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Burmeister v. Barnhart

June 28, 2005


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Walter Burmeister appeals from the denial of his application for Supplemental Security Income benefits. Both Burmeister and the Commissioner have moved for summary judgment. Our review of the Administrative Law Judge's decision and the record before the Court leads us to conclude that the ALJ's analysis was inadequate in several respects, and thus we reverse and remand for further proceedings.


Burmeister applied for Supplemental Security Income in February 2001, alleging that he had become disabled on January 1, 1991. His application was denied initially. On reconsideration, Burmeister requested and received a hearing before an Administrative Law Judge. On January 23, 2003, Burmeister, represented by counsel, testified at a hearing before an ALJ. In a written decision dated May 14, 2003, the ALJ concluded that Burmeister was not disabled and was accordingly ineligible for SSI. Burmeister's request for review of the unfavorable decision was denied by the Appeals Council, thereby leaving the ALJ's opinion as the final decision of the Social Secuirty Administration. He now seeks judicial review of the decision.

At the date of the hearing, Burmeister was fifty-three years old, divorced with two children, and high school graduate. Burmeister worked from 1989 to 1991 as a sizer, a job that involved reshaping hot metal pieces after they came out of a furnace and, according to Burmeister, required him to sit for seven to eight hours a day and to "once in awhile" lift twenty-five pounds. R. 67, 79, 161. Burmeister testified that he was fired from this job after having two seizures. Prior to this period, Burmeister worked for three years as a brake press operator, but he had to quit this job when complications from lymphoma and chemotherapy prevented him from performing his duties. Burmeister has not been gainfully employed since 1991.

Burmeister's principal health complaints are seizures, chronic lower back pain, Hepatitis C, carpal tunnel syndrome, poor vision, and a history of lymphoma and alcoholism. The seizures are the primary disability that Burmeister contends prevent him from working. According to Burmeister, the seizures began approximately twenty years ago. The cause of the seizures is unknown, however, Burmeister was involved in a few car accidents and was injured when he fell from a ladder. The seizures were first diagnosed by doctors at Cook County Hospital in October 1998, and Burmeister was prescribed Phentoin. In September 2001, he was formally diagnosed with epilepsy and was prescribed Dilantin. Burmeister testified that the seizures occur "once a month, maybe twice a month,"*fn1 even when he is taking Dilantin. R. 162. The seizures occur both during the day and at night, with no particular pattern. Burmeister stated that it takes him "a couple days" to recover after a seizure. R. 162.

Burmeister also suffers from chronic lower back pain due to degenerative disc disease. His testimony reflects that he can sit for only an hour at a time due to pain. His balance is "not that great anymore," and he has fallen down stairs. R. 167. He "imagine[s]" that he could walk a mile, but he would need to stop about every block and a half. R. 166-67. Though Burmeister had not made any trips to a nearby store the year of the hearing, he believes he walked the five or six miles to the store up to five times during the previous year. R. 170. He stated that he could possibly lift twenty pounds, but that five pounds would be a more realistic depiction of what he could consistently lift. R. 167.

Burmeister further complains that he suffers from complications, including vomiting, related to Hepatitis C. He was diagnosed with Hepatitis C and high liver enzyme levels in March 2001. He has never been treated for the disease, but in 2001, doctors suggested that Burmeister begin taking Interferon. R. 164. In addition, Burmeister "think[s]" that a few years ago, doctors also diagnosed him with carpal tunnel syndrome in his right hand. R. 165. He has some numbness in that hand and is sometimes unable to pick up a fork. Burmeister testified that he "usually . . . can't write" when he is experiencing trouble with his hand, but that this is not often a problem. R. 173.

Finally, Burmeister mentioned that he has problems focusing his eyes -- he sometimes cannot focus at all but other times can read for an hour -- and complained that his knees hurt every once in awhile. R. 160; 172. Though Burmeister once abused alcohol, he testified that he has not had a drink since April 2002, and that he had been sober for a year before a one week relapse in March 2002. His lymphoma was in remission. Burmeister acknowledged that he no longer saw a doctor on a regular basis for any of his maladies. He testified that it is very difficult for him to get to Cook County Hospital and other clinics, as neither he nor his mother are able to drive.

In April 2001, Dr. Angelito Bernardo performed a consultative examination and evaluation at the request of the Bureau of Disability Determination Services. In addition to noting Burmeister's history of grand mal type seizures, chronic back pain, hepatitis C, carpal tunnel syndrome, knee problems, and history of lymphoma, Bernardo also mentioned that Burmeister complained of a history of heart condition, though he had no current complaints and the heart findings were within normal limits. Bernardo also discovered that Burmeister had a decreased range of motion of the lumbosacral spine from ninety to fifty degrees on flexion.

Dr. Robert Patey also reviewed Burmeister's medical records and submitted a physical residual functional capacity assessment, dated May 17, 2001, consisting of a series of check-offs as to how, if at all, he believed Burmeister was limited. He concluded that Burmeister was occasionally able to lift twenty pounds, frequently able to lift ten pounds, could stand or walk with normal breaks for a total of about six hours in an eight-hour workday, and was able to sit for less than six hours in an eight-hour workday. With respect to postural limitations, Patey checked that Burmeister could never climb ladders, rope, or scaffold, but that he could occasionally balance, stoop, kneel, crouch, and crawl. He noted no manipulative, visual, or communicative limitations. The report suggests that Burmeister's only environmental limitation is that he must avoid all exposure to hazards, including machinery, heights, etc., due to his seizure condition. In a section titled "additional comments," Patey noted, among other things, that Burmeister had "questionable compliance" with Phentoin, that no ascites or characteristics of liver disease were present, and that his pain was "credible as chronic." R. 150. Patey concluded that Burmeister would be able to perform light work activity with restriction from any exposure to hazards.

The ALJ relied upon these physicians' written evaluations, along with Burmeister's testimony, in determining whether Burmeister was disabled within the meaning of the Social Security Act. No vocational experts testified or were consulted.

To establish disability, a claimant must show that he is unable to engage in any substantial gainful activity due to the existence of a "medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The ALJ employed the familiar five-step sequential inquiry outlined in the Social Security regulations to determine whether Burmeister could engage in substantial gainful activity: (1) is the claimant presently employed; (2) is the claimant's impairment or combination of impairments severe; (3) do the claimant's impairments meet or equal any specific impairments listed within the Code of Federal Regulations which the Commissioner of Social Security acknowledges to be conclusively disabling; (4) are the claimant's impairments of such a nature that they limit his remaining or residual functional capacity to the degree that he is no longer able to perform the duties and demands of a former occupation; and (5) is the claimant unable to perform any other work in the national economy, considering his age, education, and work experience. Butera v. Apfel, 173 F.3d 1049, 1054 (7th Cir. 1999).

The ALJ readily determined that Burmeister had not engaged in substantial gainful activity since his alleged onset of disability. Though he concluded that the medical evidence reflected that Burmeister's impairments, including "a disorder of the back and at least histories of seizures and alcoholism," constitute a "severe" impairment at the second step of the analysis, he did not find that Burmeister's impairments met or medically equaled any impairment listed in the federal regulations. R. 18. At step four of the analysis, the ALJ adopted Dr. Patey's assessment that Burmeister could "perform light work subject to prohibitions against exposure to hazards or climbing ladders, ropes, and scaffolds; or more than occasional balancing, stooping, kneeling, crouching, crawling, and climbing of ramps and stairs." R. 19. Thus, the ALJ concluded that Burmeister had the residual ...

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