evidence. Rohan v. Chater, 98 F.3d 966, 970-71 (7" Cir. 1996). In other words, ALIs must not
succumb to the temptation to play doctor and make their own independent medical findings. Id. See
also Schmidt v. Sullivan, 914 F.2d 117, 118 (7" Cir. 1990), cert. denied, 502 U.S. 901, 112 S.Ct.
278, 116 L.Ed.2d 230; Scivally v. Sullivan, 966 F.2d 1070, 1076 (7* Cir. 1992). An ALJ will be
reversed in those cases where the ALJ impermissibly played doctor by failing to address relevant
evidence. Dixon v. Massanari, 270 F.3d 1171, 1177 (7" Cir. 2001).

The Court finds that the evidentiary record reflects objective medical evidence that the ALJ
ignored or failed to address in making his RFC finding. For example, the medical evidence in the
case establishes inter alia that Plaintiff suffers from severe back pain, two herniated discs (one at
L5-L6 and the other at C6-C7), osteoarthritis, degenerative joint disease, osteophytes in the
thoracolumbar spine, nerve root compression, gastroesophageal reflux disease, and hypertension.”

R. 139, 141-42, 183, 186, 187, 192, 195, 260, 270, 271, 279.) The ALJ, in his decision, however,

7The Court also notes that other evidence in the record establishes inter alia that Plaintiff
suffers from a major depressive disorder, an anxiety disorder, and a personality disorder. (R.
183, 186, 209, 210, 211, 213, 214, 226, 294.) The ALJ determined, however, that Plaintiff's
mental impairment(s) did not meet Listing 12.04 or Listing 12.06. See 20 C.F.R. Pt. 404, Subpt.
P, App. 1, §§ 12.04; 12.06. (R. 16-18.) While the ALJ determined that Plaintiff did meet the
criteria under subpart “A” for these listings, he found that Plaintiff did not meet the criteria under
subpart “B” and/or subpart “C.” (R. 16-18.) Based on the record, however, Plaintiff may, in fact,
meet the criteria under subpart “B” for these listings. Specifically, under subpart “B”, a claimant
must have a limitation in at least two of the following areas: “(1) marked restriction of activities
of daily living; or (2) marked difficulties in maintaining social functioning; or (3) marked
difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.04;
12.06. As demonstrated by the record, Plaintiff has fairly restricted daily activities and limited
social interaction with others. (R. 18-19, 318, 322-23.) Dr. Langgut also noted that Plaintiff had
decreased concentration and a marked interference in social functioning. (R. 213.) Furthermore,
Dr. Hermsmeyer noted that there was insufficient evidence in the record to determine if Plaintiff
had episodes of deterioration or decompensation in work or work-like settings. (R. 235.)
Therefore, the Court concludes that the ALJ’s analysis with respect to Plaintiff's mental
impairment(s) may not be fully developed in this area.

19


Assume a 48-year old individual with eight years of formal education, past relevant

work the same as the claimant’s. Let’s assume this individual is capable of

performing light work, except that there should be ~ it should be limited to simple

repetitive tasks and there should be reduced interaction with others. By that I mean

that something on the order of a deli counter worker would not work. That person

is dealing with not only customers, but with kitchen staff. By the same token, some

[thing] on the order of a parking lot attendant would work. That individual may see

hundreds of people every day, but all he is doing [is] taking their tickets and making

change. With those limitations, would there be jobs that the individual could

perform? (R. 327-28.)

Based on this hypothetical question, Ms. Chin testified that Plaintiff could not perform any of his
past relevant work. (R. 328.) Ms. Chin concluded, however, that Plaintiff could perform work in
other occupational areas; including, work as a cleaner (8,751 jobs), assembler (25,926 jobs), and
hand packager (13,707 jobs). (R. 328.)

Ms. Chin further testified that if the hypothetical person posed in the ALJ’s question was
restricted to limited extensive walking, the number of cleaner jobs would be reduced by fifty percent.
Q. 328-29.) Moreover, if the hypothetical person were additionally restricted to a ten pound lifting
restriction, the number of assembler and hand packager jobs would be reduced by fifty percent. (R.
329.) Ms. Chin also stated that the amount of absenteeism permitted for these types of jobs is
“usually . . .10 to 12 days a year,” which “averages out to like once a month.” (R. 329.)

IV. THE ALJ’S FINDINGS AND DECISION HEREIN

The ALJ determined that Plaintiff has not engaged in any substantial gainful activity since
the alleged onset date of his disabling condition. (R. 21.) The medical evidence establishes that
Plaintiff suffers from severe back pain and depression which significantly limits his ability to

perform basic work activities; consequently, his impairments are severe. (R. 13, 15,21.)

The ALJ found that Plaintiff did not have an impairment or combination of impairments

13


Iv, THE ALJ SHOULD HAVE OBTAINED TESTIMONY FROM A MEDICAL
EXPERT(S).

The procedure for adjudicating a social security disability insurance benefits claim differs
significantly from the adversarial model. Green v. Apfel, 204 F.3d 780, 781 (7" Cir. 2000). The
procedure requires the ALJ to summon a medical expert if there is not an adequate medical basis in
the record for determining whether the claimant is disabled. See id. (stating that the procedure for
adjudicating social security disability claims “requir[es] the administrative law judge to summon a
medical expert if that is necessary to provide an informed basis for determining whether the claimant
is disabled.”) See also 20C.F.R. § 404.1527(£)(2)(iii); 416.927(£)(2)(iii)(an administrative law judge
may also ask for and consider opinions from medical experts on the nature and severity of [a
claimant’s} impairments.) In Green, “{tjhe administrative law judge refused to believe [the
plaintiff's] ‘complaints of debilitating pain and limitations’ because they were disproportionate to
the objective medical findings in the record.” See id. The ALJ, however, did not summon a medical
expert. See id. Accordingly, the case was remanded by the Seventh Circuit to the Commissioner for
further proceedings.

Herein, equivalently to Green, because the ALJ believed that Plaintiff's subjective
complaints of severe pain and physical and mental limitations were not reasonably supported by the
medical evidence, he should be required to summon a medical expert or experts to provide an
informed basis for determining whether Plaintiff was disabled. Therefore, because the ALJ lacked
an informed basis necessary to make his decision and ultimately, played doctor by making an
independent medical judgment, a remand is warranted. See e.g., Blakes v. Barnhart, 331 F.3d 565,

570 (7" Cir. 2003)(“{T}he ALJ should have summoned an expert to provide an informed basis for

23


(R. 320.) Plaintiff testified that he could lift a gallon of milk, but he generally buys milk in smaller
quantities because “[i]t’s easier [for him] to manage.” (R. 320-21.)

Plaintiff stated that he does household chores such as cleaning, cooking, laundry and dishes,
but a friend sometimes helps him. (R. 323.) He indicated that he does not do a lot of cooking;
rather, he purchases food that can be prepared in a microwave. (R. 323-24.) Plaintiff testified that
he will sit outside sometimes, listen to the radio and watch television, but he rarely visits with friends
except when he needs to be taken somewhere. (R. 322-23.) He stated that he can read, but his
eyesight is not good enough to read for prolonged periods of time. (R. 323.) Plaintiff testified that
all of the outside yard work around his home is done by the housing authority. (R. 321.) He also
stated that he does not have a driver’s license and he cannot drive “because of the medications that
[he’s] on.” (R. 321.)

Plaintiff testified that, starting in May of 2000, he began seeing a counselor for depression.
(R. 314-15.) He further stated that he took medication for his depression. (R. 315.)

Plaintiff stated that recently he had been diagnosed with diabetes, but that the full extent of
his disease had not been determined. (R. 325.) Plaintiff also indicated that one of his physician’s
expressed his concern that Plaintiff's failing eyesight might be due to diabetes and that this physician
was going to schedule an appointment for him with an ophthalmologist who would make that
determination in the near future. (R. 325.)

. MEDICAL EVIDENCE
A. Plaintiff's Physical Condition
On May 17, 1999, Plaintiff sought emergency room treatment complaining of abdominal and

lower back pain, and was subsequently hospitalized for several days due to these conditions. (R. 117-


failed to address how these medical findings and assessments would affect Plaintiff's ability to
perform light work. Rather, the ALJ mischaracterizes certain of the medical evidence and makes
erroneous factual statements that are unsupported by the record (i.e., The ALJ states Dr. Delheimer
recommended surgery; however, Dr. Delheimer did not recommend that Plaintiff have surgery after
an MRI showed a herniated disc at C6-C7 and nerve root compression). (R. 14, 271.)
Accordingly, the Court finds that the ALJ erred by impermissibly playing doctor when he
ignored and failed to address relevant medical evidence. Dixon, 270 F.3d at 1177. Of course, the ALJ

need not discuss every piece of evidence (if he has considered the important evidence). However,

Body

a: . ae : Bea yt

in failing to address relevant evidence favorable to Plaintiff, herein, the ALJ appears to have
i iH

implicitly relied on other evidence in the record which was unfavorable to Plaintiff. See exi
Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7" Cir. 1983) (a court will remand a cause if the ALS
fails to give at least a minimal articulation of why the claimant's line of evidence was rejected).
Thus, while the ALJ mentions or lists some of the medical evidence, he fails to articulate his basis
for either crediting or rejecting specific diagnoses and assessments favorable to Plaintiff. See e.g.,
Carlson y. Shalala, 999 F.2d 180, 181 (7 Cir. 1993)(an ALJ must “sufficiently articulate his
assessment of the evidence to ‘assure us that the ALJ considered the important evidence aoe {and to
enable] us to trace the path of the ALJ’s reasoning.””)(citation omitted). In other words, the ALT
never attempts to actually explain (and medically explain where medical evidence was involved)
why the evidence that is favorable to Plaintiff (e.g., diagnoses of severe back pain, two hemiated
discs, osteoarthritis, degenerative joint disease, osteophytes in the thoracolumbar spine, nerve root

compression, gastroesophageal reflux disease, and hypertension) is overcome by evidence that is

unfavorable. Moreover, even though an ALJ may reject a physician’s opinion if it appears to be

20


reflected Plaintiff's pain and physical limitations. (Def.’s Mem. at 13-14.) Defendant contends that
Plaintiff's pain was necessarily incorporated in the ALJ’s hypothetical question because it was based
on the ALJ’s finding that Plaintiff could perform a significant range of light work and, moreover,
Plaintiff's “pain is the only element in the record that could support any [type of] limitation.” (/d.)

At the administrative hearing, the ALJ propounded the following hypothetical question to
the VE, which, as stated, the VE responded affirmatively to:

Assume a 48-year old individual with eight years of formal education, past relevant
work the same as the claimant’s. Let’s assume this individual is capable of |
performing light work, except that there should be — it should be limited to simple |
Tepetitive tasks and there should be reduced interaction with others. By that I mean |
that something on the order ofa deli counter worker would not work. That person is
dealing with not only customers, but with kitchen staff. By the same token, some pis |
[thing] on the order of a parking lot attendant would work. That individual may see) ;

hundreds of people every day, but all he is doing [is] taking their tickets and making} '
change. With those limitations, would there be jobs that the individual could
perform? (R. 327-28.)

The Court has found herein that the ALJ’s determination that the Plaintiffcould Perfo rT

work (as defined in the relevant law), was not supported by the record. (pp. 17-22, supra). s larly,
the ALJ’s hypothetical, whose underlying assumption is that Plaintiff can perform “light wet (and
also given (a) the context in which this assumption was made and (b) its correspondin bpecific

assumptions inter alia as to specific jobs Plaintiff can perform), was faulty and not ove the

i

{

Accordingly, a remand for further proceedings, as a result of this issue, is warranted. |

record.® |

‘Although the Court does not decide the pain and physical limitations issue(s) rail sed, the
following authorities can be noted upon remand: Steele v. Barnhart, 290 F.3d 936, 942 | cr Cir.
2002)(“Hypothetical questions posed to vocational experts ordinarily must include al? lit itations
supported by medical evidence in the record.”)(citation omitted); Kasarsky v. Barnhart] 335 B3d
359, 544 (7 Cir. 2003)(case remanded because the hypothetical question posed to the | did
not adequately reflect the extent of claimant’s mental limitations). ij

22



I THE ALJ’S FINDING THAT PLAINTIFF HAS THE RESIDUAL FUNCTIONAL
CAPACITY TO PERFORM A SIGNIFICANT RANGE OF LIGHT WORK IS NOT
SUPPORTED BY THE RECORD. |

Upon review, the Court finds that the ALJ’s determination that Plaintiff has the RFC to
perform a significant range of light work is unsupported by the record. (R. 22.) Specifically, there

exists no real basis in the 330 page record for the ALJ’s determination that Plaintiff has the RFC “to

medical reports from Drs. Patel and Pelton, Plaintiff's treating physicians, or anys i
physicians, indicating that Plaintiff had the capacity to lift and carry objects weight
pounds occasionally and 10 pounds frequently.® And nowhere in the record is there! Y
residual functional capacity evaluation. The Court therefore notes that the record tal : a yt
evaluation or assessment of Plaintiff's RFC indicating what physical limitations wi A‘

Plaintiff in a work environment. Thus, the Court can only speculate as to how the

that Plaintiff is capable of lifting and carrying objects weighing up to 20 pounds ot

5“T ight work involves lifting no more than 20 pounds at a time with frequent ki ing or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may y little, a
job is in this category when it requires a good deal of walking or standing, or when i olves
sitting most of the time with some pushing and pulling of arm or leg controls. To be col sidered
capable of performing a full or wide range of light work, you must have the ability do
substantially all of these activities.” 20 C.F.R. § 404.1567(b); 416.967(b). Social Security Ruling
83-10 further provides that the full range of light work requires standing or walking, off and on,
for a total of approximately six hours of an eight-hour workday when frequent Tifing of carrying
is involved. SSR 83-10.

‘The Court notes that the record contains a Residual Functional Capacity Assessment
form (for mental impairments) which is undated and unsigned. (R. 224-27.) |

17 mt


got worse. (R. 186.) Dr. Patel continued Plaintiff's medications for his back pain, depression and
gastroesophageal flux disease, and also prescribed Elavil (antidepressant). (R. 186.)

On April 17, 2000, Dr. Patel recommended that Plaintiff undergo a gastrointestinal
endoscopy. (R. 186.)

On May 2, 2000, Dr. Patel noted that Plaintiff had severe neck pain that radiated up the back
of bis head and down into his upper back. (R. 182.) Dr. Patel assessed Plaintiff as he had on prior
examinations; namely, that Plaintiff suffered from chronic lower back pain, degenerative joint
disease, depression, anxiety, severe insomnia, osteophytes in the thoracolumbar spine, tobaccoism,
and gastroesophageal flux disease, (R. 182-83.) He further indicated, on that date, that Plaintiffhad
acute cervical strain and high blood pressure. (R. 183.) Dr. Patel recommended Plaintiff have an X-
ray examination of his cervical spine, quit smoking, and see a physician for an upper gastrointestinal
endoscopy. {R. 183.) He continued Plaintiff's medications and also prescribed Soma (muscle
relaxant), Medrol Dose Pack (corticosteroid anti-inflammatory), and Sonata (sleep aid). (R. 183.)

On June 1, 2000, Dr. Patel assessed Plaintiff as having severe cervical strain, mid and lower
back pain, degenerative joint disease, osteophytes in the thoracic spine, hypertension as well as
severe depression, anxiety and insomnia, (R. 279.) Dr. Patel reported that Plaintiff was not taking
his prescribed medications because he could not afford them and, moreover, Plaintiff refused to go
to physical therapy. (R. 279.) Furthermore, Plaintiff had not seen either a neurosurgeon or an
orthopaedic surgeon as Dr. Patel had recommended because he could not afford to do so. (R. 278.)

In August of 2000, Plaintiff underwent an MRI of his cervical spine which showed a
hemiated disc at C6-C7 with compression of the C7 nerve root. (R. 271.) Plaintiff saw a

neurosurgeon; however, surgery was not recommended. (R. 271.)


(R. 138-39.) The X-rays showed inter alia an “[i}ncidental marginal osteophyte at dorsal tenth level
with minimal arthritic changes at the dorsal tenth-eleventh, eleventh and twelfth interspaces.” (R.
139.) The X-rays also revealed that Plaintiff has a “transitional sixth lumbar vertebral segment” and
“minimal degenerative osteoarthritic changes at the posterior facet joints at L5-6 and L6-S1 levels.”
(R. 139.)
On June 22, 1999, Plaintiff underwent a laparoscopic cholecystectomy (removal of
gallbladder) with Dr. Joseph Kokoszka, M.D. (surgeon). (R. 147-48.) At that time, Plaintiff
reported to Dr. Kokoszka that he had pain in his back that was predominantly on the left side and
had sharp shooting pain from his lower back down into his leg. (R. 145.) Plaintiff also complained
of nausea. (R. 145.) Dr. Kokoszka noted that Plaintiff's CT scan was significant for cholelithiasis
(presence of gallstones). (R. 145.) In addition, Dr. Kokoszka told Plaintiff that the gallbladder
surgery “may bring about symptomatic relief of his right upper quadrant pain, however, there [was]
a possibility that he may have persistent pain after the surgery.” (R. 146.)
After Plaintiff's surgery, he continued to complain of back and abdominal pain. (R. 195.)
On June 29, 1999, Dr. Patel assessed Plaintiff's pain and found that the pain remained “persistent,
severe, increased with movement . . . [and] sometimes [was] so severe that even Lortab (narcotic
analgesic) does not help.” (R. 195.) Dr. Patel noted Plaintiff was in “acute distress from... pain”
and there was “severe tenderness in [Plaintiff's] mid thoraces just below the left scapula with
stiffness present.” (R. 195.) Dr. Patel further noted that Plaintiff had severe mid-back pain with
muscle spasms in his back that have not improved over the last month and a half. (R. 195.) Dr.
Patel’s notes also indicated that Plaintiffhas a “marginal osteophyte at T10,” “(mild arthritis at T10-

T1l and T11-12,” and “mild degenerative joint disease [at] L5-L6 and L6-S1.” (R. 195.)


26.) Dr. Sadan K. Patel, M.D. (internist) examined Plaintiff and assessed him as having inter alia
severe abdominal and lower back pain, a history of kidney stones, and tobaccoism. (R. 120.) Dr.
Patel ordered an ultrasound and computed tomography (“CT”) imagining scan of Plaintiff's
abdomen, determined that a surgical consultation was needed, and indicated that pain medication
should be given after a diagnosis was made. (R. 120.) Furthermore, Dr. Patel ordered a magnetic
resonance imaging (“MRI”) scan of Plaintiff’s spine that would be performed after his discharge
from the hospital. (R. 124, 126.)

During his hospitalization, Dr. Don E. Morehead, M.D. (surgeon) also examined Plaintiff
and determined that his condition was a “musculoskeletal type of pain in the left flank [area] over
the left kidney.” (R. 122.) Dr. Morehead noted that Plaintiff's severe pain “had been present for
approximately 30 hours [before] he was admitted” and he “ha[d] had a previous renal calculus which
caused similar pain some years ago.” (R. 122.)

Plaintiff was subsequently discharged from the hospital on May 21, 1999. Hospital progress

notes at that time indicated that Plaintiff still had sharp, severe pain in the right side of his lower

back. (R. 126.)
On June 1, 1999, Plaintiff underwent MRIs of his lumbar and thoracic spines. (R. 141.) The

MRI of Plaintiff's lumbar spine inter alia showed “a very small posterior central herniation of the
intervertebral disc (at LS. 1.6) with very minimal impingement on the caudal neural elements at this
level” and “degenerative osteoarthritic changes in the posterior facet joints of L5-L6 and L6-St

posterior facet joints.” (R. 141-42.) The MRI also indicated that Plaintiff had “six lumbar vertebral

segments.” (R. 142.)

On June 8, 1999, Plaintiff underwent an X-ray examination of his lumbar and thoracic spines.


I THE ALJ IMPERMISSIBLY IGNORED OR FAILED TO ADDRESS RELEVANT
MEDICAL EVIDENCE IN DETERMINING THAT PLAINTIFF WAS CAPABLE OF
PERFORMING A SIGNIFICANT RANGE OF LIGHT WORK.

Plaintiff avers that the ALJ arbitrarily “played doctor” in determining his RFC because the
record does not support the ALJ's finding that he is capable of performing light work. (P].’s Mem.
at 20-21.) For instance, Plaintiff points to the fact that Dr. Patel noted in a hospital discharge report,
on February 1, 2000, that he should not lift anything and, at that time, he was not able to return to
work. (Id. at 21; R. 169.) Moreover, shortly after Plaintiff's averted disability onset date (May 16,
1999), he was placed on light duty and eventually quit working (September 25, 1999) because his
back pain was so severe that he could no longer perform his duties. (/d. at 21; R. 76,92.) Moreover,
Mr. Veronda (mental health therapist) reported, on October 15, 2001, that Plaintiff had a GAF score
of 50 and indicated that he is “currently unemployable.” (id. at 20; R. 294.) Plaintiff further asserts
that the ALJ should have specified the evidence in the record he relied on in making his RFC
finding. (/d. at 21.)

Defendant, on the other hand, contends that the ALJ appropriately weighed the evidence and
reasonably concluded that Plaintiff could perform a limited range of light work. (Def.’s Mem. at 9.)
For example, Defendant argues that while Plaintiff contends that the ALJ “played doctor,” the ALJ
was required to resolve the evidentiary conflicts in the record including “the conflict between the
relatively minimal clinical and diagnostic findings and Plaintiff's complaints of debilitating
limitations.” (id. at 10.) Therefore, according to Defendant, the ALJ’s conclusions were reasonable
and within the ALJ’s discretion as fact finder. (/d. 10-11.)

Itis established in Social Security jaw that an ALJ may not play doctor and substitute his own

opinion for that of a physician, or make judgments that are not substantiated by objective medical

18


diagnosed Plaintiff with severe chest wall pain (musculoskeletal in nature), severe depression,
gastroesophageal reflex disease, severe anxiety, tobaccoism, and chronic lower back pain. (R. 158.)
Dr. David Manigold, M.D. (internist) also treated Plaintiff during his hospitalization and noted that
Plaintiff had not been working due to back pain, had been diagnosed with a herniated disc, had
undergone a cholecystectomy, was taking Lorcet (narcotic analgesic), and suffered from erratic sleep,
low moods, and crying spells. (R. 161-63.)

Plaintiff was discharged from the hospital on February 1, 2000, at which time Dr. Patel
prescribed various medications which included Paxil (antidepressant), Serzone (antidepressant),
Tbuprofen (nonsteroidal anti-inflammatory), Vicodin (narcotic analgesic) and Prilosec (stomach acid
reducer). (R. 159-60.) Dr. Patel also recommended that Plaintiff seek a psychiatric consultation,
but he refused to do so. (R. 160.) Furthermore, Dr. Patel instructed Plaintiff not to lift anything and
would not release him to return to work. (R. 169.)

On March 31, 2000, Plaintiff saw Dr. Patel and reported that he continued to have severe
lower back pain which was progressively getting worse, had difficulty sleeping at night, and was
depressed. (R. 187.) Dr. Patel noted that Plaintiff was in acute distress, depressed and anxious. (R.
186.) He further noted that inter alia Plaintiff had severe tenderness in his lumbar spine, lower back
pain, degenerative joint disease with osteophytes in his thoracolumbar spine, insomnia and
gastroesophageal flux disease. (R. 186.) In his office notes, Dr. Patel indicated that an MRI of
Plaintiff’ s thoracolumbar spine showed “marginal osteophyte at the T10 level, arthritis (at]T10-T11,
T11-T12, and moderate degenerative joint disease at L5-L6, L6-S1.” (R. 187.) Dr. Patel
recommended that Plaintiff see a neurosurgeon for his chronic back pain, but he refused to do so.

(R. 186.) He also indicated that Plaintiff should consult a psychiatrist if his anxiety and depression


determining whether [the claimant] was disabled.”) Accordingly, on remand, the ALJ is instructed
| |

to obtain testimony from a Medical Expert(s).

CONCLUSION’

In view of the foregoing, the Court grants Plaintiff's Motion for Summary Judgment insofar
as it requests a remand and denies Defendant’s Motion for Summary Judgment. Accordingly, the i
fel

cause is remanded, pursuant to sentence four of 42 U.S.C. § 405, to the Commissioner for further

proceedings consistent with this opinion.
ENTER: | i

IAN H. LEVIN i
U.S. Magistrate Judge | :

Dated: September 25, 2003

stk ae

%In view of the Court’s ruling herein, it is deemed unnecessary to consider Plaintiff’s and
Defendant’s other arguments raised herein.
24



> Minute Onder Form (06197)

ge 3 SS Ng United States District Court, Northern District of IMlinois

v eth ,
a i i Sitting Judge if Oth
TM spiastieen i juiee Tan H, Levin thon Assigned sudge
CASE NUMBER 02. C5172 DATE 9/25/2003
CASE Gary L. Gillespie vs. Jo Anne B. 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
of the motion being presented.)

(i) @

MOTION:
\
DOCKET ENTRY:
ql) Oo Filed motion of [ use listing in “Motion” box above.]
2) oO Brief in support of motion due __.
(3) Oo Answer brief to motion due . Reply to answer briefdue__-
(4) o Ruling/Hearing on__setfor___at
(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—ssetfor_ sat
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor at
(7) oO Trial[set for/re-set for]on___at
(8) Qa [Bench/Jury trial] [Hearing] held/continuedto__at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OOOFRCP41(a\(1) O FRCP41(a)(2).
qe) =f [Other docket entry] Enter memorandum opinion and order on plaintiff’s and defendant’s |

motions for summary judgment. Plaintiff's motion for summary judgment is granted in so far as
it requests a remand of the ALJ’s decision. The defendant’s motion for summary judgment is
denied. The cause is hereby remanded to the Commissioner of Social Security for further
proceedings consistent with this opinion per sentence 4 of 42 U.S.C. 405. Judgment is entered
pursuant to Rule 58 F. R. C. P.

{For further detail see order attached to the original minute order.]

No notices required.

Mail AO 450 form.

No notices required, advised in open court.

W | Notices mailed by judge's staff,
Notified counsel by telephone.
Dacketing to mail notices.

Copy to judge/magistrate judge,
courtroom matty 92 d58 C0
SM deputy’s
waa oan
TM SRT. Datetiine deceived
central Clerks Office



traits). (R. 210.) Ms. Roberts determined that Plaintiff was able to complete tasks and understand
directions. (R. 210.) She also noted that Plaintiff lacked the funds to pay for medications and
recommended that he attend individual therapy sessions. (R. 210.) Ms. Roberts further reported that
Plaintiff stated that he was able to perform light housekeeping duties, walked one to two miles, read
at the library and spent time with his grandson. (R. 208.)

On June 20, 2000, Dr. Carl Hermsmeyer, Ph.D., a state agency psychologist, signed and dated
a Psychiatric Review Technique Form (but did not complete the form). (R. 215-23.) The record,
however, also contains another form entitled Residual Functional Capacity Assessment (for mental
impairments) which is undated and unsigned. (R. 224-27.)

On June 30, 2000, Plaintiff underwent a consultative psychological evaluation with Dr. Mark
B. Langgut, Ph.D. (R. 211-14.) Dr. Langgut reported that Plaintiff appeared depressed because he
had “slowed, measured speech, a constricted emotional range, and a hapless presentation.” (R.211.)
Dr. Langgut noted that Plaintiff had “suffered from clinical depression for the past year” and there
was evidence of his depression since 1997. (R. 211.) At the time of the examination, Dr. Langgut
reported that Plaintiff “experiences depressive symptoms including hopelessness, lethargy, sleep
problems, anhedonia, decreased concentration, and impaired decision making, as well as daily mood
disturbance, psychomotor retardation, and marked interference in social functioning,” (R. 213.) He
also noted that Plaintiff admitted to suicidal ideation and thinks about self-harm on a daily basis.
(R. 213.) Upon mental status examination, Dr. Langgut found that Plaintiff's memory and judgment
skills were intact and that he possessed an adequate degree of abstract reasoning skills. (R. 213-14.)
He also determined, however, that Plaintiff's speed of thinking was slowed and he had mildly

obsessive ideas. (R.214.) Dr. Langgut diagnosed Plaintiff with major depressive disorder (moderate

it


In October of 2000, Dr. Patel examined Plaintiff and noted that he was in acute distress and
had severe tenderness in his lumbar spine with severe muscle stiffness. (R. 277.) At that time,
Plaintiff's range of motion was severely restricted and his straight leg raising test was severely
limited (at zero degrees). (R. 277.) Dr. Patel noted that Plaintiff “had a hard time even lying on [a]
bed.” (R. 277.) Dr. Patel’s office notes further indicated that Plaintiff recently had an episode of
severe lower back pain that required emergency care. (R. 277.)

In February of 2001, Dr. Patel noted essentially the same clinical findings as he had since he
began treating Plaintiff. (R. 270.) Plaintiff, however, also reported severe left-sided elbow pain
which was not associated with any type of injury. (R. 269.)

In March of 2001, Plaintiff began treatment with Dr. James Pelton, M.D. (R. 257-65.)
Plaintiff told Dr. Pelton that he suffered from chronic lower back pain and depression. (R. 264.)
Upon examining Plaintiff, Dr. Pelton noted that Plaintiff was not in acute distress, he had no muscle
spasms or radicular pain, and he had normal spinal curves (except for flattening of the lumbar area).
(R. 264.) Moreover, Dr. Pelton found that Plaintiff's muscle strength was good, he had good heel
toe strength, and his patellar and Achilles tendon reflexes were intact. (R. 264.) In addition, Dr.
Pelton’s April 2001 progress notes indicated that Plaintiff has chronic lower back pain, degenerative
changes of the lumbar spine, and a “very small central disc herniation of [the] L5-L6 disc.” (R. 260.)

B. Plaintiff's Mental Condition

On May 2, 2000, Plaintiff saw Elizabeth Roberts, a licensed clinical social worker, who
completed a psychiatric report for the SSA. (R. 208-10.) Ms. Roberts reported that Plaintiff had a
depressed anxious mood, (R. 209.) She diagnosed him with an adjustment disorder with mixed

anxiety and depressed mood as well as a personality disorder not otherwise specified (with passive

10


Furthermore, as of that date, Plaintiff had limited bending (i.e., 45 degrees) and difficulty with
straight leg raising (i.e., 30 degrees). (R. 195.) Dr. Patel continued Plaintiff's pain medication and
referred him to a back specialist. (R. 195.)

Plaintiff reported severe lower back pain with associated muscle spasms to Dr. Patel in
October of 1999. (R. 192.) For example, on October 1, 1999, Dr. Patel noted that Plaintiff had
severe lower back pain, severe muscle spasms, severe abdominal pain on his right side, severe
gastroesophageal reflux disease and degenerative joint disease of the lumbar and thoracic spines.
(R. 192.) Moreover, on October 6, 1999, Dr. Patel noted that Plaintiff had “very severe pain in [his]
back” with extremely severe “mid and lower back pain . . . even than [what] was seen on 10/1/99”
with pain increasing “even with little movements.” (R. 192.) Dr. Patel further noted that Plaintiff
was “extremely severely distressed because of [his] severe pain” and considered Plaintiff to be
“functionally disabled” as a result. (R. 191.) Dr. Patel referred Plaintiff to an orthopedic surgeon and
prescribed additional medications. (R. 191.)

On November 4, 1999, Dr. Eric Ortinau, M.D. (orthopedic surgeon) examined Plaintiff and
completed an SSA disability determination services form. (R. 155-56.) Dr. Ortinau diagnosed
Plaintiff as having lower back strain, (R. 155.) He reported inter alia that Plaintiff bad pain in his
lower back, normal reflexes, six lumbar vertebrae (which is a normal variant), a normal range of
motion in his Jumbosacral spine, no evidence of nerve root compression, and was able to ambulate
without assistance. (R. 155-56.) Dr. Ortinau noted that Plaintiff could perform all of his job-related
duties and, therefore, he could return to work. (R. 156.) In completing the SSA form, however, Dr.
Ortinau failed to note that Plaintiff had undergone surgery. (R. 156.)

On January 29, 2000, Plaintiff was once again admitted to the hospital. (R. 158.) Dr. Patel


based on a claimant’s exaggerated subjective complaints, herein, the ALJ improperly either entirely
ignored or (at a minimum) failed to address relevant evidence that potentially substantiated
Plaintiff's claims. See e.g., Diaz v. Chater, 55 F.3d 300, 308 (7" Cir. 1995).

The Seventh Circuit’s decision in Golembiewski v. Barnhart, 322 F.3d 912 (7" Cir. 2003)
is squarely applicable on this issue. In that case, the court remanded the cause to the Commissioner
for further proceedings, inter alia, because:

{T]he ALJ ignored significant [medical] evidence supporting his claim. The ALJ 4
must evaluate the record fairly. Thus, although the ALJ need not discuss every piece! by
of evidence in the record, Dixon v. Massanari, 270 F.3d 1171, 1176 (7" Cir. 2001), | |
the ALJ may not ignore an entire line of evidence that is contrary to the ruling, |
Zurawski, 245 F.3d at 888. Otherwise it is impossible for a reviewing court to tell |
whether the ALJ’s decision rests upon substantial evidence. Smith v. Apfel, 231 F.3d i
433, 438 (7* Cir. 2000). A remand is required here because the ALJ improperly!

ignored . . . lines of evidence. 322 F.3d at 917. j

See aiso Brindisi v. Barnhart, 315 F.3d 783, 786 (7" Cir. 2003)(case remand because inter atia the
|

ieee i
ALI’s opinion did not sufficiently discuss the conflicting evidence regarding the claimant's
ho!

Lipa
impairments and failed to mention the strongest piece of evidence supporting the claimant's claim
ite

for benefits). Therefore, a remand on this issue is warranted. i y

WW. THE ALJ’S HYPOTHETICAL QUESTION WAS NOT ADEQUATE.

ff
Plaintiff avers that the ALJ’s hypothetical question was inadequate because it was ppased on
nfl

an erroneous RFC finding that he could perform light work and it also did not accurately reflect his
pain and physical limitations. (P1.’s Mem. at 22.) Therefore, according to Plaintiff, the AU erred |
in relying on the VE’s testimony, based on this hypothetical, that there were a significant number
of jobs in the national economy that Plaintiff was capable of performing. (/d.)

Defendant, on the other hand, asserts that the ALJ’s hypothetical question adequately

21


(R. 312.) Plaintiff stated that he stopped working because his back pain became so severe that he
was not able to perform his job. (R. 313.) Plaintiff testified that he had pain “pretty much all over
(his] back and [in] most of [his] joints,” but primarily the pain was in his back and knees. (R. 315.)
He stated that the pain in his back was “[p]retty much 24 hours a day” ranging in severity from level
four to level ten on a ten point ascending scale, with zero being no pain atall. (R. 316-17.) Plaintiff
indicated that he had pain at level ten “frequently.” (R. 316.) He testified that he never really knows
when he will be afflicted with level ten pain, but that some days he will wake up and “basically [be]
unable to move.” (R. 316.) When Plaintiff experiences level ten pain, he takes Lodine (nonsteroidal
anti-inflammatory) along with aspirin or Advil, has hot baths, and uses various sports cremes, but
none of these medications or treatments help that much. (R. 315, 317.) He testified that normally
the pain is around a level seven and on a day where the pain is only at a Jevel four or five, he would
consider himself “very lucky.” (R. 317.)

Plaintiff testified that he could walk three or four blocks before he has to stop due to knee
pain, and cramps and muscle spasms in his back. (R. 318.) He stated that standing is difficult. (R.
318.) Plaintiff testified that he could sit for thirty to forty-five minutes, but after that his lower back
would begin to hurt so he would have to lie down for a while and stretch his muscles to ease the
pain. (R. 319.) He indicated that bending over is “pretty painful” and that he “can’t bend anywhere
close to the way [he] could even a year ago.” (R. 319.) Plaintiff testified that his back pain has been
consistent, but that it “didn’t come as often a year or two years ago” and “it just seems to get worse

and worse.” (R. 319-20.) He stated that going up and down stairs also causes him pain and fatigue.

5(...continued)
Plaintiff's “frequent absences and special conditions,” the reviewer noted that he could be given
an unsuccessful work attempt beginning on May 16, 1999. (R. 92.)

3


listed in, or medically equal to one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulation No. 4.
(R. 21.) Because the ALJ determined that Plaintiff's impairments did not meet or equal a listed
impairment, the ALJ assessed Plaintiff's RFC to determine what he could do despite his limitations.
(R. 22.)

The ALJ concluded that Plaintiff has the RFC to perform a significant range of light work
because he could lift and carry objects weighing up to twenty pounds occasionally and ten pounds
frequently. (R. 22.) However, the ALJ found that Plaintiff was unable to perform any of his past
relevant work and had no transferable skills from any past relevant work. (R. 22.) |

The ALJ determined that Plaintiff could perform simple, repetitive tasks that r juire only
reduced interaction with others and could work at jobs that do not require extensive vathog a.
22.) Ultimately, the ALJ found, using the Medical-Vocational Guidelines, Rule 20.21, asa
framework, which was supplemented by the VE’s testimony, that Plaintiff could perform a
significant number of jobs in the national economy; including work as a cleaner, assemble and hand
packager. (R. 22.) See 20 C.F.R. Pt. 404, Subpt. P, App. 2.

The ALJ further found that Plaintiff's allegations regarding his limitations wee not fully
credible. (R. 21.) H

I
Accordingly, the ALJ determined that Plaintiff was not disabled under the terms of the Act.
|

(R. 22) |
LEGAL S ARDS
L STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited. The Act at 42 U.S.C. §

405(g) establishes that the Commissioner’s findings as to any fact are conclusive if they are

4


he is not, the ALJ next addresses whether the claimant has a severe impairment or combination of
impairments which “significantly limits . . . physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c). Third, the ALJ determines whether that severe impairment meets any of
the impairments listed in the regulations. 20 C.F.R. Pt. 404, Subpt. P, App.1. If it does, then the
impairment is acknowledged by the Commissioner to be conclusively disabling. See Brewer, 103
F.3d at 1391.

If the impairment does not so limit the claimant’s remaining capabilities, the fourth step is
that the ALJ reviews the claimant’s RFC and the physical and mental demands of his past work.
RFC is a measure of what an individual can do despite the limitations imposed by his impairments.
See 20 C.F.R. §§ 404.1545(a), 416.945(a). See also Social Security Ruling 96-8p (1996). ithe
claimant can perform his past relevant work, he will be found not disabled. See 20 CER §

404.1520(e). :

For the fifth step, if the claimant shows that his impairment is so severe that he is unable to
engage in his past relevant work, then the burden of proof shifts to the Commissioner to establish
that the claimant -- in light of his age, education, job experience and functional capacity to work ~
is capable of performing other work and that such work exists in the national economy. See 42
U.S.C. § 423(d)(2); 20 C-F.R. § 404.1520(f). See also Brewer, 103 F.3d at 1391.

ANALYSIS
Plaintiff seeks reversal or remand of the ALJ’s decision finding that he is not disabled.
Upon review of the record, the Court finds that an outright reversal is not warranted.

Separately, as it relates to remand, Plaintiff alleges that: (1) the ALI erred in finding that Plaintiff

has the RFC to perform light work, and (2) the ALJ erred in his credibility finding of Plaintiff.

16


on July 31, 2000, Plaintiffs requests for reconsideration were also denied. (R. 32-37, 305-07.)
Plaintiff then filed a timely request for an administrative hearing and, on November 19, 2001,
Plaintiff appeared with a paralegal and testified at a hearing before an Administrative Law Judge
(“ALJ”). (R. 38-40, 308-326.) A Vocational Expert (“VE”) also testified at the hearing. (R. 326-
30.)

On January 22, 2002, the ALJ issued his decision finding that Piaintiff was not disabled. (R.
11-22.) Plaintiff then filed a request for review of the ALJ’s decision, and, on May 24, 2002, the
Appeals Council denied Plaintiff's request for review making the ALJ’s decision the final decision
of the Commissioner. (R. 5-7.) Pursuant to 42 U.S.C. § 405(g), Plaintiff initiated this civil action
for judicial review of the Commissioner’s final decision.

BACKGROUND FACTS

L PLAINTIFF’S BACKGROUND/TESTIMONY

Plaintiff was born on June 25, 1953, and was forty-eight years old at the time of the
administrative hearing. (R. 20.) Plaintiff received a high school graduate equivalency diploma
(GED), had specialized training in masonry and attended college for one year. (R. 82.) Plaintiff has
worked inter alia as a hand packager, bartender, automobile detailer, service station attendant, and
taxi car driver, (R. 61-66, 77, 111.)

At the administrative hearing, Plaintiff testified that he last worked in September of 1999.°

5On September 25, 1999, Plaintiff stopped working because his back pain was so severe
that he could no longer perform his duties. (R. 76.) To substantiate his disability applications,
Plaintiffs day supervisor and manager reported to an SSA reviewer that he had been placed on
light duty starting in July of 1999 (after he returned to work) and that he “couldn’t really do
much after that.” (R. 92.) Plaintiff missed the last couple of weeks in May, the entire month of
June, and “a day here and there” through September 25, 1999. (R. 92.) Therefore, based on
(continued...)


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

EASTERN DIVISION
)
GARY L. GILLESPIE, )
)
Plaintiff, )
)
ve ) Case No, 02 C 5172
)
JO ANNE B. BARNHART, ) Magistrate Judge Ian H. Levin
Commissioner of the Social Security )
Administration, )
)
Defendant. )

Vener; 1
ae

SEP 9
9
Mi PINION AND ORD! <003

Plaintiff Gary L. Gillespie (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security Administration (the
“SSA”) denying his applications for Disability Insurance Benefits (“DIB”) and Social Security
Insurance (“SST”) under the Social Security Act (the “Act”). Before the Court are the parties cross-
motions for summary judgment in the cause. For the reasons set forth below, the Court remands the
cause for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On January 26, 2000, Plaintiff applied for DIB! and SSI alleging that, as of May 16, 1999,

he became disabled due to a back impairment and depression.” (R. 56-60, 75-84, 297-98.) Plaintiff's

applications for benefits were initially denied on March 7, 2000. (R. 28-31, 300-03.) Subsequently,

'Plaintiff has a date last insured for DIB of June 30, 2001. (R. 21, 68, 85.)

?References are to the certified administrative record prepared by the Commissioner and
filed with this Court pursuant to 42 U.S.C. § 405(g).

Al


to severe), an anxiety disorder with panic features, and a history of alcohol abuse. (R. 214.)

On July 19, 2000, Dr. Hermsmeyer completed a Psychiatric Review Technique Form. (R.
228-36.) At that time, Dr. Hermsmeyer reported that Plaintiff did not meet the criteria for the
affective disorders listing (i.e. Listing 12.04). (R. 231.) See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.04. Dr. Hermsmeyer noted that because Plaintiff's severe impairment(s) did not meet or equal
a listed impairment, a residual functional capacity (“RFC”) assessment was necessary. (R. 228.) He
further indicated that Plaintiff had a “slight” functional limitation with respect to his daily activities
and social functioning, “seldom” experienced deficiencies of concentration, persistence or pace, and
there was “insufficient evidence” to determined if Plaintiff had episodes of deterioration or
decompensation in work or work-like settings. (R. 235.)

On October 15, 2001, Mr. Daniel Veronda (mental health therapist) informed an SSA
representative by letter that Plaintiff had been diagnosed with a major depressive disorder. (R. 294.)
Moreover, Mr. Veronda indicated in the letter that Plaintiff saw a psychiatrist, took medication,
attended group therapy, had a Global Assessment of Functioning (““GAF”)* score of 50 and was
currently unemployable. (R. 294.)

If, VOCATIONAL EXPERT’S TESTIMONY
Ms. Jennie Chin (“Chin”), a VE, testified at the administrative hearing. (R. 326-30.) The

ALI posed the following hypothetical question to Ms. Chin:

4GAF measures an individual’s overali level of psychological, social, and occupational
functioning. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV-TR) 32 (rev. 4" ed. 2000). A GAF score of 41-50 is intended to identify an
individual with “[sJerious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).” fd. at 34.

12


supported by substantial evidence. See also Brewer v. Chater, 103 F.3d 1384, 1390 (7 Cir. 1997).
“Substantial evidence” means “such relevant evidence as areasonable mind might accept as adequate
to support a conclusion.” Richardson v. Pearles, 402 U.S. 389, 401,91 S.Ct. 1420, 1427, 28 L.Ed.2d
842 (1971); Brewer, 103 F.3d at 1390, The court may not reevaluate the facts, reweigh the evidence,
or substitute its own judgment for that of the Commissioner. See Brewer, 103 F.3d at 1390.
Conclusions of law, however, are not entitled to deference. Thus, if the Commissioner commits an
error of law, reversal is required without regard to the volume of evidence in support of the factual
findings. See Binion v. Chater, 108 F.3d 780, 782 (7" Cir. 1997). |

Tk STATUTORY AND REGULATORY FRAMEWORK | |

To receive disability benefits, SSI and DIB claimants must be “disabled” as defined by the

i
i
i

by reason of any 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: dot et hn
12 months.” See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). See also Jones » Shao, 10
F.3d 522, 523-24 (7" Cir. 1993). To satisfy this definition, an individual must have a severe
impairment that renders him unable to do his previous work or any other substantial aft activity
that exists in the national economy. See 20 C.F.R. § 404.1505(a).

[i
|

The Social Security regulations delineate a five-step process for determining whether a

{
claimant is disabled within the meaning of the Act. See 20 C.F.R. § 404.1520. The ALJ first
considers whether the claimant is presently employed or “engaged in substantial gainful activity.”

hi
20 C.F.R. § 404.1520(b). If he is, the claimant is not disabled and the evaluation TT is over; if

15 J