(Id.) The ALJ determined that no other functional limitations
“were established by substantial evidence.” (Id.)

The ALJ found that Plaintiff's statements regarding his
subjective symptoms and functional limitations were not credible.
The ALJ stated that the medical evidence did not support
Plaintiff’s subjective complaints, and his daily activities and
treatment history were not consistent with the limitations he
described. (R. at 20.)

In evaluating medical evidence characterizing Plaintiff’s
RFC, the ALJ gave less weight to Dr. Chuprevich’s June 10, 1999
report than to Dr. Langgut’s report from the same month, which
disclosed findings strikingly similar to those of Dr. Chuprevich.
(R. at 18.) See generally 20 C.F.R. § § 416.945, 416.961. In
doing so, the ALJ determined that Plaintiff did not have a
supportable limitation in social functioning, as indicated by Dr.
Chuprevich’s diagnosis of Axis 2 Personality Disorder Not
Otherwise Specified. (R. at 19, 336.) The ALJ reasoned that Dr.
Chuprevich’s conclusions were inconsistent with Plaintiff's
admitted daily activities, and were based on incorrect
information regarding Plaintiff’s alcohol abuse. (R. at 18.) The
ALJ also reasoned that Dr. Chuprevich’s conclusions were not

supported by the narrative of his own evaluation. (Id.)

19


(R. at 332.) Dr. Langgut further opined that Plaintiff’s chronic
use of alcohol “may contribute mightily to both his cognitive and
personality impairments.” (Id.) Dr. Langgut explained that
Plaintiff’s chronic use of alcohol deteriorated certain memory
skills, and that discontinuing its use would allow “for some
degree of rebound of these abilities.” (Id.) Dr. Langgut
concluded that, although Plaintiff was not able to use higher
order reasoning in a beneficial manner, his general fund of
information was within the average range indicating an ability to

understand the world around him. (R. at 222, 223.)

8. Joseph W. Chuprevich, D.O., treating physician

Dr. Chuprevich began to treat Plaintiff in July 1997, when
Plaintiff suffered two grand mal seizures. (R. at 181.) He
continued to treat Plaintiff until December 3, 1998, while
Plaintiff was in an alcohol treatment program at NCBHS*. (R. at
260.)

On June 10, 1999, Dr. Chuprevich examined Plaintiff at the
request of Plaintiff's attorney. (R. at 335.) Dr. Chuprevich
assessed Plaintiff’s memory, concentration, insight, judgment,

and intellect. Plaintiff had a tendency to be forgetful. (R. at

2? Dr. Chuprevich’s prior history of treating Plaintiff is
discussed earlier in subheadings 2 and 3.

13


burden of proof at steps 1-4, but the burden shifts to the
Commissioner at step 5. Id.; see also Maggard, 167 F.3d at 378.
The ALJ’s analysis at step 5 typically involves an
evaluation of the claimant’s RFC to perform a particular category
of work. See 20. C.F.R § § 416.920(f), 416.945. RFC is an
assessment of claimant’s remaining capacity for work despite his
physical and mental limitations. 20 C.F.R § 416.945; see also
Hickman v. Apfel, 187 F.3d 683, 689 (7th Cir. 1999). RFC is
“used as the basis for determining the particular types of work
the claimant may be able to do,” despite the claimant’s
impairment(s), and “is not a decision on whether the claimant is
disabled.” 20 C.F.R. 416.945. When a plaintiff’s non-exterional
impairments significantly diminish his ability to work, the
Commissioner must introduce the testimony of a VE (or other
similar evidence) to determine whether, given a plaintiff's RFC,
there are a significant number of jobs in the national economy
that a plaintiff can perform. Bapp v. Bowen, 802 F.2d 601, 603

(2nd Cir. 1986).

DISCUSSION
Plaintiff presents two main arguments in support of his
contention that the Commissioner’s decision should be reversed

and/or remanded. Plaintiff contends that substantial evidence

23


drugs. (R. at 38.) He acknowledged that his drinking most likely
caused him to lose a lawn maintenance job. (R. at 45, 46.)
Plaintiff admitted that North Central Behavioral Health Systems,
Inc. (“NCBHS”) refused to continue treating him for alcoholism,
because he was unable to stop his chronic drinking. (R. at 41,
42.)

Plaintiff testified that he performs odd jobs for family,
friends, and neighbors in consonance with his employment history
as a maintenance worker. (R. at 34, 38.) Plaintiff described
some of his daily activities. At his cousin’s tavern, Plaintiff
worked to clean the bathroom floors five days a week for two to
three hours per day. (R. at 34, 35.) Plaintiff testified that he
mows the lawns of friends and neighbors every three to four days.
(R. at 34.) Plaintiff also stated that he helps with some
household chores, such as dish washing and grocery shopping.

(Id.)

2. Edward J. Bacidore, Plaintiff’s father

Mr. Edward J. Bacidore testified that he and his wife
remained responsible for Plaintiff’s daily supervision. (R. at
53.) Mr. Bacidore explained that Plaintiff has been unable to
hold a job, since his aneurysm in 1980. (R. at 51.) In addition,

Plaintiff is unable to care for himself and has been financially


Accordingly, the ALJ relied upon Dr. Langgut’s conclusions to
assess Plaintiff’s RFC. (Id.)

Finally, relying on the VE’s testimony, the ALJ found that
an individual of Plaintiff’s age, education, work experience, and
functional limitations had the RFC to perform a significant
number of jobs in Illinois. (R. at 19.) See generally 20 C.F.R. §
§ 416.946, 416.966. Also, the ALJ determined that, even if she
were to incorporate a limitation in social functioning, Plaintiff
would nevertheless be able to work, because none of the
occupations mentioned by the VE required regular interaction with
other people. (R. at 19.) ALJ Welsch concluded that Plaintiff
was not disabled, even if he were to have a supportable

limitation in social functioning. (Id.)

STANDARD OF REVIEW

In reviewing the ALJ’s decision, the Court may not decide
the facts, re-weigh the evidence, or substitute its own judgment
for that of the ALJ. Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994); see also Powers v. Apfel, 207 F.3d 431, 434-435 (7th
Cir. 2000). Where conflicting evidence allows reasonable minds
to differ, the responsibility for determining whether a claimant
is disabled falls upon the Commissioner, not the courts. Herr v.

Sullivan, 912 F.2d 178, 181 (7th Cir. 1990); see also Stuckey v.

20


that opinion. Knight v. Chater, 55 F.3d 309, 313-314 (7th Cir.
1995) (citing Washington v. Shalala, 37 F.3d 1437, 1440 (10th
Cir. 1994)). ALJ Welsch rejected Dr. Chuprevich’s opinion also
because: 1) Dr. Chuprevich’s conclusions “are based on incorrect
information regarding Plaintiff’s alcohol abuse;” and 2) Dr.
Chuprevich’s conclusions “are not supported by the narrative of
his own evaluation.” (R. at 18

However, the record does not support the ALJ’s assessment of
Dr. Chuprevich’s opinion. Contrary to the ALJ’s finding, the
record indicated that Dr. Chuprevich was well aware of
Plaintiff's history of alcohol abuse. During Plaintiff’s July
1997 hospitalization, Dr. Chuprevich attributed Plaintiff’s
seizures to his history of alcohol abuse. Moreover, Dr.
Chuprevich treated Plaintiff while he was in an alcohol treatment
program at NCBHS. Dr. Chuprevich discharged Plaintiff from that
program on the grounds of futility, because Plaintiff would not
stop drinking. In fact, in his submitted medical opinion, Dr.
Chuprevich assessed that Plaintiff “fails to see that he has any
problems with alcohol” and that “his denial is of psychotic
proportions.” (R. at 335.) The Court finds that Dr. Chuprevich
was highly informed of Plaintiff’s history of alcohol abuse, and
that ALJ Welsch’s conclusion to the contrary is not supported by

the record.

26


Servs., 957 F.2d 386, 393 (7th Cir. 1992). Indeed, the ALJ must
build “an accurate and logical bridge” from the evidence to her
conclusion. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Yet, the ALJ need not spell out every step in her reasoning,
provided that she has given sufficient direction that the full
course of her decision may be discerned. Guerico v. Shalala, No.

93 C 323, 1994 WL 66102, at *9 (N.D.I11l. Mar. 3, 1994).

SOCIAL SECURITY REGULATIONS

The Social Security Regulations prescribe a sequential five
part test for determining whether a claimant is disabled. See 20
C.F.R. § § 404.1520, 416.920 (West 2002.) The ALJ must consider:
(1) whether the claimant is presently unemployed; (2)whether the
claimant has a severe impairment or combination of impairments;
(3) whether the claimant’s impairment meets or equals any
impairment listed in the regulations as being so severe as to
prelude gainful activity; (4) whether the claimant is unable to
perform his past relevant work; (5) whether the claimant is
unable to perform any other work existing in significant numbers
in the national economy. Id.; see also Young, 957 F.2d at 389. A
finding of disability requires an affirmative answer at either
step 3 or step 5. A negative answer at any step (other than step

3) precludes a finding of disability. Id. The claimant bears the

22


Plaintiff should avoid concentrated exposure to heights and

hazardous machinery. (R. at 254.)

d. Sandra A. Bilinsky, M.D., non-treating, non-examining
physician

On June 21, 1998, Dr. Bilinsky did not find that Plaintiff
was restricted to occasionally lifting 50 pounds and to
frequently lifting 25 pounds. (R. at 274.) Dr. Bilinsky
determined that Plaintiff should avoid concentrated exposure to
heights and hazardous machinery, because of his susceptibility to

seizures. (R. at 277.)

Cc. The ALJ’s Decision

On November 16, 1999, ALJ Welsch issued her decision,
concluding that Plaintiff was not disabled, because he still
could perform a significant number of jobs, despite his severe
impairments. (R. at 19.) The ALJ emphasized that Plaintiff’s
severe impairments were not disabling even while he continued to
abuse alcohol. (R. at 15, 18, 19.)

The ALJ properly employed a five step sequential evaluation
process. See generally 20 C.F.R. § 416.920 (West 2002.); Maggard

v. Apfel, 167 F.3d 376, 378 (7th Cir. 1999) (explaining the five

17


191.) Dr. Chuprevich determined that, although Plaintiff
displayed some delusional thinking, paranoia, anxiety, and
agitation, his overall condition on discharge was stable. (R. at
191, 193.) Dr. Chuprevich determined that Plaintiff was oriented
to reality and had no signs of depression or hallucinations. (R.

at 193.)

3. North Central Behavioral Health Systems, Inc. (“NCBHS”)
Medical Records.

On August 5, 1997, Plaintiff began treatment in an
outpatient alcohol treatment program supervised by Dr.
Chuprevich. (R. at 271.) In February 1998, Plaintiff was
discharged from the outpatient alcohol treatment program on the
grounds of futility, because he would not stop abusing alcohol.
(R. at 259, 260.) Plaintiff admitted that he had a habit of

drinking six cans of beer per day. (R. at 261.)

4, Rito B. Maningo, M.D., non-treating, examining physician

On January 5, 1998, Dr. Maningo examined Plaintiff at the
request of the Commissioner. (R. at 224.) Dr. Maningo concluded
that Plaintiff was a “fairly well developed, well nourished male
in no apparent distress.” (R. at 225.) Dr. Maningo remarked that
Plaintiff was unable to hold steady employment due to his

alcoholism. (R. at 224.) Notably, Plaintiff suffered a grand mal


III. The ALJ was not required to determine whether Plaintiff
would remain disabled if he were to stop abusing alcohol.
Plaintiff contends that the key question at step 5 of the

sequential evaluation process is whether Plaintiff would remain

disabled if he were to stop abusing alcohol. Plaintiff's
argument misses the mark. ALJ Welsch would have been required to
make such a determination only if she had found Plaintiff to be
disabled. However, ALJ Welsch found that Plaintiff was not
disabled, despite his severe impairments. ALJ Welsch found that

Plaintiff could perform routine and repetitive tasks, under

certain specified restrictions, even while he continued to abuse

alcohol.

Plaintiff cites Clark v. Apfel, 98 F.Supp.2d 1182 (D.OR.
2000) to support his claim that the ALJ was required to determine
whether Plaintiff would remain disabled if he were to stop
abusing alcohol. However, Clark is readily distinguishable. In
Clark, the ALJ found that the plaintiff was disabled, and that
his addictions were material to the finding of disability.
Because the plaintiff in Clark was found to be disabled, the ALJ
was required to determine whether his alcoholism was material to
his disability.

Conversely, in the instant case, ALJ Welsch found that

Plaintiff was not disabled, even while Plaintiff abused alcohol.

32


functional limitations identified in the opinion of the treating
physician. Id.

Similarly, the Court finds that the ALJ’s rejection of Dr.
Chuprevich’s opinion ultimately did not impact the outcome of
Plaintiff’s case. Dr. Langgut, the examining physician whose
opinion the ALJ gave controlling weight, and Dr. Chuprevich
reached strikingly similar conclusions regarding Plaintiff’s
memory, concentration, insight, judgement, and intellectual
impairments. Both physicians’ findings regarding Plaintiff’s
functional limitations support the ALJ’s finding that Plaintiff,
at least, can perform routine and repetitive tasks. Neither
physician concluded that Plaintiff's cognitive impairments
preclude him from performing routine and repetitive tasks.
However, one significant difference is that Dr. Chuprevich
diagnosed Plaintiff with Axis 2 Personality Disorder, Not
Otherwise Specified, whereas Dr. Langgut did not. Dr.
Chuprevich’s diagnosis indicated that the Plaintiff has
significant distress or impairment in social, and/or occupational
functioning that is not due to the direct physiological effects
of a substance, such as alcohol. Obviously, a problem arose.
Dr. Chuprevich’s diagnosis indicated that Plaintiff’s limitation

in social functioning may preclude him from performing routine

29


Plaintiff was fired, because he failed to show up for work and

failed to follow directions. (Id.)

4. Mr. Dennis Gustafson, VE

Mr. Dennis Gustafson testified at Plaintiff’s hearing as the
VE. (R. at 47.) The ALJ posed the following hypothetical to the
VE: what jobs are available to a 43 year-old male who has a high
school education, has no past relevant work experience, and is
limited to medium work that does not involve climbing or working
at unprotected heights and involves routine and repetitive tasks?
(R. at 47, 48.) The VE testified that there were a significant
number of jobs in Illinois available to a person of Plaintiff’s
age, education, and functional limitations. (Id.) Specifically,
the VE provided the following three job categories and their
available numbers in Illinois: hand packaging (medium, 7,440;
light, 12,100); hand assembly (medium, 14,770; light, 35,325;
sedentary, 7,700); and production inspection (medium, 900; light,
12,450; sedentary, 1670.) (R. at 48.) The ALJ supplemented her
previous hypothetical by asking the VE whether these occupations
would subject Plaintiff to regular interaction with other people.
(Id.) The VE testified that these occupations did not require

regular interaction with other people, but did involve some


dependent upon his parents. (R. at 53, 54.) Mr. Bacidore
testified that Plaintiff has short-term memory difficulties. (R.
at 54.) Also, Plaintiff’s concentration became markedly
diminished, and his personality became altered as he began to
mumble to himself every night. (R. at 51, 52.) In Mr. Bacidore’s
opinion, Plaintiff became an undesirable employee because of his
impairments. (Id.) For example, one of Plaintiff’s employers
even characterized him as a hazard at the workplace. (Id.)

Mr. Bacidore reluctantly admitted that Plaintiff was an
alcoholic prior to his aneurysm in 1980, and that, in 1998,
Plaintiff’s doctors discontinued his alcohol treatment program at
NCBHS, because he was unable to stop his chronic drinking. (R. at

52.)

3. Josephine Murphy, Plaintiff’s former supervisor

Ms. Murphy supervised Plaintiff when he was employed by
LaSalle Township as a handyman in the 1980s.(R. at 58, 162.) Ms.
Murphy testified that, in her opinion, Plaintiff was not capable
of holding a job. (R. at 61.) Ms. Murphy explained that
Plaintiff was required to perform light landscaping work, for
only four continuous days per month, yet he would fail to
complete the four-day duration of work. (R. at 58, 59.) Ms.

Murphy found Plaintiff to be unreliable. (Id.) Inevitably,


step sequential evaluation process). The ALJ found that
Plaintiff had not engaged in any substantial gainful activity
since the October 6, 1997 application date. (R. at 15.) Next,
the ALJ concluded that Plaintiff had a medically determinable
impairment that significantly limited Plaintiff’s ability to
perform basic work activities. (Id.) However, the ALJ determined
that Plaintiff did not have an impairment that approaches the
criteria of any listed impairments. (Id.) At Step 4, the ALJ
determined that Plaintiff had no vocationally relevant past work.
(R. at 18.) Finally, the ALJ relied upon the VE’s testimony to
conclude that an individual of Plaintiff's age, education, work
experience, and functional limitations had the RFC to perform a
significant number of jobs in Illinois. (R. at 19.)

The ALJ found that Plaintiff’s mental impairments appeared
to result from alcohol abuse. (R. at 18.) The ALJ determined
that Plaintiff's cognitive impairments limited him to routine and
repetitive tasks. (Id.) With regard to physical exertion,
Plaintiff could perform at least the requirements of medium work,
which involves lifting or carrying up to 25 pounds frequently and
50 pounds occasionally, and standing or walking for the greater
part of the working day. (Id.) However, his infrequent
susceptibility to seizures and continued abuse of alcohol

precluded him from climbing or working at unprotected heights.

18


with a brain aneurysm. (Id.) Dr. William Hanigan performed a
left frontal craniotomy on Plaintiff. (R. at 302.) Plaintiff's
brain aneurysm was successfully clipped. (R. at 296.) Upon
discharge, Plaintiff was diagnosed with a subarachnoid hemorrhage
secondary to anterior communicating artery aneurysm and an

impulsive personality disorder. (Id.)

2. Illinois Valley Community Hospital (“IVCH”) Records from
7/09/97 Admission through 7/18/97 Discharge

In July 1997, Plaintiff was admitted to the IVCH, after
suffering two grand mal seizures. (R. at 179.) Dr. Maya Jagasia
examined Plaintiff and determined that Plaintiff’s seizures most
likely were related to his history of alcohol abuse. (R. at 180.)
Next, Dr. Chuprevich examined Plaintiff and also attributed
Plaintiff’s seizures to alcohol withdrawal. (R. at 181.)
Plaintiff admitted that he gave up alcohol for approximately a
week. (Id.) Dr. R. Garg concurred with Dr. Chuprevich’s
diagnosis. (R. at 182.) Lastly, Dr. Stephen Lukancic determined
that Plaintiff’s CT scan revealed mild diffuse cerebral atrophy.
(R. at 183.)

On July 18, 1997, Dr. Chuprevich discharged Plaintiff from
IVCH with a diagnosis of Abstinence Syndrome and Organic

Delusional Disorder secondary to Abstinence Syndrome. (R. at


does not support the ALJ’s decision because: 1) the ALJ
improperly discredited his treating physician’s opinion; and 2)
the ALJ failed to mention in writing certain specified items of
evidence. Next, Plaintiff contends that the ALJ erred in failing
to conclude that Plaintiff would remain disabled if he were to
stop his alcohol abuse.

In response to part 2 of Plaintiff’s first argument, the
Court emphasizes that the ALJ is not required to evaluate in
writing every piece of evidence in the record. Herron, 19 F.3d at
333. As to Plaintiff’s remaining arguments, the Court addresses

each in turn.

I. The ALJ erred in improperly discrediting the opinion of
Plaintiff's treating physician.

The Court finds that ALJ Welsch erred in two ways. She did
not explain how the opinion of Plaintiff’s treating physician,
Dr. Chuprevich, was inconsistent with Plaintiff's admitted daily
activities. And, she did not articulate legitimate reasons for

discrediting Dr. Chuprevich’s opinion.

A. ALJ Welsch failed to explain the stated inconsistency.
ALJ Welsch did not explain how the opinion of Plaintiff's
treating physician was inconsistent with Plaintiff’s admitted

daily activities, and her failure to do so constitutes error. An

24


o

=

-
Minute Order Fotta (06/97

, United States District Court, Northern District of Illinois
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Arlander Keys than Assigned Judge
CASE NUMBER 01 C 4874 DATE 8/16/2002
CASE Steven Bacidore vs. Jo Anne Barnhart
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due.
4 i) Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Q Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(e)) im} Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OLocalRule 41.1 CFRCP41(a)(i) OO FRCP41(a)(2).
(10) | [Other docket entry] Memorandum Opinion and Order entered. Plaintiff’s Motion for Summary
Judgment [#16] is denied; the Commissioner’s Cross-motion for Summary Judgment [#18] is grantedAle-
di) of [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
2
No notices required. sanber of notices
WV | Notices mailed by judge’s staff. Aug tg 2002
Notified counsel by telephone. date docketed
Docketing to mail notices.
Y | Mail A0 450 form. a 4 ace K Gn, . a
Copy to judge/magistrate judge. 4ynoa 42 Misia sn 2
we 8/16/2002
courtroom 2:3 Md OL Sty 2d an
FT/ deputy’s NZ: td CLS .
initials Dau T
cata ck ‘ rang depry as



test results regarding Plaintiff's ankle, knee, and hip as

unremarkable. (R. at 324, 326, 327.)

7. Mark B. Langgut, PhD., non-treating, examining physician

Dr. Langgut examined Plaintiff on December 20, 1997 and
again on June 25, 1999, at the request of the Social Security
Administration (“SSA”). (R. at 219, 329.) Dr. Langgut assessed
Plaintiff’s memory, insight, judgement, and intellect. Dr.
Langgut concluded that Plaintiff’s memory functioning was intact.
(R. at 331). Plaintiff had intact immediate recall ability and
intact short-term memory. (Id.) Similarly, Plaintiff’s long term
memory, while limited, remained intact. (Id.) Plaintiff could
not effectively problem solve or use higher-order, abstract
reasoning. (R. at 222, 332.) Plaintiff's insight into his
situation was impaired, and he had a limited capacity for
reflective thought. (R. at 222.) Plaintiff’s judgment was
impaired, and he had a tendency to impulsively react without
adequately considering the effect of his actions on others. (R.
at 222, 332.) Plaintiff’s speed of thinking was in the normal
range, and his thought processes were of “average coherence and
moderately increased suggestibility.” (R. at 222.) Plaintiff
earned a Full Scale IQ score of 79, a Verbal IQ of 81, anda

Performance IQ score of 78. (R. at 222.) These scores placed

11


seizure of two-minute duration during the examination. (R. at

226, 227.)

5. Dr Vijay Desai, M.D., treating emergency room physician

On January 5, 1998, Dr. Desai examined Plaintiff at Morris
Hospital in Morris, IL, after Plaintiff experienced a grand mal
seizure in Dr. Maningo’s office. (R. at 229.) Dr. Desai
attributed Plaintiff's seizure disorder to alcohol withdrawal.
(Id.) Dr. Desai did not find evidence of mild diffuse cerebral
atrophy after examining Plaintiff’s CT scan. (R. at 230.)
Notably, a drug screen emergency urinalysis indicated a positive
response for the category of drugs known as cannabinoids. (R. at

233.)

6. Dr. Joel Leifheit, MD, treating physician

On October, 22, 1998, Plaintiff visited Dr. Leifheit,
because of a persistent, right buttock pain that radiated down
Plaintiff’s right leg. (R. at 311.) On December 3, 1998, Dr.
Leifheit ordered a lumbar spine examination to investigate
Plaintiff’s pain, which resulted after several falls from his
bike. (R. at 313, 314.) The examination revealed that Plaintiff
had mild degenerative disease within the facets joints throughout

the lumbar spine. (R. at 325.) Dr. Leifheit characterized the

10


the ALJ), not a physician selected by a patient to treat him,
decides whether a claimant is disabled. 20 C.F.R. §
416.927 (e) (1).

Even accepting the functional limitations set forth by Dr.
Chuprevich, the ALJ’s conclusion that Plaintiff is not disabled
is supported by substantial evidence. The ALJ propounded a
hypothetical to the VE that incorporated all of the functional
limitations determined by Dr. Chuprevich, and the VE testified
that a significant number of jobs existed in the national economy
that would fall within those parameters. Plaintiff does not
challenge the validity of the VE’s conclusion. Nor does the
Plaintiff contend that Dr. Chuprevich’s conclusions satisfy the
Listing level, thereby requiring a step 3 disability
determination. See generally 20 C.F.R. § § 416.920(d), 416.925.

In conclusion, although, ALJ Welsch improperly discredited
the opinion of Dr. Chuprevich, the hypothetical she posed to the
VE incorporated all of the functional limitations identified in
Dr. Chuprevich’s opinion. Therefore, the ALJ’s error is
harmless, because it did not impact the outcome of the case.
Rather, the testimony of the VE serves as substantial evidence
supporting the ALJ’s determination that Plaintiff was capable of
doing medium work, with certain specified restrictions, and,

therefore, was not disabled.

31


and repetitive tasks in a work setting requiring regular
interaction with other people.

At the hearing, the ALJ supplemented the hypothetical she
posed to the VE by asking the VE whether the specified jobs would
subject Plaintiff to regular interaction with other people. In
doing so, the ALJ's hypothetical incorporated all of the
functional limitations identified in the opinion of Dr.
Chuprevich, which the ALJ improperly had discredited. The VE
testified that none of the mentioned occupations required regular
interaction with other people, but do require some interaction
with a supervisor, such as when rare assembly line changes occur.
ALJ Welsch concluded that, even if she were to incorporate a
limitation in social functioning, Plaintiff would nevertheless be
able to work, because none of the occupations mentioned by the VE
required regular interaction with other people.

Admittedly, Dr. Chuprevich also made a disability conclusion
independent from his conclusions regarding Plaintiff's functional
limitations. However, a claimant is not entitled to disability
benefits simply because his physician states that he is
“disabled” or “unable to work.” Clifford, 227 F.3d at 870. A
physician’s vocational conclusion is not “a medical opinion
concerning the nature and severity of plaintiff’s impairments.”

20 C.F.R. § 416.927(d) (2). Morever, the Commissioner (or, here,

30


interaction with a supervisor, such as when rare assembly line
changes occur. (Id.)

Upon questioning by Plaintiff’s attorney, however, the VE
conceded that, if that same hypothetical individual also reacted
poorly to supervision, had difficulty adjusting to new
circumstances, and had difficulties in showing up for work, then

employment would be ruled out for such an individual. (R. at 49.)

B. Medical Evidence

Summarized below are the following medical records and
reports received by the ALJ: 1) the hospital medical records
regarding Plaintiff’s history of an aneurysm, history of
seizures, discharge from an outpatient alcohol treatment program,
and right buttock pain diagnosis; 2) the crucial reports of the
comprehensive examinations performed by Dr. Langgut and Dr.
Chuprevich, which assessed Plaintiff’s mental impairments; and 3)
the reports of the Social Security Administration’s non-
examining, consulting physicians, which assessed Plaintiff's

physical as well as mental residual functional capacity (“RFC”).

1. St. Francis Hospital Records 4/22/80 to 5/04/80
In 1980, Plaintiff experienced a sudden onset of severe

headaches and lethargy. (R. at 296.) Plaintiff was diagnosed


Sullivan, 881 F.2d 506, 509 (7th Cir. 1989) (the ALJ has the
authority to assess medical evidence and give greater weight to
that which she finds more credible). Rather, the Court must
accept findings of fact that are supported by “substantial
evidence,” 5 U.S.C § 706(2)(E), where substantial evidence is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Herron, 19 F.3d at 333
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

The Court is limited to determining whether the
Commissioner’s final decision is supported by substantial
evidence and based upon the proper legal criteria. Ehrhart v.
Sec’y of Health and Human Servs., 969 F.2d 534, 538 (7th Cir.
1992). However, this does not mean that the ALJ is entitled to
unlimited judicial deference. The ALJ must consider all relevant
evidence and may not select and discuss only that evidence that
favors her ultimate conclusion. Herron, 19 F.3d at 333. In
addition to relying on substantial evidence, the ALJ must
articulate her analysis at some minimal level, and state her
reasons for accepting and rejecting “entire lines of evidence.”
Ia. Although the ALJ need not evaluate in writing every piece of
evidence in the record, Id., she must articulate her reasons for
rejecting evidence “within reasonable limits” if there is to be

meaningful appellate review. Young v. Sec. Of Health and Human

21


Next, the Court disagrees with the ALJ’s conclusion that Dr.
Chuprevich’s findings are not supported by his narrative. Dr.
Chuprevich’s narrative and administered tests support his
conclusions that Plaintiff had memory, concentration, insight,
judgement, and intellect impairments and had a diagnosis of Axis
2 Personality Disorder, Not Otherwise Specified, with paranoid
features. Dr. Chuprevich’s narrative reveals that he carefully
observed and assessed Plaintiff’s moods, memory, insight,
judgement, and intellectual acuity.

In conclusion, ALJ Welsch’s reasons for rejecting Dr.
Chuprevich’s opinion are not supported by the record. Therefore,
ALJ Welsch erred, because she did not articulate legitimate

reasons for rejecting Dr. Chuprevich’s opinion.

II. The ALJ’s error is harmless, because it ultimately did not
impact the outcome of the case.

Although the Court finds that ALJ Welsch improperly
discredited Dr. Chuprevich’s opinion, the hypothetical she posed
to the VE incorporated all of the functional limitations
identified in Dr. Chuprevich’s opinion. Therefore, her error in
rejecting Dr. Chuprevich’s opinion is harmless, because it did
not impact the outcome of the case. Rather, the testimony of the

VE serves as substantial evidence supporting the ALJ’s

27


A. Testimonial Evidence
1. Steven P. Bacidore, Plaintiff

Plaintiff was born on October 15, 1955, in LaSalle,
Illinois. (R. at 14.) Plaintiff testified that he was then 43
years old and has a high school education. (R. at 33-35.)
Plaintiff explained that he lives at home with his parents. (R.
at 33.)

Plaintiff testified that he was unable to work five days a
week, eight hours a day, due to the lasting effect of an
aneurysm, his susceptibility to seizures, and his right buttock
pain. (R. at 37, 42, 43.) Plaintiff explained that the aneurysm
he suffered in 1980 decreased his cognitive abilities. (R. at
42.) Plaintiff testified that, since his aneurysm, he has been
unable to hold a job. (Id.) Plaintiff also described additional
infirmities that impair his work ability. Plaintiff suffered
three seizures in the recent past, the most recent in January
1998. (R. at 37.) Plaintiff testified that his right buttock
pain decreased his strength. (R. at 43.) Plaintiff experienced
this pain every morning, but was able to neutralize the pain by
taking aspirin. (Id.)

Plaintiff acknowledged his substance abuse history.
Plaintiff testified that he normally drinks about six cans of

beer per day, and that he currently does not use any illegal


336.) He had difficulty with his concentration, in learning from
his prior experiences, and following through with directions
(Id.) Plaintiff became “angry and upset” when others identified
his mistakes. (Id.) He had severe difficulty in thinking
abstractly, indicating a severe limitation in his ability to
relate to the world around him. (R. at 335.) He had no insight
into his psychological difficulties. (R. at 336.) Plaintiff’s
judgment was moderately impaired. (Id.) Plaintiff’s failure to
perform simple subtraction indicated a “marked limitation in his
IQ.”(R. at 335.) Plaintiff refused to see that he had any
problems with alcohol. (R. at 336.) Dr. Chuprevich stated that
Plaintiff’s “denial of his problem is of psychotic proportions,
because clear evidence to the contrary does not change his
opinion.” (Id.)

Dr. Chuprevich diagnosed Plaintiff with “Axis 2 Personality

Disorder Not Otherwise Specified*® with organic, paranoid

3 “Personality Disorder Not Otherwise Specified” is the
appropriate diagnosis for a “mixed” presentation in which
criteria are not meet for any single Personality Disorder, but
features of several Personality Disorders are present and involve
clinically significant impairment. Personality Disorders are
characterized by inflexible and maladaptive personality traits
that cause significant functional impairment or subjective
distress. The essential feature of a Personality Disorder is an
enduring pattern of inner experience and behavior that deviates
markedly from the experiences of the individual’s culture and is
manifested in at least two of the following areas: cognition,

(continued...)

14


that Plaintiff did not have any impairments that would require a

step 3 disability determination.

a. William Fischer, PhD., non-treating, non-examining physician
On January 12, 1998, Dr. Fischer assessed that Plaintiff’s
mental impairment was based on the category 12.09 Substance
Addiction Disorders. (R. at 237.) Plaintiff did not manifest any
functional limitations at the degree of limitation that satisfied

the Listings. (R. at 244.)

b. Phyllis Brister, PhD., non-treating, non-examining physician
On July 1, 1998, Dr. Brister assessed that Plaintiff's
mental impairment was based on the category 12.09 Substance
Addiction Disorders. (R. at 282.) Plaintiff did not manifest any
functional limitations at the degree of limitation that satisfied

the Listings. (R. at 289.)

c. Chansoo Kim, M.D., non-treating, non-examining physician
On January 16, 1998, Dr. Kim opined that Plaintiff was
restricted to occasionally lifting 50 pounds and to frequently

lifting 25 pounds. (R. at 251.) Dr. Kim determined that

16


PROCEDURAL HISTORY

On October 6, 1997, Plaintiff filed a claim for SSI. (R. at
14.) The Commissioner denied Plaintiff’s claim, and Plaintiff
filed for reconsideration on March 30, 1998. (R. at 79.) His
request for reconsideration was also denied. (R. at 14, 81.)
Then, Plaintiff requested and received a hearing before
Administrative Law Judge (“ALJ”) Barbara J. Welsch on May 12,
1999, (R. at 30-71.) On November 16, 1999, the ALJ issued her
decision denying Plaintiff's claim for SSI. (R. at 14-21.) On
January 11, 2000, the Appeals Council denied his request for
review of the ALJ’s decision. (R. at 6.) Therefore, the ALJ’s
decision stands as the Commissioner’s final decision, and is the

subject of the Motions now before the Court.

BACKGROUND
The evidence before this Court is comprised of the
following: 1) the testimony of Plaintiff, his father, his former
supervisor, and the vocational expert (“VE”); and 2) numerous

medical records and reports received by the ALJ.


ALJ must minimally articulate her reasons for crediting or
discrediting evidence of disability. Clifford v. Apfel, 227 F.3d
863, 870 (7th Cir. 2000) (citing Scivally v. Sullivan, 966 F.2d
1070, 1076 (7th Cir. 1992)). An ALJ is required to “provide an
explanation for her belief that the treating physician’s opinion
was inconsistent with plaintiff’s admitted daily activities and
her failure to do so constitutes error.” Clifford, 227 F.3d at
870. ALJ Welsch merely mentioned that Dr. Chuprevich’s opinion
was inconsistent with Plaintiff’s admitted daily activities,
without providing an explanation. Therefore, ALJ Welsch erred,
because she failed to explain how Dr. Chuprevich’s opinion was
inconsistent with Plaintiff’s admitted daily activities.
Moreover, it is not obvious from the record that Dr. Chuprevich’s
opinion is inconsistent with Plaintiff’s admitted daily

activities.

B. ALJ Welsch failed to articulate legitimate reasons for
rejecting the treating physician's opinion.

ALJ Welsch did not articulate legitimate reasons for
rejecting the opinion of Plaintiff's treating physician, and her
failure to do so constitutes error. An ALJ must give substantial
weight to the opinion of a plaintiff’s treating physician, unless

she articulates specific and legitimate reasons for rejecting

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Steven P. Bacidore

Plaintiff,
Case No. 01 C 4874
v.
Magistrate Judge
Jo Anne B. Barnhart!, Commissioner Arlander Keys

of Social Security,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Steven P. Bacidore, moves this Court for Summary
Judgment, pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, reversing the final decision of the Commissioner of
Social Security, which denied his claim for Supplemental Security
Income (“SSI”). See 42 U.S.C. § 405(g) (West 2002). The
Commissioner has filed a Cross-Motion for Summary Judgment. For
the reasons set forth below, the Court denies Plaintiff’s Motion

and grants the Commissioner’s Cross-Motion for Summary Judgment.

10n November 9, 2001, Jo Anne B. Barnhart became the
Commissioner of Social Security. Ms. Barnhart is automatically
substituted for Mr. Larry Massanari as the Defendant in this
action. Fed.R.Civ.P. 25(d) (1); 42 U.S.C. § 405(g) (2002).

1

AUS is wud


Because ALJ Welsch determined that Plaintiff was not disabled, it
would be illogical to require her to determine whether Plaintiff
would remain disabled if he were to stop abusing alcohol. See
generally 20 C.F.R. § 416.935(a). Therefore, the Court rejects

Plaintiff's claim of error.

CONCLUSION

ALJ Welsch erred in improperly discrediting the opinion of
Plaintiff's treating physician. Although the ALJ rejected the
treating physician’s opinion, the hypothetical that the ALJ posed
to the VE incorporated all of the functional limitations
identified in the treating physician’s opinion. Therefore, the
ALJ’s error is harmless, because it ultimately did not impact the
outcome of the case.

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion
for Summary Judgment be, and the same hereby is, DENIED.

IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion

for Summary Judgment be, and the same hereby is, GRANTED.

Dated: August 16, 2002 ENTER:

Qsomuse, PS

ARLANDER KEYS \_)
United States Magistrate Judge

33


determination that Plaintiff was capable of doing medium work,
with certain specified restrictions, and, therefore, was not
disabled.

Where an ALJ’s factual findings are unreliable because of
serious mistakes or omissions, the Court must reverse the ALJ's
determination. Shramek v. Apfel, 226 F.3d 809, 814 (7th Cir.
2000) (citing Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir.
1996)). However, if the Court is satisfied that no reasonable
trier of fact could have come to a different conclusion, then the
Court may affirm the ALJ’s decision. Id. Not every mistake by an
ALJ so undermines a determination that it cannot be said to be
supported by substantial evidence. Kolesar v. Shalala, No. 93 C
3834, 1994 WL 30544, at *11 (N.D. Ill. Feb. 3, 1994). Harmless
errors are those that do not affect an ALJ’s determination that a
claimant is not entitled to benefits. Id. (citing Curry v.
Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)).

In Shramek, the 7th Circuit affirmed that the ALJ’s error in
improperly discrediting the opinion of the plaintiff’s treating
physician was harmless, because it ultimately did not impact the
outcome of the case. See Shramek, 226 F.3d at 814-815. Although
the ALJ rejected the treating physician’s opinion, the

hypothetical she posed to the VE incorporated all of the

28


Plaintiff in the borderline range of intellectual ability. (Id.)
Dr. Langgut concluded that Plaintiff’s IQ scores were a valid
reflection of his abilities, since he had placed a good deal of
effort in the tasks presented before him. (Id.) Plaintiff's
cognitive abilities had not deteriorated during the time interval
between his first and second examinations. (R. at 332.)

Dr. Langgut found Plaintiff’s substance abuse history to be
most telling. (R. at 332.) At the time of the examination,
Plaintiff stated that, currently, he often drank six cans of beer
daily, although he had consumed much more prior to his seizures.
(R. at 220, 330.) Plaintiff refused to acknowledge his
alcoholism, and defensively underestimated the harmful effects of
alcohol use. (R. at 220, 330.)

Plaintiff expressed a moderate degree of resentment toward
others and an “irritable and cantankerous attitude particularly
surrounding his alcohol use.” (R. at 221, 331.) Plaintiff tended
to react in an “impulsive and regressed manner.” (R. at 222, 332.)
He appeared angry, resentful, and hostile. (R. at 331.) Dr.
Langgut found that Plaintiff did not suffer from any delusions,
phobias, or hallucinations. (R. at 222.)

Dr. Langgut concluded that Plaintiff presented no “gross
evidence of neuropsychological impairment beyond those expected

by virtue of his chronic alcohol abuse and limited education.”

12


features.” (R. at 336.) Plaintiff’s “severe personality disorder
may have been caused by a prior medical problem and chronic
alcohol abuse.” (Id.) Plaintiff’s brief neurological examination
revealed evidence of mild cerebellar damage. (Id.) Dr.
Chuprevich remarked that Plaintiff is “disabled because of his

mental illness.” (Id.)

9. SSA's Non-Examining, Consulting Physicians

Plaintiff’s medical records were also reviewed by a number
of consulting physicians at the request of the Commissioner. The
consulting physicians found that Plaintiff should avoid
concentrated exposure to heights and hazardous machinery. Their
findings did not preclude Plaintiff from performing routine and
repetitive tasks. Moreover, Plaintiff did not manifest any
functional limitations at the degree of limitation that satisfied

the Listings. Accordingly, the physicians consistently concluded

3(...continued)
interpersonal functioning, or impulse control. This enduring
pattern is inflexible and pervasive across a broad range of
personal and social situations and leads to clinically
significant distress or impairment in social, occupational, or
other important areas of functioning. The pattern is stable and
of long duration. The pattern is not due to the direct
physiological effects of a substance (e.g. alcohol). American
Psychiatric Association : Diagnostic and Statistical Manual of
Mental Disorders 630-631 (4'TM ed. 1994).

15