United States District Court, N.D. Illinois, Eastern Division
January 7, 2005.
ROBERT L. JONES, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case comes before this Court on the parties' cross-motions
for summary judgment. Plaintiff Robert L. Jones ("Claimant")
challenges the decision of Defendant Jo Anne B. Barnhart,
Commissioner of Social Security ("Commissioner"), claiming that
her denial of his Social Security Disability Insurance Benefits
("DIB") and Social Security Insurance payments ("SSI") should be
reversed or remanded because the decision contains errors of law
and is not supported by substantial evidence. For the reasons
stated below, Claimant's motion for summary judgment is granted
and the Commissioner's motion for summary judgment is denied. The
case is remanded to the Commissioner for further proceedings.
I. PROCEDURAL HISTORY
Claimant filed an application for DIB and SSI on November 27,
2000, alleging that he had been disabled since May 18, 1999, due
to a right wrist injury. R. 17, 30. On February 6, 2001, the Social Security Administration determined that
Claimant was disabled from May 18, 1999, through September 7,
2000, but not thereafter, and awarded Claimant benefits for that
closed period. R. 17, 32-34. Claimant's request for
reconsideration of this determination was denied, and he
requested an administrative hearing. R. 17, 35-46. On November 7,
2002, an administrative law judge ("ALJ") conducted a hearing at
which Claimant, represented by counsel, appeared and testified.
R. 268-89. In addition, Timothy Bodsoniski testified as a
vocational expert ("VE"). R. 289-301. In a decision dated
December 10, 2002, the ALJ found that Claimant was not disabled
after September 7, 2000, because he had regained the ability to
perform jobs that existed in significant numbers in the local
economy R. 14-29. This became the final decision of the
Commissioner when the Appeals Council denied Claimant's request
for review of the decision on December 10, 2003. R. 5-8. Claimant
then filed this action for review of the decision pursuant to
42 U.S.C. § 405(g). The parties have consented to this Court's
jurisdiction to decide this case pursuant to
28 U.S.C. § 636(c)(1).
II. BACKGROUND FACTS
Claimant was forty-six years old at the time of the
administrative hearing. R. 30, 271. He has an eighth-grade
education, and has difficulty reading and writing. R. 98, 276,
285. He is right-handed. R. 285. From 1994 until he injured his
wrist in May of 1999, Claimant worked as a temporary laborer, a
job that required mostly heavy lifting. R. 80, 290. Prior to
that, Claimant held jobs as a leather tanner from 1976 to 1993,
as a security guard from 1985 to 1987, and as a housekeeper from 1991 to 1993. R. 80-83.
After he injured his wrist, he was unable to perform the lifting
his temporary labor job required. He also claims that he suffers
from a heart condition that causes him chest pain and shortness
A. MEDICAL EVIDENCE
1. Wrist Injury and Treatment
Claimant's primary medical complaint is a loss of function in
his right wrist. He injured the wrist in a work-related
automobile accident on May 18, 1999. R. 145, 172, 270. He was
treated at Rush Presbyterian Occupational Health Center, where he
was diagnosed with a sprain of the right wrist, given a splint
and Naprosyn, and was advised to begin occupational therapy. R.
172. On October 9, 1999, Claimant went to see Dr. John Ruder, who
recommended an arthrogram. R. 172. The study revealed a
scapholunate ligament*fn1 tear. R. 172.
On October 30, 1999, Claimant sought treatment for wrist pain
in the outpatient department of Norwegian American Hospital. R.
145. Upon examination, Dr. Mohammed Sirajullah determined that
Claimant needed a scapholunate fusion, but he asked Claimant to
seek additional opinions due to the complicated nature of
Claimant's injury and unlikelihood of a completely satisfactory
solution. R. 146. On January 4, 2000, Dr. Sirajullah performed a
scapholunate fusion and placed a cast on Claimant's arm, but the
operation did not result in the healing of the wrist. R. 135-143. Following the procedure,
the range of motion in Claimant's wrist was limited: dorsiflexion
and palmar flexion were 10 degrees; radial and ulnar deviation
were 10 degrees and 15 degrees, respectively. R. 135.
On April 13, 2000, Dr. Sirajullah advised Claimant to undergo a
course of physical therapy. R. 135. When Dr. Sirajullah saw
Claimant again on May 4, 2000, Claimant had been drinking heavily
and admitted that he had gone to only three physical therapy
appointments. R. 135. Dr. Sirajullah last saw Claimant on May 23,
2000, at which time Claimant continued to express dissatisfaction
with the function of his wrist. R. 135. An x-ray examination
showed no changes to the wrist, and there was no bony union at
the site of the attempted fusion. R. 135.
On June 21, 2000, Claimant went back to see Dr. Ruder. Upon
examination, Dr. Ruder felt that Claimant had a static
scapholunate disassociation without sign of fusion of the
scapholunate articulation. R. 173. A week later, Claimant saw Dr.
Daniel Nagle, who confirmed Dr. Ruder's opinion and diagnosed
Claimant with scapholunate disassociation and possible triangular
fibrocartilage tear. R. 174. Dr. Nagle noted arthritic changes,
and felt a CT scan was needed, as well as possible arthroscopy.
On July 26, 2000, Dr. Nagle performed the arthroscopy. Claimant
tolerated the procedure well, and awoke from anesthesia "without
difficulty." R. 149, 153. The arthroscopy demonstrated diffuse
posttraumatic arthritic changes to his right wrist and grade IV chondromalacia.*fn2 R. 167. Dr. Nagle recommended that
Claimant engage in no "heavy activity" and perform gentle wrist
range of motion exercises. R. 167. In a follow-up visit, Claimant
informed Dr. Nagle that his pain along the ulnar side of the
wrist was gone, and he was able to do "a little work on his car"
the day after surgery. R. 167.
Claimant's relief was short-lived, however, and he returned to
see Dr. Nagle on August 8, 2000, complaining of pain in his
wrist. R. 166. Dr. Nagle suggested that Claimant use a splint and
consider undergoing a panarthrodesis operation.*fn3 R. 166.
Claimant demurred, but returned to see Dr. Nagle again on
September 7, 2000, because of discomfort in his wrist. R. 163.
Dr. Nagle informed Claimant that without further surgery,
Claimant had likely reached his maximum medical improvement. R.
163. Claimant informed Dr. Nagle that he was afraid of surgery
and would rather simply try to return to work. R. 163. As such,
Dr. Nagle recommended a functional evaluation to determine
Claimant's work restrictions. R. 163. While the evaluation was
scheduled for September 29, 2000, the record fails to indicate
that Claimant kept the appointment. R. 165. It would appear that
Claimant has not sought further treatment for his wrist since
2. Chest Pain
Claimant has also been treated for complaints of chest pain. On
April 12, 2001, Claimant was admitted to Norwegian American Hospital for chest
pain. Claimant admitted to having used cocaine, which was
confirmed in testing. R. 192, 195. The attending physician, Dr.
Farida Ahmed, found diffuse perfusion abnormalities in all three
major coronary arteries, left ventricular dilation, decreased
ejection fraction, and severe wall motion abnormalities. R. 189.
An EKG performed on April 13, 2001, by Dr. Raghu Ramadurai was
characterized as abnormal with sinus rhythm, occasional premature
atrial contractions, and left ventricular hypertrophy with
ST-wave abnormalities. R. 191. Dr. Ahmed's principal final
diagnosis was cardiomyopathy, with atypical chest pain, cocaine
abuse, and hypertension. R. 188-89.
On December 13, 2001, Claimant was again admitted to Norwegian
American Hospital for chest pain. R. 236-38. Claimant was
diagnosed with palpitation, chest pain, and cocaine abuse.
Claimant returned on May 22, 2002, again complaining of chest
pain, which was, again, apparently associated with cocaine abuse.
3. Consultative Examination
On July 17, 2001, Dr. Martin Beermann performed a consultative
examination of Claimant at the request of the state disability
agency, in connection with Claimant's application for disability
benefits. R. 211-227. Claimant informed Dr. Beermann that he was
able to dress and groom himself independently, take his boys to
school and fix them meals, and do light household work such as
sweeping, making the beds, cooking, and light dusting. R. 212.
Upon examination of Claimant's wrist, Dr. Beermann found that it
was difficult to determine whether the joint had fused, but flexion and extension,
although limited to 30 degrees out of 60 degrees, had improved
from Claimant's previous examination. R. 213-14. Grip strength in
Claimant's right hand was 4 on a scale of 5. R. 213. Dr. Beermann
observed Claimant use his right hand to tie his shoes, button his
shirt, and twist a doorknob, without difficulty. R. 213. X-rays
of Claimant's right wrist revealed moderate degenerative changes.
With regard to Claimant's chest pain, Dr. Beermann determined
that Claimant had reproducible chest pain, which he characterized
as atypical. R. 214. Dr. Beermann reviewed Claimant's hospital
records, which indicated elevated levels of the enzyme creatine
phosphokinase, noting that this was not uncommon in people who
use cocaine. R. 214. Claimant explained that he had chest pain
all his life, and that incidences of it were not related to
exertion. R. 211. For example, Claimant reported that he could
easily walk ten blocks. R. 211. Finally, Dr. Beermann
acknowledged Claimant's vague complaints about "eye problems"
that bothered him when signing his name, although Claimant
"state[d] he can read a newspaper without any difficulties." R.
B. CLAIMANT'S TESTIMONY
At the administrative hearing, the Claimant alleged that he was
unable to work due to his right wrist impairment and chest pain.
He said that he would like to work, but he was unable to because
of pain. R. 286. He had attempted to work approximately three
weeks prior to the administrative hearing, taking a temporary job
loading boxes weighing approximately twenty pounds each. R. 272-73. Two days into the
job, he experienced pain in his right hand, which caused the
boxes to slip out of his hands. R. 272. After the second day, his
hands swelled to the point that he was unable to continue
working. R. 273.
Claimant testified that the wrist surgeries he has undergone
had not been completely successful. R. 279, 281-83. He said he
continued to suffer pain in his wrist and numbness in his right
hand. Claimant explained that when his physician, Dr. Nagel,
suggested additional surgery, he refused because the surgery was
not guaranteed to work. R. 279. In addition, Claimant also
related his fears of going under anesthesia, testifying that
"they had problems with waking [him] up from anesthesia" and "the
nurse she start hitting [him] said breathe, breathe." R. 278, 287
Claimant testified that his cardiac impairment caused severe
pain in his chest as well as shortness of breath. R. 270, 280. He
said he was short of breath all the time, even when sitting. R.
280. He stated that he used heart patches and nitro pills for
relief. R. 278. In response to the ALJ's questioning, Claimant
stated that he has not used cocaine since 1999, and he stopped
using cocaine because it was making his heart hurt. R. 270, 281.
Claimant related that he had worked as a security guard, but
had difficulty filling out the required paperwork. R. 277. A
co-worker would have to help him with it. R. 277. When he was
transferred to another location where he had no assistance, he
was eventually terminated because of his inability to complete
the reports. R. 277. He explained that he could read a newspaper
a little bit, but had problems spelling. R. 285. Since suffering his wrist injury, Claimant has spending his
time at home with his family. R. 279. His activities have been
limited to some household chores: taking care of his two sons by
getting them dressed for school and driving them to and picking
them up from school, maintaining his own personal hygiene, and
doing light chores such as fixing meals, making beds, light
dusting, washing dishes, and sweeping. R. 112, 212, 279, 283. As
far as his capacity for work activity, the Claimant thought he
probably could stand six hours out of an eight-hour workday, and
lift twenty pounds for about one-third of a workday. R. 279-80.
C. VOCATIONAL EXPERT'S TESTIMONY
Following the Claimant's testimony, the VE testified. The ALJ
asked the VE to assume a hypothetical individual of Claimant's
age, who was barely able to read or write, who had a residual
functional capacity ("RFC") for a restricted range of light work,
and needing a sit/stand accommodation and a controlled
environment. R. 290-91. According to the VE, such a person could
not perform the Claimant's previous jobs as housekeeper, leather
tanner, or security guard. R. 291. The VE did identify 4,500
representative jobs that such a person could perform, however:
1,500 jobs at the light level as a machine operator for photo
processing, 1,000 jobs as a sorter in the light level with
sit/stand option, and 2,000 jobs as a checker. R. 291. The VE
added that certain of these were sedentary jobs, including 1,000
jobs in sorting, 1,000 in checking, and 1,100 in
photo-processing. R. 292. The ALJ then asked the VE to further
assume the hypothetical person could only handle, hold, grasp, and manipulate occasionally to frequently, and the VE determined
that the same jobs were available. R. 292.
Claimant's attorney then questioned the VE regarding the photo
processor jobs, suggesting that if writing and cash register
duties were involved, such jobs might be beyond Claimant's
capabilities. R. 296-97. In response, the VE eliminated 1000 of
the photo processing jobs from consideration. R. 296-97.
Claimant's attorney continued to question the VE regarding the
remaining photo processor jobs but, when the VE was unable to
provide a citation to the Dictionary of Occupational Titles
("DOT") for these jobs, the ALJ eliminated them from
consideration as well. R. 298. This left the 1,000 sorter jobs
and 2,000 checker jobs which the VE then indicated were
exclusive, as opposed to earlier in his testimony where he said
they were a representative sampling. R. 299.
The Claimant's attorney then questioned the VE as to the
requirements of the remaining jobs in terms of the ability to
handle, hold, grasp, and manipulate. R. 299. The VE indicated
that the sorter job would involve a performance quota, which
would put pressure on the worker to move objects within a certain
time, but would still require only occasional handling or
grasping. R. 299. When prompted for an explanation, the VE
allowed that moving the objects would be considered manipulation,
and that this would be performed on a "regular" basis. R. 300.
Claimant's counsel then attempted to clarify just what a sorter
Q: So occasionally you'd move [objects] but the
actual sorting process of the individual units, that
would be done on a constant basis? A: Yes.
Q: And you're manipulating something? You're not just
* * *
Q: Okay. Well, the non-exertional limitation included
the restriction of manipulation
A: And that would be eliminated.
Q: that would be eliminated?
Q: Okay. And as far as the checking also?
A: Same thing.
Q: That would be eliminated also. Okay.
R. 300-301. When the ALJ resumed his questioning, he asked the VE
what jobs were available if the hypothetical person were limited
to only occasional handling, holding, and grasping. R. 301. The
VE testified that there would be none. R. 301. Assuming the
hypothetical person could perform "up to frequent" handling,
holding, and grasping, however, the VE testified that the sorting
and checking jobs were available. R. 301.
D. THE ALJ'S DECISION
On December 10, 2002, the ALJ found that the Claimant was
disabled from May 18, 1999 through September 7, 2000, but not
thereafter. R. 14-29. In so doing, the ALJ followed the
multi-step analysis applicable to cases in which a disability
ends. 20 C.F.R. §§ 404.1594(f); 416.994(f). R. 18-29. The procedure incorporates the
familiar five-step analysis common to disability cases, but also
includes considerations regarding medical improvement.
At step one, the ALJ determined that Claimant had not engaged
in substantial gainful activity during the relevant period. R.
18. At step two, the ALJ determined that the objective medical
evidence, along with Claimant's testimony, showed that neither
the wrist nor heart impairments met or equaled the requirements
of a listed impairment. R. 19-25. At step three, the ALJ
determined that medical improvement had occurred. R. 25. At step
four, the ALJ determined that Claimant's medical improvement was
related to his ability to do work. R. 25. As a result of his step
four determination, the ALJ properly bypassed step five and
proceeded to step six. At that point, the ALJ determined that all
of Claimant's current impairments were severe because in
combination, they caused more than just some minimal impact on
his functioning. R. 25.
The ALJ proceeded to step seven, at which point he assessed the
Claimant's residual functional capacity ("RFC"). According to the
ALJ, the Claimant retained the capacity to perform light work,
which the Commissioner's regulations define as follows:
Light work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category
when it requires a good deal of walking or standing,
or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To
be considered capable of performing a full or wide
range of light work, you must have the ability to do
substantially all of these activities. If someone can
do light work, we determine that he or she can also
do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability
to sit for long periods of time.
20 C.F.R. §§ 404.1567(b); 416.967(b). The ALJ found there were
additional restrictions on Claimant's capacity for light work,
however: no concentrated exposure to dust, fumes, pollutants,
chemical irritants, or extremes of temperature or humidity; and a
limitation to performing only occasional to frequent handling,
holding, grasping, and manipulating using his dominant right
upper extremity. R. 26.
In assessing the Claimant's RFC, the ALJ relied on both
objective medical evidence and Claimant's own subjective
statements. R. 25. The ALJ decided to give little weight to
Claimant's subjective statements, however, because the ALJ
determined that Claimant was not credible for several reasons. R.
21, 25-26. First, the ALJ noted that the Claimant had testified
that the last time he had used cocaine was in 1999, yet
laboratory results and Claimant's own admissions to medical
personnel indicated that he used cocaine prior to hospital visits
in April of 2001, December of 2001, and May of 2002. R. 25, 238.
The ALJ also noted that, contrary to Claimant's story regarding
his trouble awaking from anesthesia following surgery, the
medical evidence indicates he awoke "without difficulty" and had
minimal if any after affects. R. 149, 153. Finally, the ALJ found
Claimant's testimony of his limited literacy to contradict
Claimant's statement to Dr. Beermann during a July 2001 exam that
he could read a newspaper without difficulty aside from some
The ALJ found that his RFC finding was consistent with
Claimant's statement to Dr. Beermann in July of 2001, that he
could easily walk ten blocks, as well as Claimant's testimony that he could lift and carry objects weighing up to
twenty pounds occasionally and stand or walk six hours during an
eight hour workday. R. 26. Furthermore, the ALJ determined that
the nonexertional restrictions against more than frequent
handling, holding, grasping, and manipulating would accommodate
Claimant's wrist condition. R. 26. After making the RFC
determination, the ALJ followed the VE's testimony and determined
that Claimant could not perform any past relevant work. R. 27.
At the eighth and final step, the ALJ determined that Claimant
could perform other types of work existing in significant numbers
in the economy. R. 27-28. Essentially, the ALJ adopted the VE's
testimony that a person with the above RFC could work as a sorter
or checker. R. 27. While the ALJ acknowledged imposing, during
the hearing, additional stricter nonexertional limitations
regarding the ability to handle, hold, and grip objects, the ALJ
found that such limitations did not apply because applying such
limitations depended on Claimant's testimony, and Claimant was
not reliable. R. 27. Finally, the ALJ indicated that Claimant's
testimony regarding his temporary two day loading job, his
unwillingness to seek further surgery or other treatments for his
wrist for more than two years, and Dr. Beermann's findings from
the July 2001 examination led the ALJ to believe that "claimant
has achieved greater symptom relief and wrist function than his
testimony would suggest." R. 27. III. LEGAL STANDARDS
A. STANDARD OF REVIEW
The "findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive."
42 U.S.C. § 405(g). An ALJ's decision becomes the Commissioner's
final decision if the Appeals Council denies a request for
review. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir.
1993). Under such circumstances, the decision reviewed by the
district court is the decision of the ALJ. Eads v. Sec'y of the
Dep't of Health & Human Servs., 983 F.2d 815, 816 (7th Cir.
Judicial review is limited to determining whether the ALJ
applied the correct legal standards in reaching his decision and
whether there is substantial evidence in the record to support
the findings. Lopez v. Barnhart, 336 F.3d 535, 539 (7th
Cir. 2003). 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
mere scintilla of evidence is not enough. Diaz v. Chater,
55 F.3d 300, 306 (7th Cir. 1995). Even when there is adequate
evidence in the record to support the decision, however, the
findings will not be upheld if "the reasons given by the trier of
fact do not build an accurate and logical bridge between the
evidence and the result." Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996). If the Commissioner's decision lacks
evidentiary support or adequate discussion of the issues, it can
not stand. Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.
While a reviewing court must conduct a "critical review" of the
evidence before affirming the Commissioner's decision, Clifford v. Apfel,
227 F.3d 863, 869 (7th Cir. 2000), it may not re-evaluate the
facts, re-weigh the evidence, or substitute its own judgment for
that of the Social Security Administration. Diaz,
55 F.3d at 305-06. Thus, judicial review is limited to determining whether
the ALJ applied the correct legal standards in reaching a
decision and whether there is substantial evidence to support the
findings. Id.; Scivally, 966 F.2d at 1075. The reviewing court
may enter a judgment "affirming, modifying, or reversing the
decision of the [Commissioner], with or without remanding the
cause for a rehearing." 42 U.S.C. § 405(g).
B. DISABILITY STANDARD
Disability insurance benefits are available to claimants who
can establish "disability" under the terms of Title II of the
Social Security Act ("Title II"). Brewer v. Charter,
103 F.3d 1384, 1390 (7th Cir. 1997). Supplemental Security Income
benefits are available to "disabled indigent persons" under Title
XVI of the Social Security Act ("Title XVI"). Barnhart v.
Thomas, 540 U.S. 20, 24 (2003). Titles II and XVI of the Social
Security Act employ the same definition of "disability." Id.
That is, an individual is disabled if that individual has the
"inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to last for a continuous period
of not less than 12 months" 42 U.S.C. §§ 423(d)(1)(A);
1382c(a)(3)(A). However, a disabled individual is eligible for
DIB and SSI only if that individual is under a disability.
42 U.S.C §§ 423(a); 1382c(a). An individual is under a disability if
she is unable to do her previous work and can not, considering her age,
education, and work experience, partake in any gainful employment
that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A);
In cases such as the one before the Court, where an individual
is determined to be disabled and entitled to DIB for a closed
period, the Commissioner uses an eight-step sequential process to
determine whether an individual's disability continues.
20 C.F.R. § 404.1594. The ALJ must inquire:
(1) whether the claimant is engaged in any
substantial gainful activity;
(2) if not, whether claimant has an impairment or
combination of impairments meeting or equaling the
severity of an impairment listed in Appendix 1 of 20
C.F.R. Pt. 404, Subpt. P;
(3) if not, whether there has been medical
improvement as shown by a decrease in medical
(4) when there has been medical improvement, whether
the medical improvement is related to claimant's
ability to do work;
(5) if no to steps three or four, whether any
exceptions in 20 C.F.R. § 404.1594(d) apply;
(6) if yes to step four, whether all current
impairments in combination are severe;
(7) and if they are severe, whether, in considering a
claimant's RFC, a claimant can do work done in the
(8) if not, whether the claimant can do other work
given the claimant's RFC.
20 C.F.R. § 404.1594(f)(1)-(8).*fn4
The RFC is defined as the most an individual can do after
considering the effects of physical and mental limitations that
affect her ability to perform work-related activities.
20 C.F.R. §§ 404.1545; 416.945. The Commissioner has the burden of proving
that Plaintiff has the ability to engage in other work existing
in significant numbers in the national economy. Young v. Sec'y
of Health & Human Servs., 957 F.2d 386
, 389 (7th Cir. 1992).
Claimant raises three issues for review: (1) whether the ALJ
made an improper credibility finding and ignored SSR 96-7p; (2)
whether the ALJ's RFC finding is not supported by substantial
evidence; and (3) whether the ALJ made incomplete hypotheticals,
did not follow SSR 00-4p, and failed to meet the burden of
establishing the Claimant could perform work existing in
significant numbers in the economy. The Court will address each
issue in turn.
A. THE ALJ DID NOT MAKE AN IMPROPER CREDIBILITY DETERMINATION
A court will not reverse an ALJ's credibility determination
unless it was patently wrong. Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000). An ALJ's credibility determination "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 reviewers the weight the adjudicator gave to
the individual's statements and the reasons for that weight."
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)
(quoting Social Security Ruling 96-7p). It is sufficient if an
ALJ's credibility determination allows a reviewing court to
"track the ALJ's reasoning and be assured that the ALJ considered
the important evidence." Diaz, 55 F.3d at 308. In this
instance, the ALJ provided sufficient reasoning for his
credibility finding, including references to inconsistencies
between Claimant's testimony and the other evidence of record,
Claimant's treatment decisions, and Claimant's activities.
Inconsistencies between the Claimant's testimony and the
medical evidence certainly provided a basis for the ALJ to find
the Claimant not credible. For example, the ALJ noted that the
Claimant's testimony regarding his cocaine use was not supported
by the medical evidence. While the Claimant testified he had not
used cocaine since 1999, R. 270, 281, the medical evidence
indicated that he had used it on three occasions since then,
including a few months prior to the administrative hearing. R.
192, 195, 236-38, 255. Indeed, the medical record suggests that
Claimant has sought treatment for his chest pains only in the
wake of cocaine use. This is not, as the Claimant contends, an
example of the ALJ using Claimant's cocaine use against him, but
simply an example of Claimant's testimony being inconsistent with
the record, which would support a finding that the Claimant was
not credible. Another such example is the Claimant's explanation of his fear
of anesthesia. As the ALJ notes, the Claimant tells a rather
vivid tale of his difficulties awakening from anesthesia, which
includes a nurse hitting him in an effort to start him breathing.
Yet, the medical record lends no credence to this story,
indicating instead that the Claimant had no trouble with
anesthesia and awoke without difficulty. R. 149, 153. In
addition, the ALJ also questioned the Claimant's testimony
regarding his limited literacy, contrasting it with Claimant's
statement to Dr. Beermann that, aside from a vision problem,
Claimant could read a newspaper without difficulty.
The ALJ also considered the Claimant's choice of treatment in
assessing his credibility. The ALJ noted that the Claimant was
not compliant with physical therapy, missing appointments or
arriving intoxicated. He also noted that the Claimant took only
over-the-counter medication for his wrist pain. The Claimant
argues that these comments amount to the ALJ "playing doctor," by
improperly offering his lay opinion on the Claimant's medical
condition. Typical cases of ALJs impermissibly "playing doctor"
are when they either reject a doctor's medical conclusion without
other evidence, see Dixon v. Massanari, 270 F.3d 1171, 1177
(7th Cir. 2001), or when they draw medical conclusions
themselves about a claimant without relying on medical evidence.
See, e.g., Green v. Apfel, 204 F.3d 780, 782 (7th Cir.
2000). Here, the ALJ did neither of these things, but merely
considered the Claimant's choice of medical treatment in
assessing his credibility, which is entirely appropriate. SSR
96-7p; Donahue v. Barnhart, 279 F.3d 441, 444 (7th Cir.
2002) (reference to reliance on over-the-counter analgesics appropriate to
credibility determination). In so doing, the ALJ found Claimant's
reliance on non-prescription medication and failure to attend
physical therapy impacted adversely on the Claimant's
Finally, the ALJ also properly considered the Claimant's daily
activities in his assessment of the Claimant's credibility. In
this regard, the ALJ noted that the Claimant cared for his two
children, ages 9 and 5, drove them to and from school, maintained
his own personal grooming and hygiene, and did light household
chores such as cooking, sweeping, making the beds, and dusting.
R. 22. He also noted that the Claimant could tie his shoes,
button and unbutton his shirt, and turn a doorknob, all without
apparent difficulty.*fn5 R. 22. Adding these considerations
to the ALJ's discussion of Claimant's medical treatment and the
inconsistencies between his testimony and the medical record, the
Court cannot find the ALJ's credibility determination was
B. THE ALJ'S RFC DETERMINATION IS SUPPORTED BY SUBSTANTIAL
The ALJ determined that Claimant could do light work with
additional restrictions of a controlled work environment
involving no concentrated exposure to dust, fumes, pollutants,
chemical irritants, or extremes of temperature or humidity, and
only occasional to frequent handling, holding, grasping, and manipulating using his dominant
right upper extremity. R. 28. Claimant argues that he is unable
to perform light work because it requires lifting and carrying at
a level beyond his limitations, and because it does not
accommodate the shortness of breath he experiences due to his
cardiac condition. In order to make this RFC determination, the
ALJ relied upon the medical and non-medical evidence, including
Claimant's testimony and comments to physicians. R. 25-27. These
factors constitute substantial evidence in the record to support
the ALJ's RFC determination.
Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. 20 C.F.R. §§ 404.1567(b); 416.967(b). Claimant testified
that he thought he would be able to lift twenty pounds for two
and a half hours out of an eight-hour workday. R. 280. In
addition, despite Claimant's wrist injury, clinical testing
revealed that he maintain a grip strength of 4/5 in his right
hand. R. 213. The medical evidence also indicates that, while the
range of motion in Claimant's wrist is limited, it had improved
from being severely restricted. Thus, while Claimant has
limitations resulting from his wrist injury, there is substantial
evidence to demonstrate that he is able to perform the restricted
range of light work of which the ALJ found him capable.
Light work also may require a good deal of walking or standing.
20 C.F.R. §§ 404.1567(b); 416.967(b). In this regard, the
Claimant testified that he could stand six hours out of an
eight-hour workday given the understanding that he would be able
to sit down occasionally. R. 279. Furthermore, he also indicated
that he did not experience chest pain or shortness of breath upon exertion, and said he could easily
walk over ten blocks. R. 212. Indeed, according to Claimant's
comments to Dr. Beermann, he has had chest pain and shortness of
breath his whole life, R. 212; so he has worked despite it in the
past. Again, there is substantial evidence in the record to
support the ALJ's RFC determination.
The Claimant also argues that the ALJ failed to include a
sit/stand option in his findings despite presenting it in a
hypothetical to the VE. It is true that, while the ALJ originally
included a sit/stand option in the hypothetical he posed to the
VE, R. 291, he did not include this limitation in his RFC
determination. R. 26, 28. It is likely that this was deliberate:
the ALJ simply did not conclude that a sit/stand option was a
necessary component of Claimant's RFC given the evidence.
Nevertheless, the VE indicated that a sit/stand option would not
adversely impact upon the jobs available: photo processor,
sorter, or checker. R. 291-92. As such, the ALJ's omission of a
sit/stand option from his findings even if inadvertent would
amount to no more than harmless error in this instance.
C. THE TESTIMONY OF THE VE NECESSITATES A REMAND OF THIS CASE
Claimant argues that the ALJ's conclusion that Claimant was not
disabled as of September 7, 2000, is not based on substantial
evidence because of flaws in the vocational evidence upon which
the ALJ relied. More specifically, the Claimant argues that the
ALJ committed errors in his questioning of the VE, failed to
follow Social Security Ruling 00-4p, and ultimately failed to
meet his burden of establishing that the Claimant can do work
that exists in significant numbers in the economy. The Court,
however, is most concerned with the ultimate question of whether substantial evidence supports
the ALJ's conclusion that the Claimant could perform work as a
sorter or checker. In his opinion, the ALJ determined that
Claimant could engage in no more than "frequent" manipulation
during a workday, R. 28, a restriction that would not allow the
Claimant to perform a job requiring "constant" manipulation.
While it is true that the ALJ was able to elicit testimony from
the VE suggesting that the Claimant, even so restricted, could
perform the sorter and checker jobs, the ALJ failed to address
the contradictory VE testimony: testimony that tends to establish
that the sorter and checker jobs are beyond the limitations of
the Claimant's RFC. Because the ALJ neglected this testimony, and
the testimony upon which the ALJ relied to reach this conclusion
is, at best, equivocal, the Court finds that a remand is
warranted in this case.
The VE began his testimony by indicating that a hypothetical
individual of Claimant's age, who was barely able to read or
write, who had a residual functional capacity ("RFC") for a
restricted range of light work, needing a sit/stand accommodation
and a controlled environment, and a further restriction limiting
the hypothetical person's ability to handle, hold, grasp, and
manipulate in the range of occasionally to frequently, could
perform 4,500 jobs in the local economy. R. 290-92. These jobs
included 1,500 positions as a photo processing machine operator,
1,000 positions as a sorter, and 2,000 positions as a checker. R.
291. Moreover, the VE testified that these positions were merely
a representative sampling of the work such an individual could
perform. R. 291. Upon cross examination from Claimant's attorney,
however, this job base deteriorated rapidly. First, it became apparent that the VE had not considered the
reading and writing requirements of about two-thirds of the photo
processing jobs. R. 295-96. As to the remaining third, it became
apparent that they might require more manipulation and grasping
than was envisioned by the hypothetical. R. 297-98. Eventually,
when the VE was unable to support his statements about the photo
processing job with a citation to the DOT, the ALJ simply
eliminated it from consideration.*fn6 R. 298. Fairly
quickly, then, more than one-third of the jobs the VE originally
gave as representative examples of work he thought the
hypothetical individual could perform were gone.
Next, the ALJ attempted to refresh the VE's memory by restating
the hypothetical and asking what other job might replace the
photo processing job. R. 298. While the VE had originally
indicated that the photo processor, sorter, and checker positions
were merely representative, he then indicated that they were
exclusive. R. 298. There were no jobs other than sorter and
checker that the hypothetical individual could perform. Thus, as
the administrative hearing progressed, the VE significantly changed
his testimony from offering three representative examples of many
jobs he felt the hypothetical individual could perform to
offering just two specific jobs. The job base in consideration
had dwindled once more, and would continue to do so as the VE
continued to testify.
The job base available to the hypothetical person became less
concrete as the Claimant's attorney questioned the VE regarding
the amount of manipulation the checker and sorter jobs required.
Initially, the VE seemed to forget that there was a manipulation
restriction in the hypothetical. He testified that the sorter job
required handling and grasping on only an occasional basis. R.
299. He did allow, however, that it would involve constant moving
of objects which, upon reflection, he admitted would constitute
constant manipulation. R. 300. He admitted the same would be true
of the checker job. R. 300-301. As it turned out, then, there was
constant manipulation required in the sorter and checker jobs.
R. 300-301. As the hypothetical allowed for only occasional to
frequent manipulation, the VE conceded that the sorter and
checker jobs would be eliminated. R. 300-301. Thus, there were no
jobs the hypothetical individual could perform. While it is true
that a moment later, upon questioning from the ALJ, the VE stated
that the jobs would be available to someone who could perform
frequent manipulation, the damage had been done.
In the end, the ALJ based his conclusion that the Claimant was
not disabled on the VE's testimony. That testimony, as discussed,
is equivocal at best; at worst it tends to more convincingly
support the opposite conclusion. In either case, it can hardly be
considered substantial evidence to support the ALJ's decision. To make
matters worse, the ALJ made no mention of the testimony
Claimant's counsel elicited on cross-examination in his decision
that indicated the Claimant was disabled. He simply clung to the
nugget that supported his conclusion. A claimant's opportunity to
question the vocational expert on cross-examination is
significant. Ragsdale v. Shalala, 53 F.3d 816, 819 (7th
Cir. 1995). Certainly, when that cross-examination elicits
testimony of the nature elicited here, the ALJ ought to consider
and discuss it. Connor v. Shalala, 900 F.Supp. 994, 1003
(N.D.Ill. 1995). The ALJ here simply ignored it and, while the
ALJ need not discuss every piece of evidence in the record, the
ALJ may not ignore an entire line of evidence that is contrary to
his ruling. Golembiewski v. Barnhart, 322 F.3d 912, 917
(7th Cir. 2003). When he does, it is impossible for a
reviewing court to tell whether the ALJ's decision rests upon
substantial evidence. Id. That is just what the ALJ did here by
failing to discuss or even mention the bulk of the VE's
testimony. Accordingly, the Court must remand this case to the
Commissioner because the ALJ ignored an entire line of vocational
evidence. V. CONCLUSION
For the reasons set forth in this opinion, Claimant's motion
for summary judgment is granted and the Commissioner's motion for
summary judgment is denied. This case is remanded to the
Commissioner for further proceedings consistent with this