testimony, the determination cannot be sustained because the ALJ’s credibility finding was
insufficient. On remand the ALJ will thus need to reevaluate Plaintiff's RFC in light of his revised

credibility finding and SSR 96-8p.

B. Pulmonary Irritants

The ALJ found that Plaintiff should avoid a more than moderate exposure to pulmonary
irritants. (R. 19.) Had the ALJ found that Plaintiff should avoid more than slight exposure to
pulmonary irritants, in addition to her other limitations, work would be precluded. (R. 91.) Plaintiff
argues that, given her respiratory issues, the ALJ should have consulted a medical expert to
determine Plaintiff’s tolerance for respiratory irritants. (Pl.’s Mem. at 14.)

There is no medical basis in the record to support the ALJ’s decision to select “moderate”
over “slight.” The only medical evidence in the record regarding the level of exposure Plaintiff
could tolerate was the conclusion of non-examining state agency physician Dr. Burris that Plaintiff
had no environmental limitations. (R. 252.) The ALJ apparently rejected that conclusion in the face
of the evidence in the record that Plaintiff has been diagnosed with asthma (R. 287), and has been
prescribed medications for asthma. See n. 10, supra. The ALJ adopted a more restrictive RFC than
indicated by Dr. Burris with regard to exposure to pulmonary irritants. However, the ALJ’s opinion
discusses only “bare medical records” (the pulmonary function studies and the chart notations of Dr.
Margules) and Plaintiff's testimony that, for example, she avoids family gatherings because the
cigarette smoke triggers her asthma. (R. 56.) To the extent the ALJ relied on Plaintiff's testimony,
he failed to explain why it credibly supports the limitation he found and not a greater one. To the

extent the ALJ relied on bare medical records, the ALJ appears to have ‘played doctor.’ Judges,

19



severe impairments of systemic lumpus erythematosus, with musculoskeletal and pulmonary
involvement, and depression/anxiety.” (R. 19.) The ALJ did not, however, systematically analyze
whether Plaintiff's symptoms meet listing 14.02. The ALJ discussed, “for example,” listings 3.00
and 12.04, which are factors in the 14.02(A) prong. (/d.) The ALJ never considered whether Plaintiff
meets or equals the 14.02(B) criteria or the remainder of the 14.02(A) criteria. Indeed, the ALJ never
actually mentioned listing 14.02.

Remand was ordered in both Brindisi v. Barnhart, 315 F.3d 783, 787-88 (7" Cir. 2003), and

Scott v. Barnhart, 297 F.3d 589, 596 (7" Cir. 2002), in part because of ALJ’s insufficient discussion

of whether the plaintiff met a listing. In Scott, the Court of Appeals observed that the ALJ failed to
refer to the relevant listing. “By failing to discuss the evidence in light of [the listing’s] analytical
framework, the ALJ has left this court with grave reservations as to whether his factual assessment
addressed adequately the criteria of the listing.” 297 F.3d at 595. Those reservations are likewise
applicable in the present case, where, after finding that Plaintiff suffered from “the severe
impairment{] of systemic lumpus erythematosus, with musculoskeletal and pulmonary involvement
and depression/anxiety” (R. 19), the ALJ failed to assess whether the severity of Plaintiff's
musculoskeletal or pulmonary involvement or her depression and anxiety when considered with
other relevant symptoms of ‘which there is evidence in the record, such as fatigue, malaise and weight
loss, met the criteria of listing 14.02(B). As a result, the ALJ failed to address the criteria of the
listing in a manner sufficient to “assure [the court that he] considered the important evidence” and
to “[enable the court] to trace the path” of his reasoning. Hickman v. Apfel, 187 F.3d 683, 689 (7th
Cir. 1999) (quoting Rohan v. Chater, 98 F.3d 966, 971 (7" Cir. 1996)). The ALJ’s limited

discussion at step three of the analysis is simply inadequate under the standards articulated by the

13


opinion. This is a final and appealable order.

IT IS SO ORDERED.

Geraldine Soat Brown
United States Magistrate Judge

October 22, 2003

23



of her maximum predicted heart rate and suffered mild chest discomfort. (/d.) The report of the test
concluded that she had no arrhythmias with exercise, and a fair exercise tolerance. (/d.) On July 14,
2000, Dr. Margules noted “no swelling .. . No rashes [,] feels great.” (R. 293.) Similarly, on May
23,2000, he noted “lungs clear[,] feels great.” (R. 291.) Yet in an undated notation he indicated that
Plaintiff was “very depressed [with] thoughts of suicide,” (R. 286) (emphases omitted). A pulmonary
function report dated September 7, 2000 indicates findings suggestive of “upper airway obstruction,
neuromuscular weakness, or lack of optimal effort.” (R. 331.) On September 8, 2000, Dr. Margules
noted that Plaintiff was tearful, depressed and that her “joints hurt.” (R. 284) (emphasis omitted).

On December 13, 1999, Dr. Glynis Vashi completed an examination of Plaintiff on behalf
of the Bureau of Disability Determination Services (“DDS”). (R. 220.) Her diagnostic impression
was as follows: “1. History of systemic lupus, currently in remission. 2. Shortness of breath
secondary to #1. 3. Joint pains and swelling secondary to #1. 4. Fatigue secondary to #1.” (R. 223.)
Dr. Vashi observed that Plaintiff had some joint swelling with tenderness in upper extremities. (/d.)

Plaintiff had mild difficulty tandem walking and walking on her toes and heels, and moderate
difficulty squatting and hopping on one leg. (/d.) Dr. Vashi further noted that Plaintiff did not need
or use an assistive device and had no difficulty getting on and off the exam table. (/d.) She observed
that Plaintiff’s grip strength was equal and strong in both hands. (R. 222.)

On May 1, 2000, Dr. Robert Baker, a diplomat of the American Board of Psychiatry &
Neurology and of the American Board of Adolescent Psychiatry, interviewed Plaintiff on behalf of
the Social Security Administration (“SSA”). (R. 233.) He diagnosed Plaintiff with Depressive
Disorder NOS [not otherwise specified] and “Axis III: Lupus and Asthma.” (R. 234.)

On June 15, 2000, Dr. Jerrold Heinrich, a DDS physician, completed a Mental Residual


including ALJ’s, are not qualified to interpret bare medical records. “Neither the Appeals Council
nor this court is qualified to make [a] medical judgment about residual functional capacity based
solely on bare medical findings as to [a] claimant's . . . condition." Bauzo v. Bowen, 803 F.2d 917,
926 (7" Cir. 1986) (quoting Lugo v. Secretary of Health and Human Services, 794 F.2d 14, 15 (1*
Cir 1986)) (alterations in original). See also Berrios-Lopez v. Secretary of HHS, 951 F.2d 427,430
(1* Cir. 1991) (stating that “[s]ince bare medical findings are unintelligible to a lay person in terms
of residual functional capacity, the ALJ is not qualified to assess claimant's residual functional
capacity based on the bare medical record") (citations omitted). “[J]udges, including administrative
law judges of the Social Security Administration, must be careful not to succumb to the temptation
to play doctor. ... Common sense can mislead; lay intuitions about medical phenomena are often
wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7" Cir. 1990) (citations omitted).

The Commissioner argues that “[t]he record contains extensive medical evidence
documenting a relatively mild pulmonary condition. . . .” (Def.’s Mem. at 13.) As discussed above,
principles of administrative law require that a proper evaluation of Plaintiff's environmental
restrictions be performed by the ALJ based on a full record, not by the court. See Green v. Apfel,
204 F.3d 780, 781 (7° Cir. 2000) (ALJ required to obtain medical expert opinion if necessary to
provide informed basis for disability determination).

The Commissioner also argues that Plaintiff's counsel at the administrative hearing did not
request that any further examination be conducted. (Def.’s Mem. at 13.) Proceedings before the ALJ
are intended to be non-adversarial. Williams v. Massanari, 171 F. Supp. 2d. 829, 833 (N.D. Ill.
2001). Moreover, the ALJ is required to develop a “full and fair” record. Smith v. Apfel, 231 F.3d

433, 437 (7 Cir. 2000). The Commissioner cites Glenn v. Secretary of Health and Human Services,

20



limitations in light of the revised credibility determination.

IV. Testimony of the VE

Plaintiff argues that the ALJ improperly failed to address all of the testimony of the VE in
his opinion. (Pl.’s Mem. at 10-11.) The ALJ “may not simply select and discuss only that evidence
which favors his ultimate conclusion.” Smith, 231 F.3d at 438. On the other hand, the ALJ is not
required to consider testimony of the VE which assumes facts that the ALJ has properly found not
creditable. See Kasarsky v. Barnhart, 335 F.3d 539, 543 (7" Cir. 2002) (per curiam) (stating that,
to the extent VE testimony is relied upon, “the question posed to the expert must incorporate all
relevant limitations from which the claimant suffers”); Connor v. Shalala, 900 F. Supp. 994, 1003
(N_D. Ill. 1995) (stating that “the omission [] from the hypothetical question can be dealt with easily,
since we have already concluded that there is substantial evidence in the record which supports the
ALJ’s conclusion that [plaintiff] was not suffering from a mental impairment.”). Thus, although an
ALJ does not err merely in failing to discuss testimony by the VE that assumed facts the ALJ did
not ultimately find, because this case must be remanded for additional factual determinations by the
ALJ that might result in a more limited RFC, the ALJ must consider an opinion of the VE that

incorporates all of the Plaintiff's limitations as found on remand.

CONCLUSION
For the reasons discussed above, the Commissioner’s motion for summary judgment is
denied, Plaintiff's motion for summary judgment is granted, judgment is entered on behalf of

Plaintiff, and the case is remanded to the Commissioner for further proceedings consistent with this

22



Luna v. Shalala, 22 F.3d at 691.

In this case the ALJ’s opinion falls short of the requirements of SSR 96-7p as explicated in
Brindisi, Zurawski and Luna. Itis not at all clear why, or to what extent, the ALJ found Plaintiff's
testimony and that of her sister not fully credible. The ALJ’s statement that the objective findings
fail to provide “strong” support for that testimony (R.20), implies that the medical evidence does
support Plaintiff's testimony to some extent. In so far as the ALJ’s opinion discusses Plaintiff's
daily activities, those activities appear consistent with Plaintiff's alleged symptoms. (R. 20.) The
ALJ also failed to consider evidence supporting Plaintiffs testimony. For example, the ALJ’s
finding that the record “does not show the claimant to be receiving ongoing treatment for her
depressive symptoms” (R. 22), is inconsistent with his finding Plaintiff is taking Prozac (R. 20), and
the undisputed evidence that she is taking Elavil and Imipramine. (R. 185.) The ALJ also failed to
consider Plaintiff's testimony that she has no medical insurance (R. 70), which was confirmed by
other evidence in the record (R. 211, 314), as a reason why she might not be getting additional
treatment.

As in the Zurawski case, there is not a sufficient basis to sustain the ALJ’s credibility
determination, and the case must be remanded for a reevaluation of Plaintiff's testimony regarding

pain and resulting limitations.

IM. Plaintiff's RFC
Plaintiff argues that the ALJ erred in a number of respects in his conclusion regarding

Plaintiff's RFC. Plaintiff argues that: (a) the ALJ failed to assess Plaintiff's RFC on a regular and

17



pulmonary irritants such as fumes, odors, dust and gases. (/d.) He concluded that Plaintiff cannot
carry out “complex/detailed” instructions or tasks but can perform simple, repetitive tasks on a
sustained basis. (R. 20.) Finally, he concluded that Plaintiff cannot perform work that requires more
than incidental interaction with the public or which involves frequent changes in the work routine.
(d.) At step four, the ALJ concluded that Plaintiffis unable to perform any of her past relevant work.
(R. 23.) At step five, the ALJ concluded that Plaintiff was capable of performing a significant
number of other jobs in the region and that she is thus not disabled for purposes of the Social
Security regulations. (R. 23-24.)

In assessing the credibility of Plaintiff and her sister, the ALJ stated:

[T]he objective medical evidence does not provide a basis for finding limitations

greater than those determined in this decision. In addition, consideration of the

factors described in 20 C.F.R. § 416.929(c)(3) and Social Security Ruling 96-7p also

leads to a conclusion that the claimant’s allegations of disabling symptoms and

limitations cannot be accepted .... I find the claimant’s testimony and testimony of

the claimant’s sister was not fully substantiated or consistent with the longitudinal

record in this case. The record likewise does not show the claimant to be receiving

ongoing treatment for her depressive symptoms.
(R. 22) (citations omitted).

A vocational expert (“VE”) testified at the hearing, (R. 26, 79-81, 83-95.) The VE responded
to a number of hypothetical questions from the ALJ. The VE was asked whether a hypothetical
person with Plaintiffs characteristics and with a RFC as ultimately found by the ALJ would be able
to work; the VA testified that numerous jobs would be available. (R. 89-90.) The VE further
testified that if Plaintiff were restricted to sedentary work and required to use a cane a “couple” of

days a week she would be unable to work. (R. 94, 88-89.) The VE also testified that if Plaintiff

missed more than two days of work a month, substantial gainful activity would be precluded. (R. 95.)


Prozac’, Elavil®, Imipramine, ’ Halcion®, Albuterol’ via a nebulizer, Singulair'® via an inhaler,
Prednisone’! and Ecotrin.'? (R. 31-32, 185.)

At the hearing before the ALJ, Plaintiff testified that her hands are swollen almost every day,
her knees are swollen constantly and her feet are swollen every day. (R. 35.) Plaintiff stated that her
feet swell so badly almost every day that she cannot put on shoes and socks, and her fingers swell
badly enough approximately every other day that she cannot bend them or tie her shoe or use a
button or zipper. (R. 47, 59.) She has shortness of breath severe enough to prevent her from walking
down a flight of stairs approximately three times a week . (R. 48-49.) She stated that she can shop

for about half an hour before her knees start to hurt and can vacuum and dust for about ten minutes

‘Prozac is an antidepressant. The “more frequent side effects include nervousness,
insomnia, headache, drowsiness, anxiety, sweating, loss of appetite, diarrhea. Occasional side
effects include fatigue, dizziness, itching, skin rash, nausea and vomiting, visual disturbances,
and backache.” Schmidt, Attorneys’ Dictionary of Medicine at Vol. 2, F-129.

‘Elavil is used to treat depression. Jd. at Vol. 2, E-38.

7
Imipramine is a antidepressant. Jd. at Vol. 3, I-31.

*Halcion is used to treat insomnia. The side effects include: “Addiction and abuse,
depression of the central nervous system, dizziness and drowsiness, headache, unsteady gait,
impairment of memory, occasional excitement, mental depression, fast heart beat, visual
disturbances.” Jd. at Vol. 3, H-10.

* albuterol isa drug used as a bronchodilator for the treatment of bronchospasm in
obstructive airway disease. Jd. at Vol. 1, A-216.

"Singulair is used to treat asthma. Jd. at Vol. 5, S-162.

''Prednisone, prevents or alleviates inflammation. Adverse effects of prolonged treatment
include wasting of muscles; osteoporosis; spontaneous fractures. Jd. at Vol. 5, P-407.

“Ecotrin is enteric coated tablets of aspirin used primarily to treat arthritis. Jd. at Vol. 2,
E-15.



Functional Capacity Report (“MRFC”) and a Psychiatric Review Technique Form (“PRTF”)
regarding Plaintiff. (R. 235-238, 239-247.) In his MRFC Dr. Heinrich concluded that Plaintiff was
moderately limited in her ability to maintain attention and concentration for extended periods. (R.
235.) He also found her moderately limited in her ability to interact appropriately with the general
public and respond appropriately to changes in the work setting. (R. 236.) He concluded that
Plaintiff:

retains the mental capacity to follow some detailed instructions, but she needs a job

within an organized and repetitive work setting. Social skills are adequate for basic

interactions, but she can not cope with frequent interactions with the public.

Adoptional capacity is lowered; she needs a job without frequent changes in routine.

Within noted limitations she retains the mental capacity and emotional stamina to do

simple unskilled tasks.

(R. 237.)

In his PRTF Dr. Heinrich concluded that Plaintiff suffered from depressive disorder NOS
characterized by appetite disturbance with change in weight, sleep disturbance, difficulty
concentrating or thinking and thoughts of suicide. (R. 242.) He found that Plaintiff had moderate
difficulty in maintaining social functioning and often had deficiencies in concentration, persistence
and pace. (R. 246.)

On June 28, 2000, Dr. Stanley Burris, who apparently did not examine Plaintiff, completed
a residual functional capacity (“RFC”) evaluation regarding Plaintiff. (R. 248-255.) He found that
Plaintiff could occasionally lift twenty pounds and frequently lift ten pounds, and could stand and
sit for about six hours in an eight hour work day. (R. 249.) He found that Plaintiff had no limitations

in areas including posture, manipulation and environment. (R. 250-252.)

At the time of the hearing before the ALJ, the Plaintiff was taking the following medications:



continuing basis as required by SSR 96-8p; (b) the ALJ erred in his assessment of Plaintiff's
tolerance for exposure to respiratory irritants; and (c) the ALJ erred in his assessment of Plaintiff's

manipulative limitations and use of a cane.

A. Regular and Continuing Basis

SSR 96-8p defines an RFC assessment as “the individual's maximum remaining ability to
do sustained work . . . on a regular and continuing basis; [i.e.,] 8 hours a day, for 5 days a week, or
an equivalent work schedule.” SSR 96-8p, 1996 WL 374184 at *2 (S.S.A. 1996). Plaintiff argues

that the ALJ failed to take this definition into account in evaluating Plaintiff's RFC.

The ALJ noted Plaintiff s testimony that her symptoms were much worse on some days than
on others. (R. 20.) The ALJ also observed that “[t]reatment records . . . reflect waxing and waning
of pulmonary symptoms and musculoskeletal symptoms ....” (R. 21.) However, the ALJ did not
state whether his RFC constitutes an assessment of what Plaintiff can do on her best days, her worst
days, or some hybrid of the two. Nor did the ALJ make a finding as to how often Plaintiff has bad
days. See Gotz v. Barnhart, 207 F. Supp. 2d 886, 897 (E.D. Wis. 2002) (“The ALJ must determine
the frequency of Plaintiff's ‘bad days’ and decide if their occurrence precludes full time work.”).
While the ALJ found the testimony of Plaintiff and her sister regarding her limitations to be “not
fully substantiated,” the court cannot infer from this a conclusion that the ALJ found that Plaintiff
had no “bad days” or that she is able to perform at the RFC found by the ALJ on a regular and
continuing basis. An ALJ must rationally articulate his conclusions, regardless whether there is
sufficient evidence in the record to support his decision. See Steele, 290 F.3d at 941. Moreover,

to the extent that the ALJ’s determination of Plaintiff's capacity was based on his disregard of her

18



impairment listed in the Regulations as being so severe as to preclude substantial gainful activity;
(4) if the impairment does not meet or equal a listed impairment, whether the claimant retains the
residual functional capacity, despite his impairment, to perform his past relevant work; and (5) if the
claimant cannot perform his past relevant work, whether the claimant is able to perform any other
work existing in significant numbers in the national economy, considering his residual functional
capacity together with his age, education, and work experience. Jd; see also Young v. Secretary of
Health & Human Servs., 957 F.2d 386, 389 (7" Cir. 1992). The claimant bears the burden of proof
at steps one through four, after which the burden shifts to the Commissioner at step five. Young, 957
F.2d at 389.

At the first step, the ALJ found that there was no evidence Plaintiff had engaged in
substantial gainful activity since the time of her application. (R. 19.) At the second step, the ALJ
found that Plaintiff suffered from severe impairments. (/d.) At the third step, the ALJ found that
Plaintiff's impairments, individually and in combination, did not equal in severity any listed
impairment. (/d.) In reaching this finding the ALJ specifically referred to section 3.00 and section
12.04 of 20 C.F.R. Pt. 404, Subpt. P, App. 1. (/d.) The ALJ then proceeded to assess Plaintiff's
residual functional capacity. The ALJ concluded that Plaintiff could lift and carry ten pounds
occasionally and lighter items frequently. (/d.} He further found that she can stand and walk for no
more than two hours in an eight hour day and for no longer than fifteen minutes continuously and
that she can sit for six hours in an eight hour day. (/d.) He found that she should not climb ladders,
ropes or scaffolds but can occasionally climb ramps and stairs as well as balance, stoop, kneel,
crouch and crawl occasionally. (/d.) He found that Plaintiff cannot preform fine manipulative tasks

with either of her hands more than frequently and must avoid more than moderate exposure to



i
Minute Order Form (06/97) H i

“OY United States District Court, Northern District of Illinois
ill
Name of Assigned Ju ‘ Sitting Judge if Other
orMagisiratedudge | __ CeTaldine Soat Brown “than asiged Judge
CASE NUMBER 02 C 5681 10/22/2003
CASE
TITLE

[In the following box (a) indicate the party filing the motion, e.g., Pian, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.] i

MOTION: all

DOCKET ENTRY: !

qQ) Oo Filed motion of [use listing in “Motion” box above.

(2) im Brief in support of motion due

(3) Qo Answer brief to motion due___. Reply to answer brief dug EE

(4) o Ruling/Hearingon__—_ssetfor__——_at

(5) oO Status hearing[held/continued to] [set for/re-set for}on___

(6) oO Pretrial conference[held/continued to] [set for/re-set for) ‘on panei

aM a ‘Trial[set for/re-set for] on___at i

(8) oO [Bench/Jury trial] [Hearing] held/continued to at i | i

(9) o This case is dismissed [with/without] prejudice and without costs[byle Fparbuant to]
OFRCP4(m) OLocalRule 41.1 O FRCP41(a)(1) © a FRCP41 (aX |

(0) [Other docket entry] For the reasons set out in th¢ ! Mi i

Commissioner’s motion for summary judgment [24-1] is denied, lain ‘4 otion for summary judgment
[19-1] is granted, judgment is entered on behalf of Plaintiff)! i

Commissioner for er Proceedings consistent with the Opinion. #

Terminating case. hon

(il) @ [For further detail see order attached to the original minute order;]
No notices required, advised in open court, at

No notices required.

a | Notices mailed by judge’s staff.
Notified counsel by telephone.

Docketing to mail notices.

av | Mail AO 450 form. i
LYNGI LI LSIG"S" q Hi

wud

courtroom thug 22 Log et

GR deputy's
initials

Copy to judge/magistrate judge.

‘Datostimne reedvedin
centyal Clerk’s Office

al



select and discuss only that evidence that favors his ultimate conclusion. Herron, 19 F.3d at 333.
Where conflicting evidence allows reasonable minds to differ, the responsibility for resolving the
conflict falls on the ALJ, not the court. Herr, 912 F.2d at 181; see also Stuckey v. Sullivan, 881 F.2d
506, 509 (7" Cir. 1989) (“[t]he ALJ has the authority to assess medical evidence and give greater
weight to that which he finds more credible”). Where there is a conflict between medical opinions,
the ALJ may choose between those opinions but may not substitute his own lay opinion for that of
the medical professionals. Davis v. Chater, 952 F. Supp. 561, 566 (N.D. Ill. 1996). “A treating
physician’s opinion regarding the nature and severity of a medical condition is entitled to controlling
weight ifit is well supported by medical findings and not inconsistent with other substantial evidence
in the record.” Clifford v. Apfel, 227 F.3d 863, 870 (7" Cir. 2000) (citing 20 C.F.R. § 416.927(d)(2)).

Although the district court’s role is limited to determining whether the ALJ’s final decision
is supported by substantial evidence and based upon proper legal criteria, this does not mean that the
ALJ is entitled to unlimited judicial deference. Regardless of whether there is adequate evidence
in the record to support the ALJ’s decision, the ALJ must build an accurate and logical bridge from
the evidence to his or her conclusions, because the court confines its review to the reasons supplied
by the ALJ. Blakes ex rel Wolfe v. Barnhart, 331 F.3d 565, 569 (7" Cir. 2003). If the evidence on
which the ALI relied does not support the ALJ’s decision, the decision cannot be held. Jd. The ALJ
must state his reasons for accepting or rejecting “entire lines of evidence,” although he need not
evaluate in writing every piece of evidence in the record. See Herron, 19 F.3d at 333; see also
Young, 957 F.2d at 393 (ALJ must articulate his reason for rejecting evidence “within reasonable
limits” in order to allow for meaningful appellate review), An ALJ’s opinion cannot contain

conflicting factual determinations. Smith v. Massanari, No. 00-C-7504, 2001 WL 936123 at *1

11



The VE also concluded that if Plaintiff were limited to only slight exposure to pulmonary irritants,

all work would be precluded. (R. 91-92.)

LEGAL STANDARD

The Social Security Act provides for limited judicial review of a final decision of the
Commissioner (effectively that of the ALJ where, as here, the Appeals Council has denied the
applicant’s request for review). Where the ALJ commits an error of law, “reversal is required
without regard to the volume of the evidence in support of the factual findings.” Imani v. Heckler,
797 F.2d 508, 510 (7" Cir. 1986). With respect to the ALJ’s conclusions of fact, the reviewing
court's role is limited. There the role of the district court is only to determine whether the decision
of the ALJ is supported by substantial evidence in the record. Wolfe v. Shalala, 997 F.2d 321, 322
(7" Cir. 1993). In reviewing the Commissioner's decision, the court may not decide facts anew,
reweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v.
Shalala, 19 F.3d 329, 333 (7" Cir. 1994); Brown v. Chater, 913 F. Supp. 1210, 1213-14 (N.D. IL.
1996). Thus, the court does “not substitute [its] own judgment for that of the ALJ.” Perkins v.
Chater, 107 F.3d 1290, 1296 (7" Cir. 1997). Rather, the court must affirm a decision if it is
supported by substantial evidence and the ALJ has made no error of law. Herr v. Sullivan, 912 F.2d
178, 180 (7" Cir. 1990); Edwards v. Sullivan, 985 F.2d 334, 336-37 (7" Cir. 1993). Substantial
evidence means “such relevant evidence as a reasonable mind might accept as adequate to support
aconclusion.” Luna v. Shalala, 22 F.3d 687, 689 (7" Cir. 1994) (quoting Richardson v. Perales, 402
USS. 389, 401 (1971).

When evaluating a disability claim the ALJ must consider all relevant evidence and may not

10


before she feels fatigued. (R. 49-50.) She stated that she thinks about suicide every day. (R. 50.) She
stated that even with sleeping pills she cannot sleep enough to feel rested in the moming. (R. 51.)
She stated that her anti-depressant medication makes her drowsy and that she suffers sores in her
mouth and lack of appetite from other medications. (R. 52.) Plaintiff states that she takes two naps
during the day. (R. 53.) Plaintiff stated that she avoids family get-together to avoid cigarette smoke
that aggravates her asthma. (R. 56.) Plaintiff testified that her condition varied. On a good day she
is able to clean, vacuum and wash dishes. (R. 45.) On a bad day she lies down virtually all day. (R.
46.) She stated that on average she had three or four bad days a week. (Id.)

Plaintiff's sister, Criselda Shreve, also testified at the hearing. (R. 72.) Ms. Shreve lives near
Plaintiff and stops in every day before and after work to see Plaintiff. (/d.) She testified that she
observed Plaintiff in pain and with swollen joints so that Plaintiff cannot lift her arms. (R. 73-74.)
Ms. Shreve supported Plaintiff's testimony that Plaintiff is unable to do much for herself four days
out of seven. (R. 75) Ms. Shreve also testified that Plaintiff has mood swings and rarely leaves her

home. (R. 77.)

THE ALJ’s DECISION
The Social Security Regulations (“Regulations”) prescribe a sequential five-part test for
determining whether a claimant is disabled. 20 C.F.R. § 416.920 (2003). Under this test the Social
Security Commissioner must consider: (1) whether the claimant has performed substantial gainful
activity during the period for which he claims disability; (2) if he has not performed any substantial
gainful activity, whether the claimant has a severe impairment or combination of impairments; (3)

if claimant has a severe impairment, whether the claimant's impairment meets or equals any


814 F.2d 387 (7" Cir. 1987), for the proposition that “[w]Jhen an applicant for social security benefits
is represented by counsel the administrative law judge is entitled to assume that the applicant is
making his strongest case for benefits.” Jd. at 391. However, that assumption does not eliminate the
ALJ’s obligation to develop the record sufficiently to make a proper decision. See, ¢.g., Ray v.
Bowen, 843 F.2d 998, 1006-07 (7" Cir. 1988), remanding the case to the Commissioner with
directions to order a psychological examination of the claimant, notwithstanding the Commissioner’s

invocation of the quotation from the G/enn decision.

C. Manipulative Limitations and Use of a Cane.

Plaintiff complains about the ALJ’s conclusion that, despite her testimony to the contrary,
Plaintiff can frequently perform fine manipulative tasks, and the ALJ’s apparent rejection of
Plaintiff's testimony that she began using a cane at the advice of Dr. Margules and now uses a cane
approximately four times a week. (R. 88, 94.) The ALJ discussed the December 1999 consultive
examination which found a full range of motion in all of Plaintiff's joints and strong bilateral grip
strength, notwithstanding some synovitis (inflamation) and deformity. (R. 21,222.) The ALJ also
referred to the RFC in which Dr. Burris found no evidence of manipulative limitations. (R. 22, 251.)
The Plaintiff admits that the medical records are silent about whether Dr. Margules suggested that
Plaintiff use a cane. (P1.’s Mem. at 13.) However, Plaintiff's charts from 2000 indicate swelling in
her knees (R. 283, 285), which she also mentioned to Dr. Vashi in 1999. (R. 220.)

Because the evidentiary support for these limitations is based substantially on the testimony
of Plaintiff and her sister, and, as discussed above, the ALJ’s opinion does not reflect an adequate

evaluation of the credibility of that testimony, on remand the ALJ shall reevaluate these claimed

21


erythema’, severe arthritis and “rapidly progressive kidney failure.” (R. 313.) She was treated with
“aggressive chemotherapy” and as of 1999, her “rash and kidney failure [had] abated, but she still
{had] mildly active lupus with arthritis, serositis,* and proteinurea. (R. 313.) Dr. Margules further
noted that Plaintiff's condition has “taken a turn for the worse.” Dr. Margules reported:

Lately [Plaintiff] has developed a cough, shortness of breath and difficulty breathing,

sometimes even with very short walks. A chest x-ray which was done recently during

an emergency room admission for shortness of breath revealed progressive

pulmonary interstitial fibrosis. Thus, I am convinced, however sorry, that the lupus

has begun to include her lungs as well. The most recent laboratory test I have for her

lupus are actually old, because she has been either underinsured or non-insured for

the past year .. . She needs to be seen on a very frequent basis, every two to four

weeks. She needs to be on chemotherapy, again, rather intensively, and will have to

have close supervision for the rest of her life. She has outlived her prognosis, and I

am frankly surprised that she is alive today.

(R. 314.)

Dr. Margules’ subsequent medical records regarding Plaintiff show both positive and
negative signs. In January, 2000, he referred Plaintiff to Dr. Agarwal, a pulmonary specialist. (R.
52, 271.) On January 20, 2000 two x-rays of Plaintiff's chest were taken indicating no radiographic
evidence of acute cardiopulmonary findings. (R. 232.) On February 3, 2000, a high resolution CT
image was taken of Plaintiff's chest. (R. 189.) The interpretation of that image indicated that there
was “no evidence of significant pulmonary interstitial fibrosis.” (/d.) Plaintiff was given a stress test

on February 10, 2000. (R. 188.) Exercising on a treadmill, she was able to attain approximately 80%

*Erythema is an abnormal reddening of the skin. Schmidt, Attorneys’ Dictionary of
Medicine at Vol. 2, E-181-82.

‘Serositis is the inflamation of a serous membrane, which is a membrane lining a body
space such as the inside of the chest that has no connection to the outside. Schmidt, Attorneys’
Dictionary of Medicine at Vol. 5, S-120.


Seventh Circuit.

The Commissioner’s arguments with respect to this issue are contrary to the law or the
record or both. The Commissioner argues that “Listing 14.02 specifically requires that a claimant
meet (at least in this particular case) either Listing 3.00 or 12.04 as well as have the diagnos[i]s of
lupus. Because [the ALJ] specifically found that neither Listing . . . was met, no further discussion
was necessary.” (Def.’s Mem. at 11.) As is evident from even a cursory reading of listing 14.02, a
claimant can meet listing 14.02 without meeting either listing 3.00 or listing 12.04.

The Commissioner further argues that Plaintiff has waived this argument by failing to offer
any evidence in support of her meeting the listing. (/d. at 8-11.) However, the fact that there was
evidence in the record sufficient to allow the ALJ to conclude that Plaintiff has lupus with
“musculoskeletal and pulmonary involvement, and depression/anxiety” speaks for itself.

The Commissioner argues that the evidence does not support a finding that Plaintiff meets
listing 14.02. (Def.’s Mem. at 8-10.) However, the Seventh Circuit has specifically refused to
consider after-the-fact arguments by the Commissioner as a substitute for appropriate analysis by the
ALJ. “[R]egardless whether there is enough evidence in the record to support the ALJ's decision,
principles of administrative law require the ALJ to rationally articulate the grounds for her decision
and confine our review to the reasons supplied by the ALJ.” Steele v. Barnhart, 290 F.3d 936, 941
(7 Cir. 2002). See also Scott, 297 F.3d at 595-596 (stating that “[a]lthough the Commissioner
submits that the evidence of record demonstrates that [the plaintiff] could not satisfy [the listing] .
. . we are hard pressed to find this precise conclusion either implicitly or explicitly in the ALJ’s
opinion.”)

It would be particularly inappropriate for the court to undertake an evaluation of whether

14



conclusion about the credibility of the individual’s statements if a disability
determination or decision that is fully favorable to the individual cannot be made
solely on the basis of objective medical evidence.

SSR 96-7p, 1996 WL 374186 at *1 (S.S.A. 1996). Under SSR 96-7p, the adjudicator must consider
“[t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken
to alleviate pain or other symptoms.” SSR 96-7p, 1996 WL 374186 at *3. Here the ALJ’s opinion

fails to reflect any consideration of the side effects of the many medications that Plaintiff takes.

In Brindisi, the Seventh Circuit held that an ALJ’s opinion failed to comply with SSR 96-7p
because it was “lacking any explication that would allow this court to understand the weight given
to the [plaintiff's] statements or the reasons for that consideration as required by SSR 96-7p.” 315
F.3d at 788. Similarly, in Zurawski v. Halter, 245 F.3d 881, 887 (7" Cir. 2001), the Seventh Circuit
stated: “Here, the ALJ found Zurawski's complaints of disabling pain ‘not entirely credible due to
the inconsistencies with the objective medical evidence, and inconsistencies with daily activities.’
Unfortunately, we are left to ponder what exactly are these ‘inconsistencies’ because the ALJ
provided no further explanation.” The court also emphasized that the ALJ’s opinion must reflect
consideration of evidence that is favorable to the claimant as well as that which is unfavorable. Jd.
at 888.

Even when allegations of pain are not supported by objective medical evidence,

If. . . the claimant indicates that pain is a significant factor of his or her alleged

inability to work, then the ALJ . . . must investigate all avenues presented that relate

to pain, including claimant's prior work record, information and observations by

treating physicians, examining physicians, and third parties. Factors that must be

considered include the nature and intensity of claimant's pain, precipitation and

aggravating factors, dosage and effectiveness of any pain medications, other
treatment for relief of pain, functional restrictions, and the claimant's daily activities.

16


BACKGROUND
A. Personal History
Plaintiff was 33 years old at the time of the hearing before the ALJ in 2000. (R. 32.) She has
received a GED. (R. 33.) Plaintiff worked as a warehouse picker/packer in 1998 and 1999. (R. 154.)
From 1996 to 1998 she worked for a pharmaceutical company as a production operator, quality
assurance inspector and a material handler. (/d.) Plaintiff held several other jobs prior to 1996. (R.
42-45.) The ALJ found that Plaintiff had not performed any gainful employment since the date of

her application for benefits. (R. 19.)

B. Medical History

Plaintiff claims disability based on chronic systemic lupus erythematosus’ and associated
symptoms including difficulty breathing, difficulty grasping and walking, as well as asthma and
depression.

Dr. Kenneth Margules has been Plaintiff’s doctor since 1988 or 1989. (R. 313.) In an October
30, 1999 letter he summarized Plaintiff's medical history to that date for an adjudicator with the
Illinois Department of Human Services. Dr. Margules stated that when he began treating Plaintiff

as a teenager she had “hectic life-threatening systemic lupus erythematosus” characterized by facial

? Systemic lupus erythematosus is a “serious, often fatal, disease” accompanied by various
lesions in the organs, skin eruptions, fever, and other symptoms. “The outstanding clinical signs
include weakness, fatigability, arthritis resembling rheumatoid arthritis, redness of the skin in
patches (on the face, neck, and arms), pericarditis, pleurisy, swelling of the lymph nodes, anemia,
etc.” J. E. Schmidt, Attorneys’ Dictionary of Medicine Vol. 3, L-207-08 (Matthew Bender,
December 2002). Pericarditis is the inflamation of the sac surrounding the heart. /d. at Vol. 4, P-
166. Pleurisy is the inflammation of the membrane lining the inner chest walls and lungs,
resulting in considerable pain on breathing. Jd. at Vol. 4, P-299.

2



UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS p32 atl

EASTERN DIVISION JGNETED

OCT 9 3 2003
CLEMENTINA SILVA, y

Plaintiff, ) Cause No. 02 C 5681

)

v. ) Magistrate Judge Geraldine Soat Brown
)
JO ANNE BARNHART, Commissioner )
of Social Security, )
Defendant. )
)

MEMORANDUM OPINION AND ORDER

Plaintiff Clementina Silva brought this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the decision of the Commissioner of Social Security. In 1999, Plaintiff applied for
Supplemental Security Income (“SSI”). (R. 127-128.)! Following the denial of Plaintiff's claim
initially and on reconsideration, a hearing was held before an Administrative Law Judge (“ALJ”) on
December 6, 2000, who issued an unfavorable decision on February 22, 2001. (R. 100, 108, 25, 26.)
The Appeals Council declined to review Plaintiff’s claim. (R. 7-8.) The parties have consented to
the jurisdiction of a magistrate judge, [dkt 13, 14], and both parties have moved for summary
judgment. [Dkt 19, 24.] For the reasons stated below, the Commissioner’s motion is denied,

Plaintiff's motion is granted, and the case is remanded for further proceedings.

VR, » refers to the certified record of proceedings, evidentiary documents, and
administrative hearing transcripts prepared by the Social Security Administration’s Office of
Hearings and Appeals pursuant to 42 U.S.C. § 405(g).



(NLD. II! Aug. 16, 2001) (Shadur, J.).

DISCUSSION

Plaintiff makes several arguments for reversal.
I. Listing 14.02.

Plaintiff argues that the ALJ failed to analyze properly whether Plaintiff met listing 14.02
(section 14.02 of 20 C.F.R. Pt. 404, Subpt. P., App. 1).'"° In requesting a hearing before an ALJ,
Plaintiff asserted that she met listing 14.02(A) and (B). (R. 111.) Listing 14.02 applies to when a
diagnosis of systemic lupus erythematosus has been made, as it has been with respect to Plaintiff.
The listing can be met by combining that diagnosis with one of the eleven factors listed in 14.02(A)
or, under 14.02(B), with “[lJesser involvement of two or more organs/body systems . . . with
significant, documented constitutional symptoms and signs of severe fatigue, fever, malaise and

weight loss.” 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that Plaintiff suffered from “the

13,
Listing 14.02 reads as follows:

14.02 Systemic lupus erythematosus, Documented as described in 14,00B1, with:
A. One of the following:

Joint involvement, as described under the criteria in 1.00; or

Muscle involvement, as described under the criteria in 14.05; or

Ocular involvement, as described under the criteria in 2.00ff, or

Respiratory involvement, as described under the criteria in 3.00ff; or
Cardiovascular involvement, as described under the criteria in 4.00ff or 14.04D; or
Digestive involvement, as described under the criteria in 5.00ff; or

Renal involvement, as described under the criteria in 6.00ff; or

Hematologic involvement, as described under the criteria in 7.00ff; or

Skin involvement, as described under the criteria in 8.00ff; or

10. Neurological involvement, as described under the criteria in 11.00ff; or

11. Mental involvement, as described under the criteria in 12.00ff.

PEI AWRwWNe

Or

B. Lesser involvement of two or more organs/body systems listed in paragraph A, with significant, documented, constitutional
symptoms and signs of severe fatigue, fever, malaise, and weight loss. At least one of the organs/body systems must be involved
to at least a moderate level of severity.

12


Plaintiff's symptoms meet part (B) of listing 14.02, where the ALJ failed to indicate that he even

considered that subsection. The case must be remanded for a proper step three analysis.
IL. Plaintiff’s Credibility
Plaintiff argues that the ALJ erred in his assessment of Plaintiff ’s credibility. The ALJ stated:

[C]onsideration of the factors described in 20 C.F.R. § 416.929(c)(3) and Social
Security Ruling 96-7p also leads to a conclusion that the claimant’s allegations of
disabling symptoms and limitations cannot be accepted .... I find the claimant’s
testimony and testimony of the claimant’s sister was not fully substantiated or
consistent with the longitudinal record in this case. The record likewise does not
show the claimant to be receiving ongoing treatment for her depressive symptoms.

(R. 22.) The ALJ also concluded that the medical evidence failed “to provide strong support for the

claimant’s allegations of disabling symptoms and limitations.” (R. 20) (emphasis added.)

Plaintiff argues that the ALJ failed to evaluate Plaintiff's credibility as required by 20 C.F.R.
at § 416.929 and SSR 96-7p, pointing in particular to the ALJ’s failure to consider the effects of
Plaintiff's medications on her limitations. The Commissioner asserts that “[t]he ALJ reasonably
considered all of Plaintiff's subjective complaints, including the documented side effects of any
medications, in determining that she had the capacity for a limited range of sedentary work.” (Def.’s
Mem. at 12.) The Commissioner asserts that under Herron, 19 F.3d at 335-336, the ALJ was “not
required to make specific findings regarding the side effects of medications separate from the
findings made regarding the credibility of Plaintiff's subjective complaints.” (Def.’s Mem. at 12.)
Significantly, SSR 96-7p was issued in 1996, after the Herron decision, which was rendered in 1994.

SSR 96-7p was issued to emphasize that:

[T]he adjudicator must carefully consider the individual’s statements about
symptoms with the rest of the relevant evidence in the case record in reaching a

15