to explore it, (R. at 19.) Hazzard fails to tell us why this constitutes error—that is, what
additional tests should have been conducted and what additional facts could have been obtained.
This adds to our reluctance to find that the ALJ failed to develop the record. "Mere conjecture or
speculation that additional evidence might have been obtained in the case is insufficient to

warrant a remand." Binion v. Shalala, 13 F.3d 243, 246 (7th Cir. 1994),

D. Treating Source Medical Opinions

Next, Hazzard contests the ALJ's treatment of treating source opinions submitted by
Dr. Bongu on the severity of Hazzard's shoulder and wrist pain and asthma. A treating
physician's opinion regarding the nature and severity of a medical condition is entitled to
controlling weight if it is well supported by medical findings and not inconsistent with other
substantial evidence in the record. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the ALJ finds
that a treating source's opinion is not entitled to controlling weight, the ALJ may reject the
opinion or still defer to the opinion and adopt it, but, in any event, he must provide specific
reasons for the weight given to the opinion. SSR 96-2p. Conflicts in the evidence are resolved
by the ALJ. Walker v. Bowen, 834 F.2d 635, 643 (7th Cir. 1987). In this regard, the ALJ may
credit one treating physician's opinion over the opinion of another treating physician, or the ALJ
may credit a consulting physician's opinion over the opinion of a treating physician. Id.; Garrow
v. Shalala, No. 3:93-CV-261 RG, 1994 WL 686780, at *4 (N.D. Ind. July 19, 1994). The court's
role is limited to determining whether the decision is supported by substantial evidence.

Dr. Bongu, a treating physician, opined that Hazzard's shoulder and wrist pain precluded

her from performing any type of work on a sustained basis. (R. at 256.) He also opined that

-19-


10.

1.

12.

13.

(R. at 20-21.)

~\ lan

Supported by, nor consistent with, the medical and other evidence
as set forth above.

The claimant has the residual functional capacity to perform the
physical exertion and nonexertional requirements of work except
for that which is greater than light exertionally and would require
exposure to dust, fumes, or vapors.

The claimant is unable to perform her past relevant work as a dry
cleaner presser due to the exposure to chemical fumes.

The claimant's residual functional capacity for the full range of
light work is reduced by her environmental restrictions,

The claimant is currently fifty-three years old, which is defined as
closely approaching advanced age.

The claimant has a high school education.

The claimant does not have any acquired work skills, which are
transferrable to the skilled or semiskilled work functions of other
work.

Based on an exertional capacity for light work and the claimant's
age, education, and work experience, Section 404.1569 of
Regulations No. 4 and Section 416.969 of Regulations No. 16 and
Rule 202.13, Table No. 2, of Appendix 2, Subpart P,

Regulations No. 4, would direct a conclusion of "not disabled.”

The claimant's capacity for the full range of light work has not
been significantly compromised by her additional nonexertional
limitations. Accordingly, using the above-cited rule as a
framework for decisionmaking, the claimant is not disabled.

The claimant was not under a "disability," as defined in the Social
Security Act, at any time through the date of this decision.

-13-


F. Substantial Evidence

Lastly, Hazzard contends that the ALJ's decision lacks substantial evidence because a
vocational expert did not testify at the hearing.> An administrative law judge may not rely on the
Grids to determine whether a claimant is capable of performing work in the economy where the
claimant suffers from nonexertional limitations that "are so severe as to limit the range of work
that [the claimant] can perform." Herron, 19 F.3d at 336; Wooldridge v. Bowen, 816 F.2d 157,
161 (4th Cir. 1987); Warmoth v. Bowen, 798 F.2d 1109, 1112-13 (7th Cir. 1986); Nelson v.
Secretary of Health & Human Servs., 770 F.2d 682, 685 (7th Cir. 1985). In such a case, the
Grids can provide a framework to guide the ALJ, but the ALJ should use the services of a
vocational expert to determine "what work, if any, the claimant is capable of performing.”
Nelson, 770 F.2d at 684; see SSR 83-14.

Here, the ALJ found that Hazzard's capacity to perform light work was reduced by her
inability to work around dust, fumes, or vapors. (R. at 20.) The ALJ relied on Grid Rule 202.13,
rather than contacting a vocational expert, apparently because Hazzard's "capacity for the full
range of light work has not been significantly compromised by her additional nonexertional
limitations." (R. at 21.) This may very well be the case; however, the record is devoid of any
evidence relating to the effect of Hazzard's nonexertional limitations on her ability to perform the
full range of light work. Warmoth, 798 F.2d at 1112-13. Further, we are unable to find a Social

Security Ruling directly on point to fill in the gap in the evidence. See SSR 96-9p; SSR 83-14.

> Hazzard also contends in a single sentence without any citation that the ALJ's decision
lacks substantial evidence because a medical expert did not testify at the hearing. (Hazzard's
Mem. Supp. Mot. Summ. J. at 15.) We dismiss Hazzard's argument because we cannot fathom
why the ALJ would have had a duty to call a medical expert in this case.

-23-


a re oN

manage her asthma. (R. at 48, 50.) Every day she was "wheezy," and every night she had
difficulty sleeping. (R. at 50-51.) Hazzard felt that she could not work any longer as a presser
because the fumes in that type of work environment caused her asthma to "flare up." (R. at 32.)
When she worked, Hazzard was short of breath despite using her inhaler more frequently. (R. at
35.)

Hazzard testified that she was diagnosed with carpel tunnel syndrome. (R. at 32.) She
believed that the condition was a result of pressing buttons all day long as a presser. (R. at 32.)
It caused her right hand and arm to go numb each day. (R. at 32.) Eventually, Hazzard
experienced numbness in her neck. (R. at 32.) Sometimes, Hazzard's condition made her hand
feel like a "piece of wood." (R. at 36.) Her carpel tunnel syndrome still bothered her, even
though she was not working. (R. at 36.) She wore a brace on her right wrist, which she
purchased over-the-counter, to alleviate the condition. (R. at 36.)

Hazzard also complained of arthritis in her right shoulder and knee. (R. at 37.) She "had
trouble" with her right shoulder all day long; it throbbed like a toothache and caused her constant
pain. (R. at 37-38.) To alleviate the right shoulder pain, Hazzard took Tylenol twice a day and
applied a heating pad on the shoulder, sometimes two to three times per week. (R. at 38.) The
Tylenoi did not completely relieve the pain, but it made the right shoulder pain tolerable. (R. at
38.) Hazzard's knee bothered her when she walked up or down stairs and when she moved
around. (R. at 40.) She testified that she could stand for about one or two hours before feeling
pain in her knee. (R. at 40.) She could walk about one or two blocks. (R. at 40.) Since 1995,
the pain in Hazzard's knee has become worse despite taking Tylenol to relieve the pain. (R. at

41.)


mN oTM

Hazzard's asthma precluded her from working at any type of job that required an eight-hour
workday. (R. at 260.) The ALJ ended up discounting these opinions for one or more reasons.
He relied primarily on other evidence in the record to support his conclusion that Hazzard was
capable of performing a wide range of light work. (R. at 19.)

We find that the ALJ properly discounted Dr. Bongu's shoulder pain opinion because it
was unexplained and unsupported by the record as a whole. Indeed, Dr. Bongu's two-page report
provided no explanation for such a severe limitation. (R. at 256.) Hazzard herself testified that
her shoulder pain was tolerable for four to six hours after taking Tylenol. (R. at 38-39.) She was
able to drive a car without difficulty and perform some household chores. Dr. Dovale, the
consulting physician whose opinion the ALJ adopted, found that Hazzard's range of motion and
shoulder strength were normal. (R. at 179.) Finally, Drs. Donelan and Kenney concluded that
Hazzard was capable of performing the exertional requirements of medium work despite her
shoulder condition. (R. at 201-03, 210-12.)

The ALJ also properly discounted Dr. Bongu's wrist pain opinion because it was
unexplained, unsupported by objective evidence, and unsupported by the record as a whole.
Nowhere in Dr. Bongu's two-page report does he explain why Hazzard's wrist pain was disabling.
(R. at 254, 256.) Tests conducted by Dr. Dovale did not evince carpel tunnel syndrome. (R. at
180.) Again, Hazzard engaged in some daily activities such as driving that were inconsistent
with disabling wrist pain. Drs. Donelan and Kenney concluded that Hazzard was capable of
performing the exertional requirements of medium work despite her wrist condition.

Lastly, the ALJ properly discounted Dr. Bongu's asthma opinion because it was

unexplained and unsupported by the record as a whole. Dr. Bongu left blank the line for his

-20-


To find that Hazzard's allegations of pain precluding any type of substantial gainful
activity were not credible, the ALJ relied on Hazzard's daily activities, the medication she takes
to alleviate pain, and the medical evidence. (R. at 17-19.) For instance, Hazzard drives without
difficulty, regularly attends church activities, and does some housework. In his cardiac report
and respiratory report, Dr. Lubben placed no limitations on Hazzard's ability to perform
work-related activities. (R. at 172, 176.) Even Dr. Bongu reported that Hazzard had capabilities
greater than that to which Hazzard testified. (R. at 259-60.) The fact that Hazzard's sole
medication for shoulder pain was Tylenol influenced the ALJ's credibility determination.
Hazzard herself testified that Tylenol made her shoulder pain tolerable for four to six hours. (R.
at 38-39.) Moreover, Dr. Dovale commented that Hazzard's ability to grasp was intact, that her
gait was normal, and that Hazzard had full range of motion throughout her extremities. Lastly,
the treatment that Hazzard received from physicians did not support a total restriction from work.
In light of this and other evidence, we do not believe that the ALJ's credibility determination was

patently wrong.

-22-


[on Duty to Develop the Record

Hazzard's contention that the ALJ erred by failing to develop the record relates to
statements made by Dr. Dovale in his written report of the Internal Medicine Consultative
Examination. With regard to Hazzard's carpel tunnel syndrome, Dr. Dovale pointed out that a
Tinel's test was negative. He then stated: "[Hazzard's} symptomatology is more suggestive of
radicular symptoms possibly originating in the right neck. But. . . the claimant has a full range
of motion in the C spine. The sensory exam was consistent with C5, C6 deficit." (R. at 180.)
Hazzard claims that the ALJ should have inquired into these statements before rendering a
decision on the existence or severity of Hazzard's carpel tunnel syndrome.

The ALJ has an affirmative duty to develop a full and fair record. Smith v. Apfel, 231
F.3d 433, 437 (7th Cir. 2000); Gill v. Shalala, No. 94 C 2299, 1994 WL 649989, at *3 (N.D. Ill.
Nov. 16, 1994). Depending on the circumstances, this may require the ALJ to recontact a
physician or order an examination. Cf Luna v. Massanari, No. IP 00-1075-C-T/G, 2001 WL
987860, at *5-7 (S.D. Ind. July 18, 2001), with Rake v. Callahan, 983 F. Supp. 1181, 1185 (N.D.
Ill. 1997). It is always possible to gather additional evidence; exactly how much is enough is a
subject on which reasonable minds could differ. Kendrick v. Shalala, 998 F.2d 455, 458 (7th
Cir. 1993). In recognition of this, and the fact that investigation and exploration cannot continue
ad infinitum, district courts generally respect the ALJ's decision to cease investigating and
exploring as long as that decision is reasonable. Luna v. Shalala, 22 F.3d 687, 692-93 (7th Cir.
1994); Kendrick, 998 F.2d at 458.

Here, we find that the ALJ's decision not to gather additional evidence on carpel tunnel

syndrome was reasonable. Before him, the ALJ had an opinion from Dr. Bongu concerning

-17-


TM oN

Dr. Sonia Yballe completed a Psychiatric Evaluation in October 1996. Hazzard denied
any psychiatric problems, (R. at 187.) The examination was unremarkable. (R. at 189.)

Dr. Carl Hermsmeyer completed a Psychiatric Review Technique in October 1996, finding that
Hazzard had a nonsevere personality disorder and a substance addiction disorder that was in
remission. (R. at 191-99.)

On October 28, 1996, Dr. Charles Kenney completed a Physical Residual Functional
Capacity Assessment without the benefit of reviewing a treating source's statement about
Hazzard's physical capabilities. He concluded that Hazzard could occasionally lift and carry fifty
pounds, frequently lift and carry twenty-five pounds, stand and walk for about six hours in an
eight-hour workday, sit for about six hours in an eight-hour workday, and push or pull without
limitation, even though Hazzard had limited feeling in her right hand. (R. at 210, 212.)

Dr. Kenney opined that Hazzard could climb occasionally and stoop, kneel, crouch, and crawl
frequently. (R. at 211.) He felt that Hazzard would need to avoid concentrated exposure to
fumes, odors, dusts, and gases. (R. at 213.)

Hazzard had routine appointments at the Englewood Health Clinic in 1997 and 1998. On
occasion, she complained of asthma attacks. (R. at 242-43.) In September 1998, Dr. Ram
Bongu, a treating physician, completed a Pain Report, a Musculoskeletal Defects or Fractures
Report, and a Respiratory Report. (R. at 254-61.) In the Pain Report, Dr. Bongu noted that
Hazzard experienced tenderness, numbness, and muscle spasms. (R. at 254.) He opined that
Hazzard's complaints of pain were within the range that was reasonably related to her physical
illnesses of carpal tunnel syndrome and rotator cuff tear, that Hazzard's complaints of shoulder

pain were supported by objective evidence, and that Hazzard's pain was relieved (not completely)

-9-


right upper extremity was normal. (R. at 139.) At the time of discharge, Hazzard was not
wheezing. Dr. Daniels prescribed Theo-Dur and Prednisone. (R. at 139.)

On January 22, 1989, Hazzard was admitted to Christ Hospital and Medical Center with
acute asthmatic exacerbation, possibly secondary to acute bronchitis. (R. at 144, 153.) She
complained of wheezing and dyspnea. (R. at 144.) Dr. Anastasia Largosa indicated that Hazzard
could barely talk upon arrival. (R. at 146.) In a Report of Consultation, Dr. Antanas Razma
noted that Hazzard was taking medication to control her asthma. (R. at 153, 154.) Weeks prior
to being admitted to the hospital, Hazzard experienced shortness of breath and coughing with
some yellowish sputum. (R. at 153.) To treat this condition, she received Prednisone and
Phenergan with Codeine from a physician. (R. at 153.) Dr. Razma believed that Hazzard had
developed side effects from taking Prednisone intermittently rather than as directed. (R. at 153.)
While at Christ Hospital, Dr. Largosa placed Hazzard on a regimen of medicine to control her
asthma and bronchitis. (R. at 154.) Nonetheless, during her first night at Christ Hospital,
Hazzard continued to experience difficulty breathing. (R. at 154.)

Dr. Razma noted that Hazzard was diagnosed with hypertension in 1972. He mentioned
that an EKG was unimpressive and that a chest x-ray was clear. A lung examination on or before
January 24 revealed a scattered expiratory wheeze with good air movement in the lungs. (R. at
154.) Hazzard's heart appeared normal and her extremities did not show clubbing, cyanosis, or
edema. She was neurologically intact. (R. at 155.) Dr. Razma recommended that Hazzard
inhale Proventil instead of Alupent to control her asthma (he felt Proventil was better) and that

Hazzard continue taking antibiotics to treat her bronchitis. (R. at 155.)


us ry =TM"

Lastly, Hazzard complained of constant chest pain. (R. at 55-56.) She recalled being told
that stress caused her chest pain, and she claimed to have an enlarged heart. (R. at 56.)

Because of Hazzard's medical condition, she attended church services and weekly
activities less often than she used to. (R. at 44.) She also could not do as much housework as
before. (R. at 58.) She needed to sit and rest more frequently to catch her breath and to abate the
pain. (R. at 43, 55.) Hazzard could still drive a car to church and back during the daytime.

(R. at 59.) In March 1998, Hazzard and her husband traveled to Mississippi for a vacation.

(R. at 57.)

B. Ollie's Testimony

Ollie married Hazzard in 1969. (R. at 60.) He stated that since 1986 Hazzard's asthma
has become worse. (R. at 65.) He also stated that Hazzard could not do things with her hands
that she was able to do before. (R. at 65.) Mounting medical bills were a cause for concern;
Ollie indicated that he and Hazzard avoided going to the hospital or seeking prescriptions from

physicians because of insufficient funds. (R. at 61, 65.)

Cc. Medical Evidence

Hazzard was admitted to Thorek Hospital on November 12, 1986, for bronchospasm.
She denied any chest pain. (R. at 139.) Dr. David Daniels noted that Hazzard had good air
exchange in her lungs but that there was bilateral wheezing. (R. at 139.) A chest x-ray and EKG

were normal. (R. at 139.) Hazzard complained of right upper extremity pain, but an x-ray of the


“ oN

Hazzard's carpal tunnel syndrome, and he had medical notes from Hazzard's routine
examinations. We also note that Hazzard's counsel thoroughly questioned Hazzard about her
condition at the ALJ hearing. (R. at 32-36.) Dr. Dovale performed a Tinel's test, which was
negative. (R. at 180.) He also observed that Hazzard's grip strength and hand and fine finger
manipulation were intact. (R. at 179.) Significantly, as the ALJ pointed out, "no clinical
objective evidence [exists] to support carpel tunnel syndrome," but rather "[a]lI [of the] evidence
of carpel tunnel [syndrome] can be traced to anecdotal origins. Over time, [Hazzard's]
complaints have metamorphosed into a separate entity, allowing the suffix 'by history’ to become
affixed to any subsequent diagnosis of 'carpel tunnel syndrome.” (R. at 19.) The fact that

Dr. Bongu failed to provide a speck of objective evidence to support his diagnosis of carpel
tunnel syndrome is glaring since he was specifically asked to provide such information. (R. at
254-55.) This lack of corroborative evidence militates against Hazzard's position. See Kendrick,
998 F.2d at 458; Bennett v. Massanari, No. NA 00-213-C-H/S, 2001 WL 1165515, at *5 (S.D.
Ind. Aug. 20, 2001).

Contrary to Hazzard's assertion, Dr. Dovale did not state that further testing was
necessary to rule out anything. He did not recommend that any particular test be performed. He
did not even opine that Hazzard's symptoms were characteristic of carpel tunnel syndrome.

(R. at 179-80.) Rather, he speculated as to the cause of Hazzard's complaints since the
examination for carpel tunnel syndrome did not support a diagnosis of carpel tunnel syndrome.
(R. at 180.) By mentioning that Hazzard had a full range of motion in the C spine, after stating
that Hazzard's complaints could be caused by radicular symptoms, Dr. Dovale added speculation

on top of speculation. (R. at 180.) The ALJ acknowledged all of this speculation but chose not

-18-


rm. oN

heart problems. (R. at 201.) Dr. Donelan placed no postural and manipulative limitations on
Hazzard. As far as environmental limitations, Hazzard needed to avoid concentrated exposure to
fumes, odors, dusts, and gases. (R. at 204.)

Dr. Fecundo Dovale completed an Internal Medicine Consultative Examination on
October 11, 1996. At the examination, Hazzard complained of carpal tunnel syndrome, asthma,
hypertension, and chest pain. (R. at 177.) The carpal tunnel syndrome caused numbness in
Hazzard's fingers and shooting pain in her right arm. Hazzard wore a brace to alleviate the
condition. (R. at 177.) Dr. Dovale indicated the absence of an ENG or an evaluation by an
orthopaedic surgeon. Hazzard believed that fumes at work aggravated her asthma. She stated
that she used her inhaler almost every day. Chest pain occurred while coughing and during deep
breathing. (R. at 178.)

Dr. Dovale noted that the air exchange in Hazzard's lungs was fair. He could hear
inspiratory and expiratory wheezing. He noticed mild clubbing of the fingernails, but no
cyanosis. (R. at 179.) Hazzard's heart was normal. The range of motion of her spine was
normal. A shoulder depression test was negative. (R. at 179.) Hazzard's gait was normal, and
her ability to grasp was intact. The range of motion of her arms and legs was normal. (R. at
179.) Hazzard had a pinprick deficit in the right upper extremity and the numbness extended to
the fingers. Manual dexterity appeared normal. A Babinski test was negative. Cerebellar testing
was negative. (R. at 179.) A Tinel's test was negative. Dr. Dovale opined that Hazzard's
symptoms were more suggestive of radicular symptoms possibly originating in the right neck,
rather than of carpel tunnel syndrome. He indicated no evidence of end organ damage due to

hypertension. (R. at 180.)


We therefore conclude that the ALJ erred by determining that Hazzard's nonexertional
limitations did not significantly reduce her ability to perform the full range of light work.
Substantial evidence does not support this determination. On remand, the ALJ should contact a
vocational expert to assess the range of light work that Hazzard is capable of performing
considering her nonexertional limitations. We find no reason for the ALJ to revisit his finding
that Hazzard was capable of performing the exertional requirements of light work. This finding

is supported by substantial evidence. (See R. at 38-39, 172-73, 176, 201-04, 177-80, 210-13.)

Vv. Conclusion
This Court recommends that Hazzard’s Motion for Summary Judgment be granted in part

and denied in part, and that the case be remanded to the ALJ for further proceedings as stated

above.
< >
Lak Cre,
MARTIN C. ASHMAN
Dated: March 19, 2002. United States Magistrate Judge

-24-


o~

Ema Ordes Fggm (08197) |

United States District Court, Northern Distric. of Hlinois

a2

Name of Assigned Jud; Sitti H
ane Magistrate Judee Joan B. Gottschall sane ied Sudo Martin C. Ashman
CASE NUMBER 00 C 7067 DATE 3/19/2002
CASE Cora Hazzard vs. Jo Ann B. 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
of the motion being presented.

MOTION:
DOCKET ENTRY:
(6) im] Filed motion of [ use listing in “Motion” box above.]
(2) O Brief in support of motion due.
(3) Qo Answer brief to motion due__. Reply to answer brief due.
(4) im] Ruling/Hearing on setfor_ att
(5) B Status hearing[held/continued to] [set for/re-set for] on___—set for__at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on__set for at.
(7+) Oo Trial[set for/re-set for]on_ saat
(8) 0 [Bench/Jury trial] [Hearing] held/continuedto_ at .
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O General Rule21 OFRCP41(a)(1) O/FRCP41(a)(2).
(10) || [Other docket entry] Report and recommendation recommending that plaintiff's motion for

summary judgment be granted in part and denied in part, and that the case be remanded to the ALJ for
further proceedings is hereby entered of record. All matters relating to the referral of this action having
been resolved, the case is returned to the assigned judge.

(11) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
4

No notices required. umber of notices

R 2.0 2o0;

Z__ dato docketed

dor... |

3119/2002

S| Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.
v | Copy to judge/magiotatejudge.

C

date mailed notice

courtroom
Is deputy’s s
initials ~~ :
CT Datenine receivgd in

central Clerk’s Office mailing deputy initials



Ni
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m4

In September 1998, Hazzard had a pulmonary function study. (R. at 264.) The test
revealed no obstructive lung defect and a mild restrictive lung defect. A physician interpreted

this as a good response to the bronchodilator.? (R. at 264.)

Ill. The ALJ's Decision

After reviewing Hazzard's and Ollie's testimony and the medical evidence, the ALJ
determined that Hazzard was not disabled based on Grid Rule 202.13. The ALJ stated that
Hazzard had not engaged in substantial gainful activity since February 1996. (R. at 15.) Hazzard
set forth the following impairments: asthma, enlarged heart, carpal tunnel syndrome, arthritis,
and anxiety. (R. at 15.) The ALJ found that Hazzard's impairments could be severe but that her
impairments did not meet or equal in severity the level required for the Listing of Impairments.
(R. at 15.) Specifically, neither the medical evidence nor Hazzard's testimony reflected
functional limitations consistent with such a severe condition. (R. at 15.)

The ALJ then narrated Hazzard's testimony about her daily activities and commented on
the medical evidence. He noted that a November 1986 EKG was normal, that a January 1989
EKG and chest x-ray were normal, and that a March 1995 EKG was normal. He expounded on
the findings of Drs. Lubben and Dovale, acknowledging Dr. Dovale's observation that Hazzard

had not been evaluated by a neurosurgeon or orthopaedic surgeon. (R. at 16.) Hazzard's visits to

3 We refuse to consider the evidence from Thorek Hospital, dated around December 9,
1998, and from Dr. Jennifer Byrd, dated January 24, 2000. (See R. at 270, 279, 285, 288-90.)
Although this evidence is part of the administrative record, it cannot be used to contest the ALJ's
decision as it was first submitted to the Appeals Council. See Eads v. Secretary of the Dep't of
Health & Human Servs., 983 F.2d 815, 817-18 (7th Cir. 1993).

-ll-


with medication. (R. at 254, 256.) Dr. Bongu believed that Hazzard experienced so much pain
that she could not work on a sustained basis and that Hazzard would likely experience more pain
than she did at that time if she attempted to work. (R. at 256.) Hazzard's condition was listed as
stable. (R. at 256.)

In the Musculoskeletal Defects or Fractures Report, Dr. Bongu listed Hazzard's
impairments as carpal tunnel syndrome and rotator cuff tear. He stated that the impairments
caused Hazzard pain, and that Hazzard's pain was reasonably related to her impairments. (R. at
257.) Dr. Bongu listed Hazzard's condition as stable. He noted that Hazzard was presently
receiving treatment at a hand clinic but that she had not received any surgery. (R. at 257.)

He indicated that Hazzard had limited range of motion in her right shoulder and that Hazzard's
ability to grasp was weak. (R. at 255.)

In the Respiratory Report, Dr. Bongu diagnosed Hazzard with asthma. He noted the
absence of clubbing, cyanosis, and orthopnea, and he estimated that Hazzard experienced asthma
attacks about two or three times per month with a duration of two days. (R. at 258-59.) Between
acute respirator episodes, Hazzard exhibited wheezing, coughing, shortness of breath, and
dizziness. (R. at 259.) Hazzard could wash dishes, make beds, wash clothes, cook, drive a car,
and walk as able, but she could not dust, sweep, vacuum, shovel snow, cut grass, garden, and
rake leaves, (R. at 259-60.) Hazzard's work environment could not involve standing or walking,
nor could it contain smoke or dust. (R. at 260.) Dr. Bongu stated that Hazzard could not work at

any job that required an eight-hour workday.

-10-


an ~

On March 12, 1995, Hazzard was admitted to Jackson Park Hospital for chest pain.

(R. at 166.) Tests revealed nothing significant. (R. at 167-69.) In 1996, Hazzard started seeking
treatment for her medical conditions at the Englewood Health Clinic. (R. at 221-26.)
Periodically, Hazzard complained of shortness of breath and right arm pain. She was prescribed
medication to control her asthma. On November 18, 1996, a physician diagnosed Hazzard with
carpel tunnel syndrome. (R. at 224.)

On June 17, 1996, Dr. Georgia Lubben, a treating physician, completed a Cardiac Report.
She diagnosed Hazzard with hypertension and anxiety, but noted that Hazzard suffered no end
organ damage as a result of the hypertension. (R. at 171.) Dr. Lubben placed no restrictions on
Hazzard's ability to engage in physical activity. (R. at 172.) One day later, Dr. Lubben.
completed a Respiratory Report. She diagnosed Hazzard with asthma with no clubbing,
cyanosis, or orthopnea. Breathing sounds were normal. (R. at 175.) Between attacks, Hazzard
had clear lungs. She had a "good response" to therapy. (R. at 175-76.) Hazzard could perform
work-related activities such as sitting, standing, moving about, lifting, carrying, and handling
objects. (R. at 176.)

On July 5, 1996, Dr. Earl Donelan completed a Physical Residual Functional Capacity
Assessment without the benefit of reviewing a treating source's statement about Hazzard's
physical capabilities. He determined that Hazzard could occasionally lift and carry fifty pounds,
frequently lift and carry twenty-five pounds, stand and walk for about six hours in an eight-hour
workday, sit for about six hours in an eight-hour workday, and push or pull without limitation.
(R. at 201.) Dr. Donelan observed that Hazzard's asthma was not of listing severity and

frequency and that Hazzard's lungs were clear. (R. at 201.) He also noted that Hazzard had no

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explanation of why Hazzard could not perform any type of work. (R. at 260.) The most recent
medical tests were unremarkable; for instance, the September 1998 pulmonary function study
revealed no obstructive lung defect and mild restrictive lung defect, which was interpreted as a
good response to the bronchodilator. (R. at 264.) The medical notes contained in the record
indicate that Hazzard's asthma has been stable. Dr. Lubben, whose opinion the ALJ adopted,
opined that Hazzard was capable of performing work-related activities such as sitting, standing,
moving about, lifting, carrying, and handling objects. (R. at 176.)

Hazzard argues that the ALJ ignored or disregarded Dr. Bongu's opinions. To the
contrary, the ALJ referenced, discussed, and even credited Dr. Bongu's opinions to a certain
extent, just not to the extent that Hazzard would like. This does not create any error for the

reasons stated above. See Garrow, 1994 WL 686780, at *4.

E. Credibility Determination

Hazzard next challenges the ALJ's finding that Hazzard's complaints of disabling pain
were not credible. It is well settled that an ALJ's credibility determination will not be disturbed
unless it is patently wrong. Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994); Pope v. Shalala,
998 F.2d 473, 487 (7th Cir. 1993). Freedom to review a credibility determination is especially
limited where the determination is based on subjective considerations that "leave no trace that
can be discerned [from the transcript]."" Herron, 19 F.3d at 335 (quoting Ehrhart v. Secretary of
Health & Human Servs., 969 F.2d 534, 541 (7th Cir. 1992). But when a credibility determination
is based on objective factors or fundamental implausibilities, rather than subjective

considerations, district courts have more freedom to review the ALJ's determination. Id.

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Il. Factual Background

A. Hazzard's Testimony

Hazzard was fifty-three years old at the time of the hearing. (R. at 28.) She attended
school through the twelfth grade. (R. at 28.) She lived with her husband and one of her three
children. (R. at 41.)

Between 1976 and 1996, Hazzard worked as a presser, pressing various types of clothing
with a machine that released steam. To operate the machine, Hazzard was required to pull down
the lid of the machine, push a petal with her left foot, and push buttons with her fingers. (R. at
30.) The lid of the machine would raise by itself. (R. at 30.) Hazzard worked six to eight hours
per day, depending on the amount of work available. (R. at 30.) She was expected to press about
sixty to seventy pieces of clothing per hour, and she had to stand all day. (R. at 31.) Hazzard
testified that she quit working as a presser in February 1996 because of her asthma and carpal
tunnel syndrome. (R. at 32.)

Hazzard was diagnosed with asthma in 1986. She had severe asthma attacks in 1986 and
1989, both of which required Hazzard to seek medical treatment at the emergency room. (R. at
45.) On both occasions, physicians prescribed Prednisone to treat Hazzard's asthma. (R. at 46.)
Periodically, Hazzard had asthma attacks while at home, Sometimes Hazzard would take
Prednisone and rest in bed to manage her asthma. (R. at 47.) She avoided going to the hospital
because she could not afford to pay the medical bills. (R. at 49.)

Most of Hazzard's asthma attacks occurred at night when she tried to sleep. (R. at 48.)
Hot and humid conditions as well as cold weather increased the likelihood of an asthma attack.

(R. at 48, 51.) Ona daily basis, Hazzard inhaled two sprays—Asthma Cort and Alupent—to

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NN lan

IV. Discussion

A. Standard of Review

Judicial review of the Commissioner's decision to deny benefits encompasses an
assessment of the factual basis and legal basis of that decision. Cannon v. Apfel, 213 F.3d 970,
974 (7th Cir. 2000); White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999); Jones v. Shalala, 10 F.3d
522, 523 (7th Cir. 1993). With regard to the ALJ's factual findings, the court's role is limited: if
the ALJ's findings are supported by substantial evidence, then the court must affirm the ALJ's
decision. Allen v, Sullivan, 977 F.2d 385, 389 (7th Cir. 1992), 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) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). Put another way, it is more than a mere scintilla of the evidence, but
less than the greater weight of the evidence. Id.; Young v. Secretary of Health & Human Servs.,
957 F.2d 386, 389 (7th Cir. 1992). In determining whether substantial evidence exists, the court
cannot reevaluate the facts, reweigh the evidence, or substitute its own judgment for that of the
ALJ. Jones, 10 F.3d at 523.

The court reviews the ALJ's application of law without deference and without regard to
the volume of medical evidence that supports the ALJ's findings. White, 167 F.3d at 373. If the
ALJ's application of law is not properly grounded, then remand or reversal is warranted. Cook v.
Massanari, No. 00 C 4157, 2001 WL 755145, at *7 (N.D. Ill. July 2, 2001); Gavin v. Heckler,

620 F. Supp. 999, 1000 (N.D. Ill. 1985).

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1, Subpart P, Regulations No. 4." (R. at 20.) A similar statement appears in the body of the
ALJ's decision: "Although the claimant's impairments may be 'severe’ . . . they do not meet or
equal in severity the level required for the Appendix 1, Listing of Impairments." (R. at 15.) Both
statements demonstrate that the ALJ considered the combined effects of Hazzard's impairments
on the issue of medical equivalence. It is significant that the ALJ referred to Hazzard as having
"impairments," rather than as having an impairment, throughout the decision.*

Likewise, we are convinced that the ALJ considered the combined effects of Hazzard's
impairments when assessing Hazzard's residual functional capacity. The ALJ found that
Hazzard's asthma, hypertension, right shoulder degenerative joint disease, and associated
symptoms limited her to performing light work. (R. at 20.) Next, the ALJ reduced Hazzard's
range of light work due to her environmental limitations. (R. at 20.) Then, Grid Rule 202.13
was applied by the ALJ because Hazzard's "capacity for the full range of light work has not been
significantly compromised by her additional nonexertional limitations." (R. at 21.) This
sequential analysis shows that the effects of all of Hazzard's impairments were considered by the

ALJ.

4 Hazzard cites to Sample v. Shalala, 999 F.2d 1138, 1141-42 (7th Cir. 1993), in this
section of her brief. In Sample, the claimant argued on appeal that the combined effects of her
impairments equaled a specific listing, namely Section 2.07, The Seventh Circuit held that
substantial evidence supported the ALJ's decision that the combined effects of the claimant's
impairments did not equal Section 2.07. Sample, 999 F.2d at 1141-42. Here, Hazzard argues
that the ALJ did not "undertake any analysis of the combined effects of [her] impairments" on the
issue of equivalence. (Hazzard's Mem. Supp. Mot. Summ. J. at 6.) Hazzard does not develop an
argument that the combined effects of her impairments equaled a specific listing, contrary to the
findings of the ALJ. Thus, Sample is not on point.

~ 16-


recommends that Hazzard's Motion for Summary Judgment be granted in part and denied in part,

and that the case be remanded to the ALJ for further proceedings.”

I. Procedural Background

Hazzard applied for SSI on March 18, 1996, and for DIB on May 8, 1996. (R. at 70, 74.)
She alleged that she was disabled due to asthma and an enlarged heart since March 3, 1996. (R.
at 70, 89.) The Social Security Administration denied both applications on July 19, 1996.
Hazzard timely requested review of the decisions before an administrative law judge.

On July 28, 1998, the ALJ conducted a hearing, eliciting testimony from Hazzard, who
was represented by counsel, and Hazzard's husband, Ollie. (R. at 23.) Four months later, in a
written decision, the ALJ determined that Hazzard was not disabled based on Grid Rule 202.13.
Hazzard filed an appeal with the Appeals Council. The Appeals Council denied Hazzard's
request for review (R. at 6-7), thereby making the ALJ's decision the final decision of the
Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Hazzard now seeks review of that decision

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

? This matter comes before this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 72.1 for a report and recommendation.

-2-


~

Written objections to any finding of fact, conclusion of law, or the recommendation for
disposition of this matter must be filed with the Honorable Joan B. Gottschall within ten (10)
days after service of this Report and Recommendation. See FED. R. Civ. P. 72(b). Failure to
object will constitute a waiver of objections on appeal.

Copies have been mailed to:
SHEILA R. WOODS, Esq.

P.O. Box 1384
Oak Park, IL 60304

Attorney for Plaintiff

JAMES KUHN

Assistant United States Attomey
219 South Dearborn Street

Suite 500

Chicago, IL 60604

THOMAS W. CRAWLEY
Regional Chief Counsel
PATRICK NAGLE

Assistant Regional Counsel
Social Security Administration
200 West Adams Street

30th Floor

Chicago, IL 60606

Attorneys for Defendant


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

EASTERN DIVISION
CORA HAZZARD, )
Plaintiff, Case No. 00 C 7067
v. Judge Joan B. Gottschall
JO ANNE B. BARNHART, Magistrate Judge
Commissioner of Social Security,' ) Martin C. Ashman
Defendant. }

REPORT AND RECOMMENDATION

Cora Hazzard seeks judicial review of the Commissioner's decision to deny Hazzard's
applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income
("SSI"). The Administrative Law Judge (the "ALJ") held that Hazzard was not disabled based on
Rule 202.13 of the Medical-Vocational Guidelines (the "Grids"). Hazzard claims that the ALJ
erred by failing to analyze the combined effects of Hazzard's impairments on the issues of
medical equivalence and Hazzard's residual functional capacity, by failing to develop the record,
by improperly discounting the opinion of one of Hazzard's treating physicians, and by improperly
discounting Hazzard's testimony about her symptoms. Hazzard also claims that the ALJ's

decision is not supported by substantial evidence. For the following reasons, this Court

' Pursuant to Federal Rule of Civil Procedure 25(d)(1), Jo Anne B. Barnhart is
automatically substituted as defendant in this case.


Englewood Health Clinic were briefly discussed, as was Hazzard's September 1998 lung exam at
Thorek Hospital.

The ALJ dismissed Dr. Bongu's opinion that Hazzard could not work due to disabling
shoulder and wrist pain or asthma because it was offered without explanation, because it was
contrary to Dr. Bongu's reported findings, and because it was not supported by the record as a
whole. (R. at 17.) The ALJ also discounted Hazzard's testimony that her symptoms precluded
her from performing any type of work because such testimony was not supported by the medical
evidence and because it was belied by Hazzard's own daily activities. (R. at 18-19.) Hazzard's
asthma was mild, her hypertension was controlled with medication, and her right shoulder pain
was relieved with Tylenol. (R. at 18-19.) The evidence did not support Hazzard's allegation of
having an enlarged heart or of suffering from carpel tunnel syndrome. (R. at 18-19.)

In the end, the ALJ determined that Hazzard was capable of performing a wide range of

light work in clean air environments. (R. at 19.) Particularly, the ALJ made the following

findings:

1. The claimant met the disability insured status requirements of the Social
Security Act on March 3, 1996, the date the claimant stated she became
unable to work, and [she] continues to meet them through December 31,
1996.

2. The claimant has not engaged in substantial activity since February 1996.

3. The medical evidence establishes that the claimant has mild asthma
controlled by medication, hypertension, and right shoulder
degenerative joint disease, but that she does not have an
impairment or combination of impairments listed in, or medically
equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

4. The claimant's allegations and testimony of symptoms precluding

work are not credible to the extent alleged as they are not

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ia oTM

B. Analysis of the Combined Effects of Hazzard's Impairments

Hazzard's first challenge pertains to the ALJ's analysis of Hazzard's impairments.
Hazzard criticizes the ALJ for isolating each of Hazzard's impairments and not considering them
in combination when determining whether Hazzard's impairments equaled a listed impairment,
and when assessing Hazzard's residual functional capacity.

The level of articulation required by an administrative law judge to show that he
considered the combined effects of a claimant's impairments is minimal. In Waite v. Bowen, the
administrative law judge stated, "'The medical evidence establishes that the claimant has a loss of
motor and sensory function of the left arm, but he does not have an impairment, or a combination
of impairments listed, or medically equal to one listed in Appendix 1, Subpart P, of Social
Security Regulations No. 4." 819 F.2d 1356, 1359 (7th Cir. 1987). The Seventh Circuit held
that was sufficient articulation to show that the administrative law judge considered the
combined effects of the claimant's impairments on the issue of medical equivalence. Jd. In
Nelson v. Bowen, the administrative law judge stated, "The evidence does not show any
medically determinable impairments which, singly or combined, preclude claimant from
engaging in substantial gainful activity." 855 F.2d 503, 508 (7th Cir. 1988). The Seventh
Circuit found that was sufficient articulation to show that the administrative law judge
considered the combined effects of the claimant's impairments with respect to the claimant's
ability to perform work. Jd.

Here, the ALJ found that Hazzard had "mild asthma controlled by medication,
hypertension, and right shoulder degenerative joint disease, but that she [did] not have an

impairment or combination of impairments listed in, or medically equal to one listed in Appendix

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