IV. CONCLUSION
The ALJ erred in making a credibility finding regarding case dispositive issues
without hearing from the Claimant and relying on the transcript from an earlier hearing. For
the reasons stated in this opinion, this Court grants the Claimant’s motion for summary
judgment, denies the Commissioner’s motion for summary judgment and remands the
case to the Commissioner for further proceedings consistent with this opinion.

SO ORDERED THIS 20" DAY OF AUGUST, 2002.

7Hlrcte. Arabs

MORTON DENLOW
United States Magistrate Judge

Copies mailed to:

Frederick J. Daley, Jr. Kathryn A. Kelly

Daley, DeBofsky & Bryant Assistant United States Attorney
One North LaSalle Street, Suite 3800 219 South Dearborn Street, 5" Floor
Chicago, Illinois 60602 Chicago, IL 60604

(312) 372-5200 (312) 353-1936

(312) 372-2778 (fax)

Attorney for Plaintiff Curt P. Marceille
Assistant Regional Counsel
200 W. Adams St.- 30th Floor
Chicago, [linois 60606
(312) 353-9217

Attorneys for Defendant

13



problems with her balance and muscular control. (R. 88). She was easily upset and had
difficulty remembering information, such as her husband’s work telephone number. (R. 36,
52). She complained of insomnia and frequent urination and leakage problems. (R. 43).
Kopulos also took medication for depression. (R. 49).

2. VE’s Hearing Testimony

The ALJ presented four hypotheticals to VE Edward Pagella at the second hearing.
The first hypothetical was based on Ex. 5 (R. 78-80), which assumed an individual with
Claimant’s age, education, and vocational background, as well as characteristics of the
Claimant’s RFC, an individual who could “lift 20 pounds maxinium and who could sit, stand,
or walk through a six hour day, but who’s limited in pushing and pulling with upper and
lower extremities, who could only engage in climbing and crawling occasionally, and who
would need to avoid extreme cold, heat, humidity, fumes, and hazards.” (R. 455). Based on
this hypothetical, the Claimant could perform her past relevant work in customer service or
as a pharmacy clerk. (R. 455).

The ALJ’s second hypothetical was identical to the first, except the individual was
limited to simple and unskilled tasks. (R. 455). Based on this hypothetical, an individual
could perform a variety of occupations, including 48,000 cashier positions, 11,600 general
office clerk positions, and 22,000 assembly worker positions. (R. 455).

The ALJ continued the same characteristics in the third hypothetical, but also added

the characteristic of generalized fatigue, requiring the individual to take unscheduled breaks


A reviewing court may not decide facts anew, reweigh the evidence, or substitute its
own judgment for that of the Commissioner. Knight v, Chater, 55 F.3d 309, 313 (7th Cir.
1995). Rather, judicial review is limited to determining whether the ALJ applied the correct
legal standards in reaching its decision and whether there is substantial evidence in the record
to support the findings. 42 U.S.C. § 405(g); Scivally v. Sullivan, 996 F.2d 1070, 1075 (7th
Cir. 1992). The SSA gives a court the power to enter a judgment “affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without remanding
the cause for hearing.” 42 U.S.C. § 405(g).

In order to be entitled to DIB under Title II of the SSA the claimant must establish a
“disability” as defined by the Social Security Act. The same is true to qualify for SSI under
Title XVI of the SSA. Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 1997). To establish
a “disability” the claimant must show he is suffering from a 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 at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Additionally, an individual shall be considered disabled “only if his physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other
kind of substantial gainful work ....” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The Social Security Regulations provide a five-step process to determine whether a

claimant has established a “disability.” 20 C.F.R. § 404.1520. The process is sequential; if



On September 23, 1992, Plaintiff saw Dr. Nadis’ associate, Dr. Timothy McGonagle,
also a neurologist, who noted a slight limp and clumsiness in Claimant’s hands, (R. 152).
Her symptoms, with the known abnormal MRI scan, raised the possibility of MS. (R. 152).
He found Claimant had no neurological deficits, except for a diminished vibratory sense at
T-12- LI along the vertebral spines. (R. 152). Claimant was normal in her gait, strength in
lower extremities, upper extremity findings, and reflexes. (R. 152). However, she also
complained of an increased urgency and frequency to urinate. (R. 152).

On December 21, 1993, Claimant visited Dr. McGonagle complaining of aches and
pains in all extremities and general fatigue and malaise. (R. 151). He diagnosed a shoulder
strain or sprain. (R. 151). He opined that Claimant’s symptoms might be related to
depression. (R. 151). Dr. McGonagle recommended a second MRI (R. 151), which was
performed on January 4, 1994. (R. 121). The radiologist determined that the white matter
changes in the brain were consistent with a demyelinating process. (R. 120).

In May 1994, Claimant underwent tubal ligation surgery. (R. 144-45). In July 1994,
Claimant saw Dr. McGonagle on a routine return visit. (R. 147). Although her examination
failed to reveal any major objective abnormality, Dr. McGonagle concluded she was probably
suffering from MS “based on the symptom complex and progressive changes on the MRI
scan without other potential etiologies being found.” (R. 147).

In January 1995, Dr. McGonagle determined Claimant’s new symptoms of mild

swelling and limitation on alternating rapid movement for upper right extremity, might be



for rest. The VE stated that such a hypothetical individual would not be able to perform
substantial gainful activity. (R. 456).

In the final hypothetical, the ALJ maintained all the same characteristics of the third,
but replaced general fatigue with the need to have hourly bathroom breaks. The VE
responded that this individual would not be able to perform substantial gainful activity. (R.
456).

C. MEDICAL EVIDENCE

1 MacNeal Hospital

On June 3, 1992, Claimant reported to MacNeal Hospital complaining of numbness
to the left side of her face, left leg and left arm. (R. 124). She was diagnosed as having
atypical migraine headaches. (R.125-26). MS or a seizure disorder were also identified as
possible, but unlikely diagnoses. (R. 125-26, 129). On June 5, 1992, Kopulos had a
Magnetic Resonance Imaging (“MRI”) of her left brain. (R. 120). The results showed areas
of increased signal to the cerebral white matter, which “may be secondary to multiple
sclerosis plaques.” (R. 120). The results also showed no accompanying neurologic deficit,
which implied the plaques were not necessarily caused by MS. (R. 118, 125).

2. Treating Neurologist Physicians: Dr. Timothy McGonagle and Dr. Susan
Nadis

On July 2, 1992, Claimant complained of occasional numbness in her left side with
pain. (R. 118). Dr. Susan Nadis, a neurologist, found no clinical signs of a neurological

deficit attributable to a demyelinating disease. (R. 153).

5



D. THE ALJ’S DECISION

On April 24, 2001, ALJ Michael R. McGuire denied Kopulos’ claim for social
security disability benefits. (R. 375-84). ALJ McGuire did not take testimony from Claimant
regarding her pre-December 1993 medical status, but relied on the earlier hearing transcript
before ALJ Haworth. (R. 380). Unlike ALJ Haworth, who found Kopulos did not have a
severe impairment at step two, ALJ McGuire did find a severe impairment. (R. 383). The
ALJ concluded Claimant has the “residual functional capacity for light exertional work with
postural and environmental restrictions in reaching and bending that does not involve more
than simple, unskilled tasks.” (R. 383). The ALJ found Kopulos not disabled at step five
because she could perform significant light exertional work limited to simple and unskilled
tasks at a substantial gainful activity level. (R. 380-84).

Before this Court are Kopulos’ and the Commissioner’s cross-motions for summary
judgment. Oral argument was held on July 29, 2002.

II. LEGAL STANDARDS

Judicial review of a Commissioner’s final decision is governed by 42 U.S.C. § 405
(g) which provides the “findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.” Substantial evidence is “such
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). In other words, the ALJ’s findings must

be supported by more than a mere scintilla of the evidence. Id.



* Minute Ordet Form (06/97)

United States District Court, Northern District of Ilinois

Name of Assigned Judge Morton Denlow Sitting Judge if Other

or Magistrate Judge than Assigned Judge

CASE NUMBER 01 C 4881 DATE 8/20/2002

CASE Frances A. Kopulos vs. Jo Anne B. Barnhart
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, delendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented. |

DOCKET ENTRY:

( ia Filed motion of | use listing in “Motion” box above.]

(2) a Brief in support of motion duc

3) oO Answer brief to motion due. _. Reply to answer brief due__

(4) a Ruling/Hearing on __ set for _ at.

6) a Status hearing[held/continued to] [set for/re-set for]on___ setfor____ at

(6) oO Pretrial conference{held/continued to] [set for/re-set for] on __ _ set for at

ga” oa Trial[set for/re-set for]on ___at

(8) a ([Bench/Jury trial] [Hearing] held/continuedto at

(9) a This case is dismissed [with/without] prejudice and without costs! by‘agreement/pursuant to]

DFRCP4(m) OLocal Rule 41.1 OOFRCP41(a)(1) 0 FRCP41(a)(2).

(10) 4 [Other docket entry] | Enter Memorandum Opinion and Order. This Court grants the Claimant’s
motion for summary judgment [18-1, denies the Commissioner’s motion for summary judgment [23-!]
and remands the case to The Commissioner for further proceedings consistent with this opinion

(il) (For further detail see order attached to the original minute order |

No notices required

Mail AO 450 form

No notices required, advised in open court

Y | Notices mailed by judge's staff.
Notitied counsel by telephone.

Docketing to mail notices

Copy to judge/magistrate judge

Document
Number

number af notices

AUG 22 2002

S
dockerfp PAA Gty initials

8/20/2002

DK

date mailed notice

courtroom
deputy’s
initials

DK

Date/time received in

central Clerk's Ofiice mating deputy initials



The ALJ found the Claimant’s “allegations regarding her limitations are not totally
credible for the reasons set forth in the body of the decision.” R. 383. The ALJ found “that
the Claimant was exaggerating the severity of her medical status in her testimony before
Administrative Law Judge Haworth.” R. 383, This Court does not comprehend how a
credibility determination can be made without the ALJ hearing from the Claimant on the
issues for which credibility is being judged.
This case was not remanded to the original ALJ because he was retired. Having the
first judge retire is an unusual circumstance. A similar situation requiring the Plaintiff to re-
testify occurred in an employment race discrimination case on an appeal from an involuntary
dismissal. Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1285 (7th Cir. 1977). At the
time of the remand, the original judge had died and the F/owers court held:
because of the death of Judge Lynch since trial and because of
the possibility that the plaintiff's credibility as a witness may be
challenged by the defendant on remand, we believe a full retrial
is appropriate here to afford the new trial judge an opportunity
to hear the plaintiff testify. Accordingly, the case is remanded
for a new trial.”

Id. (emphasis added).

Second, ALJ McGuire notes the Claimant’s earlier written statements were also
inconsistent with her testimony before ALJ Haworth, however, she was never given an
opportunity to explain any of the perceived discrepancies. R. 380-382. Because the second

ALJ disagreed with the first ALJ at step two, it was unfair not to give the Claimant an

opportunity to address the ALJ’s legitimate concerns about possible discrepancies. SSR 96-

11



the ALJ finds that the claimant is not disabled at any step in the process, the analysis ends.
Id. The ALJ must inquire: (1) whether the claimant is still working; (2) whether the claimant
has a severe impairment; (3) whether claimant’s impairment meets or equals a listed
impairment; (4) if the claimant does not suffer from a listed impairment, whether he can
perform past relevant work; (5) whether the claimant is capable of performing any work in
the national economy. Jd.
II. ANALYSIS

The issues presented are: (1) whether the ALJ properly assessed Kopulos’ credibility;
and (2) whether the Claimant’s severe impairment qualifies as a slowly progressive
impairment under Social Security Ruling (“SSR”) 83-20.

A. THE ALJ ERRED IN ASSESSING KOPULOS’ CREDIBILITY WITHOUT
HEARING HER TESTIFY ON THE SUPPOSED INCONSISTENCIES

The Claimant’s first argument is the second ALJ should have taken testimony from
Claimant rather than relying on the first ALJ’s hearing transcript and credibility
determination. This Court agrees because the first hearing involved a determination at step
two, whereas on remand the second ALJ decided the case at step five. Based on the VE’s
testimony, the decisive issue in the case was whether Claimant required hourly bathroom
breaks or unscheduled breaks due to fatigue. As a result, Claimant’s credibility and
description of symptoms in relationship to the objective medical evidence are crucial to the

ultimate decision.

10



a mild exacerbation of MS. (R. 180). He could not find much in the way of objective
abnormalities. (R. 180).

3. State Agency Physicians

On October 26, 1994, Dr. Julius Villaflor conducted a Residual Functioning Capacity
(“RFC”) Assessment of Claimant’s record. (R. 154-161). He concluded that as of the
Claimant’s date last insured, December, 31, 1993, Claimant was capable of performing
sedentary jobs. (R. 161). Dr. Harry Bergmann affirmed Dr. Villaflor’s findings on February
27, 1995. (R. 154).

4, Dr. Catherine Camilleri

Claimant was referred by her neurologist Dr. Nadis to see Dr. Catherine Camilleri, a
psychiatrist, in August 1995. (R. 179). Dr. Camilleri diagnosed her symptoms consistent
with major depression and prescribed Prozac. (R. 179). Dr. Camilleri also completed a
psychiatric report on the Claimant for the Social Security Administration (“SSA”) dated May
1, 1996. (R. 224-26). As of that date, Dr. Camilleri had seen Claimant five times. (R. 224).
She diagnosed Claimant as suffering from major depression, but noted Claimant has the
ability to do work related activities such as carrying out instructions, responding
appropriately to supervision, co-workers and customary work pressures. (R. 226). On May
11, 1996, Dr. Camilleri completed a Mental RFC and stated Kopulos does have “the mental

capacity to perform simple tasks.” (R. 240).



recommendation that ALJ Haworth’s decision be affirmed on every issue, except for the
ALJ’s failure to address the state agency physicians’ expert opinions that Claimant had a
severe impairment. (R. 392-405). United State District Court J udge Wayne R. Andersen
adopted Judge Levin’s report and recommendation and remanded the cause to the ALJ for
consideration of the state agency physicians’ findings as directed by SSR 96 - 6p. (R. 391).
Judge Andersen’s remand resulted in a second administrative hearing.

B. SECOND ADMINISTRATIVE HEARING

The second administrative hearing was held on March 23, 2001, before ALJ Michael
R. McGuire. (R. 445-59). Claimant and Vocational Expert Edward Pagella (“VE”) testified.
Claimant was represented by the same counsel.

1. Kopulos’ Hearing Testimony

Claimant testified at both hearings. However, at the second hearing, she only testified
about her past vocational work, (R. 450-54). Kopulos was bom on August 14, 1956. (R. 34).
She is married and has two children. (R. 35). Kopulos completed the eleventh grade of high
school. (R. 34). She worked as a pharmacy clerk from 1974 until 1980. (R. 451). She
worked in customer service from 1980 to 1988. (R. 451). Claimant last worked in 1988,
when she worked in customer service for a printing company. (R. 36). She left her job for
maternity leave in August 1988. (R. 36). While on leave, her employer closed. (R. 36).

In March 1992, Claimant noticed a change in her health. (R. 36) Her symptoms

included severe fatigue and numbness in her hands, legs, and feet. (R. 36, 88). She had


J. RELEVANT FACTS

Claimant filed for DIB under Title II of the Social Security Disability Act on
September 22, 1994, alleging a disability due to the symptoms of Multiple Sclerosis (“MS”)
since March 1, 1992. (R. 66-68). Her application was initially denied in November 1994.
(R. 69-71). Upon reconsideration in March 1995, it was again denied.' (R. 78-81). Claimant
has participated in two administrative hearings, the first on May 13, 1997 (R. 30-65) and the
second on March 23, 2001. (R. 445-59).
A. FIRST ADMINISTRATIVE HEARING

The first administrative hearing was held May 13, 1997, before Administrative Law
Judge (“ALJ”) Rodney G. Haworth. (R. 30-65). The Claimant, her husband, and her sister
testified. The Claimant was represented by counsel. On May 30, 1997, ALJ Haworth denied
Kopulos DIB because she did not have a severe impairment prior to December 1993, when
her insured status for DIB expired. (R. 11-19). Thus, she failed at step two of the five step
sequential analysis to determine whether a claimant with exertional impairments is disabled.
20 C.F.R. §404.1520. On May 7, 1998, the Appeals Council denied Claimant’s request for
review. (R. 6-7).

On July 6, 1998, Plaintiff filed a complaint requesting judicial review of the final

determination. (R. 386-88). United States Magistrate Judge Ian H. Levin issued a report and

' While the request for hearing was pending, Plaintiff sent more documents to the Social
Security Administration, which included a current diagnosis for major depression. (R. 179). On
January 20, 1996, after receiving the current diagnosis for major depression, ALJ James A. Hom
vacated the reconsideration determination of March 16, 1995. (R. 193).

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHEN DISTRICT OF ILLINOIS

EASTERN DIVISION OCKETED
FRANCES A. KOPULOS, )
)
Plaintiff, )
) Case No. 01 C 4881

v. )
)
JO ANNE B. BARNHART, )

Commissioner of Social Security, ) Magistrate Judge Morton Denlow
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Frances A. Kopulos (“Claimant” or “Kopulos”) seeks judicial review of the
final decision of the Commissioner of Social Security, Jo Anne B. Barnhart (““Commissioner”
or “Defendant”), denying Plaintiff’s application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. § 405(g). This case has a long history and
was previously remanded to the Commissioner by United States District Court Judge Wayne
R. Andersen in 1999, Both parties move for summary judgment. For the reasons stated
herein, this Court grants the Plaintiffs motion for summary judgment, denies the
Commissioner’s motion, and again remands the case to the Commissioner for further

proceedings consistent with this opinion.


7p. Therefore, on remand the ALJ should have the Claimant testify and make independent
credibility findings. In this context, the ALJ should decide whether Claimant’s claim that
she requires unscheduled breaks due to fatigue or hourly bathroom breaks are credible in
light of the medical evidence.

B. THE NATURE OF CLAIMANT’S SEVERE IMPAIRMENT MAY QUALIFY
FOR SSR 83-20

Social Security Ruling 83-20 discusses the onset of slowly progressive impairments.
The medical definition of MS describes it as a “slowly progressive CNS (Central Nervous
System) disease characterized by disseminated patches of demyelination in the brain and
spinal cord, resulting in multiple and varied neurologic symptoms and signs, usually with

remission and exacerbations.” The Merck Manual of Diagnosis and Therapy, 16" ed. p.

1488-89 (1992). On remand, ALJ McGuire must determine if Claimant’s severe disorder
qualifies for SSR 83-20. If the impairment is determined to be a slowly progressive
impairment, then “it will be necessary to infer the onset date from the medical and other
evidence that describe the history and symptomalogy of the disease process.” SSR 83-20.
Such an undertaking may require the ALJ to request a Medical Expert’s testimony, further

independent medical examination, or further information from Claimant's treating physician.

12