United States District Court, N.D. Illinois, Western Division
January 6, 2005.
JUDITH DAHLGREN, Plaintiff,
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
REPORT AND RECOMMENDATION
Judith Dahlgren ("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 Disability Insurance Benefits ("DIB") pursuant to
Title II of the Social Security Act (the "Act").
42 U.S.C. §§ 416, 423. This matter is before the Magistrate Judge for Report
and Recommendation pursuant to Rule 72(b) of the Federal Rules of
Civil Procedure and 28 U.S.C. § 636(b)(1)(B).
Plaintiff filed for DIB on August 7, 1997 (Tr. 114), and her
application for benefits was denied on December 5, 1997. (Tr.
91). Plaintiff filed a request for reconsideration on December 9,
1997, and her application was denied after reconsideration on
January 26, 1998. (Tr. 95-96). Plaintiff then filed a request for
a hearing before an Administrative Law Judge ("ALJ") on January
29, 1998. (Tr. 99). Plaintiff appeared, with counsel, before ALJ
J. Robert Brown on December 11, 1998. (Tr. 392). In a decision dated October 22,
1999, the ALJ found that Plaintiff was not entitled to DIB. (Tr.
32-42). Plaintiff's request for a review of the ALJ's decision by
the Appeals Council was received on November 19, 1999. (Tr. 349).
On August 2, 2001, the Appeals Council vacated Plaintiff's
original hearing decision and remanded Plaintiff's case for
further proceedings.*fn1 (Tr. 374-76). Subsequent to the
remand, a hearing was held on April 24, 2002, before ALJ Cynthia
Bretthauer. (Tr. 425-69). On May 30, 2002, ALJ Bretthauer found
Plaintiff was not entitled to DIB. (Tr. 28). Plaintiff filed a
request for review on June 4, 2002. (Tr. 16). Plaintiff's request
for review was denied on November 7, 2003. (Tr. 3-5).
Plaintiff was born on November 15, 1953, making her forty-five
years of age at the time of her December 11, 1998, hearing before
ALJ Brown and forty-nine years of age at her April 24, 2002,
hearing before ALJ Bretthauer. (Tr. 112, 396, 425). Plaintiff
completed her education through high school, plus two years of
college. (396). At the time of her hearings, Plaintiff lived with
her boyfriend. (Tr. 466). Plaintiff was approximately five foot
three inches tall and weighed approximately 152 pounds. (Tr. 70).
Plaintiff's primary impairments noted by ALJ Bretthauer were
cervical fusion, bulging disc, fibromyalgia, confusion, decreased
concentration, and elevated liver enzymes. (Tr. 21).
Plaintiff had no reported income since April 24, 1993. (Tr.
13). From 1979 to 1981, Plaintiff worked for UPS as a loader,
driver, and driver supervisor. (Tr. 123). Plaintiff was paid
$2,500.00 per month for her services. (Id.). From 1981 to 1982,
Plaintiff worked for Fed Ex as a delivery driver at a rate of ten dollars per hour. (Id.).
From 1982 to 1985, Plaintiff worked for a food catering business
as a delivery driver on commission. (Id.). From 1985 to 1993,
Plaintiff worked as a delivery driver for an office products and
furniture business, where she was paid nine dollars per hour for
her services. (Id.). Plaintiff worked for Tempro Office
Products as a driver from 1993 to April 24, 2003. (Tr. 145).
Plaintiff worked nine plus hours a day, five days a week.
(Id.). Plaintiff was paid nine dollars per hour for her
services. (Id.). Plaintiff was terminated from her job with
Tempro due to injuries sustained in a work-related automobile
accident, but Plaintiff did return to Tempro for a short time
period after her accident, performing office work until she was
let go. (Tr. 145, 435).
Plaintiff stated at her hearing before ALJ Bretthauer that she
could not do much during her typical day since she stopped
working. (Tr. 450). She reported a daily routine that included
reading newspapers or books propped up at eye level, preparing
dinner by working in shifts of activity, dusting, and taking care
of laundry and shopping with assistance from her boyfriend. (Tr.
451). Plaintiff stated she could not push a grocery cart. (Tr.
451). Plaintiff explained that she could bathe and dress herself,
but noted that doing so made her uncomfortable and tired so she
limited showering to twice a week. (Id.). Plaintiff reported
spending most of her time on the couch laying down, approximately
eighteen hours a day. (Tr. 460).
Though Plaintiff has a driver's license without restrictions,
Plaintiff does not drive much. (Tr. 432-33, 438, 453-54).
Plaintiff took a trip to Florida at the end of 1993, but did not
drive herself. (Tr. 438, 372-73). Plaintiff stated she mainly
stayed on a couch in Florida, but did occasionally go out for
dinner. (Id.). Sometime in 1995 or 1996, Plaintiff rode to
Philadelphia for a funeral. (Tr. 459). Plaintiff reported that
the trip made her feel horrible and that she spent most of her
time on a relative's couch. (Id.). Plaintiff occasionally went
out for dinner and visited family and friends. (Tr. 454-55). Plaintiff also visited
the racetrack with her boyfriend once a week or once a month when
she lived in close proximity to the facility. (Tr. 456).
Plaintiff testified at her hearing that mental and physical
impairments prevented her from working even light duty jobs. (Tr.
435-36). Plaintiff stated that mental confusion, limited use of
her arms and neck, inability to lift, bend, or squat, and
restricted sitting, standing, and walking kept her from being
able to work. (Tr. 436). Plaintiff stated she could not do
assembly line work or desk work because her neck would be in the
wrong position if she had to look down. (Tr. 436-37). Plaintiff
stated she was diagnosed with Fibromyalgia*fn2 by Dr.
Pupillo in 1994. (Tr. 442). Plaintiff expressed that she could
walk one to two blocks, but could not use a cane for assistance
like she wanted to because it hurt to grip the handle. (Tr.
448-49). Plaintiff stated she could stand five minutes at a time
and sit for an hour at a time without moving. (Tr. 449).
Plaintiff thought she could lift ten to twelve pounds on an
irregular basis. (Id.).
Plaintiff explained that she did not seek medical treatment
between 1994 and 1997 because she had no insurance. (Tr. 441).
Also, from 1997 to 1999, Plaintiff stated she did not take
prescription medications because her stomach could not tolerate
pills. (Tr. 443-44). Plaintiff opined that even though she hardly
sleeps, she did not think sleeping pills "were worth it" because
they only made her sleep four hours in a row. (Id.). In the
past, Plaintiff tried pain relievers like Darvocet, Acetaminophen with Codeine, and Motrin.
(Id.). Plaintiff stated she did not seek mental health
treatment for her confusion*fn3 because she did not want "to
be considered a nut." (Tr. 444). Plaintiff also stated her
confusion was not that severe, and that she did not think she
could afford treatment. (Id.). Plaintiff tried an
anti-depressant for her Fibromyalgia symptoms in 1997, but stated
she did not like the way Zoloft made her feel. (Tr. 445).
Plaintiff reported that her pain primarily affected her right
arm during the period of 1997 and 1998. (Tr. 446). She relayed at
her hearing that the pain from her neck was "piercing" when she
moved her right arm or her neck. (Tr. 446-47). Plaintiff thought
her pain got "either worse or the same" in 1997, when she began
seeking medical treatment again. (Tr. 447). By then, Plaintiff
also developed lower back pain. (Tr. 448). Plaintiff stated her
therapy programs caused her to be in so much pain that she would
not be able to do anything on the following day. (Tr. 453).
Vocational Expert ("VE"), Susan Entenberg, was present at
Plaintiff's hearing for questioning. (Tr. 462). The VE described
Plaintiff's past work as a driver as semi-skilled and heavy work.
(Id.). The ALJ then asked the VE whether a hypothetical female,
with the following characteristics, could perform work in the
[A]n individual who as of December '98 was 45 years
old, had the work experience and education of this
claimant, and had the following exertional
limitations: could sit for six hours, stand and walk
for six hours, lift and carry frequently up to 10
pounds, occasionally up to 20 pounds, could do no
repetitive pushing and pulling, further assuming
someone who could only occasionally stoop and
occasionally climb stairs and ramps, but could never
climb any ladders, ropes, or scaffolds. Also someone
who could occasionally crouch and someone who could
do no repetitive reaching above shoulder level with
the right upper extremity. (Tr. 463).
The VE testified that such a hypothetical female could work at
jobs such as a cashier (40,000 jobs in the Chicago Metropolitan
area), packer (8,000 jobs), and assembler (15,000 jobs). (Tr.
463). If Plaintiff could do no overhead reaching, the VE
testified that she would reduce the jobs available to Plaintiff
twenty percent across the board. (Tr. 464). The ALJ further
limited her hypothetical to restrict repetitive grasping with the
right hand and inquired into the impact on Plaintiff's work.
(Id.). The VE stated the assembly jobs would be eliminated.
(Id.). The VE further stated that Plaintiff could not do any of
the jobs if she were limited to only occasionally moving her head
side-to-side or up and down. (Id.).
Plaintiff's attorney posed a new hypothetical to the VE, asking
whether a hypothetical female, with the following
characteristics, could perform work in the economy:
same age, education, and past work experience that
this individual who could stand or walk for no more
than a total of two hours in an eight-hour workday,
lift more than 10 pounds at a time, occasionally
lifting or carrying articles like docket files,
ledgers, small tools, could only perform activities
such as bending, stooping, crouching, kneeling, and
crawling occasionally, with no climbing of ladders,
ropes or scaffolds. She cannot reach with either arm
or hand, say, any significant extent. There is also
limited ability to move the head from side-to-side or
down so that that can be done occasionally.
(Tr. 465). The VE responded that there would not be any jobs that
such an individual would be able to perform. (Id.).
III. MEDICAL HISTORY
Plaintiff was injured in a work-related automobile accident on
January 4, 1993. (Tr. 215). Though records of Plaintiff's
treatment immediately after her accident are not available,
Plaintiff reported to Dr. Pupillo that she developed an acute
onset of neck pain and developed severely painful paresthesias almost immediately in both hands
after the accident.*fn4 (Id.). Plaintiff also developed
low back pain within a day or two of the accident. (Id.). In a
letter to Dr. Grear, Dr. Pupillo stated Plaintiff's accident
caused an acute cervical disc herniation with some evidence of
cord compression and chronic lumbosacral strain, but also noted
that Plaintiff walked with a normal gait. (Tr. 216).
In January, 1993, Plaintiff under went various exams related to
her injuries from her accident. On January 9, 1993, a radiology
consultation report ordered by Dr. Pupillo indicated normal
cervical alignment with fusion at C5-C6. (Tr. 164). A January 11,
1993, radiology report prepared by Dr. Cottrell indicated no
injury to Plaintiff's lumbar spine. (Tr. 161).
Plaintiff met with Dr. Michael Grear on March 12, 1993. (Tr.
305). Plaintiff noted her pain had not gone away since her
accident. (Id.). Dr. Grear's clinical examination revealed
twenty percent loss of Plaintiff's left and right lateral
rotation. (Id.). Dr. Grear also noted trace paraspinal muscle
spasm in Plaintiff's cervical spine. (Id.). Dr. Grear
prescribed Naprosyn*fn5 and Flexeril,*fn6 and he
recommended mild home stretching exercises. (Id.). He opined
that he believed Plaintiff would improve with conservative
management and that Plaintiff could continue with light duty
work. (Id.). On March 16, 1993, Plaintiff underwent a partial
bone scan ordered by Dr. Grear. (Tr. 211). Images of Plaintiff's
spine, skull, shoulders, ribs, pelvis, and hips were normal.
(Id.). On March 23, 1993, Dr. Grear reported the he felt comfortable
allowing Plaintiff to resume activity as a truck driver with no
lifting greater than twenty-five pounds. (Tr. 308). Dr. Grear
continued Plaintiff on Naprosyn and stopped the Flexeril.
(Id.). On March 30, 1993, Dr. Grear noted that Plaintiff was
experiencing a fair amount of pain and difficulty sleeping.
(Id.). He prescribed Darvocet, Vicodin, and Naprosyn.*fn7
On April 20, 1993, Plaintiff reported doing well with Darvocet
and Naprosyn, but stated Vicodin made her too sleepy. (Id.).
Plaintiff reported mild discomfort in her proximal left humerus.
(Id.). Dr. Grear affirmed that Plaintiff could continue working
without significant restrictions. (Id.). On May 4, 1993,
Plaintiff reported pain in her cervical and lower lumbar spine,
as well as paraspinal muscle spasm. (Id.). Dr. Grear
recommended physical therapy with hot packs, ultrasound, and
dynawave. (Id.). Dr. Grear also noted that Plaintiff's
medications were upsetting her stomach, so he did not give any
new prescriptions. (Tr. 309).
From May 5, 1993, to May 28, 1993, Plaintiff attended physical
therapy. (Tr. 219). On May 5, 1993, Dr. Grear ordered a MRI of
Plaintiff's cervical spine. (Tr. 213). A defect was present
upon the thecal sac at the C5-C6 disc space level and the
cervical cord appeared compressed and indented at the C5-C6 disc
space level. (Id.). The radiologist's impression was recorded
as "[c]entrally herniated C5-C6 disc with cord compression
without cord edema." (Id.). Dr. Grear ordered a MRI of
Plaintiff's lumbar spine on May 21, 1993. (Tr. 212). No defects
were noted, and the radiologist's impression was recorded as
"[n]ormal MRI study of the lumbar spine." (Id.).
On May 19, 1993, Plaintiff's medications were switched to
Motrin and Tylenol #3 because of Plaintiff's stomach distress.
(Tr. 309). Dr. Grear opined that conservative treatment and avoidance of surgical intervention could be successful.
(Id.). Plaintiff was started on cervical traction for the spine
in her physical therapy. (Id.). On June 6, 1993, Dr. Grear
resumed Plaintiff's treatment with Naprosyn and referred her to
Dr. Lou Pupillo. (Id.). Dr. Grear opined that Plaintiff should
not return to work as a truck diver, but stated she could do
clerical activities as long as she did not lift more than fifteen
pounds. (Id.). Plaintiff's physical therapy progress report of
June 8, 1993, stated that Plaintiff was treated with electric
stimulation, cervical traction, ultrasound, and hot packs for
twelve sessions. (Id.). Plaintiff continued to report pain
post-treatment, including muscle spasm in her trapezious and
rhomboid and pain upon rotating her neck. (Id.). Physical
Therapist, Laura Teven, noted that Plaintiff relied on her pain
medication too much, and stated that Plaintiff was given a home
cervical traction unit. (Id.).
On June 28, 1993, Plaintiff was admitted to the Holy Family
Hospital due to neck and left arm pain. (Tr. 210). A myelography
was performed on Plaintiff, indicating a defect at C5-6 and
minimal bulges at 3-4 and 4-5 and 5-1. (Tr. 208-210, 218).
Plaintiff noted persistent low back pain, but her range of motion
was normal. (Tr. 218). Plaintiff's strength was much improved.
(Id.). Dr. Pupillo suggested conservative treatment with
epidural blocks in both the cervical and lumbar areas. (Id.).
In July and August 1993, Plaintiff underwent multiple epidural
blocks with steroid injections for lumbar radiculopathy. (Tr.
219). Plaintiff received her first lumbar epidural block with
steroid injection on July 19, 1993, and later injections on July
27 (cervical), August 4 (lumbar), and August 24, 1993 (cervical).
(Tr. 189, 192, 200, 207, 219).
On September 9, 1993, Plaintiff consulted with Dr. John Ruge, a
specialist in neurological surgery. (Tr. 219-221). Plaintiff
explained that her pain was worse since her accident, and that
she had lost strength in both arms. (Id.). She also felt it was
dangerous for her to drive. (Tr. 219). Dr. Ruge noted that Plaintiff had returned
to light desk-duty at her job from February 15, 1993 to April 27,
1993, and recommended that she not work because of her
progressive symptomatology. (Tr. 219-20). Dr. Ruge also stated
that Plaintiff had signs of codeine addiction or allergy.
(Id.). Dr. Ruge opined that Plaintiff sustained a mild form of
a central spinal cord injury and recommended re-imaging and a MRI
scan of the cervical spine to look for syringomyelia and an
anterior cervical diskectomy at C5-6 with fusion if his suspicion
was confirmed by the MRI. (Id.).
An MRI of Plaintiff's cervical spine on September 24, 1993,
revealed extradural compression of the thecal sac at C5-6,
suggestive of a central disc herniation. (Tr. 222). No
compression of the cord was noted. (Id.).
Plaintiff underwent an anterior diskectomy and bone graft
fusion at C5-C6 on October 20, 1993, at Holy Family Hospital.
(Tr. 169, 223). Before surgery, Plaintiff indicated she felt neck
pain with pain in her upper extremities. (Tr. 182, 187). She also
reported low back pain, pain in both of her legs, and tingling in
one foot. (Id.). A very mild disturbance of the right ulnar
nerve at the elbow within normal limits was recorded. (Tr. 183).
After surgery, Plaintiff was started on physical therapy without
any difficulty and was discharged on October 24, 1993. (Id.).
Her discharge diagnosis was a herniated disk and
hypercholesterolemia. (Id.). A low cholesterol diet was
recommended, and Plaintiff was prescribed Darvocet. (Id.).
Plaintiff participated in a work-hardening program from June 7,
1993, to June 24, 1993, followed by a visit with Dr. Nimmer at
Resurrection Medical Center on July 14, 1994. (Tr. 230-32).
Plaintiff reported pain in her back which occurred twenty minutes
after any activity, and she stated she was unable to use her
right arm due to pain. (Id.). She also noted needle like
sensations in three fingers of her left hand. (Id.). Plaintiff
saw Dr. Nimmer again on August 4, 1994. (Tr. 230). Plaintiff reported pain in her back, especially
when she changed positions. (Id.). Dr. Nimmer noted that
Plaintiff could walk and climb stairs without difficultly, and
recommended continued physical therapy. (Id.).
On September 8, 1994, Dr. Nimmer noted that Plaintiff remained
concerned about her low back pain, right calf, and tingling in
her left foot. (Tr. 225). Plaintiff also complained of neck pain
when she was reading or driving, further noting that her lips
would go numb. (Id.). Plaintiff reported that she experienced
pain after walking short distances, especially in her right calf.
(Id.). Dr. Nimmer continued Plaintiff with physical
therapy/vocational counseling and opined that "it's been far too
long that she has not been back in a regular job situation."
On September 29, 1994, Plaintiff reported continued neck pain,
so Dr. Nimmer administered an injection of Depo-Medrol and
Xylocaine for pain relief. (Tr. 224). On October 13, 1994, Dr.
Nimmer questioned Plaintiff about the effect of the injection.
(Tr. 223). Dr. Nimmer recorded that Plaintiff felt relief for
three hours from the anesthetic, and lessened pain for a week,
but then her stabbing pain returned. (Id.). Dr. Nimmer
recommended a work-hardening program for two more weeks and then
suggested vocational rehabilitation. (Id.).
Plaintiff regularly saw Dr. Pupillo or a physical therapist
working with Dr. Pupillo January 11, 1993, through November 22,
1994. (Tr. 317-331). It appears from Plaintiff's medical records
that Plaintiff remained sore and in pain throughout her physical
therapy, but Dr. Pupillo frequently remarked that Plaintiff was
doing well. (Tr. 329). In December, 1993, Dr. Pupillo noted that
Plaintiff wanted to go to Florida. (Id.). He advised Plaintiff
that she could go, but could not drive herself. (Id.). In May,
1994, Dr. Pupillo released Plaintiff for "light-medium work."
(Tr. 330). On July 7, 1994, Dr. Pupillo found "a trigger point"
in Plaintiff's neck consistent with Fibromyalgia, but could not
later find the trigger on November 22, 1994. (Tr. 330-31). Dr. Pupillo released Plaintiff to vocational
rehabilitation in November, 2004, as well. (Tr. 331).
Plaintiff saw Dr. Irwin Barnett, an orthopedic specialist, on
March 9, 1995. (Tr. 233). Plaintiff reported to Dr. Barnett that
she had been told she may have Fibromyalgia. (Id.). Plaintiff
complained that her neck and back hurt most of the time, more so
in the neck. (Id.). She also complained about her legs and
tingling in her toes and feet. (Id.). Plaintiff performed heel
to toe walking normally. (Id.). The Ely Sign, Gaenslen Sign,
Faber Sign, and Laseque Sign were all negative. (Id.). Dr.
Barnett diagnosed Plaintiff with a residual spine injury with
bilateral sciatic nerve root irritation, herniated disc at C5-6
and herniated disc syndrome in the cervical spine. (Tr. 235). Dr.
Barnett opined that Plaintiff "has a major loss of use of the man
as a whole on an industrial basis." (Tr. 236).
Plaintiff saw Dr. Veena Nayak, an internal medicine specialist,
on August 8, 1997, for neck, back, heel, and thigh pain. (Tr.
248). At the time, Plaintiff was taking no medications. (Id.).
Dr. Nayak noted no evidence of synovitis, but did note
Fibromyalgia with severe muscle spasm in Plaintiff's periscapular
and paraspinal regions, hypercholesterolemia, and mild elevation
of GGT, most likely secondary to fatty liver. (Id.). Plaintiff
was advised against continued smoking and moderate alcohol
intake. (Id.). Plaintiff was prescribed Lescol for her high
cholesterol and Zoloft for her symptoms of underlying
Fibromyalgia. (Id.). Water exercises were recommended. (Id.).
Plaintiff saw a physical therapist, Janice Hussong, on July 21,
1997. (Tr. 252). Plaintiff reported that use of her arms produced
a sensation of being touched with a stun gun with resulting
immobility of her arms. (Id.). She described thigh and calf
pain like being sliced to the bone, and stated walking was
difficult due to lower back pain. (Id.). She stated her pain
from her neck radiated down to her arms, wrists, hands, fingers, back,
left hip/buttock, thighs, calves, ankles, heels, and feet.
(Id.). Plaintiff expressed that looking down and swallowing
made her gag or vomit, and that talking too much made her lose
her voice. (Id.). Plaintiff's medications at the time included
four Anacin per day. (Id.). Plaintiff believed she had gained
twenty pounds since her injury, and she rated her pain as a ten
(on a scale of zero (no pain) to ten (constant pain)), and her
frequency of pain as an eight to ten. (Tr. 252-53). Plaintiff
stated she usually sleeps from nine to eleven at night and six to
eight in the morning. (Tr. 253). Plaintiff complained that
activity increased her pain, and stated she lays flat on her back
to decrease her pain. (Id.). She stated she could drive for an
hour at the most. (Id.). Ms. Hussong recommended myofascial
release and a muscle strengthening program. (Tr. 254).
Plaintiff underwent a psychiatric evaluation with consulting
psychiatrist, Dr. John Conran, on September 5, 1997. (Tr. 255).
Plaintiff reported that she was taking Zoloft and Lescol.
(Id.). Plaintiff noted her symptoms for Dr. Conran, including
generalized pain upon minimal activity and difficulty sleeping.
(Id.). Plaintiff said she did not go out very often, usually
three times a week to do errands. (Id.). Dr. Conran recorded
the results of Plaintiff's mental exam in his report, noting that
Plaintiff was oriented x3, sad at times, and in some discomfort.
(Id.). He noted no evidence of thought disorder, but did
diagnose depression reactive to chronic severe pain. (Tr. 257).
On September 12, 1997, Plaintiff underwent an internal medicine
evaluation with consulting physician, Dr. Peter Biale. (Tr. 259).
Plaintiff reported taking Lescol. (Id.). Plaintiff reported
that she had Fibromyalgia and felt fatigued most of the time.
(Id.). Dr. Biale noted that Plaintiff's head, eyes, ears, nose,
and throat were normal. (Tr. 260). He also reported that
Plaintiff experienced "excruciating" pain in the left shoulder
which radiates to the left arm when she rotates her head to the left. (Id.). Full range of motion
of all joints was noted, but a few trigger points were found on
Plaintiff's thighs and arms. (Id.). Plaintiff was able to walk
normally, heel to toe and squat down. (Id.). Finger grasp and
hand grip was unimpaired. (Id.). Dr. Biale's clinical
impression for Plaintiff was limited motion of the cervical
spine, low back pain, and Fibromyalgia. (Id.). He also noted
that Plaintiff could not take a stronger analgesic for her pain
because of side effects. (Id.).
On September 29, 1997, Dr. Tomasetti completed a Psychiatric
Review Technique Form for Plaintiff. (Tr. 266, 269). Dr.
Tomasetti found that Plaintiff's depressive reaction to pain fell
under Listing 12.04 (Affective Disorders), but opined that her
mental impairment was not severe. (Id.). Dr. Tomasetti noted
that Plaintiff's restrictions on daily living activities,
maintaining social functioning, and maintaining concentration,
persistence, or pace were slight. (Tr. 273). Dr. Tomasetti noted
no episodes of deterioration or decompensation. (Id.). Dr.
Fullilove agreed with Dr. Tomasetti's findings in a Medical
Consultant's Review Form, also dated September 29, 1997. (Tr.
Dr. Boyd McCracken, a state agency physician, completed a
Residual Functional Capacity Assessment Form ("RFC") for
Plaintiff on October 7, 1997. (Tr. 275-82). Dr. McCracken
reported that Plaintiff could occasionally lift/push/pull twenty
pounds, frequently lift ten pounds, and stand/walk/sit for a
total of six hours each in an eight hour workday with normal
breaks. (Tr. 276-77). Dr. McCracken noted no postural limitations
for Plaintiff other than stating that Plaintiff should never use
ladders, ropes or scaffolds, and should only occasionally climb
ramps and stairs. (Id.). No visual, communicative, or
environmental limitations were recorded for Plaintiff, but
Plaintiff was restricted from reaching above shoulder height.
(Tr. 278). Dr. Leonard Weinstien agreed with Dr. McCracken's
evaluation on November 26, 1997. (Tr. 284).
At the request of DDS, Dr. Nayak completed a statement of
opinion about Plaintiff's ability to do work related activities
on January 9, 1998. (Tr. 286-90). Dr. Nayak reported that
Plaintiff suffered from Fibromyalgia, C5-6 Radiculopathy, and
neck pain. (Tr. 287). Dr. Nayak stated that Plaintiff was unable
to lift, carry, handle objects, sit/stand for prolonged periods
due to her Fibromyalgia. (Tr. 288). Dr. Nayak's report did not
list Plaintiff's trigger points, but noted paraspinal and
periscapular tenderness. (Tr. 248). Dr. Nayak also reported that
Plaintiff's liver enzyme abnormalities did not affect her ability
to work. (Tr. 290).
Dr. McCracken completed a second Residual Functional Capacity
Assessment Form ("RFC") for Plaintiff on January 15, 1998. (Tr.
291-98). Dr. McCracken reported that Plaintiff could occasionally
lift twenty pounds, frequently lift ten pounds, and
stand/walk/sit for a total of six hours each in an eight hour
workday with normal breaks. (Tr. 292). Dr. McCracken modified his
original RFC, limiting Plaintiff's ability to push and pull with
her upper extremities. (Tr. 292). Previously, Dr. McCracken noted
no postural limitations for Plaintiff other than stating that
Plaintiff should never use ladders, ropes or scaffolds, and
should only occasionally climb ramps and stairs. (Id.). In this
report, Dr. McCracken added two postural limitations, noting
Plaintiff should be further limited to occasionally stooping and
crouching. (Tr. 293). No visual, communicative, or environmental
limitations were recorded for Plaintiff, but Plaintiff was again
restricted from reaching above shoulder height. (Tr. 294).
On May 13, 1999, Plaintiff saw Dr. Charles O'Laughlin. (Tr.
383). Plaintiff reported to Dr. O'Laughlin that she could not
move her head backward before her surgery, but after the surgery,
she could not move it forward without pain. (Id.). She also
stated she could not talk for ten days after her surgery, stating damage to her vocal cords was
suspected. (Tr. 383-84). Plaintiff stated she had not been
evaluated by an ears, nose and throat specialist. (Tr. 384).
Plaintiff told Dr. O'Laughlin that she could sit for two hours at
a time, lift five to ten pounds, stand up to ten minutes, and
walk not very far at all. (Id.). Plaintiff reported that she
was taking aspirin for her pain. (Id.). Plaintiff noted her
pain restricted her ability to grip, drive, sleep through the
night, and gargle. (Id.).
Dr. O'Laughlin's exam revealed that Plaintiff was able to walk
without a limp and touch her toes, and that she had a normal
range of motion. (Tr. 385). Plaintiff's grip strength was
recorded as thirty pounds on the right and thirty-five pounds on
the left. (Id.). No atrophy of muscles was recorded. (Id.).
No objective physical findings that would indicate significant
ailments were present. (Id.). Dr. O'Laughlin's report stated
that "[t]he so called fibromyalgia that she has is inconsistent
and palpation (testing for trigger points) in multiple areas
reveals only a few isolated areas of tenderness, nothing really
that could be called fibromyalgia." (Id.). Dr. Laughlin also
stated that a review of Plaintiff's medical records did not
contain a consultation with a rheumatologist nor an actual
diagnosis of fibromyalgia. (Id.). Finally, Dr. O'Laughlin noted
that Plaintiff "has no motivation to do any type of work
activities" as "her boyfriend basically provides for her." (Tr.
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 unless
there is an error of law. 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.
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).*fn8 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.*fn9 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
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
The court will proceed through the five step analysis in order.
A. Step One: Is the claimant currently engaged in substantial
gainful activity? ALJ Bretthauer found no evidence that Plaintiff had engaged in
disqualifying substantial gainful activity at any time since
Plaintiff's alleged onset date.*fn10 (Tr. 21). Neither party
disputes this first determination, and there is substantial
evidence to support the ALJ's finding. Thus, it is the Magistrate
Judge's Report and Recommendation that the ALJ's determination as
to Step One of the Analysis be affirmed.
B. Step Two: Does the claimant suffer from a severe
In performing the Step Two Analysis, ALJ Bretthauer found that
Plaintiff's medical reports show that Plaintiff "has status post
anterior discectomy and fusion of the cervical spine at the C5-6
level; lower back pain; and questionable fibromyalgia." (Tr. 22).
From this, the ALJ concluded that Plaintiff's impairments were
severe within the meaning of the Regulations.*fn11 (Id.).
Substantial evidence exists to support the ALJ's determination
that Plaintiff suffers from severe impairments. Thus, it is the
Magistrate Judge's Report and Recommendation that the ALJ's
determination as to Step Two of the Analysis be affirmed.
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, ALJ Bretthauer
determined that Plaintiff's impairments do not meet or equal any
impairment in the Listing of Impairments,
20 C.F.R. § 404.1520(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1.*fn12 (Tr.
22). Specifically, the ALJ found that Listing 1.04A (Disorders of the Spine) criteria were not
satisfied for the durational requirement of twelve continuous
months due to an absence of persistent physical findings
establishing the presence of requisite neurologic deficits such
as sensory or reflex loss. (Id.).
The Magistrate Judge agrees that Plaintiff's symptoms do not
appear to rise to the level of Listing 1.04A or any of the
Musculoskeletal Impairment Listings. Additionally, neither party
challenges the ALJ finding under Step Three. Therefore, because
substantial evidence exists to support the ALJ's Step Three
finding, this court finds no reason to disturb it. It is the
Magistrate Judge's Report and Recommendation that the ALJ's
determination as to Step Three of the Analysis be affirmed.
D. Step Four: Is the claimant capable of performing work which
the claimant performed in the past?
In performing the analysis under Step Four, ALJ Bretthauer
determined that Plaintiff no longer has the residual functional
capacity to perform her past relevant work as a delivery driver.
(Tr. 25, 27). Before doing so, the ALJ determined Plaintiff's
RFC. (Id.). The RFC is what a claimant can still do despite his
or her limitations. See 20 C.F.R. § 416.945. After considering
the entire record, the ALJ stated that Plaintiff had the residual
functional capacity for a significant range of light
work.*fn13 (Id.). More specifically, the ALJ concluded
that Plaintiff retained the following RFC:
lift and carry 20 pounds occasionally and 10 pounds
frequently; sit for a total of at least 6 hours in an
8-hour workday; stand/walk for a total of at least 6
hours in an 8-hour workday; stoop, crouch, and climbs stairs/ramps not more than occasionally; and
push/pull on a non-repetitive basis. The claimant is
unable to climb ladders, ropes or scaffolds or to
In support of her RFC statement, ALJ Bretthauer expressed that
Plaintiff's objective medical record failed to provide support
for Plaintiff's subjective allegations of disabling symptoms and
limitations. (Tr. 23). Specifically, the ALJ noted that
Plaintiff's daily activities were not limited to the extent one
would expect, given Plaintiff's complaints of disabling symptoms,
because Plaintiff cooks, dusts, does laundry, shops for groceries
with assistance, takes trips, goes to the racetrack, and takes
care of her personal hygiene including washing and combing her
hair, which is quite long. (Id.). The ALJ also noted that
Plaintiff's record had significant gaps (between November, 1994
and July, 1997) where Plaintiff received no medical treatment
related to her alleged disability. (Tr. 24). The ALJ further
noted that Plaintiff's explanation for not seeking treatment
(Plaintiff stated she had no insurance and could not afford
treatment) was contradicted by Plaintiff's worker's compensation
settlement of $60,000.00. (Id.). Finally, the ALJ noted that
Plaintiff had not seen a rheumatologist, nor did she use
prescription medications consistently to treat her pain. (Id.). The ALJ also used Plaintiff's medical record to support her
RFC. First, she noted that Plaintiff's treating neurosurgeon, Dr.
Pupillo, never imposed any greater work restrictions on Plaintiff
after he released Plaintiff to light-medium work on May 10, 1994.
(Tr. 24). Second, she noted that Plaintiff's RFC assessment based
on a May, 1999 examination from Dr. O'Laughlin stated that
Plaintiff had no supportable functional limitations. (Id.).
Though one of Plaintiff's physicians, Dr. Nayak, indicated
greater limitations than those included in the ALJ's RFC, the ALJ
stated Dr. Nayak relied quite heavily and uncritically on
Plaintiff's subjective reports, and Dr. Nayak did not have the
benefit of reviewing Plaintiff's complete medical record.
Finally, the RFC conclusions reached by the physicians employed
by DDS supported findings of "not disabled." (Id.).
The ALJ's RFC determination is challenged by Plaintiff. At
issue is: (1) whether there is substantial evidence in the record
to support the ALJ's finding that Plaintiff can perform light
work and (2) whether the ALJ's decision is based on an error of
law. Plaintiff argues that the ALJ's RFC is unsupported because
the ALJ based her RFC on a wrongful credibility determination and
a wrongful Mental Impairment Assessment. Defendant asserts that
the ALJ's RFC is substantiated by Plaintiff's medical record and
should be upheld.
The court's own review of the record as a whole revealed no
errors of law, and the court agrees that the ALJ's ruling is
supported by substantial evidence. Plaintiff retained the ability
to do small chores like preparing dinner, dusting, and laundry.
(Tr. 450). She also managed a car trip to Florida in 1993 and
traveled to Philadelphia in 1995 or 1996 for a funeral. Plaintiff
also visited family and friends and regularly visited a
racetrack. (Tr. 454-56, 438). Plaintiff did not seek medical
treatment between 1994 and 1997. (Tr. 441). Plaintiff stopped
taking prescription medications and used Aspirin or Anacin to treat her pain. (Tr.
443-44). Plaintiff did not seek mental health treatment, and
stated her confusion was "not that severe" at her hearing. (Tr.
444). Dr. Tomasetti opined that Plaintiff's mental health
impairments were not severe and noted only slight restrictions of
Plaintiff's daily living activities and social functioning. (Tr.
273). Dr. Biale stated Plaintiff's finger grasp and hand grip
were unimpaired and noted a full range of motion. (Tr. 260). Dr.
Grear opined that Plaintiff would improve with conservative
treatment and released Plaintiff to light work and also truck
driving with no greater lifting than twenty-five pounds in 1993.
(Tr. 308). No defects were noted in Plaintiff's lumbar spine, and
Plaintiff underwent an anterior diskectomy to correct her
cervical spine problems. (Tr. 223). Dr. Pupillo suggested
conservative treatment for Plaintiff. (Tr. 218). Dr. Nimmer
treated Plaintiff conservatively and opined that "it's been far
too long" for Plaintiff to not be doing regular work and released
her to light-medium work in 1994. (Tr. 225, 330).
Though Plaintiff stated that Dr. Pupillo told her she had
Fibromyalgia, Dr. Pupillo only mentioned that he found "a trigger
point" consistent with Fibromyalgia in July, 1994. (Tr. 233,
330-31). Four months later, Dr. Pupillo could not locate a
trigger point. (Tr. 331). There was never a clear diagnosis of
Fibromyalgia, and Plaintiff never saw a Rheumatologist regarding
Fibromyalgia symptoms. Generally, persons with Fibromyalgia
exhibit pain at several trigger points, usually at least eleven
out of eighteen, to be diagnosed with Fibromyalgia. Here, Dr.
Pupillo only referred to one trigger point in Plaintiff's neck,
and Dr. O'Laughlin opined that Plaintiff's "so called
fibromyalgia . . . is inconsistent and palpation in multiple
areas reveals only a few isolated areas of tenderness, nothing
really that could be called fibromyalgia." (Tr. 385). The only other doctor to reference trigger points in Plainitiff's
records was Dr. Biale, who vaguely mentioned trigger points in
Plaintiff's thighs and arms. (Tr. 261).
Even though Plaintiff was given the opportunity to submit new
medical evidence or treating source comments on the report of Dr.
O'Laughlin, no such reports were submitted between her hearing
before ALJ Brown and her hearing before ALJ Bretthauer. (Tr. 23).
Also, a state agency physician found that Plaintiff could
occasionally lift twenty pounds, frequently lift ten pounds, and
stand/walk/sit for a total of six hours each in an eight hour
workday with normal breaks. (Tr. 292). This, and all of the
evidence noted by the ALJ, leads this court to its position that
the ALJ's finding that Plaintiff can perform light work is
reasonable and supported by the record. Further, Plaintiff's
points of contention, which fall into two main categories
addressed below, do not trigger a reversal or remand of the ALJ's
1. The ALJ's Credibility Determination Was Reasonable
Plaintiff argues that the ALJ's credibility determination was
erroneous. Generally, a court will only reverse an ALJ's
credibility determination if it is "patently wrong." Jens v.
Barnhart, 347 F.3d 209, 213 (7th Cir. 2003). In evaluating
credibility, the ALJ must follow her own regulations, including
SSR 96-7p, which lists relevant considerations for evaluating
credibility. Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir.
2003). "The reasons for the credibility finding must be grounded
in the evidence and articulated in the determination or
decision." SSR 96-7p. In particular, where an ALJ rejects
subjective complaints of pain, after the presence of a medically
determinable impairment is established, "the ALJ is obliged to
examine and weigh all the evidence including observations by
treating physicians, third-party testimony and daily activities,
functional restrictions, pain medication taken, and aggravating
or precipitating factors." Herron v. Shalala, 19 F.3d 329, 335
(7th Cir. 1994) (citing S.S.R. 88-13). Accordingly, an ALJ's
conclusion is afforded great deference so long as the court finds
that the ALJ followed proper procedures in making his or her
determination.*fn15 Even so, administrative law opinions are
subject to harmless error review, such that every technical
violation of the SSR does not equate to an automatic reversal or
remand. See Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003).
Even though rational minds may disagree as to the outcomes
flowing from testimony presented, the court will uphold the ALJ's
decision if substantial evidence underpinning it exists. See
Farrell v. Sullivan, 878 F.2d 985, 990 (7th Cir. 1989). In this
case, the ALJ found Plaintiff's allegations regarding her
limitations "not totally credible" because: (1) the severity of
Plaintiff's impairments was not paired with persistent objective
findings, (2) Plaintiff did not seek the type of treatment one
would expect with severe impairments, (3) Plaintiff stated her
mental confusion was not that severe, (4) Plaintiff did not take
the type of medications one would expect for severe impairments,
(5) no new medical evidence or treating source comments were
proffered by Plaintiff to contest the findings of Dr. O'Laughlin,
(6) Plaintiff's daily activities were not limited to the extent
one would expect given Plaintiff's complaints of disabling
symptoms because Plaintiff took long car trips, frequented the
racetrack, visited her family, and did cooking, laundry, and
dusting, (7) Plaintiff stated at her hearing that she thought she
had seen a rheumatologist between November, 1994 and July, 1997,
referring to Dr. Nimmer, but Plaintiff did not see Dr. Nimmer
after September 29, 1994, nor was Dr. Nimmer a rheumatologist,
(8) Plaintiff stated she could not afford medical treatment, but
Plaintiff received a worker's compensation settlement of
$60,000.00, (9) Dr. Pupillo did not retract his release of
Plaintiff to "light-medium" work, and (10) Dr. O'Laughlin stated
Plaintiff had no supportable functional limitations. (Tr. 23-24,
As required by SSR 96-7p, the ALJ's credibility assessment
takes into account Plaintiff's entire case record, including the
objective medical evidence, Plaintiff's own statements about her
symptoms, information provided by treating and examining
physicians, and other relevant evidence including the Plaintiff's
daily activities and the type, dosage, and effectiveness of
medication the Plaintiff takes. Further, the ALJ's statements are
sufficiently specific to allow subsequent reviewers to follow the
ALJ's reasoning. While failure of a claimant to seek medical
treatment is not a defense to a claim for disability benefits,
the failure to seek medical attention and low dosage use of pain
medication does cast doubt upon the seriousness of a claimant's
impairments. Caldarulo v. Bowen, 857 F.2d 410, 413 (7th Cir.
While Plaintiff argues that the ALJ ignored her reasons for not
taking medications and for not seeking medical care, it is
abundantly clear that the ALJ reached her conclusion despite
having considered Plaintiff's statements and all of the medical
evidence. The ALJ found Plaintiff's subjective complaints
exaggerated compared to her longitudinal medical record. By
pointing out each of the above discrepancies with Plaintiff's
subjective complaints and the objective evidence, the ALJ built
up solid support in the record for her decision. The ALJ's
conclusion is not patently wrong, and it is not the role of the
court to re-weigh the evidence. Thus, this court finds that the
ALJ's credibility determination was grounded in the record and
adequately justified in her opinion. As such, the court finds no
reason to recommend reversing or remanding the ALJ's finding for
a new credibility determination. 2. The ALJ's Mental Impairment Assessment Was Reasonable
Plaintiff contends that the ALJ erred as a matter of law when
she did not send Plaintiff to psychological testing and included
no mental component in Plaintiff's RFC. Defendant argues that the
ALJ adequately considered Plaintiff's mental condition in
evaluating her impairments. Admittedly, it appears that Plaintiff
suffers from some depression related to her pain. Thus, the
extent of Plaintiff's depressive reaction and the need for
further testing is at issue.
According to social security regulations, a consultative
examination may be required when the evidence as a whole, both
medical and non-medical, is insufficient to support a decision on
a claim. 20 C.F.R. § 404.1519a. In this case, Plaintiff's last
psychiatric evaluation took place on September 5, 1997, not quite
five years before Plaintiff's May, 2002, hearing before ALJ
Bretthauer. Dr. Conran, who completed Plaintiff's psychiatric
evaluation, diagnosed Plaintiff with depression reactive to
chronic pain, but did not note mental abnormalities or place
limitations on Plaintiff's mental functioning. (Tr. 255-58).
Plaintiff never underwent any psychological testing. Plaintiff
was prescribed Zoloft in August, 1997, by Dr. Nayak, but the
prescription was for underlying symptoms of Fibromyalgia, not
necessarily depression. (Tr. 248). At her own hearing, Plaintiff
stated her mental confusion was "not real severe." (Tr. 444).
Plaintiff could not recall if she had told her doctors of her
confusion by 1997 or 1998. (Id.).
Additionally, on September 29, 1997, Dr. Tomasetti completed a
Psychiatric Review Technique Form for Plaintiff, noting that
Plaintiff's restrictions on daily living activities, maintaining
social functioning, and maintaining concentration, persistence,
or pace were slight. (Tr. 266, 269, 273). ALJ Brown, who
completed a Psychiatric Review Technique Form for Plaintiff in
1999 found that: "[t]he claimant has `slight' restriction of
daily living activities; `slight' difficulties in maintaining
social concentration; `seldom' has deficiencies of concentration, persistence or pace resulting in failure to
complete tasks in a timely manner and `never' had episodes of
deterioration or decompensation in work settings." (Tr. 41).
This evidence appears adequate to support the ALJ's decision
not to include a mental component to Plaintiff's RFC. The record
as a whole is not insufficient for the ALJ to make a fair
evaluation of the mental aspects of Plaintiff's condition.
Because there is no record of severe or even marked restrictions
on Plaintiff's activity due to a mental condition, and the ALJ
provided a reasonable analysis, this court finds no reason to
remand for new evaluation of Plaintiff's mental condition.
Finding the ALJ's RFC supported by substantial evidence in the
record and finding Plaintiff's arguments against the ALJ's Step
Four analysis unpersuasive, it is the Magistrate Judge's Report
and Recommendation that the ALJ's determination as to Step Four
of the Analysis be affirmed.
E. Step Five: Is the claimant capable of performing any work
existing in substantial numbers in the national economy?
At Step Five, the ALJ relied on the Medical-Vocational
Guidelines ("the Grids") and the testimony of a Vocational Expert
("VE") to determine if Plaintiff could perform substantial
gainful work that exists in the national economy. (See 20
C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2, Rule 201.21,
201.28). Based on Plaintiff's RFC (allowing for performance of a
significant range of light work) and Plaintiff's status as a
younger individual with more than a high school education (see
20 C.F.R. 404.1563), the ALJ reached a finding of "not disabled."
Specifically, the ALJ found, based on the VE's testimony, that
Plaintiff could find work in the regional economy as a cashier
(32,000 jobs), packer (6,400 jobs), and assembler (12,000 jobs).
Other than disputing the ALJ's finding that Plaintiff could do a
significant range of light work, Plaintiff does not dispute the ALJ's analysis at Step Five.
The ALJ's RFC has already been reviewed and approved of in this
court's Step Four Analysis. Substantial evidence exists in the
record supporting the ALJ's decision. Therefore, it is the
Magistrate Judge's Report and Recommendation that the ALJ's
determination as to Step Five of the Analysis be affirmed.
In accordance with the above, it is the Magistrate Judge's
Report and Recommendation that the ALJ's decision to deny
benefits to Plaintiff be sustained, affirming the ALJ at all
steps of the disability determination process as outlined above.
It is the Magistrate Judge's further Recommendation that
Defendant's Motion for Summary Judgment be granted, and
Plaintiff's Motion for Summary Judgment on the administrative
record and pleadings be denied.