United States District Court, N.D. Illinois, Eastern Division
December 6, 2004.
K. LONG, on behalf of John Long, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff K. Long, the mother of John Long, who died on January
19, 2003, filed this suit on his behalf, seeking review of the
Social Security Administration's decision to deny his claim for
disability benefits. The Commissioner of Social Security has
moved for summary judgment affirming the SSA's decision; Long has
moved for summary judgment reversing the decision and awarding
benefits, or alternatively for a remand. For the reasons stated
below, the Court grants Long's motion, denies the Commissioner's
motion, and remands the case for further consideration.
John Long was born on May 6, 1960, was twenty-eight years old
at the alleged onset of his disability in 1988, and died in 2003
at age forty-two. Long had a high school education and worked as
a carpenter until 1988.
In December 1998, Long applied for Social Security disability
benefits. He alleged that he had become disabled as the result of
an injury to his back that he suffered in June 1988 while lifting
heavy objects at work. Long continued to work until he was
injured a second time, in August 1988, but he was unemployed after that date.
Long suffered two herniated lumbar discs. According to
treatment notes of Dr. Per Freitag, Long's primary treating
physician from 1988 until 1999, and Dr. Lori Portnoy, Long's
treating chiropractor, Long had persistent lower back pain and
sharp pain down his right leg, with associated numbness and
tingling in his right foot. R. 20, 360. Long underwent two back
surgeries, a percutaneous lumbar diskectomy and a microscopic
right hemilamenectomy, in November and December 1988. Following
surgery, Long entered physical therapy and attended monthly
appointments with Dr. Freitag. In the months after surgery, Long
suffered from spasms, numbness, and limited range of motion, and
Dr. Freitag opined that he had a "slow and far from satisfactory
progress." R. 268-69.
In September 1989, based on a recommendation from Dr. Freitag,
Long was given a functional capacity evaluation to determine if
he could perform any carpentry-related duties. The capacity
assessment found that in an eight hour workday, Long could sit
for five hours, but only one hour continuously; stand for four to
five hours, one hour continuously (however, Long reported
discomfort at fifteen minutes and light pain after twenty
minutes); walk for five hours, with frequent long distances; lift
ten pounds frequently and twenty pounds occasionally; bend,
squat, crouch and kneel occasionally and crawl, climb stairs, and
balance frequently. R. 327-36. Overall, Long's recommended safe
work capacity was "light," and he was switched from general
reconditioning therapy to a work hardening program, with four to
six hour sessions five days a week. R. 326. After about a month
of the work hardening program, however, Long's condition had
progressively deteriorated, and he was returned to a general
reconditioning program because of increased pain, soreness, and a
depressed right knee jerk. At that time (early November 1989),
Dr. Freitag opined that Long could not work, and he recommended
that "pain be the modifier as to what he can do" and noted "that he will stop
before he harms anything." R. 302.
In December 1989, Long was discharged from physical therapy;
this was attributed to his missing four out of seventeen
appointments, though Long attributed it to problems with his
health insurer. Without physical therapy, Long's condition
worsened. R. 302. In January 1990, Dr. Freitag described Long's
condition as "failed back syndrome." He prescribed Vicodin for
pain, and opined that Long was "unable to carry out the duties
normally required of a carpenter" and that "even sedentary work . . .
is difficult, since sitting is markedly painful for him." R.
In March 1990, Long had an epidural steroid injection, and he
began seeing Dr. Portnoy, a chiropractor, regularly until 1992.
In July and August of 1990, Long's symptoms ranged from having
some back spasms to feeling "pretty good." From March through
November 1991, Long saw Dr. Portnoy every three days, and her
records indicated that Long had taken during that period a trip
to Wisconsin, where he performed unspecified "light yard work."
After 1992, Long did not see Dr. Portnoy again until January
1995. However, by November 1994, Long's pain began to worsen; he
returned to physical therapy; and he was unable to perform any
household chores or tasks. R. 20, 22. In November 1994, Long was
also treated for dependence on Vicodin. R. 199.
In 1995, Long started seeing both Dr. Portnoy and Dr. Freitag
again. In May 1995, because of persistent back pain, Long
underwent additional back surgery and suffered an incisional
hernia. Following treatment for the incisional hernia, Long
complained of constant pain in his back, neck, abdomen, and groin
area. Long saw Dr. Sinclair at the University of Chicago Pain
Management Clinic from October 1997 until August 1998, when Dr.
Sinclair ended their relationship because Long was reportedly
obtaining pain medication from other sources. R. 480-82. In 1998,
an MRI revealed that Long also had a herniated disc in his neck. R. 361. In 1999, Dr. Freitag opined that Long was "incapacitated
from persistent pain" and that he was "permanently disabled from
any and all occupations." In October 2000, Long was diagnosed
with chronic obstructive lung disease and right heart failure,
with pulmonary artery hypertension. Following this diagnosis,
Long had to use an oxygen tank. R. 398.
At the 2001 hearing on Long's claim for benefits, he testified
that in the year following his 1988 surgeries he could perform
some household chores, including sweeping, mopping and some
shopping. See R. 20. Long also stated that during that period,
he could "probably" sit for about a half hour continuously, could
stand continuously for ten to fifteen minutes, and could probably
walk about one block. See id.; see also, R. 75-78.
The ALJ's decision
To be eligible for disability benefits, Long was required to
prove that he was disabled within the meaning of the law on or
prior to the date he was last eligible for benefits his "date
last insured," or DLI December 31, 1989. See Hughes v.
Chater, 895 F. Supp. 985, 992 (N.D. Ill. 1995). "Disability"
under the Social Security Act means 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 12 months."
20 C.F.R. § 416.905.
To determine whether Long suffered from a disability as defined
by the Social Security Act, the ALJ followed a five-step inquiry
mandated by 20 C.F.R. § 416.920. This required the ALJ to
evaluate in sequence whether, as of Long's DLI: (1) he was
employed; (2) he had a severe impairment; (3) his impairment met
or equaled one of the impairments listed in the applicable
regulations, see 20 C.F.R. § 404, Subpt. P., App. 1; (4) he
could perform his past work; and (5) he was capable of performing
work in the national economy. See, e.g., Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
If Long was not working, had a severe impairment, and that
impairment met or equaled a listed impairment, then he was
disabled and eligible for benefits. If Long's impairment did not
meet or equal a listed impairment, but was severe enough to
prevent Long from doing his past relevant work, then the SSA had
the burden of showing that there were jobs available for which
Long was qualified. See Knight v. Chater, 55 F.3d 309, 313 (7th
Cir. 1995). If the SSA failed to meet that burden, Long was
eligible for benefits.
The ALJ found that Long's condition did not meet any listed
impairment and that as of the DLI, he had the capacity to lift or
carry ten pounds at a time occasionally; stand or walk for up to
two hours in an eight hour day, and up to fifteen minutes at a
time; sit with normal breaks for up to six hours in an eight hour
day, so long as he was allowed to stand at thirty minute
intervals for a period of two to three minutes; occasionally
climb ramps or stairs, balance, squat, stoop, crouch, kneel and
crawl; and occasionally perform overhead work. R. 19. At the
hearing, a vocational expert (VE) testified that with this
capacity, Long could perform sedentary unskilled work, such as
packaging, assembly, and inspection, and there were numerous such
jobs in the Chicago region. The VE stated that to maintain those
jobs, Long would have to be able to sit for up to six hours in an
eight hour day, and that standing up every half hour would not
affect his ability to do the jobs so long as it was only for a
couple minutes. See R. 89-95.
The ALJ ruled that in view of Long's residual functional
capacity, he was not disabled within the meaning of the Social
Security Act. In December 2003, the SSA's Appeals Council denied
Long's request for review.
This Court may reverse the Commissioner's decision to deny
benefits only if it is "not supported by substantial evidence or if [it is] the result of an
error of law." Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003). If the decision results from an error of
law, the Court has authority to "remand in conjunction with a
judgment affirming, modifying, or reversing the Secretary's
decision." Campbell v. Shalala, 988 F.2d 741, 745 (7th Cir.
1993); see 42 U.S.C. § 405(g), sentence four. When an ALJ
commits an error of law, "reversal is . . . warranted
irrespective of the volume of evidence supporting the factual
findings." Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir.
As noted above, the ALJ found that at the time of his DLI, Long
could sit for up to six hours in an eight hour workday, so long
as he alternated between sitting and standing at thirty minute
intervals for a period of two to three minutes. R. 19. This
determination was critical to the ALJ's decision that Long could
perform the type of sedentary work identified by the vocational
In making this determination, however, the ALJ "failed to build
an accurate and logical bridge from the evidence to [his]
conclusion," as required when an ALJ denies benefits. Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). As Long points
out, there is nothing in the record either the testimony or the
medical evidence supporting the proposition that two to three
minutes of standing would alleviate the pain he would experience
from sitting for thirty minutes off and on for six hours.
In reaching his determination regarding Long's capacity, the
ALJ evidently rejected Long's testimony regarding the limitations
on his ability to sit at the relevant time. At the administrative
hearing, Long testified that in the year following his December
1988 surgery he could only get through some days alternating
sitting and standing without laying in a recliner or on a sofa
with pillows. R. 69. Long further stated that he could not
alternate sitting and standing on a constant basis for five days a week, that he could only
stand for ten to fifteen minutes continuously, and sit for an
hour with pillows. R. 75-76. Long's testimony regarding his
limited ability to sit was corroborated by Dr. Freitag's
treatment notes from April and November 1989, which reflect that
Long complained that his pain was particularly prominent after
sitting and that he was having difficulty driving. R. 302. After
Long was discharged from physical therapy on December 1, 1989,
his pain became significantly worse, such that by January 4, 1990
(four days after Long's DLI), he could not bend to the side, and
he had to be given more Vicodin for pain as well as a muscle
relaxer. R. 269, 302. By late January 1990, Dr. Freitag found
that "even sedentary work at this point is difficult, since
sitting is markedly painful for him." R. 269.
Despite this evidence, the ALJ made no mention of Long's
testimony regarding his sitting limitations. Though an ALJ is not
required to "provide a written evaluation of every piece of
evidence that is presented," Pugh v. Bowen, 870 F.2d 1271, 1278
(7th Cir. 1988), he "may not ignore evidence that suggests an
opposite conclusion." Taylor v. Schweiker, 739 F.2d 1240, 1243
(7th Cir. 1984). The ALJ discussed the September 1989 functional
capacity assessment in which Long was able to sit for five hours
(one hour continuously), stand for four to five hours (one hour
continuously), as evidence of a sedentary residual functional
capacity. R. 23. But even this did not support the proposition
that standing up a couple of minutes every half hour would enable
Long to sit for a six-hour work day. In addition, in considering
Long's functional capacity as of the DLI, the ALJ failed to note
that a little over a month after being in the "work hardening"
program only about two months before his DLI, Long had to
return to a general reconditioning program due to increased pain,
sciatica, soreness, depressed knee and ankle jerks, and a mildly
positive straight leg raise. R. 302. In short, the evidence in
the record tended to contradict the ALJ's determination that standing up for
two to three minutes every half hour would enable Long to sit for
six hours a day for five days a week.
Irrespective of whether the ALJ properly rejected Long's
testimony, the more important point is that there was no evidence
in the record that supported the ALJ's finding that standing
for a couple minutes every half hour would allow Long to sit for
six hours a day a finding that was critical to the VE's opinion
and the ALJ's determination that Long could perform sedentary
work as of the DLI. See R. 95 (standing up two to three minutes
every half hour would not affect Long's ability to perform
sedentary work "if it's just for a couple of minutes"). The fact
that the ALJ made this determination without any medical evidence
to support it suggests that he may have, as the Seventh Circuit
has put it, "succumb[ed] to the temptation to play doctor and
ma[de] [his] own independent medical findings." Clifford v.
Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
For these reasons, the Court finds that the ALJ committed an
error of law in making the determination of residual functional
For the above reasons, the Court grants plaintiff's motion for
summary judgment [docket # 8-1] and remands the case for further
determination of his disability. The Court denies defendant's
summary judgment motion [docket # 11-1]. The Clerk is directed to
enter judgment remanding the case to the Social Security
Administration for further consideration consistent with this
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