V. CONCLUSION

The ALJ used a ME at the hearing, however, failed to supply the ME with all the
necessary materials to render a full and accurate medical opinion. The ALJ relied upon
the ME’s incomplete assessment to determine the Plaintiff's RFC which affected the
hypothetical posed to the VE and unfairly colored the ALJ’s final decision. As a result,
Plaintiff's motion for summary judgment is granted, Defendant's motion for
summary judgment is denied, and the ALJ’s decision is vacated and the case is
remanded to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g)
for further proceedings consistent with this opinion. The Commissioner is ordered
to re-adjudicate Claimant’s claim of disability beginning at step four.
SO ORDERED THIS 21* DAY OF NOVEMBER, 2001.

Woitir, Qollec!

MORTON DENLOW
United States Magistrate Judge

Copies mailed to:

Frederick J. Daley, Ltd. Preston L. Pugh

727 South Dearborn St., Suite 613 Assistant U.S. Attorney

Chicago, IL 60605 219 South Dearborn Street, 5“ Floor
Attorney for Plaintiff Chicago, IL 60604

Henry S. Kramzyk

Assistant Regional Counsel
Social Security Administration
200 West Adams St., 30" Floor
Chicago, IL 60606

Attorneys for Defendant

13


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the decision of the Commissioner of Social Security, with or without remanding the cause
for a rehearing.” 42 U.S.C. § 405(g).
Ill. ESTABLISHING A DISABILITY

In order to be entitled to SSI under Title XVI of the Social Security Act, the
Claimant must establish a “disability” under the Act. Zurawski v. Halter, 245 F.3d 881,
885 (7th Cir. 1997). To establish a "disability" the Claimant must show that 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 12
months. 42 U.S.C. § 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. § 1382c(a)(3)(B).

The Social Security Regulations provide a five-step process to determine whether
the Claimant has established a "disability." 20 C.F.R. § 404.1520(a). The process is
sequential; if the ALJ finds that the Claimant is disabled or is not disabled at any step in
the process, the analysis ends. Jd. In the first step, the ALJ considers whether the
Claimant is working and whether such work is “substantial gainful activity.” Jd. at §
404.1520(b). If the Claimant is working, the ALJ will find he is not disabled irrespective

of medical condition, age, education, and work experience. Jd.


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for developing a full and fair record. Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000).
Pursuant to this objective, in determining Claimant’s RFC the ALJ must base the
conclusion on “all of the evidence the ALJ has, including any statements...provided by
treating or examining physician, [or] consultative physicians...” and the ALJ must give
greater weight to a medical opinion based upon relevant evidence such as medical signs
and laboratory findings. 42 U.S.C. § 416.946, 20 CFR 416.927(d)(3). Additionally, “the
weight given a physician’s statement depends upon the extent to which it is supported by
medically acceptable clinical and laboratory diagnostic techniques.” Knight, 55 F.3d at
314. Although the ALJ affirms his reliance upon the Claimant’s treating physician and
the ME in determining the Claimant’s RFC, he incorrectly and unfairly relied on an
incomplete ME opinion. (R. 25). Therefore, the ALJ’s RFC determination at step four was
not supported by substantial evidence.

More importantly, as a result of the ALJ’s RFC determination, step five of the
analysis was affected. At step five the burden shifts to the Commissioner to show that the
Claimant is capable of performing work which exists in the national economy. 42 U.S.C.
§ 423(d)(2)(A). Additionally, the “hypothetical question upon which vocational testimony
is predicated must fully set forth the claimant's impairments to the extent that they are
supported by the medical evidence in the record.” Herron v. Shalala, 19 F.3d 329, 337
(7th Cir. 1994), In the instant case the ALJ properly called a VE to testify. However, the

AL] posed a hypothetical to the VE based upon a RFC which was based on incomplete


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despite his or her limitations. Jd. at § 404.1545. If the Claimant is still able to perform
work that he had performed in the past, the ALJ will find that the Claimant is not disabled.
Td, at § 1420(e).

If the Claimant's impairment is so severe that he is unable to perform past relevant
work, the burden shifts to the Commissioner in step five to show that the Claimant,
considering his age, education, past work experience, and RFC, is capable of performing
other work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A); Brewer, 103
F.3d at 1390.

IV. THE ALJ DECISION

The ALJ found Williams satisfied step one because he was unemployed and not
engaged in substantial gainful activity. (R. 20, 27). The ALJ determined that Williams
satisfied step two because he suffered from a number of severe impairments including:
insulin-dependent diabetes mellitus; hypertension; a respiratory impairment (variously
diagnosed as asthma or bronchitis); lower back pain as the residual effect of a herniated
disc; liver damage from hepatitis C infection and prolonged drug and alcohol use; reduced
sensation in the hands and legs (possibly peripheral neuropathy); and active polysubstance
dependence. (R. 24). At step three, the ALJ determined that these impairments do not
meet or equa! any listing in the Listing of Impairments, which brought the ALJ to step
four. Id.

Step four involves Williams’s residual functional capacity. The ALJ determined


ws ww

If the Claimant is not working, the ALJ will address step two: whether the
Claimant has an impairment or combination of impairments that is “severe.” Id. at §
1420(c). A “severe” impairment is one which “significantly limits [the Claimant's]
physical or mental ability to do basic work activities.” Jd. Basic work activities include
sitting, standing, walking, lifting, carrying, pushing, pulling, reaching, handling, seeing,
hearing, speaking, understanding, carrying out, and remembering simple work
instructions, and using judgment. Jd. at § 404.1521(b). The ALJ is to consider the
combined effect of multiple impairments “without regard to whether any [single]
impairment, if considered separately, would be of sufficient severity.” Id. at § 404.1523;
42 U.S.C. § 423(d)(2)(B). If the ALJ finds the Claimant does not have a severe
impairment, the Claimant is found not to be disabled and the sequential analysis ends. 20
C.F.R. at § 404.1520(b).

Ifthe ALJ finds the Claimant's impairment is severe, the ALJ considers step three:
whether the severe impairment meets any of the impairments listed in Appendix | of
Subpart P of Regulations No. 4. Id. at §1420(c). If the Claimant's impairment meets or
equals any impairment listed in the regulations, the ALJ will find the Claimant disabled.

If the impairment does not meet any listed impairment, the ALJ moves to step four.
Id. at § 1420(e). Step four involves a consideration of the Claimant's “residual functional
capacity” and the “physical and mental demands” of the past relevant work experience.

Id. A Claimant's residual functional capacity (“RFC”) is what that person is able to do,


—, we

caused by Claimant’s hepatitis C in his RFC, and (4) did not retrieve Claimant’s prior SSA
file.
A. IT IS THE ALJ’s DUTY TO DEVELOP A FULL AND FAIR RECORD

Claimant’s first argument relates to the fact that the ME, during the hearing,
specifically qualified his testimony due to missing medical records and evidence from the
Claimant’s primary treating physician during the period of alleged disability. (R. 82-83).
The ALJ noted this and said, “ideally it would be good to have them now for you to
evaluate.” (R. 83 emphasis added). The ALJ proceeded with the hearing and allowed the
ME to testify based upon the available, albeit limited, records. (R. 83-112). At the
hearing, the ALJ decided to hold the record open to obtain medical records from
Claimant’s treating physician and hospitals. (R.136). Claimant’s counsel requested the
ALJ to forward the additional records to the ME. (R.336).

However, after the ALJ’s receipt and review of the new records, the ALJ did not
forward the records to the ME to solicit his further opinions. (R. 25). The ALJ claimed
it was unnecessary to forward the records because he was “able to assess the evidence to
form my own conclusions regarding the claimant’s functional abilities.” (R. 26). This
Court respectfully disagrees with the ALJ’s decision not to forward such evidence to the
ME for the following reasons.

Because of the non-adversarial nature of a SSA proceeding, the ALJ is responsible

2 Although there was some discrepancy during oral arguments as to whether the
records, R. 292-335, were present during the hearing, both sides later agreed they were not.

8


Minute Order Form (0697)
N United Ste*s District Court, Northern Distric* of Ilinois
1? : * a Ww
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Morton Denlow than Assigned Judge
CASE NUMBER 01C 2124 DATE 11/21/2001
CASE Frank Williams vs. Larry G. Massanari
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: ~ :
T oS
qd) QO Filed motion of [ use listing in “Motion” box above.} ~ : i
Q) im Brief in support of motion due i
(3) oO Answer brief to motion due . Reply to answer brief duy- _ ‘
(4) oO Ruling/Hearing on set for at. . ae
(5) a Status hearing[held/continued to] [set for/re-set for] on set 10x at
(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) Oo Trial{set for/re-set for] on at
(8) oO [Bencl/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
CIFRCP4(m) OGeneral Rule21 1 FRCP41(a)(1) © FRCP41(a)(2).

ao) {Other docket entry] Enter Memorandum Opinion and Order. Plaintiff's motion for summary

judgment [19-1] is granted. Defendant’s motion for summary judgment [21-1] is denied and the ALJ’s

decision is vacated and the case is remanded to the Commissioner pursuant to the fourth sentence of 42

U.S.C. Section 405(g) for further proceedings consistent with this opinion. The Commissioner is ordered

to re-adjudicate Claimant’s claim of disability beginning at step four.
al) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required. number of notices

“Document

UV | Notices mailed by judge's staff.

nov 2.1 200

Notified counsel by telephone. date docketed

Docketing to mail notices. &

v Mail AO 450 form.

docketing dy

Copy to judge/magistrate judge.

1121/2001

Lei ta eg

date mailed notice
courtroom

DK deputy’s

ie DK6
initials

Date/time received in
central Clerk’s Office

railing deputy initials



a NS

nothing new and they even noted an improvement of Williams’ back pain. (R. 26).
However, this reason is insufficient due to the fact that relief from pain does not explain
the status of the underlying condition, namely diskogenic degenerative disease. This, “is
precisely this type of decision -- made within the context of an extremely technical and
complex field -- that courts should leave in the hands of expert administrators.” Wilkins
v. Sullivan, 889 F.2d 135, 140 (7th Cir. 1989) (commenting on an emphysema operation
that relieved pain, but not the disease itself). Although the ALJ provides a reason, his
reasoning is insufficient and he should have stood by his word and referred the records to
the ME.

For example, the ALJ neglects to mention that Dr. Zaman stated Claimant would
need to take unscheduled, as needed breaks during the day, and that Claimant would need
to be able to shift positions from standing, sitting and walking at will. (R. 393-397). The
ALJ does not explain why his RFC did not reach the same conclusion as the treating
physician on this important point.

Similarly, although the ALJ found that Claimant cannot work at a pace competitive
work demands (R. 25), the ALJ found Claimant capable of handling assembler, inspector
and hand packager jobs which the VE testified were “fairly quick paced.” (R. 125).
Although the ALJ found that Claimant could not perform tasks involving fine
manipulation with his hands (R. 27), the ALJ found Claimant could perform work as a

cashier. The record does not support the ALJ’s conclusion in light of Claimant’s need to

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medical evidence, and, as a result, the VE’s testimony was inaccurate and the burden was
not satisfied.
B. ALJ CROSSED THE LINE BETWEEN JUDGE AND MEDICAL DOCTOR

The Seventh Circuit has cautioned ALJs against succumbing to the temptation to
play doctor and making their own independent findings concluding, “lay intuitions about
medical phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.,
1990). The Claimant’s records from his regular treating physician submitted post-hearing
were significant in number (approximately 50 pages), included technical x-ray and blood
reports, and spanned over the relevant time period (1997-1998). (R. 292-335, 336-392).
These facts illustrate the notion that their omission would create a gaping hole in the
testimony of the ME and consequently the VE. Furthermore, the ALJ’s sole examination
and interpretation of such crucial records in an attempt to fill this hole crosses the line
between judge and medical doctor.

Although it is not always necessary for an ALJ to call an ME to evaluate medical
evidence, this ALJ did so, creating a presumption an ME was necessary. 20 C.F.R. §
404.1526. When the ALJ interpreted the post-hearing records without the assistance or
opinion of the ME, he was required to justify such an action and sufficiently articulate his
assessment of the evidence to assure the Court that the ALJ considered the important
evidence and to enable the Court to trace the path of the ALJ's reasoning. Rohan v.

Chater, 98 F.3d 966, 971 ( 7th Cir. 1996). The ALJ explained that the records indicated

10


Nae 4

Williams had the residual functional capacity to perform the physical exertional and non-
exertional requirements of work at the light level of exertion, with the exception of not
being able to stand or walk more than four hours in a work day and no more than one hour
continuously, performing postural activities only occasionally, no climbing or engaging
in work requiring fine hand manipulations. (R. 25). Although the ALJ found Williams to
have the ability to perform some light work, the ALJ found that he could not return to his
former profession as a barber in a normal competitive environment. Jd.

Therefore, the ALJ went on to step five to determine Williams’s capability of
performing other work within the national economy. The ALJ, using the VE’s testimony
and Rule 202.11 of the Medical-Vocational Guidelines, determined Williams would be
qualified for a significant number of jobs in the Chicago metropolitan area including;
assembly (16,000 jobs), hand packager (10,000 jobs), inspector (8,500 jobs), security
monitor (3,000 jobs), and cashier (5,000 jobs), and, therefore, concluded Williams was not
disabled. (R. 27).

Iv. ANALYSIS

Williams asserts the ALJ’s decision was not based on substantial evidence and was
flawed by legal error. Specifically, Williams contends the ALJ (1) incorrectly gave weight
to the testimony of the VE and ME when their testimony was not based upon the whole
of the medical evidence submitted by Claimant, (2) failed to credit the medical evidence

supporting Claimant’s back condition, (3) neglected to include the physical restrictions


Il. STANDARD OF REVIEW

Judicial review of a Commissioner’s final decision is governed by 42 U.S.C. §
405(g) which provides that the “findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive ...”. An ALJ *s decision
becomes the Commissioner’s final decision if the Appeals Council denies a request for
review. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993). Under such circumstances,
the decision reviewed by the district court is the decision of the ALJ. Eads v. Secretary
of the Dept. Of Health & Human Serv., 983 F.2d 815, 816 (7th Cir. 1993). 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).

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 his findings. Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992); 42
U.S.C. § 405(g). 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, 91 S.Ct. 1420, 1427 (1971). The court may reverse the Commissioner’s decision
only if the evidence “compels” reversal, not merely because the evidence supports a
contrary decision. INS v. Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815 n.1 (1992).

The Act gives a court the power to enter a judgment, “affirming, modifying, or reversing


SY ——-

Law Judge (“ALJ”) that Williams was not disabled under the SSA since January 1, 1997.
For the reasons set forth below, the Court reverses the ALJ’s decision and remands the
case to the Commissioner for further proceedings consistent with this opinion.
I. PROCEDURAL BACKGROUND

On June 25, 1996, Williams applied for SSI benefits under Title XVI of the Social
Security Act, 42 U.S.C. § 1381, claiming disability due to high blood pressure, asthma,
diabetes, and lower back disorder. (R. 157). Although Williams was receiving benefits
for drug addiction and/or alcoholism (“DAA”) at that time, he was to be terminated from
those benefits effective January 1, 1997 pursuant to Public Law 104-121, 42 U.S.C.§ 405.
(R. 160). The Commissioner denied Williams’ application both initially and upon
reconsideration. (R. 165, 166).

Williams requested a hearing before an ALJ and such a hearing was held on April
30, 1998 before ALJ Richard Pearson. (R. 35-156). Williams was represented by counsel
at the hearing, and both a medical expert (“ME”) and a vocational expert (“VE”) testified.
On August 12, 1998 the ALJ rendered his decision denying Williams’ application. (R. 18-
29).

Williams filed a request for review of the ALJ’s decision by the Commissioner’s
Appeal Council, which was denied, leaving the ALJ’s decision the final decision of the
Commissioner. (R. 9). On March 27, 2001 Williams filed a request for judicial review

pursuant to 42 U.S.C. § 405(g), which is currently before this Court.


Y wy

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

EASTERN DIVISION
FRANK WILLIAMS, )
)
Plaintiff, ) No. 01 C 2124
)
v. )
)
LARRY G. MASSANART', ) Magistrate Judge Morton Denlow
ACTING COMMISSIONER OF )
SOCIAL SECURITY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court for a review of the final decision of Defendant,
the Commissioner of Social Security (“Commissioner”), denying Plaintiff, Frank Williams
(“Claimant” or “Williams”), Supplemental Security Income (“SSI”) under the Social
Security Act (“SSA”), 42 U.S.C. § 1381 ef seg. Williams claims he has been disabled
since January 1, 1997 due to high blood pressure, asthma, diabetes, and lower back
disorder.

Williams seeks judicial review of the Commissioner’s final decision. The matter
comes before this Court on cross-motions for summary judgment. The issue to be decided

is whether substantial evidence in the record supports the finding of the Administrative

' On March 29, 2001, Larry G. Massanari became Acting Commissioner of Social
Security. In accordance with Fed. R. Civ. P. 25(d)(1) and 42 U.S.C. § 405(g), Larry G.
Massanari is automatically substituted for Kenneth S. Apfel as the Defendant in this civil

action. 7 /


a Ne

take unscheduled breaks, his limitations on the pace of his work, and his limitation in his
hand motor skills.

Claimant’s second and third arguments are encompassed within the first. These
arguments claim the ALJ failed to credit the medical evidence of the Claimant’s specific
conditions in regards to his back pain and hepatitis C. However, the evidence pointing to
these conditions was contained in the post-hearing records, and, therefore, must be
addressed upon remand. Claimant’s fourth argument pertains to the ALJ’s failure to obtain
Claimant’s prior record. The ALJ is not required to obtain or use a claimant’s prior file
and is entitled to exercise its discretion to determine how much evidence is necessary to
evaluate a particular case. Kendrick v. Shalala, 998 F.2d 455, 457 (7th Cir. 1993). On
remand, Claimant may submit such information to the record or request that it be

submitted.