next
appointment was scheduled for October 22. (Tr. 220). Dr. Meccia
diagnosed Depke with depression and a moderate anxiety disorder
and prescribed Paxil for his depression and clonazepam to address
his anxiety disorder. (Tr. 218, 263).
On October 29, 1999, Depke saw Dr. Richard S. Crawford for
further evaluation of his osteoporosis. (Tr. 208-10). Dr.
Crawford observed that Depke was "still somewhat young to develop
his degree of bone loss." (Tr. 210). Dr. Crawford also
recommended that Depke refrain from heavy-lifting (70 pound
weights) and suggested that Depke may need to change jobs if
heavy-lifting continued to be a requirement of his employment.
(Tr. 210). Dr. Crawford prescribed medication to treat his
osteoporosis and recommended further tests to "rule out other
etiologies of osteoporosis." (Tr. 210). A week later, Dr. Daly
wrote Depke a short note on a prescription form, stating that
Depke was "completely disabled [and] no longer capable of manual
labor of any kind." (Tr. 242). On November 12, Dr. Daly wrote a
memo, opining that Depke "will be medically disabled for greater
than one year." (Tr. 241). Early in 2000, Dr. Daly began
prescribing Celebrex to help Depke control the pain resulting
from the osteoporosis. (Tr. 240). Depke also tried other
prescription medication as well as Tylenol to control his pain,
but had only transient or incomplete relief. (Tr. 285, 302). A
year later, in October 2000, Dr. Crawford speculated that
degenerative joint disease was causing Depke's pain, noting that
his osteopenia would not normally cause joint pain and suggesting
an orthopedic or rheumatology referral. (Tr. 286).
As a result of his application for DIB and SSI benefits, Depke
had several consultative examinations. Dr. Maung Win conducted a
30-minute examination of Depke on December 11, 1999. (Tr.
227-230). Dr. Win found no spinal deformities and observed a full
range of motion without any paraspinal tenderness or spasm. (Tr.
229). Dr. Win, however, could not delineate a cause for Depke's knee pain but would not rule out metabolic bone
disease. (Tr. 230). On January 5, 2000, Dr. Ashok Gupta performed
a 45-minute consultative psychiatric examination of Depke. (Tr.
235-237). Depke complained to suffer from anxiety attacks every
other day that limited him to the house. (Tr. 235). Dr. Gupta
observed that both mood and affect were depressed and that
Depke's speech was underproductive with decreased spontaneity.
(Tr. 236). Dr. Gupta diagnosed panic disorder with agoraphobia
and an adjustment order with depression. (Tr. 236). Dr. Gupta
noted Depke's GAF(global assessment of functioning) was 55,
placing Depke's symptoms in the moderate range. (Tr. 237).
Several doctors examined Depke's medical records to evaluate
his limitations. Dr. Mohan Singh found that Depke had a severe
impairment that did not meet or equal a listed impairment and
thus required a residual functional capacity (RFC) assessment.
(Tr. 276). Dr. Singh concluded that Depke had slight restrictions
upon daily living, slight to moderate difficulties in maintaining
social functioning, and seldom to often experienced deficiencies
in concentration. (Tr. 283). Charles S. Harris, Ph.D., then
assessed Depke's RFC, finding that his mental impairments were
mildly to moderately severe and would somewhat restrict his pace,
concentration, and adaptation in detailed jobs. (Tr. 266). Harris
also found that Depke was moderately limited in his ability to
interact appropriately with the general public. (Tr. 265).
Ultimately, Harris concluded that Depke was capable of performing
simple, unskilled jobs. (Tr. 266). Dr. Henry S. Bernet found that
Depke's osteoporosis limited him to lifting no more than 50
pounds occasionally and 20 pounds frequently, standing or walking
no more than 6 hours a day, and required him to avoid moderate
exposure to environments with excess noise or vibration. (Tr.
270-272). In addition to the RFC evaluations, the DDS also received a
psychiatric report from Dr. Meccia. (Tr. 261). As of March 24,
2000, Dr. Meccia noted that Depke had decreased sleep, appetite,
and concentration and increased anxiety and depression. (Tr.261).
Dr. Meccia commented that Depke's psychological limitations were
secondary to his physical limitations. (Tr. 261). But ultimately,
Dr. Meccia concluded that Depke was unable to work because of his
physical disability and decreased concentration and focus. (Tr.
263). In June 2000, Dr. Daly wrote a clinical note explaining
that he believed Depke was clearly disabled and had great
difficulty walking. (Tr. 302). Three months later, Dr. Daly
repeated his belief that Depke was unable to perform "any type of
official labors" and observed that Depke was severely depressed.
At the hearing before the ALJ, Depke testified that he cooked
and cleaned with some difficulty, requiring frequent breaks, and
shopped two or three times a week for short trips. (Tr. 47-48,
66-67). Depke testified that after walking for one block, he
would need to take a break because of the pain in his knees and
also that after 15-20 minutes of sitting his knees would stiffen.
(Tr. 50, 63). He rated his pain as a 9 on a 1-10 scale. (Tr. 59).
Depke explained that he did not feel depressed because the
medication and visits with his psychiatrist had helped him. (Tr.
56-57). But Depke also testified that he suffered from about five
10-minute panic attacks per week. (Tr. 57-58).
Dr. Irving Zitman reviewed Depke's medical records and also
testified at Depke's hearing. (Tr. 68). Dr. Zitman testified that
there was insufficient evidence to determine the severity of
Depke's complaints, but that they "sound[ed] severe." (Tr. 69.
74). Dr. Zitman testified that there was no evidence that Depke
suffered from a degenerative disease and no test had been done to
determine whether Depke suffered from an inflammatory arthritic
disease. (Tr. 69-70). Dr. Zitman opined that Depke's treating
doctors did not know what is wrong with Depke, that the
osteopenia and osteoporosis that he suffered from were asymptomatic, and
that the lack of bone density revealed by the dexascan should not
cause any pain unless the bones began to break. (Tr. 70-72). Dr.
Zitman also noted that the medicine taken by Depke had been
working, as his bone density had increased by three-and-a-half
percent. (Tr. 75). Dr. Zitman testified that a battery of tests
would be needed to determine the causes of Depke's pain, but that
he believed him to be credible. (Tr. 76-77).
Dr. Zitman noted that there was evidence of osteoarthritis two
years ago (when Depke first filed the claim), but that it might
have worsened. (Tr. 77). Initially, Dr. Zitman believed that
Depke was capable of performing light work. (Tr. 77). But when
cross-examined, Dr. Zitman testified that he did not believe
Depke could stand 6 hours a day, which is a threshold for
performing light work. (Tr. 79). After further cross-examination,
Dr. Zitman testified that the medical evidence in the record was
insufficient to make any assessment of Depke's RFC. (Tr. 80). Dr.
Zitman explained that two other doctors (Dr. Crawford and Dr.
Daly) opined that Depke suffered from a degenerative joint
disease but he saw no evidence of it in the record. (Tr. 84-85).
Nevertheless, Dr. Zitman opined that he "think[s] [Depke's] got
it, too." (Tr. 85).
Finally, the ALJ asked the vocational expert to assume that
Depke was capable of light exertional work of an unskilled an
simple nature, could stand for four hours and six for six hours
in an eight hour workday, could occasionally climb stairs, but
not ladders, could not squat or crouch, but could frequently
stoop or kneel, and needed to avoid prolonged exposure to high
levels of noise, vibrations or pollutants. (Tr. 89-90). The
vocational expert then testified that assuming the limitations
described, a person could perform light jobs in assembly (8,000
in region), hand packaging (7,000 in region), and inspection
(6,500) in region. (Tr. 90). The vocational expert also testified that no work would be available for Depke under Dr.
Daly's May 2001 RFC or if Depke's testimony was fully credible.
As a result of Dr. Zitman's testimony that he could not draw a
conclusion from the medical evidence in the record, a final
consultative examination was conducted on July 16, 2001, after
Depke's hearing. (Tr. 309-319). Dr. Richard Shermer reviewed
Depke's medical records and observed that x-rays taken that day
showed spurring and degenerative changes in his lumbar spine,
hips, knees, and ankles. (Tr. 314). Dr. Shermer also noted that
Depke's gait pattern was unsteady on getting up. (Tr. 316). Dr.
Shermer concluded that Depke could lift 20 pounds, stand or walk
for about 6 hours of an 8-hour work day, and occasionally climb,
balance or kneel. (Tr. 317-319). Dr. Shermer further concluded
that Depke should avoid work environments with temperature
extremes, odors, hazards, or excess humidity. (Tr. 320).
The ALJ found Depke not to be fully credible. (Tr. 26).
According to the ALJ, the "medical evidence shows only some mild
degenerative joint disease . . . that does not cause pain or
other symptoms." (Tr. 26). The ALJ also concluded that according
to the testimony of Dr. Zitman the medical assessment provided by
Dr. Daly should be rejected because his conclusions lacked
support in the medical evidence of record. (Tr. 26). As a result,
the ALJ adopted the assessment provided by Dr. Shermer, which he
concluded were consistent with the objective medical evidence.
(Tr. 26). The ALJ concluded that Depke could perform a
significant range of sedentary work and some light exertion work,
and relied on the vocational expert's testimony that there were
several thousands of jobs in the Chicago area that a person with
the limitations found by the ALJ could perform. (Tr. 28-29). On review, a court should affirm the Commissioner's final
decision if there is sufficient evidence on record that a
reasonable mind might accept as adequate to support the same
conclusion. Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir.
1997). Although a court reviews the entire record, it may not
decide facts anew, reweigh the evidence, or substitute its own
judgment for that of the ALJ. Rice v. Barnhart, 384 F.3d 363,
369 (7th Cir. 2004). The ALJ, however, must rationally articulate
the grounds for the decision and build an accurate and logical
bridge from the evidence to the conclusion. Steele v. Barnhart,
290 F.3d 936, 941 (7th Cir. 2002).
Having reviewed the record and the parties' briefs, the Court
concludes that the ALJ's ruling must be reversed and the case
remanded for further consideration. Although the ALJ's
credibility determinations normally are entitled to special
deference because of the ALJ's ability to observe and evaluate
testimony, they must also be sufficiently specific to allow
meaningful appellate review. Brindisi v. Barnhart,
315 F.3d 783, 787 (7th Cir. 2003); Powers v. Apfel, 207 F.3d 431, 435
(7th Cir. 2000). Social Security Rule 96-7p requires ALJ's to
"consider the entire case record, including the objective medical
evidence, the individual's own statements about symptoms,
statements and other information provided by treating or
examining physicians or psychologists and other persons about the
symptoms and how they affect the individual, and any other
relevant evidence in the case record." SSR 96-7p(4); see also
Steele, 290 F.3d at 941-42 (ALJ must contain "specific reasons"
for a credibility finding and may not simply invoke SSR 96-7p).
Further, SSR 96-7p precludes an ALJ from disregarding an
individual's statements about the intensity or persistence of
pain or other symptoms in the record "solely because they are not
substantiated by objective medical evidence." SSR 96-7p(4); see
also Indaranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004);
Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir. 2004). That is, however,
precisely what the ALJ did here. The ALJ rejected Depke's claims
of severe pain in five short lines:
I do not find the claimant to be fully credible. The
medical evidence shows only some mild degenerative
joint disease, mainly at the knees. His osteoporosis,
or its milder version, osteopenia, is a risk factor
(for increased chance of fracture) which would
probably make heavy lifting inadviseable [sic], but
does not cause pain or other symptoms. Thus, I find
the claimants allegation of pain in all joints
without medical support and lacking credibility.
The ALJ never explains why he finds Depke's claims not to be
credible, except that they lack medical support in the record a
ground not permitted as the sole basis to determine credibility.
Nowhere does the ALJ explain precisely what evidence he relies
upon to conclude that "the medical evidence shows only some mild
degenerative joint disease." Nowhere does the ALJ address the
fact that Depke's treating physicians prescribed medication for
his pain. Nowhere does the ALJ consider Depke's accounts of the
limitations of his daily activities. Nowhere does the ALJ address
Dr. Zitman's opinion that, although the medical evidence was
inconclusive, he found Depke to be credible. Nowhere does the ALJ
address the fact that two doctors concluded that Depke suffered
pain from a degenerative joint disease. Nowhere does the ALJ
address Dr. Zitman's belief that these doctors' assessments of
Depke's degenerative joint disease are accurate. Nowhere does the
ALJ address Dr. Zitman's testimony that there is evidence of
osteoarthritis that may have worsened between 1999 and 2001. The
ALJ simply concludes, without any sort of meaningful explanation
of that conclusion, that Depke's "allegations of pain [are] . . .
without medical support" and therefore "lacking [in]
credibility." This violates SSR 96-7p and was improper.
Furthermore, the ALJ also improperly rejected the opinion of
Depke's treating physician. If the ALJ decides not to give
controlling weight to a treating physician's opinion, the ALJ
must support that decision with "good reasons."
20 C.F.R. § 404.1527(d)(2). The contrary opinion of a non-examining physician, in and of itself, is not sufficient
reason to reject the opinion of the treating physician. Gudgel
v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Here, the ALJ
chooses to reject the findings of Depke's treating physician
based on assumptions that are mistaken. The ALJ "agree[s] with
the medical expert at the hearing that the medical assessment
provided by Dr. Daly is to be rejected." But that is not an
accurate interpretation of Dr. Zitman's testimony. Dr. Zitman
testified that there was insufficient evidence for him to
determine the severity of Depke's complaints, not that Dr. Daly's
assessment should be rejected. Dr. Zitman, however, went on to
explain that he believed Depke's complaints to be severe, that he
believed Depke to be credible, and that he believed Depke's
treating physicians (Drs. Daly and Crawford) were likely correct
when they diagnosed him with degenerative joint disease. In other
words, Dr. Zitman never went so far as to suggest that Dr. Daly's
RFC assessment should be rejected only that he lacked evidence
to draw a conclusion. Such an inconclusive opinion cannot form
the basis to reject the opinion of a treating physician.
Gudgel, 345 F.3d at 470.
In this case, the ALJ wholly failed to make a reasonable
connection between the evidence and his finding that Depke was
not credible and his decision to reject the opinion of Depke's
treating physician. The ALJ's opinion ignores the directives of
SSR 96-7p in making credibility determinations and relies upon
mistaken and patently wrong interpretations of Dr. Zitman's
testimony. In short, the ALJ never justifies his conclusions
sufficiently to permit meaningful review and this case must be
remanded to the Social Security Administration for further
proceedings consistent with this opinion.
IT IS SO ORDERED.