is disabled falls upon the Commissioner, not the courts. Herr v.
Sullivan, 912 F.2d 178, 181 (7" Cir. 1990); see also Stuckey v.
Sullivan, 881 F.2d 506, 509 (7% Cir. 1989) (the ALJ has the
authority to assess medical evidence and give greater weight to
that which he finds more credible). Rather, the Court must
accept findings of fact that are supported by “substantial
evidence,” 42 U.S.C. § 405(g), where substantial evidence is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Herron, 19 F.3d at 333
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

The Court is limited to determining whether the
Commissioner’s final decision is supported by substantial
evidence and based upon proper legal criteria. Ehrhart v. Sec’y
of Health and Human Servs., 969 F.2d 534, 538 (7 Cir. 1992).
This does not mean that the ALJ is entitled to unlimited judicial
deference, however. The ALJ must consider all relevant evidence
and may not select and discuss only that evidence that favors his
ultimate conclusion. Herron, 19 F.3d at 333. In addition to
xelying on substantial evidence, the ALJ must articulate his
analysis at some minimal level. See Young v. Sec’y of Health and
Human Servs., 957 F.2d 386, 393 (7% Cir. 1992) (ALJ must
articulate his reason for rejecting evidence “within reasonable

limits” in order for meaningful appellate review). The ALJ must

19


On August 31, 1998, Dr. Berg’s review of an x-ray of
Plaintiff’s hips revealed that Plaintiff had malformed femoral
heads, with bone capping. (R. at 330.) Dr. Berg decided to
consult with Dr. Jablonsky because, in his opinion, the x-rays
did not indicate that Plaintiff was a good candidate for total
hip replacement. (Id.} On September 18, 1998, Dr. Berg said
that he would see if Plaintiff was a candidate for an
arthroscopy, if not, he would have to have a non-cemented total
hip. (R. at 328.)

On October 20, 1998, Plaintiff complained to Dr. Berg of
pain primarily in the DIP joints of both hands, the right being
worse than the left. (R. at 327.) The examination revealed
that the DIP joints of both of Plaintiff’s hands had a decreased
range of motion of approximately 30 degrees of flexion. (Id.) He
was neurovascularly intact and had full range of motion of the
remaining digits. (Id.)

Dr. Berg noted some nodules on both the radial and ulnar
aspect dorsally of the DIP joints of both the left and right
index fingers. (Id.) The x-ray revealed joint space narrowing
of the DIP joints of both left and right index fingers, as well
as generalized joint narrowing throughout the hands. (Id.) Some
osteophytic spurring was also noted. (Id.) Dr. Berg placed

Plaintiff on an anti-inflammatory medication and informed

13


SSR 83-20, 1983 WL 31249 at *2. Moreover, the “day the
impairment caused the individual to stop work is frequently of
great significance in selecting the proper onset date.” Id.
However, “the primary element in the onset determination” is
medical evidence; the onset date cannot be inconsistent with the
medical evidence. Id. Courts have acknowledged that, in the
case of slowly progressing impairments, it is sometimes difficult
to establish a precise onset date:
it is sometimes impossible to obtain medical evidence
establishing the precise date an impairment became
disabling. Determining the proper onset date is
particularly difficult, when, for example, the alleged
onset and the date last worked are far in the past and
adequate medical records are not available. In such
cases, it will be necessary to infer the onset date
from the medical and other evidence that describe the
history and symptomatology of the disease process.
Nolen v. Sullivan, 939 F.2d 516, 519 (7% Cir. 1991) (citations
omitted).

Where the medical evidence is sparse or fails to indicate a
precise onset date, SRR 83-20 advises ALJs to refer to a medical
advisor to assist in making the necessary inferences. Lichter,
814 F.2d at 435. Finally, where the available evidence does not
permit a reasonable inference, SSR 83-20 directs ALUs to obtain
information from a claimant’s family members, friends, and

former employers “to ascertain why medical evidence is not

available for the pertinent period and to furnish additional

23


drives only short distances, and only once or twice a week.

(Id.) Aching pain in his legs, knees, and back prevents
Plaintiff from walking more than a block without stopping. (R.
at 421.) Plaintiff reported that he could stand for about 15 to

20 minutes, before his back, hips, knees, and ankles begin to
ache. (Id.) If he sits for more than one hour, he experiences
aching pain in his lower back, hips, and knees. (R. at 422.)
Plaintiff uses his cane and chair arms to assist him in standing
from a seated position. (Id.)

He takes arthritis medication to relieve pain caused by
sitting for long periods of time. (Id.) He takes Sorbrex for
pain, as well as water pills and Elavil, a nerve pill that allows
him to sleep at night. (R. at 423, 426.) Prior to March of 1999
Plaintiff was taking Arthertex 50 for pain, and before that, he
was taking 800 milligrams of Motrin, which did not relieve his
pain. (R. at 424,) Plaintiff also takes Atenonol and Lasix for
his heart condition, Prilosec for gastro-esophageal reflux
disorder, Allopurinol for kidney stones, and Celebrex for
arthritis pain. (R. at 370.) He has been on Naprosyn, Darvocet,
Tylenol with codeine, and Arthrotec, but says none has helped
relieve his pain. (Id.)

Plaintiff also complained of severe aching pain in his

knuckles and fingers on both hands, similar to that in his hips


AOQA450(Rey. 5/85)Judgment in a Civil Case

United States District Court
Northern District of Illinois

Eastern Division

Patrick Floress JUDGMENT IN A CIVIL CASE
v. Case Number: 00 C 6496

Massanari

Oo Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

a Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that Plaintiffs motion for summary
judgment is granted.

Michael W. Dobbins, Clerk of Court

Date: 1/16/2002

Alicia Castillo, Deputy Clerk


build “an accurate and logical bridge” from the evidence to his
conclusion. Clifford v. Apfel, 227 F.3d 863, 872 (7% Cir.
2000).

Finally, although Plaintiff bears the burden of
demonstrating his disability, “[i]t is a basic obligation of the
ALJ to develop a full and fair record.” Thompson v. Sullivan,
933 F.2d 581, 585 (7 Cir. 1991) (quoting Smith v. Sec’y of HEW,
587 F.2d 857, 860 (7 Cir. 1978)). “Failure to fulfill this
obligation is ‘good cause’ to remand for gathering additional
evidence.” Smith v. Apfel, 231 F.3d 433, 437 (7% Cir. 2000)
(finding that, if the ALJ found the evidence before him
insufficient, he should have obtained more evidence.)

Social Security Regulations

The Social Security Regulations prescribe a sequential five-
part test for determining whether a claimant is disabled. See 20
C.F.R. §§ 404.1520 and 416.920 (2001). The ALJ must consider:

(1) whether the claimant is presently unemployed; (2) whether the
claimant has a severe impairment or combination of impairments;
(3) whether the claimant’s impairment meets or equals any
impairment listed in the regulations as being so severe as to
preclude gainful activity; (4) whether the claimant is unable to
perform his past relevant work; and (5) whether the claimant is

unable to perform any other work existing in significant numbers

20


justify the conclusion -- given the fact that Plaintiff required
a cane to ambulate, and that he suffered from degenerative joint
disease, sleep apnea, narcolepsy, and osteoarthritis.

For example, courts have ruled that use of a cane, see
Walker v. Bowen, 826 F.2d 996, 1003 (11% Cir. 1987), and
narcolepsy, see Rosenboom v. Shalala, 841 F. Supp. 341, 344-45
(D. Or. 1993), can be significant non-exertional impairments that
preclude use of the Grid and require the ALJ to call upon a
vocational expert (“VE”) to determine whether there was work that
Plaintiff was capable of performing. Similarly, under SSR 83-14,
Plaintiff's evidence that he suffered from osteoarthritis of both
hands indicates that application of the Grid is inappropriate.
The ALJ’s brief statement that these impairments are only
“slight” does not constitute substantial evidence that these
limitations were not so severe as to render application of the
Grid appropriate.

Despite these serious impairments, the ALJ merely asserted,
in a conclusory fashion, that they did not limit Plaintiff's
basic work skills. Because the ALJ failed to articulate a logical
path to support his conclusion that these impairments did not
limit Plaintiff's basic work skills and that application of the

Grid was appropriate, remand is warranted.

26


However, where a plaintiff suffers from significant non-
exertional impairments, the ALJ may not rely upon the Grid. See
SSR 83-14. “When a plaintiff’s non-exertional impairments
significantly diminish his ability to work . . . the Commissioner
must introduce the testimony of a vocational expert (or other
similar evidence) that jobs exist in the economy which plaintiff
can obtain and perform.” Bapp v. Bowen, 802 F.2d 601, 603 (2d
Cir. 1986).

Determining the onset date of a claimant’s disability
requires the ALJ to apply the analysis outlined in a special
Social Security Ruling. SSR 83-20, 1983 WL 31249.! Social
Security Ruling (“SSR”) 83-20 provides ALJs with an analytical
framework for determining a disability onset date. Lichter v.
Bowen, 814 F.2d 430, 434 (7th Cir. 1987). Under SSR 83-20, an
ALJ should consider three factors in determining an onset date:
1) the claimant’s allegations; 2) the claimant’s work history;
and 3) medical and other evidence. Id.; Stein v. Sullivan, 892
F.2d 43, 46 (7% Cir. 1990)

The Ruling explains that the date a claimant alleges as an

onset date should be the “starting point” of the ALJ’s analysis.

‘Published SSRs are binding on all components of the SSA,
including ALJs. Warmoth v. Bowen, 798 F.2d 1109, 1111 (7 Cir.
1986). Additionally, SSR 83-20 is binding upon the
Administration. Id.

22


standing and/or walking for more than a total of 2 hours in an
eight-hour workday, and lifting more than 10 pounds. (R. at 18.)
The ALJ noted that, even though Plaintiff relied upon a cane, he
was able to maintain good balance while ambulating and carrying
weights of up to ten pounds. (Id.)

In his evaluation of the medical evidence prior to March 8,
1999, the ALJ found that documentary evidence shows that
Plaintiff has a history of degenerative joint disease of the left
hip, and that he was recommended for hip replacement and
restricted to sedentary work activity. (Id.) With respect to
Plaintiff’s low back pain, an MRI of the lumbar spine without
infusion revealed “no evidence of significant discogenic or
osteogenic disease” to substantiate his complaints. (R. at 19.)
Although Plaintiff has diabetes, there is no evidence of
acidosis, hypoglycemia, or end organ damage. (Id.) Similarly,
although Plaintiff has a renal stone, there is no evidence of
renal dysfunction, and his treating physician opined that there
are no restrictions neurologically. (Id.)

The ALJ noted that Plaintiff’s chest pains are clinically
thought to be non-cardiac, as the cardiologist stated there were
no limitations, no ischemic heart disease, and no disabling
restrictions referable to his heart. (Id.) With regard to

Plaintiff's allegation of a history of sleep apnea, the ALJ

17


proceeding with total hip arthroplasty and a rehabilitation
program. {Id.) Plaintiff decided to hold off, and Dr. Jablonsky
recommended the use of a cane and prescribed Naprelan or Naprosyn
for a month. (Id.)

On March 20, 1998, Plaintiff visited Dr. Jablonsky for a
follow-up and complained of recent pain in his left hip. (R. at
225.) Plaintiff also told Dr. Jablonsky that he had some right
lower extremity pain, secondary to a previous L5-S1 herniation
that had been treated by Dr. Parikh. (Id.) Plaintiff stated that
his hip pain remained unchanged, and that his back pain had been
aggravating his hip pain, and vice versa. (Id.) Dr. Jablonsky
again explained the benefits and risks of a total hip
arthroplasty, and Plaintiff agreed to consider it further. (Id.)

On June 4, 1998, Dr. Jablonsky diagnosed Plaintiff with
degenerative joint disease of the left hip. (R. at 261.) He
indicated structure changes, including anatomical deformity, bone
destruction, and bone hypertrophy, with decreased joint space and
osteophytes. (Id.) Dr. Jablonsky noted loss of joint motion in
the hip with flexion of 100 degrees. (R. at 262.) He noted that
Plaintiff uses a cane for assistance in weight bearing, and again
indicated total hip arthroplasty as the recommended procedure.
(Id.) The doctor opined that Plaintiff should do primarily

seated work, with only occasional standing. (Id.)


existed well in advance of that diagnosis. In accepting the
March 8, 1999, date as the onset date, the ALJ ignored not only
the full reading of Dr. Parikh’s letter, but also a trail of
medical evidence related to complaints of the “blackouts”
mentioned in Dr. Parikh’s letter, dating back over a year.

Clearly, Plaintiff’s disability did not happen overnight.
The ALJ’s decision ignored over one year of medical evidence
indicating the same symptoms, and focused on the March 8, 1999
date. Such a conclusion is arbitrary and illogical. By failing
to take into consideration the medical evidence in drawing
inferences as to the disability onset date, the ALJ failed to
follow the requirements of SSR 83-20.?

CONCLUSION

Having carefully reviewed the entire record, the Court finds

that the ALJ’s failure to apply SSR 83-20 requires that the Court

remand this case to the Commissioner for a determination

7 To the extent the ALJ found the medical documentation too
imprecise to determine an exact onset date, he should have
consulted a medical advisor. Ruling 83-20 directs ALJs to
consult a medical advisor when the medical documentation is
inadequate to establish a precise onset date. Bailey v. Charter
68 F.3d 75, 79 (4%° Cir. 1995) (in the absence of clear evidence
documenting the progression of Plaintiff’s condition, the ALJ did
not have the discretion to forego consultation with a medical
advisor). The requirement that a medical advisor be consulted
prior to inferring an onset date is merely a variation on the
most pervasive theme in administrative law - that substantial
evidence supports an agency’s decision. Id. at 79-80.

32


not fatal to Plaintiff’s contention that he was disabled as of
September 9, 1998. SSR 83-20 specifically contemplates the
possibility of determining an onset date absent corroborating
medical documentation. Lichter, 814 F.2d at 435 (remanding
adverse benefits decision where ALJ relied heavily upon lack of
corroborating medical documentation and failed to properly apply
SSR 83-20.)

Under SSR 83-20, the ALJ should have consulted a medical
advisor to assist in establishing an onset date if he found the
medical documentation inadequate. Id. (SSR 83-20 requires ALJs
to consult a medical advisor when the medical documentation is
inadequate.) Instead of doing so, the ALJ simply relied upon the
date of Dr. Parikh’s letter in determining the onset date,
contrary to SSR 83-20.

b. The ALJ Failed to Consider Plaintiff’s Work
History

In addition to improperly rejecting Plaintiff’s allegations,
the ALJ failed to acknowledge the significance of Plaintiff’s
last day of work in the determination of a disability onset date.
The day the impairment caused the individual to stop work is
frequently of great significance in selecting the proper onset
date, so long as it is not inconsistent with medical evidence.

Stein v. Sullivan, 892 F.2d 43, 46 (7% Cir. 1990). The ALJ

29


apnea syndrome (R. at 263.), cataplexy with narcolepsy (R. at
373.), cardiac impairment (R. at 245, 309.), fibromyalgia,
bursitis of the wrists, edema of the ankles, obesity (R. at
379.), gastro-intestinal reflux disease (R. at 305.), and partial
hearing loss in the left ear. (R. at 320.) Since January of
1998, Plaintiff has been under the continuous care of a team of
doctors, including his primary physicians, two orthopedists, a
neurologist, a cardiologist, and a rheumatologist.

Dr. Arun Narang, M.D. and Dr. Sunita Narang, M.D. ~ Primary
Treating Physicians

On January 9, 1998, Plaintiff began regularly seeing his
primary physicians for complaints of blackouts, fatigue, and
dizziness. (R. 160.) Following a syncopal episode in January of
1998, Plaintiff underwent an MR of the brain. (R. 190.) The MR
revealed that the ventricular system and other CSF spaces were
normal for Plaintiff’s age. (Id.) The test indicated that the
cerebrum, cerebellum, and brainstem exhibited normal imaging
characteristics without focal lesions. (Id.) Alteration of
signal in the left mastoid air cells was revealed and determined
to be likely the result of chronic or possibly acute inflammatory
changes in this structure. (Id.)}

Dr. Narang’s office notes revealed that Plaintiff had

another syncopal episode on March 2, 1998, which occurred as a


and knees. (R. 429.) He testified that the pain in his hands
limits his daily activities, preventing him from tying his shoes
and making models. (id.)

In early 1998, Plaintiff began complaining to his physicians
that he was suffering from syncopal episodes, which were
triggered by hard coughing and laughing. During an episode,
Plaintiff would lose muscle control and fall to the ground. In
February 1999, one of Plaintiff's doctors decided to track
Plaintiff’s episodes by attaching a heart monitor to Plaintiff
for a thirty-day period. (R. at 414.) Plaintiff called the
hospital every time he suffered an attack; in one month, he
called the hospital approximately 30 times. (R. at 416.)

Plaintiff stated that the episodes were occurring with
increasing frequency and that he had experienced numerous
episodes of dizziness and falling. (R. at 433.) The episodes
typically lasted a few minutes, although he testified that one
lasted for a half an hour. (Id.) Plaintiff testified that he
was awake during the episodes, which left him feeling weak,
tired, and listless for about a half an hour. (R. at 434.)

2. Medical Evidence

Plaintiff contends that he suffers from several medical
conditions, including arthritis in the hips, knees, hands, and

lumbar spine (R. at 261-262, 320, 322.), severe obstructive sleep


concluded that there is a lack of data regarding claimant’s
condition, because a January 1998 clinical finding revealed
normal MRI findings of the brain, and normal EEG in both wake and
sleep. (Id.) Accordingly, the ALJ concluded that objective
medical evidence failed to support Plaintiff’ allegations of
disabling symptoms and limitations prior to March 8, 1999.

The ALJ found that, although Plaintiff was not disabled
through March 7, 1999, as of March 8, 1999, the evidence
demonstrated that Plaintiff was unable to sustain substantial
gainful activity without unreasonable interruptions because of
sleep apnea and narcolepsy. (R. 22.) Plaintiff could not do any
past relevant work, and, as of March 8, 1999, his RFC included
limitations that prevented him from performing jobs which exist
in a significant number in the economy. (R. at 22.) Therefore,
the ALJ concluded that Plaintiff was disabled as of March 8, 1999
and thereafter, but, due to lack of objective medical findings,
he was not disabled prior to March 8, 1999. (R. at 25.)

Standard of Review

In reviewing the ALJ’s decision, the Court may not decide
the facts, reweigh the evidence, or substitute its own judgment
for that of the ALJ. Herron v. Shalala, 19 F.3d 329, 333 (7%
Cir. 1994). Where conflicting evidence allows reasonable minds

to differ, the responsibility for determining whether a claimant

18


Dr. Warren S. Jablonsky - Treating Orthopedist

Dr. Jablonsky saw Plaintiff on January 21, 1998, fora
follow-up evaluation of his left hip pain. (R. at 185.)

Plaintiff reported that the Daypro samples provided by Dr. Narang
did not relieve the pain from his arthritis. (Id.) Plaintiff
explained that he had decreased his hours of work to 12-13 hours
a day, but that he was still on his feet during the workday.

(Id.) Plaintiff complained of a significant amount of pain in
his hip, as previously described. {Id.) Dr. Jablonsky reported
that Plaintiff’s exam was essentially unchanged. (Id.) The
doctor recommended seated work for Plaintiff, with occasional
standing and walking, and no climbing for four weeks after the
visit. (Id.) Dr. Jablonsky provided Plaintiff with Naprelan for
pain relief and detailed the risks and benefits of proceeding
with a total hip arthroplasty at such a young age. (Id.)

On February 11, 1998, Plaintiff met with Dr. Jablonsky again
and advised him that the Naprelan had given him some relief from
his pain. (R. at 187.) However, Plaintiff continued to complain
of pain with lengthy standing or ambulation. (Id.) His
examination revealed no significant palpable tenderness in the
lateral aspect of the hip. However, Plaintiff did suffer pain
with range of motion, primarily internal and external rotation.

(Id.) Dr. Jablonsky again discussed the possibility of


evidence regarding the course of the individual’s condition.”
SSR 83-20.
Discussion

Plaintiff contends that the ALJ erred in rejecting September
8, 1998 as the onset date for Plaintiff's disability.
Specifically, Plaintiff argues that the ALJ: 1) ignored evidence
favorable to Plaintiff and discussed only the evidence that
supported the ALJ’s conclusion; 2) improperly made an independent
medical finding and failed to call upon a medical expert; 3) did
not find Plaintiff disabled, even though Plaintiff is limited to
sedentary work and is unable to perform tasks requiring bilateral
manual dexterity; 4) erred in his Step 3 analysis by failing to
specifically consider whether Plaintiff’s hip impairment met the
requirements of Listing 1.03A; 5) failed to make a proper
credibility determination; 6) failed to meet his burden of proof
at Step 5 of the sequential evaluation; and 7) violated the
requirements of SSR 83-20 in his “onset” finding.

The Court finds that many of Plaintiff’s arguments have
merit. The Court agrees that, in many instances, the ALJ ignored
evidence that did not support his conclusion. For example, on
June 16, 1998, Dr. Narang diagnosed Plaintiff with ventricular
arrhythmia, and opined that Plaintiff’s “disability” resulted

from arthritis in his hips and knees. Although Dr. Narang’s

24


IS%&

Micte Order Form:96/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Arlander Keys than Assigned Judge
CASE NUMBER 00 C 6496 DATE 1/16/2002
CASE Patrick Floress vs. Larry 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:
(1) a Filed motion of [ use listing in “Motion” box above.]
Q) 0 Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a 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) o [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OGeneral Rule21 CFRCP41(a)(1) © FRCP41(a)(2).
(0) =x [Other docket entry] Memorandum Opinion and Order entered. Plaintiffs Motion for Summary
Judgment [#13] is hereby granted.

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

No notices required, advised in open court.

2

No notices required. umber of novoes
oY | Notices mailed by judge’s staff.

Notified counsel by telephone. JAN 1? 202

Docketing to mail notices.
t ‘Mail AO 450 form. lbegel sefyds nniats

Copy to judge/magistrate judge.

V/16/2002
courtroom dove muited notice
Fry deputy’s A on FY,
y ial CaSO j
central Clerk’s Office mailing deputy initials,
CE



diameter of the canal throughout the lumbar spine on the basis of
somewhat short pedicles, but no evidence of root impingement or
central canal stenosis. (Id.) In September of 1998, Plaintiff
saw Dr. Parikh for lower back pain and hip joint pain. (R. at
373.) The doctor performed an EMG study. (Id.)

On March 8, 1999, Plaintiff visited Dr. Parikh for a
neurological evaluation. (Id.) Plaintiff’s wife told the doctor
that Plaintiff was experiencing several syncopal episodes, all
occurring when Plaintiff coughed or laughed hard. (Id.) Dr.
Parikh noted that there was no history of seizure-like activity.
(Id.) Plaintiff advised of a history of taking naps during the
daytime, despite the efficacy of the CPAP unit. (Id.) Plaintiff
explained that during the naps he had dreams, which the doctor
described as hypno-gogic hallucinations (vivid dreams that a
person gets in Narcolepsy). (Id.) Dr. Parikh found that,
considering the clinical presentation of losing muscle tone with
laughter or coughing hard, these were symptoms of cataplexy,
which is commonly associated with narcolepsy. (Id.) On March 8,
1999, Dr. Parikh noted that “[fJor all practical purposes Mr.
Floress is totally disabled.” (Id, at 374.)

Dr. James R. Berg, M.D. - Treating Orthopedic Surgeon

In July of 1998, Plaintiff began seeing Dr. Berg for

treatment of degenerative joint disease. (R. at 318.) On July

1]


Dr. Mahesh N. Parikh, M.D. - Treating Neurologist
In January of 1998, Plaintiff began seeing Dr. Parikh, a
neurologist, for his excessive sleepiness, as well as back pain.
(R. at 373.) On April 20, 1998, Dr. Parikh diagnosed Plaintiff
with severe obstructive sleep apnea syndrome and prescribed a
CPAP breathing machine to help him sleep. (R. at 263.)

On August 16, 1998, Plaintiff went to Northern Illinois
Medical Center’s emergency room, complaining of back pain. (R.
at 337.) He explained that the increasing back pain started
while he was lifting a pan of food at work. (Id.) Plaintiff
also complained that his left leg was slightly weak, and that he
experienced a pain radiating down the posterior thigh to the
level of the calf. (Id.) Plaintiff was given 100 mg of Demerol
and 50 mg of Vistaril, and reported feeling better after the
treatment. (Id.)

On August 17, 1998, Dr. Parikh gave Plaintiff an MRI of the
lumbar spine. (R. 338.) The MRI findings revealed normal
sagittal alignment and no evidence of abnormal disc signal.

(Id.) A vague 1 cm size rounded lesion of the L4 vertebrae was
revealed, which had a high Tl and high T2 signal and compatible
with hemangioma. (Id.) There was no evidence of significant

disc disease or osseous hypertrophic disease at L2-3 through L5-

Sl. (Id.) However, there was a relative decrease of the AP

10


date Dr. Parikh wrote his letter referring to Plaintiff as
disabled is supported by neither SSR 83-20 nor logic.

The Record consists of a compilation of medical evidence
indicating that Plaintiff had complained for months about the
exact symptoms that were referred to and provided the basis for a
disability finding in Dr. Parikh’s letter. Plaintiff first
complained about these blackouts in January, 1998. By March of
that same year, Dr. Narang prescribed a heart monitor for
Plaintiff after he experienced more fainting spells, and
Plaintiff participated in an arrhythmia surveillance and
transtelephonic monitoring program. (R. at 134.)

In June of 1998, Dr. Narang noted that Plaintiff’s syncopal
episodes were non-cardiac in nature, but was still uncertain as
to the cause of these episodes. (R. at 238.) Similarly, Dr.
Parikh’s letter specifically states that Plaintiff was
complaining about syncopal episodes in September 1998, and
explains that Plaintiff had visited his offices “in the past for
excessive drowsiness and sleepiness.” (R. at 374.)

These findings are particularly significant, because they
highlight the ongoing search for a cause to the Plaintiff's long
complained of symptoms. Although it was not until Dr. Parikh’s
March 8, 1999 evaluation that Plaintiff's disorder was classified

as narcolepsy, it is clear from the record that these symptoms

31


ignored the fact that Plaintiff, who has a solid work history in
the restaurant industry, quit his job of thirteen years as a
restaurant manager to take a lower paying, yet less physically
demanding job, in order to support his family. The ALJ also
apparently ignored the fact that, after only a few months of
working as a chef at this lower paying job, Plaintiff was forced
to quit working altogether, due to pain and his various physical
impairments.

More importantly, concluding that the first date that
Plaintiff became disabled was on the last day he worked is fully
consistent with the medical evidence, which indicates a
progressive, disabling condition. Contrary to SSR 83-20, the ALJ
dismissed the September 9, 1998 onset date offered by Plaintiff,
even though it was Plaintiff’s last day of work and the date was
consistent with medical evidence.

ec. The ALJ Failed to Properly Consider Medical Evidence

Finally, the ALJ’s conclusion is inconsistent with medical
records. While the ALJ is not required to address every piece of
evidence, he must articulate some legitimate reason for his
decision. Clifford v. Apfel, 227 F.3d 863 (7% Cir. 2000).

In this case, the ALJ did not discuss why an onset date of
September 8, 1998 was inconsistent with the medical evidence.

The ALJ’s determination that Plaintiff was not disabled until the

30


result of Plaintiff laughing loudly. (R. 163.) Dr. Narang
prescribed a heart monitor for Plaintiff after he experienced
more fainting spells, and Plaintiff participated in an arrhythmia
surveillance and transtelephonic monitoring program. (R. at
134.) Plaintiff's condition was monitored from March 13, 1998
through April 14, 1998, and again in February 1999. (R. at 384-
385.) While being monitored, Plaintiff experienced episodes of
passing out, dizziness, chest discomfort, weakness, shortness of
breath, head pressure, palpitations, and lightheadedness. (Id.)
On June 16, 1998, Dr. Narang diagnosed ventricular
arrhythmia, noting that Plaintiff's syncopal episodes were non-
cardiac in nature. (R. at 238.) The doctor indicated that, in
addition to experiencing dizziness, shakiness, and nervousness,
Plaintiff has reactive hypoglycemia, as well as arthritic knees
and hips. (R. at 241-242.) Dr. Narang opined that Plaintiff's
ability to do work-related activities was limited with respect to
standing, moving about, lifting, carrying and handling objects,
and traveling. (R. at 242.) The medical records indicated that
Plaintiff’s “[d]isability is due to arthritis of hips and knees.”
(Id.) Office notes from May 4, 1998 and July 2, 1998 document
Plaintiff’s continuing syncopal episodes, his symptoms of
shakiness and dizziness, and a diagnosis of obstructive sleep

apnea syndrome. (R. at 165-167.)


in the national economy. See 20 C.F.R. §§ 404.1520 and 416.920;
see also Young, 957 F.2d at 389. A finding of disability
requires an affirmative answer at either step 3 or step 5. A
negative answer at any step (other than step 3) precludes a
finding of disability. Jd. The claimant bears the burden of
proof at steps 1-4, but the burden shifts to the Commissioner at
step 5. Id.

The ALJ's analysis at step 5 typically involves an
evaluation of the claimant’s RFC to perform a particular category
of work (i.e. sedentary, light, medium, heavy, or very heavy
work), in combination with an application of the Medical-
Vocational Guidelines (“the Grid”) to determine whether an
individual of the claimant’s age, education, and work experience
could engage in substantial gainful activity. See 20 C.F.R. Part
404, Subpart P, Appendix 2. The Grid is a chart that classifies
a claimant as disabled or not disabled, based on the claimant’s
physical capacity, age, education, and work experience. Walker
v. Bowen, 834 F.2d 635, 640 (7* Cir. 1987). If the use of the
Grid is appropriate, the Commissioner or ALJ may rely upon it for
determining disability, and, in such a case, the Grid alone
constitutes substantial evidence sufficient to uphold the

decision of the Commissioner. Id.

21


Most troubling, however, is the ALJ’s failure to apply SSR
83-20, Ruling 83-20, requires ALJ's to consider 1) the claimant’s
allegations; 2) the claimant’s work history; and 3) medical and
other evidence in determining an onset date. Where the medical
evidence fails to indicate a precise onset date, SSR 83-20
directs ALJs to consult a medical advisor in making this
determination. Although the ALJ need not specifically reference
SSR 83-20, it must be apparent that he has applied its criteria.

In this case, however, it is apparent that, instead of
applying SSR 83-20, the ALJ simply relied upon the date that Dr.
Parikh wrote a letter opining that Plaintiff was disabled in
selecting an onset date. Although this letter is substantial
evidence supporting Plaintiff’s claim that he was disabled, it
does not constitute substantial evidence in support of the ALJ’s
decision that Plaintiff was disabled as of March 8,1999, but not
before.

A review of each of the elements of SSR 83-20 demonstrates
that the ALJ’s decision must be remanded.

a. The ALJ Failed to Consider Plaintiff's Testimony

The ALJ’s conclusion is inconsistent with Plaintiff's
allegations of pain, as Plaintiff’s testimony supports his
allegation that he was disabled prior to March 8, 1999. As SSR

83-20 relates to Plaintiff’s allegations, the ALJ rejected

27


years, until pain and related physical impairments forced him to
quit in March of 1998. (R. at 57.) Plaintiff filed his initial
application for DIB and SSI on May 18, 1998, alleging an onset
date of March 25, 1998.

Plaintiff subsequently took a job as a chef at Host-A-Roast
Pig Roast & Catering Company. (R. at 96, 97, 99.) Plaintiff
claims that he accepted this position, despite his ailments,
because he needed the income to support his family and it was
less demanding than his previous job. (Id.) Nevertheless,
Plaintiff’s impairments forced him to resign from Host-A-Roast on
September 8, 1998. (Id.) Plaintiff amended his application to
reflect a new onset date of September 8, 1998. (R. 409.)
Plaintiff testified that he has not worked since September 8,
1998. (R. at 411.) Plaintiff's only source of income is a Navy
disability check for $388.00 per month. (Id.)

Plaintiff described his various impairments to the ALJ.
Plaintiff has Belles Palsy and wears a hearing aid in his left
ear. Although the hearing aid helps, Plaintiff still has
@ifficulty hearing. (Id.) Plaintiff was prescribed the use of a
cane to steady him while standing and walking. (R. at 419.)
Plaintiff has pain in “all the joints,” including his hips,
knees, ankles, lower back, and hands. (Id.) Plaintiff describes

the pain in his hips and knees as “aching.” (R. at 419, 420.) He


Plaintiff that he was suffering from degenerative arthritis of
both knees and hip. (Id.) Dr. Berg indicated in his progress
notes that Plaintiff was still waiting for a consultation
regarding a possible hip arthroscopy. (Id.) In addition to the
anti-inflammatory medication, Dr. Berg informed Plaintiff that he
might need to perform a fusion on the DIP joint for pain relief.
(Id.) He also informed Plaintiff that this joint may autofuse on
its own. {Id.)

Dr. Kenneth Margules, M.D. - Treating Rheumatologist

Dr. Margules examined Plaintiff on February 3, 1999. (R. at
375.) His office notes indicate that Plaintiff was suffering
from insomnia and sleep apnea. As a result, Plaintiff was
sleeping poorly, waking up feeling exhausted, and hurting all
over. (R. at 378.) Dr. Margules diagnosed obesity,
fibromyalgia, bursitis of the wrists, and edema of the ankles.
(R. at 379.) Progress notes through March document Plaintiff's
continuing problems with edema, dizziness, fatigue, and
blackouts. (R. at 381-383.) Under the heading “Problems List,”
Dr. Margules listed obesity, fibromyalgia, bursitis, and edema.

Dr. Mohammad Irshad, M.D. - Non-Examining Physical
Consultative Evaluator

On July 10, 1998, Dr. Irshad prepared a physical residual

functional capacity assessment of Plaintiff at the request of the

14


B. The ALJ’s Decision

On September 17, 1999, the ALJ issued his decision, finding
that Plaintiff was disabled as of March 8, 1999 and thereafter,
but that Plaintiff had failed to establish his disability prior
to that date. (R. at 25.) The ALJ reviewed Plaintiff’ personal
and medical history, as well as his testimony, before turning to
the medical evidence. (R. at 18.) The ALJ found that the
medical evidence established that Plaintiff has degenerative
joint disease of the left hip, chest pain, diabetes, renal stone,
sleep apnea, and narcolepsy. (R. at 23.) The ALJ stated that
these impairments significantly limit Plaintiff’ ability to
perform basic work activities and, therefore, were considered
“severe” under the Act. (R. at 17, 23.) However, the ALJ
concluded that Plaintiff does not have an impairment or a
combination of impairments sufficient to meet or equal a “listed”
impairment. (Id.)

The ALJ found that, prior to March 8, 1999, Plaintiff
retained the residual functional capacity to perform a limited
range of sedentary work and a significant number of sedentary
jobs. Hence, Plaintiff’s allegations of disability prior to that
date were not credible. (R. at 24.) The ALJ concluded that,
from September 9, 1998, through March 7, 1999, Plaintiff's

impairments did not prevent work-related activities, except for

16


Plaintiff's claims for DBI and SSI were denied initially and on
reconsideration. (R. at 28-31, 34-36.)

Plaintiff requested and received a hearing before
Administrative Law Judge Leo L. McCormick (“the ALJ”) on March 5,
1999. (R. at 32.) Following the hearing, the ALJ issued a
partially favorable decision, finding Plaintiff disabled as of
March 8, 1999 and thereafter, but not prior to that date. (R. at
24). On November 18, 1999, Plaintiff filed a Request for Review
of Hearing, seeking a review of the ALJ’s determination that he
was not disabled between September 9, 1998, the onset date
Plaintiff alleged in his application, and March 8, 1999, the
onset date established by the ALJ. (R. at 11.) On August 23,
2000, the Appeals Council denied Plaintiff’s Request for Review,
and the ALJ’s decision stands as the final decision of the
Commissioner. {R. at 7.)

STATEMENT OF FACT
A. EVIDENCE PRESENTED AT PLAINTIFF’S HEARING

1. Plaintiff’s Testimony

At the hearing, Plaintiff testified that he was born on
February 11, 1954, and had completed three years of college. (R.
at 410.) Plaintiff resides in an apartment in McHenry, Illinois,
with his wife of 20 years, his three daughters, and one grandson.

(R. at 411.) Plaintiff worked as a restaurant manager for 13


statement, standing alone, is not conclusive evidence that
Plaintiff was disabled on June 16, 1998, the ALJ was obligated
discuss the evidence and explain why other medical evidence was
more persuasive. See Lauer v. Apfel, 169 F.3d 489, 494 (7 Cir.
1999) (The ALJ may weigh and discount evidence that he finds
unpersuasive, but he may not ignore the evidence that supports
the opposite conclusion). Similarly, the ALJ should have
explained why Plaintiff’s hip impairment did not meet the
requirements of Listing 1.03, despite Dr. Jablonsky’s response
the Commissioner’s report form, which tended to support such a
conclusion. See Hall ex rel. Lee v. Apfel, 122 F. Supp.2d 959,
967 (N.D. Ill. 2000).

The Court is also persuaded that the ALJ erred by relying
upon the Grid, despite the fact that Plaintiff suffered from

significant non-exertional impairments. See Warmoth v. Bowen,

to

on

798 F.2d 1109, 1110-12 (7* Cir. 1986) (ruling that application of

the Grid is precluded where a plaintiff’s nonexertional
impairments restrict his range of employment opportunities.)
Despite Plaintiff’s nonexertional limitations, the ALJ applied
the Grid because “the claimant’s additional limitations are onl
slight and do not significantly erode the relevant occupational
base of jobs.” (R. at 21.) The Court finds that this conclusi

is hard to justify -indeed, the ALJ does not even attempt to

25

y

on


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PATRICK FLORESS
No. 00 C 6496
Plaintiff,
Arlander Keys
v. Magistrate Judge
LARRY MASSANARI, ACTING
COMMISSIONER OF SOCIAL
SECURITY,

Defendant,
MEMORANDUM OPINION AND ORDER

Plaintiff, Patrick Floress, moves this Court for summary
judgment pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure. Plaintiff moves the Court to affirm the
Commissioner’s decision finding him disabled, but to reverse
the Commissioner’s decision that Plaintiff was not disabled prior
to March 8, 1999. For the reasons set forth below, Plaintiff's
Motion for Summary Judgment is Granted.

PROCEDURAL HISTORY

Plaintiff applied for disability insurance benefits (“DIB”)
and supplement security income (“SSI”) on May 18, 1998, alleging
a disability onset date of March 25, 1998. (R. at 47-49, 388-
391.) However, Plaintiff amended the onset date to September 9,

1998, which was the last date he was employed. (R. at 96, 99.)

a


consistent with this Opinion. The Commissioner’s conclusion that
Plaintiff was not disabled before March 8, 1999, is not supported
by substantial evidence in the record as a whole.

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion

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

DATED: January 16, 2002 ENTER:

QLanbe, ook

C)

ARLANDER KEYS
United States Magistrate Judge

33


Plaintiff’s ongoing complaints of pain, and simply relied on Dr.
Parikh’s letter acknowledging that Plaintiff’s condition had
worsened. However, at the hearing on March 5, 1999 (three days
before Dr. Parikh’s letter was written), Plaintiff testified that
he had experienced blackouts since early 1998 (R. at 432.) In
January of 1998, Plaintiff visited Dr. Narang, complaining of
fatigue, dizziness, and blackouts. (R. at 160-163.) Doctor’s
notes revealed continued complaints of syncopal episodes in March
of 1998, September of 1998, January of 1999, and March of 1999.
(R. at 384-385, 373, 374.)

During the doctor visits at which Plaintiff complained of
blackouts, excessive drowsiness and sleepiness, various tests
were performed to determine the origin of the problem. (Id.)
Plaintiff also testified to increased frequency of episodes over
the three-month period prior to the hearing in March; Plaintiff
claimed that he suffered 32 blackout episodes in the month prior
to the hearing. (R. at 433.)

It is apparent that Plaintiff's condition progressed from
the time that he first reported it to his physician, in January
1998, until the date of Dr. Parikh’s letter on March 8, 1999.
Although the Commissioner correctly notes that the medical
documentation fails to indicate precisely when, during that time

frame, Plaintiff’s condition became disabling, this omission is

28


24, 1998, the doctor’s office notes indicated that Plaintiff was
experiencing ongoing neurological problems with a bulging disc.
(R. at 331.) He also noted that most of Plaintiff’ pain was in
the left hip and that the left knee was peri patellar. (Id.) Hip
x-rays revealed malformed femoral heads, with bone capping, and a
remodeling of the acetabulum for his dysplastic hip. However, he
was reluctant to intervene surgically because of Plaintiff's
large build, combined with the presence of cartilage. (Id.)

On July 28, 1998, a physical therapy evaluation indicated a
diagnosis of arthritis of the left hip. (R. at 320.) Plaintiff
complained of pain in both hips, with the left greater than the
right, and pain in both knees. (Id.) He also reported that his
legs occasionally “gave out.” However, Plaintiff reported that
he did not experience numbness, tingling, or pain in the lower
extremities. (Id.) Plaintiff indicated that the pain increases
with standing more than one hour or walking more than ten
minutes, and pain decreases when lying supine. (Id.) Plaintiff
was assessed with pain in hips (left greater than right) and both
knees, tightness in hamstrings/quads/TFL/gastroc, weakness in
both hips (left greater than right), tracking of patella
superolateral, tenderness left anterior posterior hip joints and
lower lumbar area. Plaintiff was prescribed aqua therapy two to

three times a week for six weeks. (R. at 322.)

12


Administration. (R. at 340-347.) He found as follows: Plaintiff
suffers from degenerative joint disease of the left hip, with
flexion of 100 degrees, internal rotation 10 degrees, and
external rotation 45 degrees. (R. at 341-342.) Plaintiff is
limited in the lower extremities with respect to pushing and/or
pulling. He is also limited to occasional lifting of up to 20
pounds, frequent lifting of up to 10 pounds, standing and/or
walking to two hours in an eight-hour workday, and sitting to six
hours. (Id.) Further, Plaintiff has moderate limitations in
climbing, balancing, stooping, kneeling, crouching, and crawling.
(R. at 342.) In addition to degenerative joint disease,
Plaintiff suffers from ventricular arrhythmia, reflux
esophagitis, and obstructive sleep apnea syndrome. (Id.)

On November 12, 1998, Dr. Rose Angelo also prepared a
physical residual functional capacity (“RFC”) assessment of
Plaintiff at the request of the Administration. (R. at 353-360.)
Her findings were virtually identical to those of Dr. Irshad’s.
Dr. Angelo concluded that “Plaintiff has limitations, not
disabilities,” (Id.) and noted that, because Plaintiff has
asthma, he should avoid concentrated exposure to extreme heat or
cold, wetness, humidity, fumes, odors, dusts, gases, and poorly

ventilated areas. (R. at 357.)

15