credibility due to inconsistency between reported symptoms and objective medical evidence.
Zurawski v. Halter, 245 F.3d 881, 887-88 (7th Cir. 2001). Because of the problems noted above
with the ALJ’s analysis of the medical evidence, this Court cannot uphold lack of medical
evidence as grounds for the ALIJ’s credibility finding.

Second, an ALJ “must not draw any inferences about an individual’s symptoms and their
functional effects from a failure to seek or pursue regular medical treatment without first
considering any explanations that the individual may provide, or other information in the case
record that may explain infrequent or irregular medical visits or failure to seek medical
treatment.” Social Security Ruling 96-7p. It may be necessary for the ALJ to question the
individual at the administrative hearing or to recontact the individual in order to ascertain
whether there are good reasons that the individual does not seek medical treatment in a
consistent manner. Jd. Explanations which may provide insight into the individual’s credibility
include not taking prescription medication “because the side effects are less tolerable than the
symptoms” or not seeing a doctor because the individual is “unable to afford treatment and may
not have access to free or low-cost medical services.” Id.

Although the ALJ said that Ruling 96-7p informed his credibility determination, he did
not follow the guidelines established therein. (R. 18) He found Parris’ complaints of pain and
functional limitation not credible in light of her “disproportionate use of medication and pursuit
of treatment.” (R. 18-19). Parris testified that she tries not to take prescription pain medication
as it is addictive and that financial concerns have affected her ability to seek medical care, a
hearing aid, and obtain medications. (R. 50, 53, 62, 65, 66) Parris testified that she had
“horrible” health insurance that does not “cover anything” and she stopped taking medication
that has been prescribed for her because she cannot afford it. (R. 53, 66) The ALJ failed to ask

-19-


permit an informed review.” Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988). The ALJ may
not limit his analysis to “only that evidence which favors his ultimate conclusion;” rather, he
must articulate at some “minimum level” his analysis of the evidence presented to counter the
agency’s position. Id. (citations omitted).
B. Five Step Inquiry

In order to receive DIB benefits under Title II of the Social Security Act, a claimant must
establish her inability to perform “any substantial gainful activity by reason of 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 a continuous period of not less than twelve months.” 20
C.F.R. § 416.905 (2004). In order to determine whether a claimant is disabled within the
meaning of the Act, the ALJ conducts a five-step inquiry: (1) whether the claimant is currently
gainfully employed; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s impairment meets or equals any of the listings found in the regulations, see 20 C.F.R.
§ 404, Subpt. P, App. 1 (2004); (4) whether the claimant is able to perform her former

occupation; and (5) whether the claimant is able to perform any other available work in light of

her age, education, and work experience. 20 C.F.R. § 404.1520(a) (2004); Clifford, 227 F.3d at
868. These steps are to be performed sequentially. 20 C.F.R. § 404.1520(a). “An affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a

determination that a claimant is not disabled.” Clifford, 227 F.3d at 868 (quoting Zalewski v.

Heckler, 760 F.3d 160, 162 n.2 (7" Cir. 1985)).

-13-


it did not require reaching overhead or below the waist. Moreover, the VE was unable to state
whether the position of health club receptionist as it is generally performed in the national
economy requires reaching above shoulder level and below waist level. The VE’s equivocal
testimony is not evidence that a reasonable mind might accept as adequate to support the ALJ's
conclusion.

The ALJ’s step four conclusion was also reached without a thorough analysis of Parris’
residual functional capacity (“RFC”). Rice v. Barnhart, 384 F.3d 363, 365 (7" Cir. 2004)
(stating “the fourth step requires an assessment of whether the claimant’s residual functional
capacity will allow the claimant to pursue her past work.”). The RFC is a description of those
work activities a claimant can perform despite her limitations. Dixon v. Massanari, 270 F.3d
1171, 1178 (7th Cir. 2001). “Light work” involves (1) lifting or carrying ten pounds frequently;
(2) lifting twenty pounds occasionally; (3) standing or walking, off and on, for six hours during
an eight-hour workday; (4) intermittent sitting; and (5) using hands and arms for grasping,
holding, and turning objects. Zurawski, 245 F.3d at 886 n. 6; 20 C.F.R. § 404.1567(b) (2004).
In assessing the claimant’s RFC, the ALJ must consider both the medical and nonmedical
evidence in the record. See 20 C.F.R. § 404.1545,

Here, the ALJ did not make an explicit RFC finding. Implicit in the ALJ’s step four
denial is a finding that Parris’ RFC is as described in his hypothetical question, i.e. the ability to
perform light work and also limited to reaching no higher than shoulder level or no lower than
waist level, unable to work at heights or around dangerous machinery, unable to climb ladders,
ropes, or scaffolds, and had spells of dizziness once every two weeks. The ALJ’s opinion fails to
review the relevant evidence that led to his apparent RFC conclusion. The ALJ’s failure to
adequately support his RFC finding prevents the Court from finding that substantial evidence

-23-



between nerve root and discal causation.” (R. 220)

Dr. William Gogan, an orthopedic surgeon, ordered an MRI of Parris’ cervical spine in
January 1995 which revealed “a small midline posterior disc protrusion or herniation at C7-T1.”
(R. 232). At C5-6, Parris had a “small lateral disc protrusion on the right” and “mild anterior
spondylosis.” Id. While the MRI irregularities were consistent with Parris’ complaints of
chronic neck and right arm pain, “the dizziness and loss of balance would be hard to pin down to
just the herniated discs.” (R. 229) Dr. Gogan referred Parris to an ear, nose and throat surgeon
for further evaluation of her balance problems. Id.

Dr. Friosky, an otolaryngologist, saw Parris on March 3, 1995. (R. 233) He used a
syringe to drain a hematoma on Parris’ scalp, caused by a fall four days prior. Id. Parris told Dr.
Friosky that she experienced ringing in the ears that resolved with chiropractic adjustment. Id.
Dr. Friosky recommended “a complete audiometric evaluation plus ENG and ABR.” (R. 234)
Parris underwent ABR testing that month that was within normal limits. (R. 182) An audiogram
obtained at that time revealed “predominantly high frequency left sided moderate sesorineural
hearing loss.” Id.

Parris continued to complain of left knee pain. (R. 224) An MRI of the left knee on
November 16, 1995 was normal. (R. 239) In March of 1996, neurologist Dr. Rodrigo Ubilluz
noted that Parris complained of suffering from “very intense” headaches which were exacerbated
by moving her head or raising her arms above her head since October 1993. (R. 204) She
reported suffering from loss of balance and weakness in both hands. (R. 204-05) Parris also
stated she experienced tingling in her right arm and pain in her right elbow, and had difficulty
holding onto objects with her right hand. Id. Physical examination confirmed a slightly
“decreased proprioception” with the right upper extremity and a lit bit more marked with the

4.



Parris any questions as to why she had not pursued certain treatments or taken certain
medications. In making his credibility determination, the ALJ never noted Parris’ explanations.
The ALJ did not properly follow the Social Security Administration’s guidelines for exploring
this issue before finding that Parris’ “disproportionate” pursuit of treatment and use of
medication made her impairment claims less credible.

Third, the ALJ found some of Parris’ activities “inconsistent” with her claimed
impairments, namely “driving (despite not having a license), going alone at times to the store,
and even camping.” (R. 19) “Minimal daily activities .. . do not establish that a person is
capable of engaging in substantial physical activity.” Clifford, 227 F.3d at 872. Parris testified
that “once in a while” she drives three blocks to the gas station to get a pack of cigarettes and
once every couple of months she goes to the store usually with her husband or daughter. (R. 56-
7). She stated she does not go the mall to shop, (R. 51) She does all of her shopping through
catalogs or the home shopping channel. Id. Parris also indicated that her daughter did the family
laundry and “once in a blue moon” Parris starts a load or checks a load for her daughter. (R. 56,
64). She further stated that sbe has “given up most forms of housework” and does not do yard
work. (R. 62). Parris sometimes washes dishes. (R. 63). Partis testified that her husband puts
the dishes away, her husband and daughter do most of the cooking, her grandson does the
vacuuming and usually takes the family’s dogs out, her granddaughter brings the dogs in, her
daughter and husband feed the horses and chickens, her daughter, grandson, and granddaughter
clean the barns and the coops, and her husband and grandson take turns cutting the grass. (R.
64). Parris’ testimony regarding her daily activities does not undermine her claimed pain and

limitations. See Clifford, 227 F.3d at 872.

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2. Step Four
After denying Parris’ claim at step two, the ALJ made an additional finding that Parris’
claim also failed at step four.? (R. 20). At step four, the ALJ found: “It is noted that even if the
claim were not being denied at step 2 and even assuming the claimant were found to be limited
to light work, subject to spells of dizziness every two week{s] (based on Exhibit 3F/8), the
vocational expert testified that she could return to her past light, unskilled work as a health club
receptionist.” (R. 20). The ALJ’s alternative finding that Parris would be capable of performing
her past relevant work as a health club receptionist is not supported by substantial evidence.
First, the ALJ based this finding on testimony from the vocational expert indicating that
the claimant could perform past relevant work as a health club receptionist. The VE’s testimony
is as follows:
ALJ: ... The first question, if I were to find that the hypothetical person was limited
to no more than light work and also limited to reaching to no higher than shoulder
level or no lower than waist level, and unable to work at heights or around dangerous
machinery, and unable to climb ladders, ropes, or scaffolds. And had spells of
dizziness once every two weeks, could that person return to her past work?
VE: The position as health club receptionist generally falls into that category. It’s
hard to say if in most areas, you know, shelving would be overhead or below waist.
However, that - you know, any reaching - that would be the biggest, the biggest
difficulty.

(R. 72-73) According to the VE, if shelving for towels was above shoulder level or below waist

level, then Parris would not be able to perform work as a health club receptionist. The ALJ

failed to cite any evidence indicating that the health club receptionist job as Parris had performed

"In making his determination, the ALJ improperly skipped step three of the analysis, which
requires him to assess whether Parris’ impairment meets or equals any of the impairments listed by
the Commission. The ALJ is required to perform the five-step evaluation in sequence and is not
allowed to skip step three. Zurawski, 245 F.3d at 885; see also 20 C-F.R. § 404.1520 (stating “{w]e
follow a set order to determine whether you are disabled.”),

-22-


sprain/strain of the neck and cervical vertigo producing a disequilibrium and unsteadiness based
ona April 3, 1996 MRI of the cervical spine. (R. 199).

The ALJ failed to address additional medical findings regarding Parris’ cervical disc
abnormalities and neck injury which support her claim. On July 7, 1994, Dr. Pellegrino, a
chiropractor, diagnosed cervical sprain with cervical brachial syndrome. (R. 220). Dr.
Pellegrino opined that Parris’ injury to the mid-cervical region was associated with radiation of
pain and numbness to the left upper extremity. Id. In June of 1996, Drs. Humphreys, Shelton,
and Iravedra’s findings after examination and testing were consistent with cervical segmental
dysfunction secondarily resulting in disturbed equilibrium. (R. 170). On February 5, 1998, Dr.
Micco, an otolaryngologist, stated that a flexion-extension injury of the head and neck could
have caused Parris’ hearing loss and her severe disequilibrium is probably the result of this type
of injury. (R. 174).

Finally, on December 29, 1999, Dr. Kelly (Parris’ treating chiropractor since May 1995),
opined that she had a loss of proprioceptive input from her cervical spine to her brain as a result
the October 1993 cervical strain/sprain injury to her neck. (R. 209). Dr. Kelly opined that Parris
has a chronic condition and her symptoms are expected to worsen over time. Id. With respect to
Dr. Kelly, the ALJ stated only that he accorded reduced weight to his opinion that Parris is
disabled for “a number of reasons, including the lack of supporting objective findings.” (R. 20).
As detailed above, objective findings supporting Parris’ claim are present in the record.
Moreover, the Court is left to guess what exactly the other reasons are for the ALJ’s failure to

credit Dr. Kelly’s findings because the ALI provided no further reasons.’

' The Commissioner argues that the ALJ properly rejected the opinion of Dr. Kelly because
a chiropractor is not considered an acceptable medical source. 20 C.F.R. § 404,1513(a). The

-17-



could result. (R. 49-50) She stated that her falls have knocked loose several of her teeth. (R.
49) In response to the question, “[A]re there any other [problems] that have been suggested?,”
Parris answered that she had two torn rotator cuffs and arthritis. (R. 50) She also stated that her
left knee hurt a great deal and sometimes gave out. Id. She reported that there was “a lot of
noise” in her left ear and that her hearing in that ear was “gone.” Id. She does not wear a
hearing aid because neither her insurance company nor worker’s compensation would pay for it.
Id. Parris said that she had discontinued some medicines she was supposed to be taking because
she has difficulty paying for her prescriptions, medical bills, and dental bills. (R. 53, 66) Parris
reported that she got headaches three to four times a week, which she treated with Tylenol and
Vicoprofen. (R. 62, 53) Sometimes Parris takes up to eight Tylenol in eight hours, since her
doctor told her it was safe to exceed the recommended dosage as needed for pain. (R. 62, 65)
She only takes Vicoprofen if Tylenol affords no relief because she is concerned about becoming
addicted. (R. 65) Her headaches last anywhere from five to six hours to two to three days. Id
She also has pain from her right shoulder to her elbow and in her right wrist. (R. 68) She has
arthritis and pain in both hands and her fingers are starting to curl. Id. She has difficulty holding
onto objects with either hand. (R. 69) She was unsure how often she lost her balance and fell,
but said sometimes it could be as much as a couple of times a day. (R. 56) When asked whether
she would characterize her situation as stable, getting better or getting worse, she said it was
stable. (R. 57)

Parris is generally able to take care of herself. She has fallen in the shower a few times
and no longer showers unless someone else is in the house. (R. 56) She does not walk long
distances. (R. 51) She is unable to stand for long periods because of her balance problems. (R.
51) She does not have problems with sitting. (R. 52) She stated that she was unable to lift more

-9-


chiropractic care and a rehabilitation program to strengthen the extensor muscles of the back and
neck. Id.

On February 5, 1997, Dr. Mare Sloan of the Pain and Rehabilitation Clinic of Chicago
performed an “independent medical examination” of Parris. Parris performed normally when
asked to lift her arms, flex and extend her neck, and rotate her head from side to side. (R. 241-
42) These movements failed to produce any vertigo or loss of balance. Id. Motor strength of
the upper extremities was equal and symmetric. {R. 242) He also stated that Parris did not
report any upper extremity weakness or numbness. (R. 241-42) Dr. Sloan concluded that the
EEG, MRI of the brain, MRIs of the cervical spine, and brain stem evoked potentials and
audiometric studies failed to “give any indication to underlying pathology which may cause her
complaints.” (R. 242). Irregular findings revealed by MRIs of the cervical spine did not cause
“great concern.” Id He diagnosed “vertigo of unknown origin.” (R. 242) He also noted that
Parris suffered from “left high frequency sensory neural” hearing loss, but was unable to
determine its cause. (R. 242) Dr. Sloan recommended vestibular exercises and Meclozine. Id.
He also stated that if Meclozine failed to provide relief, Parris should try a migraine headache
treatment regimen. Jd.

In 1997, Parris was examined by Dr. John Zappia and Dr, Alan Micco at the Chicago
Otology Group for her complaints of left-sided tinnitus and hearing loss, (R. 186) A prior
audiogram performed in March of 1995, indicating moderate left-sided hearing loss, was noted.
(R. 182) An audiogram on April 16, 1997 found that hearing loss in the left ear was
“measurably worse” compared to the test performed two years prior. (R. 182-83) Another
audiogram performed on October 16, 1997 also indicated lefi-sided hearing loss, but the
audiologist had some questions of reliability. (R. 175) Dr. Micco stated that Parris’ hearing loss

-6-


right lower extremity, a decrease of sensation to pinprick in the region of the fifth and half of the
fourth digits in the hands “and somewhat also in the medial aspect of the forearm.” (R. 205)
Pain was triggered by pressing on the right elbow. (R. 205) Physical examination revealed
gross hearing loss caused by a “conductive problem” to the left ear. (R. 205)

Dr. Ubilluz’s assessment was “most likely cervical vertigo due to the sprain/strain of the
cervical neck which may be impairing the sensory neural input, and since there is a mismatch
between the sensory input, she becomes dizzy in a very unspecific way.” (R. 205-06) He
ordered an MRI of the brain, an EEG, and an evoked potential of the upper extremities, all of
which were normal. (R. 201-03, 206) An MRI of the cervical spine revealed “no evidence of
cervical spine bone marrow pathology. Mild spondylosis with mild disc narrowing and mild
disc dehydration at C5-C6. Mild posterior disc bulge is present at base level. Bilateral neural
foraminal narrowing is apparent; greater on the right side. Mild posterior disc bulge is also
apparent at the C6-C7 level, and no evidence of intrinsic pathology of the cervical section of the
spinal cord.” (R. 199) These findings confirmed Dr. Ubilluz’s previous diagnosis of cervical
vertigo producing disequilibrium. (R. 199) Although he noted that the cervical MRI did not
explain all of Parris’ symptoms, like her left knee pain, “at least it addresses the most important
of the symptoms which is the atypical dizzy spells the patient is still having.” (R. 199) He
recommended use of a cervical collar, Benadryl every eight hours, see a psychologist, and
maybe an ENT consultation with audiometry to check for the left ear hearing loss. (R. 197)

Dr. Ubilluz’s diagnosis was confirmed by Doctors Shelton, Humphreys, and Iravedra at
the National College of Chiropractic, who diagnosed “cervical segmental dysfunction
secondarily resulting in disturbed equilibrium” in June, 1996. (R. 170) These doctors did not
review the cervical MRIs or the brain CT. (R. 171), The doctors recommended continued

-5-


As stated above, although the ALJ need not provide a written evaluation of each piece of
evidence in the record, he can not select and discuss only that evidence that favors his ultimate
conclusion. Because the ALJ does not explain why he ignored the irregular MRIs of the cervical
spine and the diagnoses of Parris’ treating physicians, his sole reliance on Dr. Sloan’s opinion
that Parris’ spinal irregularities are not the cause of her symptoms is not supported by substantial
evidence.

The ALJ also found at step two that Parris’ testimony lacked credibility. (R. 18-19) An
ALJ’s credibility determination will be reversed only when it is “patently wrong.” Herr v.
Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). While the ALJ’s credibility findings are usually
entitled to great deference, “when such determinations rest on objective factors or fundamental
implausibilities rather than subjective considerations [such as a claimant’s demeanor], appellate

courts have greater freedom to review the ALJ’s decision.” Herron, 19 F.3d at 335.

In determining that Parris was not credible, the ALJ noted:

the lack of supporting objective medical findings and the disproportionate use of
medication and pursuit of treatment as well as the claimant’s activities that
include driving (despite not having a license), going alone at times to the store,
and even camping. Also noteworthy is the inconsistency between the claimant’s
having balance problems and, yet, having stopped using a cane years ago after her
knee healed.

(R. 18-19)
The ALJ’s credibility determination is not supported by substantial evidence. First, an

ALJ must examine “the full range of medical evidence” before finding that a claimant lacks

Commissioner’s argument is unpersuasive as justification for the ALJ’s decision. First, the ALJ did
not state that he rejected Dr. Kelly’s opinion because Dr. Kelly was not an acceptable medical
source. Moreover, a chiropractor’s opinion may be used to “show the severity of [a claimant’s]
impairments and how it affects [her] ability to work.” 20 C.F.R. § 404.1513(d).

-18-



descriptions would include a check out teller or receptionist or working at a computer terminal,
as long as no overhead lifting or climbing of ladders was required. Id. He ultimately concluded,
however, that Parris did not have a “safe worker profile” and would be “a liability to herself and
any employer.” (R. 158) Mr. Adato stated: “Even the suggested jobs promulgated by Dr. Kelly
involve risk if she is falling with little warning.” Id. Mr. Adato further stated, “I do not believe
she can work on an uninterrupted basis with the multiple problems she is having. I believe that
she should be evaluated for attendant care as she has been unable to keep her house and drive.”
id.

c. Testimony at the Administrative Hearing

Valarie Parris, her husband Richard Hargreaves, and vocational expert GleeAnn Kehr
testified at the hearing held before Administrative Law Judge John Mondi on J: anuary 9, 2001.
(R. 41)

Parris testified that from December, 1989 until September, 1990 she worked full time as
a receptionist at a health club. (R. 48) At that time, she did not suffer from loss of balance or
other problems because that was before she got injured. (R. 49) From October of 1992 until
December of 1995, she worked full time for “Crafts and Stuff” as a floral designer. (R. 46) Her
manager discharged her because she kept falling and injuring herself at work and was a hazard to
herself and others. (R. 46-47) Since then, she has looked for work in the art field and for any sit
down office work that does not require typing, computers, or phones. (R. 45) She applied for
work at McDonald’s but was tumed away because she was “dangerous.” Id.

Parris said that her doctors determined that she loses her balance and falls because of
“whatever is messed up in my neck.” (R. 49) She was unwilling to consent to exploratory
surgery of her neck because her doctors were not sure it would benefit her and death or paralysis

-8-


supports his finding at step four. The ALJ failed to build the “accurate and logical bridge from
the evidence to [his] conclusion” that is necessary for meaningful appellate review. Dixon, 270
F.3d at 1176. On remand, a more thorough step four evaluation is necessary, should the analysis
proceed beyond step three.

Two final points merit mention. First, the ALJ “noted” in his decision that Parris’
caffeine consumption could be contributing to some of her “reported problems.” (R. 19) There
is no medical evidence in the record suggesting that Parris’ caffeine consumption is problematic
or should be curtailed. The ALJ improperly played doctor and made his own independent
medical finding regarding the cause of some of Parris’ “report problems.” Second, with respect
to an outdoor fall to the ground by Parris described by her husband, the ALJ opined that terrain
could have been a contributing factor. There is nothing in the record to support the speculative
comment by the ALJ that terrain may have been a factor in the fall described by Parris’ husband.
Parris’ husband testified only that at the time of the fall, they were in the yard or in the barn.
There is no further testimony in the record regarding the terrain.

CONCLUSION

For the reasons stated above, Plaintiff's Motion for Summary Judgment or Remand is
granted, and the Commissioner’s Motion for Summary Judgment is denied. The ALJ’s decision
is reversed and the case is remanded to the Social Security Administration for further
proceedings consistent with this opinion. This Court suggests that the Social Security
Administration transfer the case to a different ALJ on remand. See Sarchet _v, Chater, 78 F.3d

305, 309 (7" Cir. 1996).

-24-



T aalindge ‘Seder"¥orm (06/97)

CO)

United States District Court, Northern District of Illinois

Name of Assigned Judge Nan R. Nolan Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 251 DATE 12/28/2004
CASE Valarie Parris vs. Jo Anne Barnhart
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(QB) Oo Answer brief to motion due. . Reply to answer brief due.
(4) a) Ruling/Hearing on set for at
(3) o Status hearing [held/continued to} [set for/re-set for] on set for at
(6) i) Pretrial conference [held/continued to] [set for/re-set for) on set for at :
(7) a Trial [set for/re-set for] on _ at.
(8) o [BenclyJury tial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) C1 FRCP43(a)(2).
co) =x [Other docket entry] | For the reasons stated in the attached Memorandum Opinion and Order,
plaintiff's motion for summary judgment or remand is granted. Defendant’s motion for summary
judgment is denied. This matters is remanded to the Social Security Administration pursuant to 42 U.S.C.
405(g) for further proceedings consistent with the attached opinion.
(il) ff (For further detail see
No notices required, advised in open court Document
No notices required ; Number
" qui number of notices
SY | Notices mailed by judge's staff. DEC 28 2004
Notified counsel by telephone ne dockered
Doeketing to mail notices. | O
Mail AO 450 form. docketing deputy 2
Copy to judge/magistrate judge. pew 7 .
courtroom .
Amb deputy’s 4 hhmb
Date/time receiyed in
central Clerk's Office nailing depury has



the ground maybe a couple of times a week, but she loses her balance or falls into a wall every
day. (R. 59) He is at work during the day, and only hears about some of the falls after they have
happened. Id. He last saw his wife fall to the ground sometime the previous autumm. (R. 60)
He said that she has not used a cane for support since 1996 or 1997. (R. 59) He testified that
Parris does not use drugs other than over-the-counter and prescription medication and takes a
drink of alcohol maybe twice a year. Id. He said she drinks coffee “constantly.” (R. 59-60) He
also stated that Parris has looked for work, but “as soon as she put on her application that she did
have some medical problems, [] we’ve never got a call back from anybody.” (R. 60)

GleeAnn Kehr, a vocational expert, testified that Parris’ former job as a floral designer
was semi-skilled in nature and heavy in physical demand as reported. (R. 72) She stated that the
job as a health club receptionist was light in physical demand and unskilled in nature. (R. 72)
Her job as a clerk in a framing store was medium in demand and semi-skilled in nature. (R. 72)
Neither the floral design nor framing skills are transferable to other types of semi-skilled
positions. (R. 72)

The ALJ posed three hypothetical questions to the vocational expert. First, he asked
whether a person of Parris’ age and with her work history and educational level could perform
any past work if she was limited to light work and could not reach above her shoulders or below
her waist, was unable to work at heights or around dangerous machinery, unable to climb
ladders, ropes, or scaffolds, and had spells of dizziness once every two weeks. Kehr replied that
under these restrictions, Parris could not return to floral design as it is done in the national
economy. (R. 73) Kehr stated that Parris might be able to return to work as a health club
receptionist, but that “[i]t’s hard to say if in most areas... the shelving would be overhead or
below waist. However, that - you know, any reaching - that would be the biggest, the biggest

-ll-


than five pounds and nothing over shoulder level, but she later answered that she could lift a
gallon of milk using both hands. Id. She said she has been told not to reach above her shoulders
or below her waist in order to avoid putting her neck out. (R. 68) She has difficulty sleeping.
(R. 53)

Parris lives with her husband, daughter, and her two grandchildren. (R. 55) She has
given up on most forms of housework and does not do any yardwork, (R. 62) If there is an
emergency, she will take the family’s large dogs out to the yard, but she tries to avoid that as
well. (R. 63) She stopped doing the dishes because she frequently dropped and broke them. Id.
She does a little cooking, but her daughter and her husband do most of it. (R. 64) She is unable
to vacuum or sweep floors. (R. 68) Her daughter does the laundry. (R. 56)

Parris’ doctor told her to stop driving after she lost her balance behind the wheel and
drove off the road. (R. 54) She admitted that once in a while she still drives three blocks to the
gas station to buy cigarettes. (R. 56-57) She goes to the store once every couple of months,
usually with either her husband or her daughter. (R. 57) Tinnitus makes it difficult for her to
concentrate while talking on the phone. (R. 67-68) She occasionally goes to dinner with her
husband, Richard. (R. 57) Richard participates in civil war reenactments, and Parris has joined
him in camping out for these events. When they camp, Parris does not do any of the cooking
and does not pitch or strike the tent. (R. 57) Parris tries to do needlepoint, but she is only able to
work on it for a few minutes at a time without hurting her neck, (R. 69-70) Her last project, a
tea cozy, took over a year to complete. (R. 69)

Richard Hargreaves testified that when he and Parris go out, she hangs on his arm in
order to keep from falling. (R. 58) She often falls into the walls when they are at home and
walks with her hand against the wall to steady herself. Id. He estimates that she actually falls to

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did not in and of itself prevent her from functioning well. (R. 176). Parris was not interested in
taking medication for the tinnitus because of sedative effects, so Dr. Micco recommended a
hearing aid instead. Id.

In 1999, Dr. Michael Kelly, a chiropractor, stated that Parris continued to suffer from a
cervical strain/sprain injury to her neck that affected her proprioceptive input from her cervical
spine to her brain. (R. 209) Dr. Kelly stated: “This chronic condition has caused numerous loss
of balance episodes with falls to the ground and head injuries.” (R. 209) Dr. Kelly stated that
Parris had a permanent disability which was degenerative in nature and with symptoms expected
to worsen over time. He also stated that the episodes of loss of equilibrium and resulting injury
will also increase. (R. 209) Dr. Kelly stated that Parris need to receive disability benefits in
order to avoid “further injury to herself and to avoid injury and loss of property to others.” (R.
209)

On April 18, 2000, an x-ray of Parris’ left knee found “mild degenerative changes”
involving two joint compartments. (R. 262) No evidence of acute fracture or dislocation was
found. “Mild osteopenia” was noted. (R. 262) Dr. J. Damergis characterized the results of the
x-ray of the left knee as “unremarkable.” (R. 249). Additional physical therapy for Parris’ knee
pain commenced on April 25, 2000. (R. 282-83) Parris reported continued pain and weakness
in her left knee at the hearing before the ALJ in January, 2001. (R. 50)

B. Other Evidence

On January 9, 1998, Mr. Jerry Adato, Director of Rehabilitation for Adato Vocational
Services, prepared a report that found that Parris had a permanent partial disability rating of 40%
for the whole body. (R. 157) The equilibrium impairment comprised 75% of this rating. Id.
The rating did not include a hearing impairment. Id. Mr. Adato found that possible job

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Furthermore, the ALJ must explain how activities of daily living are inconsistent with
complaints of pain and the medical evidence when finding that such activities defeat credibility.
Zurawski, 245 F.3d at 887. In Zurawski, the Seventh Circuit held that the fact that the claimant
was able to wash dishes, help his children prepare for school, do laundry, and prepare dinner did
not necessarily undermine or contradict his claim of disabling pain, particularly when the ALJ
did not explain how these activities were inconsistent with his claim. Id. In this case, the ALJ
similarly concluded that Parris’ activities undermined her credibility without explaining how the
activities were inconsistent with Parris’ claim. (R. 19) For example, the ALJ omitted the fact
that while Parris has gone camping with her husband on occasion, she does not do any of the
cooking nor does she pitch or strike their tent. (R. 57) Since there is no further testimony in the
record about what Parris does do when they are camping, it is impossible to ascertain why the
fact that Parris engages in this activity led the ALJ to question her veracity.

The final ground for the ALJ’s credibility finding is that Parris stopped using a cane
years ago in spite of her claimed balance problems. (R. 19) “ALJs must not succumb to their
temptation to play doctor and to make their own independent medical findings.” Rohan _y.
Chater, 98 F.3d 966, 970 (7th Cir. 1996). None of the doctors who have treated Parris
recommended that she use a cane to help with her balance problems. Parris’ failure to use a cane
has no bearing on the credibility of her testimony regarding her symptoms and limitations. For

these reasons, the grounds given by the ALJ are insufficient to support his credibility finding.

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aggravated a previous injury in her right foot. (R. 218) Parris reported that Dr. Weiner told her
that the knee would probably remain painful and there was no more to be done about it. Id.

During December of 1993, Dr. Ronald Woods, a chiropractor, treated Parris’ back pain,
neck pain, and headaches with chiropractic adjustment. (R. 217-218) Parris reported that Dr.
Woods “made good progress reducing both the severity and frequency of the headaches, the
neck pain was reduced, and the lower back pain was pretty well resolved.” (R. 218) Dr. Woods
released Parris in April of 1994. When her headaches started to get worse, Parris saw Dr. Rocco
Pellegrino, a chiropractor.

In July of 1994, Dr. Pellegrino conducted an “independent examination at the request of
Parris’ carrier.” (R. 217) Parris reported to Dr. Pellegrino that she experienced radiating pain
down her left arm to the elbow and numbness in her left hand and forearm, which had worsened
during the previous six months. (R. 218) Dr. Pellegrino believed that a mid-cervical injury was
causing radiation of pain and numbness to the left upper extremity which was not progressing
under chiropractic treatment. (R. 220) He noted some diminished strength in the Triceps and
wrist extensors of Parris’ left arm. (R. 219) Dr. Pellegrino also observed “palpable tenderness
and swelling over the left mid cervical lamina.” (R. 219) Cervical and foramina compression
both elicited pain, with the latter causing increased radiation of pain to the left upper arm. Id. A
lack of supportive musculature caused Parris to sit holding her head downward, “with the
posture of one with very weak upper back muscles.” Id. Range of motion testing caused
increased reported pain and “palpable protective myospasms around the left mid Cervical
region.” Id. Dr. Pellegrino diagnosed “Cervical sprain with Cervical Brachial Syndrome.” (R.
220) He concluded that Parris was not disabled by her injuries at that time. (R. 221) Dr.
Pellegrino recommended a further evaluation by a neurologist or physiatrist “to differentiate

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c. The ALJ’s Findings

The ALJ denied Parris’ claim at step two, finding that she failed to establish a “medically
determinable impairment that produces more than a minimal effect on the claimant’s ability to
do basic work activities.” (R. 18). He found Parris’ testimony and that of her husband not
credible, largely because he found that the objective medical evidence did not support Parris’
representations as to her limitations. (R. 18, 19, 20) Additionally, he found that even if Parris
did have a severe impairment at step two, her claim would be denied at step four based on the
vocational expert’s testimony that she could return to her past unskilled work as a health club
receptionist. (R. 20) The ALJ found that Parris “was not under a ‘disability,’ as defined in the
Social Security Act, at any time through the date of his decision.” (R. 21)
D. — Analysis

Two main issues are before this Court on appeal: (1) whether the ALJ’s finding at step
two is supported by substantial evidence and (2) whether the ALJ’s alternative step four finding
that Parris was capable of returning to past relevant work as a health club receptionist is
supported by substantial evidence. The Court addresses each issue in turn.

1. Step Two

The ALJ found that Parris failed to prove at step two the existence of a medically
determinable impairment that produces more than a minimal effect on the claimant’s ability to
do basic work activities. Step two of the five step inquiry requires the claimant to show that she
has a severe impairment. Step two states: “If you do not have any impairment or combination of
impairments which significantly limits your physical or mental ability to do basic work
activities, we will find that you do not have a severe impairment and are, therefore, not
disabled.” 20 C.F.R. § 404.1520(c). “Basic work activities” means “the abilities and aptitudes

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regarding her pain and functional limitations not credible. The ALJ’s conclusion that Parris did
not have a medically determinable impairment or combination of impairments that significantly
limit her ability to perform basic work activities is not supported by substantial evidence because
the ALJ failed to discuss substantial objective medical evidence supporting Parris’ claim. The
reasons cited by the ALJ in support of his credibility finding are also problematic.

In March 1995 and April 1996, Parris underwent MRIs of the cervical spine, which
revealed mild to moderate abnormal findings. (R. 200, 232). The ALJ did not mention the
irregular results of either of the cervical spine MRIs in his decision. Rather, the ALJ noted that
Dr. Sloan opined that the MRI of the cervical spine did not indicate the pathology underlying
Parris’ complaints and the findings of the MRI of the spine on two occasions did not cause Dr.
Sloan “great concern.” (R. 19, 242).

The ALJ improperly ignored the opinions of several of Parris’ treating physicians, which
identified abnormalities in Parris’ cervical spine as the underlying cause of many of her
complaints, in favor of Dr. Sloan’s conclusion based on one visit that Parris’ cervical
abnormalities were not of “great concern,” and her complaints were of unknown origin. The ALJ
failed to note that several of Parris’ other doctors - including her neurologist (Dr. Ubilluz), an
orthopaedic surgeon (Dr. Gogan), and a chiropractor (Dr. Woods) - interpreted the MRI as
explaining the source of her disequilibrium and her head, neck, and right arm pain. On January
11, 1995, Dr. Gogan opined that the MRI of January 9, 1995 was consistent with herniated discs
and her chronic right arm pain. (R. 229), On January 18, 1995, Dr. Woods noted that Parris had
a chronic condition including pain in her neck radiating between her shoulder blades and causing
severe occipital headaches and the two herniated discs evident on the January 9, 1995 MRI were
responsible for this chronic condition, (R. 222). On April 24, 1996, Dr. Ubilluz diagnosed a

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Parris applied for disability insurance benefits on November 23, 1999. (R. 97) Her
application was denied initially on February 14, 2000 and again on reconsideration on April 3,
2000. (R. 78-81, 84-86) The Commissioner found that although Parris’ medical history showed
“a history of back injury as well as tinnitus,” it did not show that the conditions were disabling.
(R. 84) Parris appealed and requested an administrative hearing, which was held before
Administrative Law Judge (“ALJ”) John L. Mondi on January 9, 2001. (R. 39-75, 87-89) On
April 24, 2001, the ALJ found that Parris was not disabled because her conditions, even in
combination, did not constitute a “severe” impairment. (R. 21) Alternatively, the ALJ found
that Parris was not disabled because she could perform light, unskilled work of the type she had
previously performed as a health club receptionist. (R. 20) On November 6, 2002, the Appeals
Council denied Parris’ request for review. (R. 5-6).

FACTUAL BACKGROUND

Parris, born on October 22, 1948, was 52 years old on the date of the ALJ’s decision. (R.
44) She has an Associate’s Degree in Fine Arts, which she completed in 1975. (R. 44, 120) She
has worked as a YWCA resident artist and publicity consultant, a picture framer, a receptionist
in a health club, a floral designer, and an artist. (R. 123-128).

A. Medical Evidence

On October 25, 1993, Parris lost her balance and fell at work, fracturing her left knee.
(R. 217) She stated she began suffering from loss of balance, neck pain, headache and nausea
shortly after the fall. (R. 167)

Dr. Richard Weiner treated the fractured knee. (R. 213) Parris wore a long leg Velcro
cast, used crutches, and attended physical therapy for several weeks. (R. 213-16) She stated that

she discontinued physical therapy because it worsened her neck pain and headaches and

-2-



ENTER:

Nan R. Nolan
United States Magistrate Judge

Dated: i a of

-25-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS = BAA HF 3)

EASTERN DIVISION DE
C28 20mg
VALARIE PARRIS, )
)
Plaintiff, )
)
v. ) Case No. 03 C 0251

) Magistrate Judge Nan R. Nolan
JO ANNE B. BARNHART, )
COMMISSIONER OF )
SOCIAL SECURITY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Valarie Parris seeks review of the denial of her application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416, 423.
This matter is before the Court on the parties’ cross-motions for summary judgment. The
Commissioner seeks an order affirming the decision to deny Parris’ DIB application. Parris asks
the Court to reverse the Commissioner’s decision and remand her claim for a new hearing. For
the reasons explained below, Parris’ motion is granted and the Commissioner’s motion is denied.
This matter is remanded to the Social Security Administration pursuant to sentence four of 42
U.S.C. § 405(g) for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

Parris claims that she became unable to work on December 31, 1995, due to a spinal
disorder causing neck, head, and radiating arm pain, numbness and weakness in both hands and
arms, headaches, and sudden loss of balance. (R. 97) Parris also suffers from tinnitus and

hearing loss in her left ear. (R. 156)

~\ 5
A

~


in

difficulty.” (R. 72-73)

Second, the ALJ asked Kehr what past relevant work such a hypothetical person could
perform if she was limited to sedentary rather than light work. (R. 73) Kehr replied that Parris
would not be able to perform any past relevant work. Id.

Third, the ALJ asked Kehr what the vocational outlook would be if he gave full credit to
the testimony offered at the hearing and found that Parris’ capabilities and limitations were as
she claimed. (R. 73) Kehr replied that “when someone needs to sit the bulk of the day and also
has difficulty in grasping or dexterity, then it generally precludes all competitive employment
just due to the nature of sedentary work.” Id. Kehr stated that Parris’ limitations, if fully
credited, would preclude all work. Id.

DISCUSSION
A. Standard of Review

The Social Security Act provides that the Commissioner’s findings of fact are conclusive
“if supported by substantial evidence.” 42 U.S.C. § 405(g) (2000). Substantial evidence means
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson_y. Perales, 402 U.S. 389, 401 (1971). The Court may only reverse the
Commissioner’s decision “if the evidence ‘compels’ reversal, not merely because the evidence
supports a contrary decision.” Betancourt v. Apfel, 23 F. Supp. 2d 875, 880 (N.D. Ill, 1998)
(quoting LN.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). This does not mean, however, that
this Court will simply “rubber stamp the Commissioner’s decision without a critical review of
the evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).

Furthermore, a denial of benefits “must be based on consideration of all relevant
evidence and the reasons for [the ALJ’s] conclusion must be stated in a manner sufficient to

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necessary to do most jobs,” including physical functions such as standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling, capacity for hearing, and mental functions such
as understanding and remembering simple instructions. § 404.1521(b). An impairment is not
severe if the “medical evidence establishes only a slight abnormality or combination of slight
abnormalities which would have no more than a minimal effect on an individual’s ability to
work.” Soc. Sec. Ruling 85-28.

Parris argues that the ALJ improperly discussed the evidence in a selective fashion in
finding her not disabled at step two. The ALJ may not “select and discuss only that evidence
that favors his ultimate conclusion.” Herron v. Shalala, 19 F.3d 329, 333 (7" Cir, 1994). “Both
the evidence favoring the claimant as well as the evidence favoring the claim’s rejection must be
examined, since review of the substantiality of evidence takes into account whatever in the
record fairly detracts from its weight.” Bauzo v. Bowen, 803 F.2d 917, 923 (7" Cir. 1986). The
Seventh Circuit has made clear that the “ALJ’s decision must be based upon consideration of all
the relevant evidence, and that the ALJ ‘must articulate at some minimal level his analysis of the

evidence.” Herron, 19 F.3d at 333. Failure to consider an entire line of evidence falls below the

minimal level of articulation required. Diaz_v. Chater, 55 F.3d 300, 307 (7" Cir, 1995).
Moreover, “more weight is generally given to the opinion of a treating physician because of his
greater familiarity with the claimant’s condition and circumstances,” unless it is not supported
by medical findings or is inconsistent with other substantial evidence in the record. Clifford, 227
F.3d at 870.

The ALJ gave two main reasons for finding Parris’ impairments not severe. The ALJ
found that the record failed to include objective medical findings supporting Parris’
representations as to her limitations and frequent falls. The ALJ further found Parris’ testimony

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