(2) had a severe impairment of the left knee, that (3) did not meet a listed impairment. The AL]
also held: (4) that the plaintiff could return to his past work as a machine operator or sales clerk;
and (5) that there were a significant number of jobs in the economy which the plaintiff could do
despite the limitations of his impairment. The ALJ based his decision on a residual functioning
capacity (“RFC”) assessment by a reviewing Disability Determination Services (“DDS”)
physician on December 13, 1999, which was consistent with assessments made by the treating
physician in 1995 and 1996, but not consistent with the treating physician assessments made in
1999 or 2000. The most important differences were between the assessments of plaintiff's
postural limitations, where the reviewing physician reported that plaintiff could frequently (two-
thirds of an eight hour work day) climb stairs, balance, stoop, kneel, crouch, and crawl; while the
treating physician reported that plaintiff was not able to bend, squat, crawl, climb or reach. The
ALJ also held that the plaintiffs allegations regarding pain and disabling limitations were not
credible when compared against the objective medical evidence, his ability to care for his
children, and his minimal pursuit of treatment from July 1996 through June 1999.

At the July 25, 2000 SSI hearing before the ALJ, a Vocational Expert (“VE”) was asked
whether a hypothetical person having the limitations described by the DDS physician would be
able to return to past work as a machine operator or sales clerk. The VE answered affirmatively.
The question was then posed whether the hypothetical person having the RFC set forth by the
May 2, 2000 treating physician’s evaluation would be able to return to a machine operator or
sales clerk position. The VE answered that he would not.

“A treating physician’s opinion is entitled to controlling weight if it is well supported by


further state that the pain was moderate during activity and at rest, and that the pain levels have
remained unaffected by therapeutic intervention. Furthermore, the therapist recommended that
therapy continue, and that plaintiff would require a new prescription to do so. The only
prescription medication that appears in the record during that time is Vicodin.

The ALJ may not “select and discuss only that evidence that favors his ultimate

conclusion.” Herron, 19 F.3d. at 333. “[I]f conflicting medical evidence is present, the SSA has

the responsibility of resolving the conflict.” Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995).
The ALJ, in this case, did not resolve the conflict. Instead, he focused on a few phrases in the
June 8, 2000, physical therapist report, and ignored language in the same report that did not favor
his conclusion. The uncontested evidence was that plaintiff was taking Vicodin for his knee pain
as prescribed by his physician and that there are no jobs in the national economy plaintiff could
perform while taking Vicodin. The determinative question is whether plaintiff's pain would be
sufficiently severe that he could not work without taking pain medication. This question was
wholly unaddressed by the ALJ. While neither this court, nor the ALJ, should attempt to “play
doctor”, see e.g. Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996), nor does the ALJ need

discuss all side effects of all medication in making his decision, see e.g. Herron, 19 F.3d at 335,

in the case at hand the ALJ did not sufficiently examine this important line of evidence in
assessing whether the plaintiff would be able to perform a job in the economy ~an assessment
where the burden of proof lies with the Commissioner.

ORDERED: Defendant Jo Anne B. Barnhart’s motion for summary judgment is denied.

Plaintiff Michael Credit’s motion for summary judgment is granted. Pursuant to sentence four,


Shalala, 51 F.3d 96, 101 (7th Cir. 1995).

While this court may not reweigh the evidentiary findings of the ALJ, see e.g. Powers v.
Apfel, 207 F.3d 431, 434-35 (7th Cir. 2000), it may find that the lack of reasoned explanation for
implicitly disregarding the assessments of the treating physician did not meet the minimal
articulation standard. Given the language in 20 C.F.R. § 416.927 (d)(2)(i) and (ii) granting
controlling weight to treating physician and specialist opinions absent reasons to find such
opinions lacking in credibility, the ALJ did not present substantial evidence to support his
finding at step 4.

As to the fifth step, whether jobs exist in significant numbers in the economy, the burden
of proof falls on the Commissioner. Pope, 998 F.2d at 477. The VE was asked whether or not
there would be other jobs in the economy which a hypothetical person with the limitations listed
in the treating physician’s report could be expected to adjust to and perform. The witness
responded that there would be 8000 production assembler jobs, approximately 9,000 machine
tenders jobs, 24,000 cashiers/ticket sellers, 10,000 general clerks and helpers, and 3200
inspector/checker/weigher jobs. On cross examination, the VE also testified that if the
hypothetical individual were unable to ‘stoop’ at all, this occupational base would be
significantly eroded.

Firstly, although the treating physician’s RFC assessment did not state that plaintiff could
not stoop, (for lack of an appropriate category on the prepared form), the assessment did indicate
that plaintiff was unable to bend, squat, or reach. Stooping, defined as “to bend the body forward

or in a crouch,” Webster’s New World Dictionary 1321 (Victoria Neufeldt ed., 3rd college ed.,



medical findings and not inconsistent with other substantial evidence in the record.”_Dixon v.
Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001) citing 20 C.F.R. § 404.1527(d)(2). Furthermore,
“the longer a treating source has treated [the claimant,] . . . the more weight . . . [will be] given to
the source’s medical opinion. When the Treating source has seen [the claimant] a number of
times and long enough to have obtained a longitudinal picture of [the] impairment, [the
Commissioner] will give the source’s opinion more weight than we would give it if it were from
a nontreating source.” 20 C.F.R. § 416.927 (d)(2)(i) (2002). See also 20 C.F.R. § 416.927
(d)(2)(ii) (2002). Additionally, 20 C.F.R. § 416.927 (d)(5) (2002) states that more weight will be
given “to the opinion of a specialist about medical issues related to his or her area of specialty
than to the opinion of a source who is not a specialist.” Plaintiff's treating physician is an
orthopedic surgeon who has been treating the injury and performing some, if not all, of the
related surgeries over a nine year period. There is no evidence that the reviewing physician was
anything other than a general practitioner who examined plaintiff on one occasion.

Treating physician opinions, however, may be found to be not credible by an ALJ, due to

bias or lack of expertise in evaluating disability. Dixon, 270 F.3d at 1177. When the opinions of

reviewing and treating physicians conflict, “the ALJ may decide whom to believe, so long as
substantial evidence supports that decision.” Id. at 1178. See also Books v. Chater, 91 F.3d 972,
979 (7th Cir. 1996). The ALJ in this case did not make a credibility determination of the treating
physician’s opinion, and gave no rationale for favoring the reviewing physician’s assessment
over the treating physician’s 2000 assessment. This makes it impossible for the court to “track

the ALJ’s reasoning [to] be assured that the ALJ considered the important evidence.” Green y.


a full understanding of plaintiff's claims, they do not necessarily reflect the plaintiffs current
condition. The ALJ does not explain how this gap in treatment sheds any light on the current
condition. Therefore, without further articulation on the part of the ALJ, the gap in treatment
does not constitute support for discrediting plaintiffs claims.

The VE also testified that if the claim of the need for ice on the knee every two to four
hours were true, then plaintiff would be unemployable. Furthermore, if the claim of need for
prescription pain medication were true, plaintiff would unemployable. Either of these two claims
would be sufficient to prevent the plaintiff from working any jobs in the economy. The
allegation of the need for ice is not supported in any of the physician or physical therapist reports.
Indeed, plaintiff testified that his treating physician was unaware of the constant ice applications.
Therefore, it was reasonable for the ALJ to have found this claim was not credible, and this court
will not disturb that finding. The claims of pain, and the need for medication to alleviate that
pain, however, have support in the medical evidence.

While the ALJ did not sufficiently articulate his reasoning for finding plaintiff's
allegations not credible in determining disability, he also ignored an important line of evidence
that should have been considered in making that determination. “Factors that must be
considered, [when determining claimants credibility in regards to claims of pain], include the. . .
dosage and effectiveness of any pain medications[.]”_Luna y. Shalala, 22 F.3d 687, 691 (7th Cir.
1994) (emphasis added). The ALJ points to the June 8, 2000 physical therapist report as the
basis for not finding the plaintiffs allegations of pain to be credible. In that report plaintiff

described the pain as moderate during activity. However, the objective findings of that report


Order Form (0697)

United States District Court, Northern District of Illinois

Name of Assigned Jud : iti a“
ror Magistrate Judge George W. Lindberg “han Assigned Judge
CASE NUMBER 01 C 9406 DATE 7/24/2002
CASE Michael Credit vs. Jo Anne B. Barnhart
TITLE

[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintifl, and (b) state briefly the nature

of the motion being presented. |

MOTION:

DOCKET ENTRY:

() a Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due

(4) o Ruling/Hearingon set for at.

(5) o Status hearing[held/continued to] [set for/re-set for]on____——ssetfor_ at
(6) o Pretrial conference[held/continued to] {set for/re-set for]on__setfor__— saat.
(7) im] Trial{set for/re-set for]on at

(8) oO [Bench/Jury trial] [Hearing] held/continued to___at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) O General Rule 21 C)FRCP41(a)(1) O FRCP41(a)(2).

(10) | [Other docket entry} Defendant’s motion for summary judgment is denied. Plaintiff's motion for
summary judgment is granted. Enter memorandum and order.
(15-1 and 16-1)
(1) @f (For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
Number
No notices required. bert
Notices mailed by judge's staff. Mie
Notitied counsel by telephone. date dockered
v | Docketing to maii notices.
Y | Mail AO 450 form. remy mesa Aekesigf ad fay initials

Copy to judge/magistrate judge,

date mailed notice
courtroom

SLB deputy’s
initials

ena jt
Datehtikeckecbher iy S11

central Clerk's Office nailing deputy initials



42 U.S.C. § 405 (g), the decision of the Commissioner is reversed and the cause is remanded for

rehearing.

JUL 24 2002
DATED:



Simon & Schuster 1988), would seem to be a combination of bending, squatting, and reaching.
Given the necessity of re-evaluation of the physician opinions on remand, the ALJ should
consider whether a determination of this postural limitation can be made with the evidence at
hand. If it is found that plaintiff has a complete inability to stoop, then a finding of disability will
most likely follow. See 61 Fed. Reg. 34478, (July 2, 1996).

The ALJ cited plaintiffs daily activities and ability to care for his children as a reason for
finding plaintiff's allegations of disability not credible. This court will not disturb an ALJ’s
credibility determination, so long as there is some support in the record. See Herron v. Shalala,
19 F.3d 329, 335 (7th Cir. 1994). However, in the case at hand, as the Seventh Circuit found in
Zurawski v. Halter, “the ALJ should have explained the ‘inconsistencies’ between [plaintiffs]
activities of daily living... , his complaints of pain, and the medical evidence.” 245 F.3d 881,
887 (7th Cir. 2001) citing Clifford, 227 F.3d at 870-72. Furthermore, “minimal daily activities

. do not establish that a person is capable of engaging in substantial physical activity.”
Clifford, 227 F.3d at 872. See Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993).
The record does not indicate that plaintiff did much more than cook simple meals or make the
occasional trip to the grocery store. The record does indicate that plaintiffs children and mother
do the cleaning and laundry, as he is unable to. Without further articulation on the part of the
ALI, the plaintiff's daily activities do not constitute support for discrediting his claims.

The ALJ’s credibility determination based on the gap in treatment from 1996-1998 is of
little moment under the circumstances. Plaintiff applied for SSI in August of 1999 after the

aggravation of the injury. While medical records from before this time period are helpful to gain


help rebuild cartilage in late 1999 and early 2000. To reduce pain, described as constant but
varying from an 8/10 level in 1999 to a 4/10 level when wearing a supportive brace in April of
2000, plaintiff has been taking 500 mg of Vicodin every four to six hours for four years.

Plaintiff also regularly attended aquatic and land-based physical therapy sessions from August of
1999 to at least June of 2000, and stated that, pursuant to his physical therapist’s verbal
instructions, he was to administer ice to his knee for thirty minutes every two to four hours to
help alleviate pain and swelling. Plaintiff wished to have a knee replacement, but the treating
physician had advised against such surgery until the plaintiff is at least 35 years old, in December
of 2001.

The plaintiff is a high school graduate and father of five children, with custody of two
children, ages eight and eleven at the time of the hearing. While he cooks simple meals, his
mother and children do laundry and cleaning. He does some grocery shopping and is active in
church.

The 1992 injury ended plaintiff's six years of employment at United Parcel Service.
Unable to continue the heavy delivery work, plaintiff was subsequently employed in light work
as a machine operator for approximately one month in July of 1998. In April of 2000, he worked
for the Illinois Department of Human Services, was unable to carry 25 to 30 pound file boxes due
to his impairment, and his employment there ended 20 minutes after it began. Plaintiff also had
experience as a retail sales clerk.

After the SSI hearing on July 25, 2000, the Administrative Law Judge (“ALJ”) held that

plaintiff: (1) had not engaged in substantial gainful activity since the onset of the disability; and


work; and (5) whether the claimant is capable of performing any work in the national economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993). Both parties agree that plaintiff meets the
first and second requirements, but does not meet the third. When a claimant meets steps one and
two, but not three, then analysis of the fourth and fifth steps is required to evaluate disability. Id.
The claimant has the burden of proof to show that he cannot perform his past work, but the
burden shifts to the Commissioner to show that the claimant can perform some other job in the
economy. Id.

“Judicial review of administrative decisions is deferential. A decision supported by
substantial evidence must be enforced.” Kendrick vy. Shalala, 998 F.2d 455, 458 (7th Cir. 1993).
Having carefully reviewed the administrative record, the court determines that the
Commissioner’s decision denying plaintiff of SSI benefits is reversed and the cause is remanded
for rehearing pursuant to sentence four of 42 U.S.C. § 405 (g).

Plaintiff suffers from a severe left knee impairment. He has undergone eleven surgical
procedures since the initial injury, which occurred on his job as a UPS package deliverer/driver
in 1992. Plaintiff has been cared for from 1992 to the present by a single treating physician, who
is an orthopedic surgeon. According to the treating physician’s records, plaintiff showed
progress in flexibility and strength from 1992 onwards, until an accident in 1999 when plaintiff
stepped into a hole, twisted his knee, and aggravated the injury. Afterwards, plaintiff complained
of decrease in mobility and increase of pain in the knee. While the treating physician could not
discern any new problems after a Magnetic Resonance Imaging (MRI), plaintiff did have

arthroscopic surgery to repair a torn meniscus in August of 1999, and three Synvisc injections to


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

EASTERN DIVISION
MICHAEL CREDIT, )
)
Plaintiff, )
)
) No. 01 € 9406
-VS- )
)
) JUDGE GEORGE W. LINDBERG
JO ANNE B. BARNHART, )
Commissioner of the Social Security )
Administration, )
) DOCKETED
Defendant. ) .
JUL. 2 5 2002
MEMORANDUM AND ORDER

Plaintiff, Michael Credit, brought an action seeking judicial review of a decision by
defendant Jo Anne B. Barnhart, Commissioner of the Social Security Administration
(“Commissioner”), which denied plaintiff Supplemental Security Income (“SSI”) benefits. See
42 U.S.C. § 405(g) (West 2002). Plaintiff also seeks attorney’s fees pursuant to 28 U.S.C. §
2412. Both parties have filed motions for summary judgment.

In order to qualify for SSI benefits, a claimant must be disabled as defined in the Social
Security Act. 42 U.S.C. § 1382(a)(3)(A). Social Security regulations outline a five-step inquiry
which the Commissioner follows in determining whether a claimant is disabled. 20 C.F.R. §
416.920(a)-(f). The Commissioner must determine: (1) whether the claimant is currently
employed; (2) whether the claimant has a severe impairment; (3) whether the impairment meets

or equals one listed by the Commissioner; (4) whether the claimant can perform his or her past