findings. See Binion v. Chater, 108 F.3d 780, 782 (7" Cir. 1997).
Il. STATUTORY AND REGULATORY FRAMEWORK

To receive disability benefits, SSI and DIB claimants must be “disabled” as defined by the
Act. See 42 U.S.C. § 423(a)(1)(D); 42 U.S.C. § 1382(a); Pope v. Shalala, 998 F.2d 473, 477 (7"
Cir. 1993). An individual is “disabled” if she is unable “to engage in any substantial gainful activity
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 not less than
12 months.” See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). See also Jones y. Shalala, 10
F.3d 522, 523-24 (7" Cir. 1993). To satisfy this. definition, an individual must have a severe
impairment that renders her unable to do her previous work or any other substantial gainful activity
that exists in the national economy. See 20 C.F.R. § 404.1505(a).

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.”
20 C.F.R. § 404.1520(b). If she is, the claimant is not disabled and the evaluation process is over;
if she 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

19



Any objections to this Report and Recommendation must be filed with the Clerk of the Court
within ten (10) days of receipt of this notice. Failure to file objections within the specified time
waives the right to appeal the Magistrate Judge’s Report and Recommendation. See Fed.R.Civ.72(b);
28 U.S.C. § 636(b)(1)(B); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 329 (7" Cir. 1995); The
Provident Bank v. Manor Stell Corp., 882 F.2d 258 (7" Cir. 1989).

Copies Have Been Delivered
Jn Open Court or Mailed To:

Barry A. Schultz Kathryn A. Beverly

The Law Offices of Barry A. Schultz, P.C. Special Assistant United States Attorney
1609 Sherman Ave., Suite 207 200 West Adams St., 30" Floor
Evanston, IL 60201 Chicago, IL 60606

Attorney for Plaintiff Attorney for Defendant

36


hilar” area bilaterally. (R. 146.) Moreover, treatment notes indicated that Plaintiff was in the process
of applying for public aid. (R. 156.)

On September 3, 1999, a pulmonary interpretation report indicated that Plaintiff has a mild
obstructive lung defect that has minimal improvement with a bronchodilator.” (R. 150.) Moreover,
the report indicated that Plaintiff's lung volumes and her diffusion capacity were within normal
limits. (R. 150.)

On September 10, 1999, Plaintiff underwent a mediastinoscopy. (R. 147.)

On September 13, 1999, Plaintiff was treated in the emergency room at Northwest
Community Hospital for chest pains and shortness of breath. (R. 160.) Plaintiff was diagnosed with
atypical chest pain as well as possible bronchitis and sarcoidosis. (R. 161.)

On September 15, 1999 and September 16, 1999, Plaintiff contacted physicians at Palatine
Internal Medicine and requested that paperwork be completed indicating that she was temporarily
unable to work. (R. 158-59.)

On October 15, 1999, Dr. Ali N. Shariatzadeh, M.D., reported that, during Plaintiffs
mediastinoscopy (performed on September 10, 1999), it had been difficult to reach the lesion
identified by prior diagnostic medical tests due to Plaintiff's deep chest. (R. 147, 164.) However,
Dr, Shariatzadeh reported that a biopsy of the tissue surrounding the lesion had been performed and
it showed noncaseating granulomas (abnormal collections of inflammatory cells). (R.151, 164.) Dr.

Shariatzadeh further indicated that Plaintiff should have a follow-up CT scan or X-ray evaluation

“Hilar pertains to a hilum which is a general term for a depression or pit at that part of an
organ where the vessels and nerves enter. Dorland’s, at 767.

°Bronchodilator is an agent that causes expansion of the lumina of the air passages of the
lungs. Dorland’s, at 231. .

13


S1 level with radiculitis (nerve disease) and tenderness. along the lumbosacral spine at the L5-S1
level (R. 133); and a diagnosis of and treatment for sarcoidosis. (R.146, 151, 156, 161, 164,
173,184).

In omitting to address relevant evidence favorable to Plaintiff, the ALJ appears to have
implicitly relied on other evidence in the record which was unfavorable to Plaintiff.” See e.g.,
Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7" Cir. 1983) (a court will remand a cause if the ALJ
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, she fails to articulate her basis
for either crediting or rejecting specific diagnoses and assessments that are 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 .. . [and

99

to enable} us to trace the path of the ALJ’s reasoning.””)(citation omitted). For example, while the
ALJ mentions Plaintiff's (1) X-ray evaluation of her lumbar spine showing a marked narrowing of
the L5-S1 vertebral disc spaces and a deficit in the left side of LS-S1, with Grade I spondylolisthesis
(R. 128); (2) good range of motion regarding Plaintiff’s ability to bend (except for bending beyond
140 degrees due to back pain); (3) positive straight leg raising (R. 133); and (4) limited range of

motion with respect to her lumbosacral spine (i.e., limitation of flexion and extension) (R. 133, 136),

27For example, the ALJ in her decision states, “Although sarcoidosis was not ruled out,
the claimant’s condition was considered to be asymptomatic.” (R. 17.) The Court notes,
however, that the note indicating Plaintiff was asymptomatic for sarcoidosis was dated
September 15, 1999. (R. 158.) Additional evidence in the record indicates that, on September
10, 1999, Plaintiff underwent a mediastinoscopy for this condition (R. 147), on September 13,
1999, Plaintiff reported to the emergency room with chest pain, coughing and shortness of breath
(R. 160-61) and, in December of 1999, Plaintiff was treated for chest pain, difficulty breathing
and a cough producing yellowish phlegm. (R. 170-73.) Moreover, Plaintiffs chest X-ray
evaluation in December of 1999 indicated a clinical history consistent with sarcoidosis and she
was given Prednisone and Flonase. (R. 173, 184.)

23


in her left leg and her leg muscles would become very sensitive to touch. (R. 204.) She stated that
while walking she experienced constant pain in her leg and walked with a limp. (R. 204.) Plaintiff
indicated she experienced pain in her back and leg which was severe enough to affect her
concentration. (R. 219.) She testified that during these painful periods, she was “usually trying to
think of ways to relieve [the] pain. And at that point nothing else . . . is important, because it’s such
a terrible pain.” (R. 219.) Plaintiff stated she is never able to relieve the pain totally; rather, she is
only able to stop the pain from “hurting to an extreme.” (R. 219.) She indicated her daughter
massages her leg and she takes between five and six baths a day to relieve the pain in her Jeg. (R.
220.) Plaintiff testified that when she was standing or sitting, she bore her weight primarily on her
right side to keep pressure off of her left side (ie., left knee).? (R. 221.) She indicated that she
would “press down on the low[er] part of [her] back” in order to “keep[]} the pain in an isolated
position.” (R. 221.) Plaintiff further stated that when she needed to pick things up off the floor, she
would bend at the knees (stoop) rather than at the waist. (R. 221-22.)

Plaintiff testified that she had difficulty sleeping due to pain in her left Seg. (R. 218.) She
indicated she typically went to bed between 9:00 p.m. and 10 p.m, and during the night she would
wake up at around 1:00 a.m. because either her leg was hurting or she just could not sleep. (R. 218.)
Plaintiff would stay up for a couple of hours and then go back to sleep. (R. 218.) She stated that she
would then have to get up because she needed to get her kids ready for school. (R. 218.) Plaintiff
indicated she felt sluggish and tired during the day because of lack of sleep. (R. 219.) She testified

she attempted to sleep during the day, but she was not able to sleep because she is restless and her

During the administrative hearing, Plaintiff stood up and leaned against the wall because
her leg was going numb and her back started to hurt. (R. 215, 221.)

4


id. Accordingly, the case was remanded by the Seventh Circuit to the Commissioner for further
proceedings.

Herein, similar to Green, considering the unaddressed objective medical evidence, and
because the ALJ believed that Plaintiffs subjective complaints of severe pain and physical and
mental limitations were not reasonably supported by the medical evidence, the ALJ should be
required to summon a medical expert or experts to provide an informed basis for the decision herein.
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 determining whether [the claimant] was disabled.”)

CONCLUSION**

In view of the foregoing, the Court recommends that Plaintiffs Motion for Summary
Judgment be granted insofar as it requests a remand and recommends that Defendant’s Motion for
Summary Judgment be denied. Accordingly, it is recommended that the cause be remanded, pursuant
to sentence four of 42 U.S.C. § 405, to the Commissioner for further proceedings consistent with this

opinion.

>In view of the Court’s ruling herein, it is deemed unnecessary to consider Plaintiff's and
Defendant’s other arguments raised herein. The parties may, for example, present their
arguments with respect to whether the ALJ erred_in failing to give controlling or greater weight
to the opinions of Plaintiff's treating physician regarding the amount of weight she can lift (i.e.,
limit weight lifting to below ten pounds). (Pl.’s Mem. at 17-19; Def.’s Mem. at 17; R. 128.)
Moreover, the parties may also present their arguments with respect to whether the ALJ erred in
failing to consider the concessions made by the vocational expert on cross-examination, (PI.’s
Mem. at 16-17; Def.’s Mem. at 17-20.)

34



that the ALJ reviews the claimant’s RFC and the physical and mental demands of her past work.

RFC is a measure of what an individual can do despite the limitations imposed by her impairments.

See 20 C.F.R. §§ 404.1545(a), 416.945(a). See also Social Security Ruling 96-8p (1996). If the

claimant can perform her past relevant work, she will be found not disabled. See 20 C.F.R. §

404.1520(e).

For the fifth step, if the claimant shows that her impairment is so severe that she is unable
to engage in her past relevant work, then the burden of proof shifts to the Commissioner to establish
that the claimant -- in light of her 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 she is not disabled.

Upon review of the record and applying the applicable legal standard(s), the Court finds that
an outright reversal is not warranted. Separately, as it relates to remand, Plaintiff alleges inter alia
that: (1) the ALJ ignored evidence favorable to Plaintiff; and (2) the ALJ’s credibility determination
of Plaintiff is insufficient as a matter of law and patently wrong. (Pl.’s Mem. at 8-15.)

L THE ALJ IMPERMISSIBLY IGNORED OR FAILED TO ADDRESS RELEVANT
MEDICAL EVIDENCE IN DETERMINING THAT PLAINTIFF WAS CAPABLE OF
PERFORMING A LIMITED RANGE OF MEDIUM WORK.

Plaintiffavers that the ALJ ignored significant objective medical evidence that was favorable
to her disability claim(s). (Pl.’s Mem. at 14.) For example, the ALJ failed to consider and properly
interpret medical evidence related to inter alia Plaintiff's documented reduced range of motion of

her lumbosacral spine, joint and nerve disorders.of her lower back and spine, loss of sensation to

20


patently wrong. (Pl.’s Mem. at 8.) Specifically, Plaintiff avers that the ALJ failed to follow the
mandates of SSR 96-7p and regulatory requirements in assessing Plaintiff's credibility. (Id.)
Defendant, on the other hand, asserts that the ALJ properly found that the objective medical evidence
did not substantiate Plaintiff's subjective complaints of extreme pain and physical limitations.
(Def.’s Mem. at 9.)

An ALJ’s credibility determination will not be overturned by a court unless it is “patently
wrong.” Powers y. Apfel, 207 F.3d 431, 435 (7" Cir. 2000). It is well-established, however, and it
need be emphasized that the ALJ’s written decision “must contain specific reasons for the finding
on credibility, supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.” Brindisi v. Barnhart, 315 F.3d 783, 787 (7"
Cir. 2003)(quoting Social Security Ruling 96-7p, 1996 WL 374186, at *4 (S.S.A. July 2, 1996));
Lopez v. Barnhart, 336 F.3d 535, 539-40 (7" Cir. 2003); Golembiewski, 322 F.3d at 915. Without
an adequate explanation, neither the claimant nor subsequent reviewers will have a fair sense of how
the claimant’s testimony is weighed. Zurawski_y, Halter, 245 F.3d 881, 887 (7" Cir. 2001). Thus,
the ALJ is required to state which of plaintiff's complaints she rejected and why such complaints
were unsupported by the record. Clifford v. Apfel, 227 F.3d 863, 872 (7" Cir. 2000). Accordingly,
the ALJ must build an “accurate and logical bridge from the evidence to his conclusion.” Lopez, 336
F.3d at 539 (quoting Clifford, 227 F.3d at 872).

Initially, the Court notes the ALJ failed to explicitly state why she disbelieved much of
Plaintiff's testimony. For example, the ALJ never stated inter alia why she did not believe Plaintiff's

testimony regarding her inability to concentrate while working due to severe back and leg pain, her

26



chronic lower back pain of the lumbosacral spine at the L5-S1 level with radiculitis (nerve disease)
and tenderness along the lumbosacral spine at the L5-S1 level (R. 133); (6) positive straight leg
raising (R. 133); (7) limited range of motion with respect to Plaintiff's lumbosacral spine (i.e.,
limited flexion and extension, 0 to 30 degrees bilaterally as well as limited lateral rotation, 10
degrees bilaterally) (R. 133, 136); and (8) a diagnosis and treatment for sarcoidosis (R. 146, 151,
156, 161, 164, 173, 184). The ALJ, in her decision, however, failed to address these medical findings
and how these medical findings and diagnoses. would affect Plaintiff's ability to perform a limited
range of medium work.

Accordingly, the Court finds that the ALJ erred by ignoring or failing to address relevant
medical evidence that is favorable to Plaintiff. Zurawski v. Halter, 245 F.3d 881, 888 (7" Cir,
2001)(quoting Henderson v. Apfel, 179 F.3d 507, 514 (7" Cir. 1999)(“An ALJ may not ignore an
entire line of evidence that is contrary to her findings.”) Of course, the ALJ need not discuss every
piece of evidence (if she has considered the important evidence). Dixon v. Massanari, 270 F.3d
1171, 1176 (7" Cir. 2001). The ALJ, however, omitted mentioning or discussing significant medical
evidence in her decision. For example, as stated, the ALJ failed to mention Plaintiff's MRI indicating
she suffered from bilateral spondylolysis” of the neural arch of LS, facet arthropathy (joint disease)
at the lumbosacral junction, and anterior Grade I spondylolisthesis of L5 on $1 (R.183); Dr.
Suvanich’s neurological examination showing a loss of sensation to touch and pinprick on Plaintiff's
left calf area along the sciatic nerve up to the L5-S1 level of her lumbosacral spine (R. 133); Dr.

Suvanich’s assessment that Plaintiff has chronic lower back pain of the lumbosacral spine at the L5-

?6Spondylolysis is dissolution of a vertebra; a condition marked by platyspondylia, aplasia
of the vertebral arch, and separation of the pars interarticularis. Dorland’s, at 1563.

22


ENTER:

antl Lovie

IAN H. LEVIN
U.S. Magistrate Judge

Dated: January 15, 2004

35



varying combinations, for more than five minutes, this activity would also prevent her from
sustaining work, (R. 228-29.) Furthermore, Mr. Mendrick indicated that if Plaintiff were having
problems breathing and spitting up mucus throughout the day, which would prevent her from staying
at her workstation during those times, this would also “detract from [her] being able to concentrate
on the work long enough” to complete a job task. (R. 229.)

IV. THE ALJ’S FINDINGS AND DECISION HEREIN

The ALJ determined that Plaintiff had not engaged in any substantial gainful activity at any
time since the alleged onset date of her disabling condition. (R. 20.)

The ALJ found that the medical evidence established that Plaintiff suffers from back
disorders, bronchitis and sarcoidosis which significantly limits her ability to perform basic work
activities; consequently, her impairments are severe. (R. 20.) The ALJ, however, determined that
Plaintiff does not have an impairment or combination of impairments listed in, or medically equal
to one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulation No. 4. (R. 20.)

Because the ALJ determined that Plaintiff's impairments did not meet or equal a listed
impairment, the ALJ assessed Plaintiff's residual functional capacity (hereinafter “RFC”) to
determine what she could do despite her limitations. (R. 20.) The ALJ concluded that Plaintiff has
the RFC to perform a limited range of medium work’ which precludes lifting more than fifty pounds

occasionally or twenty-five pound frequently; stooping more than occasionally; and performing jobs

420 CER. § 416.967(c) provides: “Medium work involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she can also do sedentary and light
work.” Moreover, “[a] full range of medium work requires standing or walking, off and on, for a
total of approximately 6 hours in an 8-hour workday in order to meet the requirements of
frequent lifting or carrying objects weighing up to 25 pounds.” SSR 83-10.

17


Plaintiff also stated that she had injured her left knee two years earlier and her knee was painful,
particularly when she climbed stairs. (R. 127.) Plaintiff further reported that her back pain was
relieved when she took Motrin (i.e., 400 milligrams) two to three times a day. (R. 128.)

Upon examination, Plaintiff's sensory and motor function were intact. (R. 128.) Plaintiffhad
good extension and sideways movement, but was.unable to bend beyond 140 degrees due to back
pain. (R. 128.) An examination of Plaintiff's left knee showed no swelling or tenderness, and she
had good range of motion. (R. 128.) An X-ray éxamination of Plaintiff’s lumbosacral spine showed
a marked narrowing of the L5-S1 vertebral disc spaces and a deficit in the left side of LS-S1, with
Grade I spondylolisthesis'? of L5-S1. (R. 128.). Plaintiff was diagnosed with chronic back pain,
prescribed pain medication, given back exercises to perform, and instructed not to lift any objects
over ten pounds. (R.128.)

On June 25, 1998, Plaintiff underwent further evaluation for her back and knee pain. (R.
129.) Upon examination, Plaintiff was unable to bend beyond 140 degrees due to her back pain. (R.
129.) An examination of Plaintiff's left knee showed no swelling and she had good range of motion.
(R. 129.) In addition, Plaintiff was referred for an orthopedic evaluation. (R. 129.)

On July 14, 1998, Plaintiff underwent an orthopedic evaluation for her back pain. (R. 130.)
At that time, Plaintiff reported she had suffered from back pain since 1985 when she received an
epidural during the birth of her first child. (R. 130.) She also reported that she had left knee pain,

however, the pain was “not as bad.” (R. 130.) Upon examination, Plaintiff's straight leg raising was

Spondylolisthesis is the forward displacement of one vertebra over another, usually of
the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, usually due to
a developmental defect in the pars interarticularis (the part of the lamina between the superior
and inferior articular processes of a lumbar vertebra). Dorland’s Illustrated Medical Dictionary
(hereinafter “Dorland's”), 1237, 1563 (28" ed..1994).

9



three times per month, staying at home with her four year old son every day (although she does not
do anything with her son and lets him run around), and occasionally attending her children’s
activities. (R. 18.)

The Court finds, however, that Plaintiff's daily activities are fairly restricted and not the type
of activities that undermine or contradict her claim of disabling impairments. See e.g., Zurawski,
245 F.3d at 887 (finding that the plaintiff's activities “are fairly restricted (e.g., washing dishes,
helping his children prepare for school, doing laundry, and preparing dinner) and not of a sort that
necessarily undermines or contradicts a claim of disabling pain”); Clifford, 227 F.3d at 872 (noting
“minimal daily activities . . . do not establish that a person is capable of engaging in substantial
physical activity”). Herein, the ALJ’s analysis of Plaintiff's limited and restricted daily activities
does not necessarily equate with her ability to perform the full range of exertional and non-exertional
work-related activities. See e.g., Brown v. Massanari, No. 00 C 6839, 2001 WL 1315075, at *2
(N.D. Ill. Oct. 26, 2001); O’Connor v. Sullivan, 938 F.2d 70, 74 (7"" Cir. 1996). Thus, the ALJ
should have explained the inconsistencies between Plaintiff's daily activities, her complaints of pain,
and the medical evidence. Zurawski, 245 F.3d at 887.

The ALJ also found that “the objective medical findings in this case fail to provide strong
support for the claimant’s allegations of disablitig symptoms and limitations. (R. 16.) The Court

notes that the ALJ never explained this finding and, based on the evidentiary record, as discussed

35Defendant asserts that Johansen v. Barnhart, 314 F.3d 283, 288 (7" Cir. 2002) supports
the ALJ’s conclusion as to her daily activities. (Def.’s Mem. at 14.) In Johansen, however, the
Seventh Circuit did not reach this issue and, unlike here, stated in regard to the claimant’s daily
activities, “In any event this is a question we need not decide because, even assuming that
Johansen’s activities can be characterized as minimal, the ALJ’s decision adequately explained
how Johnasen’s allegation that he could not perform light work was inconsistent with the record
viewed as a whole.” Johansen, 314 F.3d at 288.

32



Plaintiff explained that she had not worn her back brace to the hearing because her youngest child
had taken the metal plates out of the back of it and she did not have time to locate them before she
left for the hearing. (R. 223.)

In addition, with respect to Plaintiff's noncompliance in taking medications, the ALJ stated
that she was “not currently taking any pain medications, another reason to doubt the extent of her
symptoms.” (R. 18.) Plaintiff, however, testified that while she had been prescribed about four
different pain medications, she had exhausted all ofher refills and her physicians had told her to take
over-the-counter medications in a combination that would alleviate her pain. (R. 201.) She stated she
attempted to control her pain with over-the-counter medications using various dosages and
combinations, but these medications “[did] not stop the pain. [They] make[] it bearable.” (R. 205.)
Thus, in reference to Plaintiff's lack of compliance in wearing her back brace and taking pain
medications, the ALJ states “Although these forms of treatment are not aggressive, their ability to
reduce her symptoms can not be known because of the claimant’s lack of compliance, and the non-
compliance and lack of treatment are inconsistent with the alleged severity of her impairments.” (R.
18.) However, based on Plaintiff’s testimony, these methods of treatment are known and, in fact,

they do not alleviate Plaintiffs pain; rather, they make it more bearable.” (R. 201, 202, 205, 223.)

3'(. continued)

A. I wear it when I go walking. When I’m standing. When I’m sitting around at home.
When I’m going to clean my house.

Q. Well, that[] sounds like - - I mean, that sounds like about everything. Are you
wearing it all day?

A. For the most part, not all day, because sometimes it becomes hot and uncomfortable
because it has metal plates at the back of.it.. And it does not help. Once the pain starts, it
does not help relieve [the pain]. Whenever it goes out the only thing that will ease the
pain, not totally, is a hot bath. (R. 202.)

Treatment notes from May 28, 1998 indicate Plaintiffs back pain was relieved when
(continued...)

29



before she would need to get up and move around. (R. 207.) She also indicated she does not lift more
than five pounds because the weight “pulls on [her] back and it hurts.” (R. 207.) Moreover, she
testified that she tried not to carry anything. (R. 207.)

When asked about her daily activities, Plaintiff stated, that in the morning, she typically made
her children breakfast before they went to school, took a hot bath, and “attempt[ed] to pick up around
the house.” (R. 208.) Plaintiff testified that, after she.completes these activities, she would need to
sit in her recliner with her feet elevated. (R. 208.) After sitting for a while, she would need to get
up and walk around the house because of her back and leg pain. (R. 208.) Plaintiff stated her four
year old son would be at home with her during the day, but when her boyfriend (i.e., her son’s father)
was not working, he cared for their son.’ (R. 208-09.) She indicated her boyfriend would give their
son baths and play with him. (R. 209.) Plaintiff testified she was unable to give their son baths or
play with him because she “can’t bend over.” (R, 209.)

Plaintiff indicated that she and her daughter cooked the meals and sometimes she was able
to wash the dishes, but her children did the cleaning, vacuuming, and dusting. (R. 209-10.) Plaintiff
stated she did laundry some of the time, could make her bed, and bathed and dressed herself. (R.
210.) She indicated that sometimes she would go grocery shopping or she would send her daughter
to get the groceries. (R. 210.) Plaintiff testified she lives two blocks away from the grocery store
and typically takes her daughter to the store with her. (R. 210.) She stated she could not walk and
carry a bag of groceries at the same time and if she goes to the store, she is accompanied by

“someone [who] can carry the bags.” (R. 206-07.) Plaintiff indicated she is no longer able to window

4At the time of the administrative hearing, Plaintiff testified her boyfriend worked for a
temporary services agency and he had last worked in December of 2000. (R. 209.) She also
stated he had been in a car accident and he no longer worked. (R. 209.)

6


leg hurt to the point where “‘it’s really uncomfortable.” (R. 219.)

Plaintiff stated she had uncontrolled blood pressure which caused her to have a constant
headache. (R. 202, 205.) She indicated she also had constant heartburn due to the medications she
took, her chest hurt due to her lung disease, her left arm was sometimes sore, and her muscles and
joints were always achy. (R. 205-06.) Plaintiff further testified that she was told she has severe
arthritis and that when the weather changes and it rains, she is constantly aching. (R. 206.)

With respect to Plaintiff's lung disease, in addition to her lungs causing her chest to hurt, she
testified she coughed up mucus several times throughout the day. (R. 205, 217.) She also stated
it was difficult for her to walk outside when the weather was cold because cold air irritated her chest
which caused her to spit up mucus. (R. 206.) Plaintiff testified that Dr. Ray, her pulmonologist,
asked her to keep track of the color of her mucus to determine if she had had respiratory infections
and, in fact, she had several such infections in the past. (R. 203, 217.) She further indicated that
before the administrative hearing, she had vomited a lot of mucus because she was walking to the
hearing at a somewhat accelerated pace which caused her to gag and choke. (R. 217.) Plaintiffalso
testified that on the way to the hearing, she “had to keep going inside buildings because it was cold.”
(R. 211.) Moreover, Plaintiff stated her lungs were irritated by dust and certain household cleaning
products. (R. 217-18.)

Plaintiff indicated she was able to walk “maybe a block depending on the weather.” (R. 206.)
She testified she walked “slower than the average person.” (R. 217.) Plaintiff stated that walking
and talking at the same time caused her to become short of breath. (R. 206.) She testified she is
unable to stand in one spot for more than about a half an hour to an hour because she would begin

to “feel [] pressure” in her back. (R. 207.) Plaintiff stated she could sit for about forty-five minutes



in environments containing dust, fumes or any type of respiratory irritant in concentrated levels. (R.
20.) The ALJ also found that Plaintiff was unable to perform her past relevant work. (R. 20.)

The ALJ determined that, in view of Plaintiff's vocational characteristics and REC, the
Medical-Vocational Guidelines were applicable. 20 C.F.R. Pt. 404, Subpt. P, App. 2. (R. 20.)
Therefore, using Rule 203.25 as a framework, as supplemented by the VE’s testimony, the ALJ
concluded that Plaintiff could perform a significant number of jobs in the national economy. (R. 19,
20.)

The ALJ further determined that Plaintiff's allegations regarding her limitations were not
credible. (R. 20.)

Accordingly, the ALJ determined that Plaintiff was not disabled under the terms of the Act.
(R. 21.)

LEGAL STANDARDS

I. 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
supported by substantial evidence. See also Brewer v, Chater, 103 F.3d 1384, 1390 (7" Cir. 1997).
“Substantial evidence” means “such relevant evidence as a reasonable 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

18



(nasal spray), but she no longer had any of these medications because she had exhausted all of her
refills. (R. 200-01.) Plaintiff further indicated she had been prescribed about four different pain
medications, but she had also exhausted these refills and had been told by her physicians to take
various over-the-counter medications in a combination that would alleviate her pain. (R. 201.) She
stated she attempted to control her pain with Motrin (nonsteroidal anti-inflammatory pain reliever),
Aleve (nonsteroidal anti-inflammatory pain’réliever) and Tylenol (pain reliever) using various
dosages and combinations, but these medications “[did] not stop the pain. [They] make[] it
bearable.” (R. 205.) Plaintiff further indicated that her medications caused her to have difficulty
sleeping. (R. 206.)

Plaintiff testified that she did not have health insurance; however, she did have a medical
card from public aid. (R. 215, 221.)
Il. MEDICAL EVIDENCE

On May 22, 1998, Plaintiff sought medical treatment for back pain at Mercy Hospital and
Medical Center. (R. 127.) Plaintiff reported, at the time, she was always picking up heavy objects
that she should not be carrying. (R. 127.) Moreover, the medical record from that day indicates that
Plaintiff had not seen a physician since August of 1997. (R. 127.)

On May 28, 1998, Plaintiff again sought medical treatment at Mercy Hospital and Medical
Center for back pain. (R. 128.) At that time, Plaintiff reported she began having back pain after she
had received an epidural" during the delivery of her first child. (R. 127.) She indicated that the pain

was in her lower back and it was aggravated by movement, especially when bending down. (R. 127.)

"An epidural is a local anesthetic which is injected into the space that surrounds the
spinal cord (epidural space) in the lower back. Robert Berkow et al., The Merck Manual of
Medical Information — Home Edition (hereinafter “Merck Manual’), 1176 (1" ed. 1997).

8



she never attempts to actually explain (and medically explain where medical evidence was involved)
why the above-described evidence that is favorable to Plaintiff's claim of disability is overcome by
evidence that is unfavorable. Herein, the ALJ improperly either entirely ignored or (at a minimum)
failed to address relevant evidence that potentially substantiated Plaintiff's claims by picking and
choosing among the evidence and ultimately relying on unfavorable evidence to substantiate her
finding that Plaintiff is not disabled. See e.g., Binion v. Chater, 108 F.3d 780, 788-79 (7" Cir.
1997)(citing Herron v. Shalala, 19 F.3d 329, 333 (7" Cir. 1994). See also Rohan v. Chater, 98 F.3d
966, 970-71 (7" Cir. 1996)(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 evidence).

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

must evaluate the record fairly. Thus, although the ALJ need not discuss every piece

of evidence in the record, Dixon y. 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

433, 438 (7" Cir. 2000). A remand is required here because the ALJ improperly

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

See also Brindisi v. Barnhart, 315 F.3d 783, 786 (7" Cir. 2003)(case remand because inter alia the
ALJ’s opinion did not sufficiently discuss the conflicting evidence regarding the claimant’s

impairments and failed to mention the strongest piece of evidence supporting the claimant’s claim

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

*8piaintiff argues that the ALJ further erred in her RFC finding of Plaintiff when she
found that Plaintiff could stoop occasionally even though her flexion and extension of her lumbar
‘spine was limited from 0 to 30 degrees (out of a possible 90 degrees). (Pl.’s Mem. at 14-15; R.
133, 136.) Plaintiff thus asserts that the ALJ failed to resolve the inconsistency that she could
occasionally stoop with the objective medical findings, based on Dr. Suvanich’s examination and

24


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Joan B. Gottschall Sitting Judge if Other lan H. Levin
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 1780 DATE 1/15/2004
CASE Caprise Manney 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) Qo Filed motion of { use listing in “Motion” box above.]

(2) Q Brief in support of motion due

@) 0 Answer brief to motion due. . Reply to answer brief due

4) o Ruling/Hearing on set for at

(8) im) Status hearing[held/continued to] (set for/re-set for] on __setfor_ at

(6) a Pretrial conference[held/continued to] {set for/re-set for] on set for _at_

(7) Oo Trial{set for/re-set for] on _ at

(8) is} [Bench/Jury trial] [Hearing] held/continued to at_ _

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

COFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) CO FRCP41(a)(2),

(10) [Other docketentry] Enter report and recommendation recommending that plaintiff’s motion
for summary judgment be granted insofar..as it requests a remand and recommends that
defendant’s motion for summary judgment be denied is hereby entered of record. Accordingly, it
is recommended that the cause be remanded, pursuant to sentence four of 42 U.S.C. § 405, to the
Commissioner for further proceedings consistent with this opinion. All matters relating to the
referral of this action having been resolved, the case is returned to the assigned judge.

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

No notices required, advised in open court. Document
2
No notices required. somber of aces Number
oY | Notices mailed by judge's staff. |
Notified counsel by telephone SAN 16 2c
Docketing to mail notices 9 2
Mail AO 450 form, ff rch yeuryinals ‘i
wv | Copy to judge/magistrate judge.
Vsr008
courtroom: date mailed notice
SM deputy's su
initials



examination of Plaintiff's musculoskeletal system showed no weakness of the muscles in her upper
or lower extremities. (R. 133.) She also had no limitation of motion of her cervical spine with respect
to flexion, hyperextension and rotation. (R. 133.) Plaintiff, however, exhibited limited flexion and
extension, 0 to 30 degrees (out of a possible 90 degrees) as well as limited lateral rotation, 10 degrees
bilaterally (out of a possible 25 degrees) of her lumbosacral spine." (R. 133, 136.) Her straight leg
raising test was negative on the right, but positive on the left (i.e., 0 to 30 degrees). (R. 133.) There
was no muscle weakness in Plaintiff’s lower extremities, and she could walk on her toes and heels
without difficulty. (R. 133.)

Dr. Suvanich’s neurological examination 6f Plaintiff showed some loss of sensation to touch
and pinprick on the left calf area along the sciatic nerve up to the L5-S1 level of her lumbosacral
spine. (R. 133.) Dr. Suvanich also noted tenderness along the lumbosacral spine at the L5-S1 level.
(R. 133.) Dr. Suvanich diagnosed Plaintiff with chronic lower back pain of the lumbosacral spine
at the L5-S1 level with radiculitis,'*

On August 11, 1998 and December 15, 1998, Plaintiff failed to keep her medical
appointments. (R. 130, 176.)

On August 11, 1999, Dr. Boyd McCracken, M.D., a state agency physician, reviewed

Plaintiff's medical record and completed a Physical Residual Functional Capacity Assessment form.

“While Dr, Suvanich’s report states “There was no limitation of motion of [Plaintiffs]
lumbosacral spine,” the sentence that immediately follows states, “There was some limitation of
motion of flexion and extension, only 0 to 30 degrees and lateral rotation is 10 degrees on both
sides.” This subsequent statement refers to Plaintiff's lumbosacral spine and these stated
limitations are reflected on a chart labeled “lumbar spine” completed by Dr. Suvanich. (R. 133,
136.)

Radiculitis is an inflammation of the root of a spinal nerve, especially the portion of the
root which lies between the spinal cord and the intervertebral canal. Dorland ’s, at 1404.

il


negative, and her reflexes were brisk and symmetrical. (R. 130.) At the evaluation, Plaintiff was
advised to lose weight and perform back exercises. (R. 130.)

On July 30, 1998, Dr. Suvant Suvanich, M.D., performed a consultative examination of
Plaintiff. (R. 131-34.) During the examination, Plaintiff stated she had suffered from lower back
pain and numbness in her left calf area for about nine years. (R. 131.) She indicated that the pain
is rather constant in her lower back area and radiates to the back of her left calf. (R. 131.) Plaintiff
reported she has difficulty getting up in the morning due to stiffness. (R. 131.) She stated that the
pain is constant at night when she is lying down and she has two to three episodes per week of
getting up at night crying because of the pain. (R. 131.) Plaintiff further reported that her pain is
relieved by taking Motrin. (R. 131.) She also stated that she was seen by orthopedic surgeons in
1997 and 1998 and was given physical therapy.manuals to do exercises at home. (R. 131.)
Moreover, Dr. Suvanich noted that Plaintiff never had a diagnostic work up; such as computed
tomography (“CT”) and/or magnetic resonance iniaging (“MRI”) evaluations. (R. 131.)

At the time of the examination, Plaintiff reported that she could stand for about an hour and
then needed to sit down due to pain. (R. 132.) Plaintiff indicated that she was able to walk about half
ofa mile and then needed to sit down due to numbness in her leg. (R. 132.) She stated that she had
difficulty going up and down the stairs to her third floor apartment and had to stop two to three times
while going up or down the stairs. (R. 132.) Plaintiff also reported that she was still working on a
part-time basis as a waitress approximately five hours a day, five days a week. (R. 131.)

Upon examination, Plaintiff walked with a normal gait and her range of motion was normal
with respect to her shoulder, elbow, wrist, hip, knee and ankle joints. (R. 132-33.) Plaintiff's grips

were strong and equal, and there was no swelling or effusion of the knee joints. (R. 133.) An

10



Next, the Court notes that the ALJ mischaracterized the record with regard to Plaintiff's
ability to engage in prolonged walking and standing. (R. 18.) For instance, the ALJ notes that
Plaintiff “is able to walk to the grocery store two blocks away and back” and noted that “This
distance would be devastating to someone in constant pain and with [a] reduced ability to walk.”
(R. 18.) Moreover, the ALJ noted that Plaintiff “would be carrying additional weight on her return
trip, assuming she bought any groceries” and “This would be an additional aggravation for someone
with her alleged amount of back and knee pain.” (R. 18.) At the administrative hearing, however,
Plaintiff testified that she could not walk and carry a bag of groceries at the same time and if she
goes to the store, she is accompanied by “someone [who] can carry the bags.” (R. 206-07.) Thus,
contrary to the ALJ’s findings, the fact that Plaintiff can walk two blocks does not establish that she
has the ability to engage in prolonged walking and standing (or carry bags of groceries that distance);
which would consequently undermine her credibility regarding her severe pain and limitations.“

Moreover, in her decision, the ALJ finds that Plaintiff's allegations regarding her physical
limitations are inconsistent with her daily activities. (R. 17-18.) The ALJ notes that Plaintiff's daily

activities entail cooking, doing laundry, going shopping with her daughter, attending church two to

(...continued)
the agency’s decision that were not given by the ALJ.”) See also Steele v. Barnhart, 290 F.3d
936, 941 (7 Cir. 2002)(“But regardless of whether there is enough evidence in the record to
support the ALJ’s decision, principles of administrative law require the ALJ to rationally
articulate the grounds for [her] decision and [we] confine our review to the reasons supplied by
the ALJ.”)

Herein, the ALJ did not rely on any medical evidence to support the assumption that an
individual with inter alia spondylolisthesis, nerve and joint disease, a limited range of motion,
and severe lower back and leg pain could not walk even two blocks. See e.g., Scivally v.
Sullivan, 966 F.2d 1070, 1071, 1077 (7" Cir. 1991)(the ability to walk a mile and a half daily has
been found not to support a negative credibility finding for a claimant who testified to significant
problems in standing and walking).

31



Accordingly, the ALJ erred in her credibility finding with respect to these two issues.

With regard to the ALJ’s reference to Plaintiff's missed appointments and failure to
consistently seek medical treatment, the Court finds the ALJ also erred in her credibility finding with
regard to these issues. For instance, the Court notes that the ALJ infers that Plaintiff's allegations
of pain are not credible based on the amount of time between when Plaintiff initially sought
treatment for back pain in August of 1997 and when she sought follow-up treatment in May of 1998,
and states “This is a length amount of time for sorticone in constant pain.” (R. 18.) Nowhere in the
decision, however, does the ALJ note Plaintiff's limited financial resources, her difficulty in securing
transportation and that sometimes she does not leave home because of weather conditions that affect
her lung disease. (R. 200, 213-14, 230.) Moreover, Plaintiff testified that the most effective pain
relief method that really worked for her was a hot bath, and she took several of these during the day
and sometimes in the middle of the night. (R. 202, 220.) Furthermore, Plaintiff stated that her
daughter often rubbed her leg to help relieve her pain. (R. 220.) Accordingly, the ALJ’s credibility

finding with respect to this issue is not supported by the record.”

(continued)
she took 400 milligrams of Motrin. (R. 18, 128.) This medical evidence is not inconsistent with
Plaintiff's testimony because, as she testified, she experienced pain relief from her pain
medications; however, her pain was never totally alleviated. (R. 205.)

Defendant asserts that to the extent Plaintiff claims she could not afford medications
and/or medical treatment, Plaintiff testified she had a medical card from public aid. (Def.’s
Mem. at 11; R. 215, 221.) In her decision, however, the ALJ does not rely on or make reference
to the fact that Plaintiff had a medical card from public aid. Thus, it bears noting, respectfully,
that Defendant’s counsel is attempting to inappropriately provide the Court with a post hoc
rationalization for the ALJ’s credibility finding by inferring that Plaintiff pain allegations are not
credible because she could have obtained medications and/or sought medical by using her
medical card. (Def.’s Mem. at 11.) However, Defendant’s argument cannot be considered. See
e.g., Golembiewski v. Barnhart, 322 F.3d 912, 916 (7" Cir. 2003)(“general principles of
administrative law preclude the Commissioner’s lawyers from advancing grounds in support of

(continued...)

30



shop, but she takes her children out to eat. (R. 212.) She further testified she would attend church
two to three times per month, if her back and legs were not hurting. (R. 212.) Plaintiffalso indicated
that the church bus would pick her up for church services. (R. 212.) She stated she would
occasionally go to her daughter’s chorus club performances if she was able to get a ride to her
daughter’s school, (R. 213.) Plaintiff testified she would sometimes attend parent-teacher
conferences, but the school would usually contact her by telephone because they knew about her
health problems. (R. 213-14.)

Plaintiff stated that every day she took Prednisone’ for her lung disease, Atenolol? for high
blood pressure, Prevacid’ for acid reflux disease (twice a day), and used an inhaler (Albuterol)® (two

puffs twice a day). (R. 200.) She testified she was also prescribed Atrovent? (inhaler) and Flonase’?

5Prednisone (also called Deitasone) is “a steroid drug . . . used to reduce inflammation
and alleviate symptoms in a variety of disorders, including rheumatoid arthritis and severe cases
of asthma.” It is also used to treat lung diseases. The PDR Family Guide to Prescription Drugs
(hereinafter “PDR Family Guide”) 164-65 (6" ed. 1998).

6 Atenolol (also called Tenormin) is “used in the treatment of high blood pressure, angina
pectoris . . ., and heart attack.” PDR Family Guide, at 596.

7Prevacid is used for the treatment of heartburn and symptoms associated with
gastroesophageal reflux disease. Physicians’ Desk Reference (hereinafter PDR) 3204 (57" ed.
2003).

84 {buterol (also called Proventil) is used for “the prevention and relief of bronchial
spasms that narrow the airway” which is often associated with asthma. PDR Family Guide, at
505.

° Atrovent is prescribed for “the long-term treatment of bronchial spasms (wheezing)
associated with chronic obstructive pulmonary disease, including chronic bronchitis and
emphysema.” PDR Family Guide, at 50.

‘Flonase nasal spray is used for the treatment of nasal symptoms of seasonal and
perennial allergic and nonallergic rhinitis. PDR, at 1522.

7


touch on her left calf area, and tenderness of her lower back. (/d.) Defendant, on the other hand,
asserts that the ALJ properly acknowledged such medical findings which included inter alia
Plaintiff's back disorders (i.e., May, 1998 X-ray showing spondylolisthesis of L5-S1 and marked
narrowing of the L5-S1 vertebral disc spaces), decreased range of lumbar motion,” positive straight
leg raising test, and abnormal chest X-ray examination. (Def.’s Mem. at 16.) Thus, according to
Defendant, given the record as a whole, the ALJ reasonably concluded that Plaintiff could perform
a limited range of medium work. (Def.’s Mem. at 16-17; R.16-18.)

Initially, the Court finds that the medical evidence in the case, some of it after May, 1998,
establishes inter alia that Plaintiff suffers from severe lower back and leg pain (and sarcoidosis)
which is substantiated by the following objective medical evidence: (1) a December, 1999 MRI of
Plaintiffs lumbar spine which shows she has bilateral spondylolysis of the neural arch of LS, facet
arthropathy (joint disease) at the lumbosacral junction, and anterior Grade I spondylolisthesis of L5
on $1 (R.183); (2) an X-ray evaluation of Plaintiff's lumbar spine indicating a marked narrowing of
the L5-S1 vertebral disc spaces and a deficit in the left side of LS-S1, with Grade I spondylolisthesis
(R. 128); (3) limited range of motion with respect to Plaintiff's ability to bend (limited to 140
degrees due to back pain) (R. 128, 129); (4) a neurologic examination by Dr. Suvanich showing loss
of sensation to touch and pinprick on Plaintiff’s left calf area along the sciatic nerve up to the L5-S1

level of her lumbosacral spine (R. 133); (5) a diagnosis by Dr. Suvanich indicating Plaintiff has

*The ALJ’s opinion actually states that Plaintiff demonstrated good range of motion
during the May, 1998 exam, except for bending beyond 140 degrees due to back pain. (R. 17.)

The ALJ further stated that during the consultative examination (in July, 1998), there was
no limitation of motion of Plaintiff’s lumbar spine, but there was some limitation of motion of
flexion and extension. (R. 17.)

21


inability to sustain employment due to the fact that she was frequently absent or needed to leave early
due to back pain, her need to frequently shift between standing and sitting positions, her inability to
bend at the waist, her allegation regarding the fact that she spits up mucus frequently throughout the
day, experiences difficulty breathing due to sarcoidosis and frequent respiratory infections, her need
to take frequent baths to relieve her pain, her allegation that she is never able to totally relieve her
pain, and her inability to lift more than five pounds. (R.196, 207, 217, 219, 220, 221-22.) According,
the Court finds that the ALJ erred by failing to address specific testimony and articulating her
reasons for either accepting or rejecting Plaintiff's testimony.” See e.g., Brindisi, 315 F.3d at 787;
SSR 96-7p.

Next, with respect to the ALJ’s credibility finding of Plaintiff, the Court notes the ALJ made

a number of errors.*° First, in reference to Plaintiff’s sarcoidosis, the ALJ stated that “Her doctors

Defendant argues that an ALJ’s credibility finding will not be reversed merely because
the ALJ did not “specify which statements were incredible” or because the ALJ “did {] not
provide an evidentiary basis for the credibility finding.” Jens v. Barnhart, 347 F.3d 209, 213 (7"
Cir. 2003). (Def.’s Mem. at 8-9.) In Jens, the Seventh Circuit found that these types of omissions
did not demonstrate that the ALJ’s credibility finding was not supported by substantial evidence
because the record as a whole provided adequate support for the ALJ’s credibility finding. Jd.

The Court, however, finds Defendant’s argument unavailing, because as discussed in the
first section of this opinion, the ALJ erred by ignoring or failing to address specific relevant
objective medical evidence, Accordingly, unlike Jens, the ALJ’s credibility finding cannot be
upheld because the evidentiary record (i.c., specific medical findings and assessments of severe
back and leg pain and sarcoidosis) as a whole does not support such a finding. Rather, Plaintiff's
subjective complaints of severe pain and physical limitations have support in the record.

*The Court notes that the ALJ found that Plaintiff had a “generally unpersuasive
demeanor while testifying at the hearing.” See e.g., Jens v. Barnhart, 347 F.3d 209, 213 (7" Cir.
2003)(quoting Powers v. Apfel, 207 F.3d 431, 435 (7" Cir. 2000) (“because hearing officers are
in the best position to see and hear the witnesses and assess their forthrightness, we afford their
credibility determination special deference. We will reverse an ALJ’s credibility determination
only if the claimant can show it was patently wrong.”) Thus, while the Court recognizes that the
ALJ’s credibility determination should be given deference, herein, there are numerous factual
errors contained in the ALJ’s written decision with respect to Plaintiff's credibility.

27


on [her] back.” (R. 196.) Plaintiff took each job assuming that she was going to work for long
periods of time, but due to her back problems, she found herself calling in often or not going into
work at the scheduled time because her back hurt to the point where she could not stand. (R. 196.)
She testified she thought she could do a job where she could alternate between standing up and
sitting down, but she was unable to do even these types of jobs because her back pain was getting
progressively worse, and when she alternated between standing up and sitting down, she found that
“the pressure [was] still on [her] back. [H]er leg [also} [became] numb and it [got] real
uncomfortable to sit or stand.” (R. 196.)

Plaintiff stated she frequently went to either the emergency room or hospital for medical
treatment. (R.198, 203.) For instance, Plaintiff was last treated in the hospital, in December of 2000,
when she was admitted after an emergency room visit for back pain and muscle spasms in her leg.
(R.198.) During her hospitalization, Plaintiff testified that she underwent several tests which also
revealed she had pneumonia, high blood pressure and her lung disease was out of control. (R. 198.)

Plaintiff testified that her orthopedist, Dr. Smith, who worked at Mercy Hospital and Medical
Center, advised her to quit her job because her back was not going to get any better. (R. 201.) She
also indicated that Dr. Smith had given her a back brace to wear. (R. 201.) Plaintiff testified she
would wear the back brace most of the day for support, however, it did not relieve her back pain once
it had begun. (R. 202.) She indicated, however, that the only thing that cased her back pain were hot
baths. (R. 202.)

Plaintiff stated she experienced extreme pain in her lower back, particularly on the left side,
“as if something is rubbing and pressing up against a nerve.” (R. 204.) She indicated that this pain

also caused trembling and numbness in her legs. (R. 204.) Plaintiff testified she had muscle spasms



to determine if there was any enlargement of the lesion. (R. 164.)

On November 15, 1999, Plaintiff was once again treated for back pain.”! (R. 176-77.)

On December 3, 1999, Plaintiff sought treatment at Mercy Hospital and Medical Center for
chest pain. (R. 175.) A chest X-ray examination, at the time, showed an interval development of
diffuse interstitial infiltrates in both lungs, as well as hilar and right paratracheal (adjacent to the
trachea) adenopathy,” which is consistent with a clinical history of sarcoidosis. (R. 184.)

On December 10, 1999, Plaintiff was evaluated and it was noted that her symptoms were
consistent with sarcoidosis. (R. 173.) Plaintiff was prescribed Prednisone and Flonase. (R. 173.)

On December 13, 1999, Plaintiff sought treatment for sarcoidosis? (R. 170-71.)

On December 30, 1999, Plaintiff underwent an MRI of her lumbar spine. (R. 183.) The
results of the MRI showed bilateral spondylolysis of the neural arch of L5, facet arthropathy (joint
disease) at the lumbosacral junction, and anterior Grade I spondylolisthesis of LS on $1. (R. 183.)
Moreover, the axial images suggested “a mild spinal canal stenosis at L5/S1 primarily from the
forward subluxation of segment of the lumbosacral junction.” (R. 183.)

On January 3, 2000, Plaintiff failed to keep her medical appointment. (R. 168.)

On January 7, 2000, Plaintiff was seen for a follow-up examination and reported that she had
been hospitalized from December 23, 1999 to December 24, 1999 for chest pain and, during her

hospitalization, she was diagnosed with high blood pressure. (R.168.) Plaintiff further indicated she

"The treatment notes from this visit, however, are illegible. (R. 176-77 )

A denopathy involves the enlargement of the glands, in particular, the lymphatic glands.
Dorland’s, at 28.

The treatment notes from this visit, however, are illegible. (R. 170-71.)

14


past work. (R. 225.) Mr. Mendrick stated that such an individual could do all of Plaintiffs past
work except for the unloader job because it would require more than frequent stooping. (R. 225.)
When asked by the ALJ if there were other jobs that an individual with the stated limitations and
restrictions could perform, Mr. Mendrick testified that such an individual could also perform work
as an inspector at the medium exertional level (2,000 jobs), usher at the light exertional level (4,000
jobs), and information clerk at the light exertional level (4,000 jobs) located in the Chicago
metropolitan area (plus Lake and Porter Counties in Indiana). (R. 225-26.) Moreover, when asked
if the hypothetical person were only capable of performing light work with the same stated non-
exertional limitations, Mr. Mendrick indicated that such an individual could also perform work as
a general assembler (10,000 jobs). (R. 226-27.) However, if the hypothetical person had an additional
limitation of sitting and standing about every forty-five minutes, Mr. Mendrick testified that the
inspector (i.e., cashier and mail sorter), usher, information clerks and general assembler jobs would
be available; however, the general assembler jobs would be reduced by 5,000 jobs. (R. 226, 227.)

When asked by the ALJ if there were any jobs Plaintiff could perform, if her statements
regarding her restrictions and limitations were accurate in all respects, Mr. Mendrick stated that,
“{t]he [claimant] describes a person who isn’t available for work on any consistent basis.” (R. 227.)
Moreover, Mr. Mendrick testified, based on the types of jobs he had quoted, Plaintiff would be
unable to sustain any of these jobs, if she were absent more than two days per month due to illness.
(R. 228.) Mr. Mendrick further stated that, if as Plaintiff had testified, she would be away from her
job task several times a day because of an inability to concentrate due to extreme pain, that would
also prevent her from sustaining work. (R. 228.) Mr. Mendrick also testified that if Plaintiff could

sit for forty-five minutes, but would then need to stand up, walk around, and perhaps lie down in

16



request for an administrative hearing and, on February 27, 2001, Plaintiff appeared with counsel and
testified at a hearing before an Administrative Law Judge (“ALJ”). (R. 39, 192-223.) A vocational
expert also testified at the administrative hearing. (R. 223-30.)

On March 28, 2001, the ALJ issued her decision finding that Plaintiff was not disabled. (R.
15-21.) Plaintiff then filed a request for review of the ALJ’s decision, and, on January 31, 2003, the
Appeals Council denied Plaintiff's request for review making the ALJ’s decision the final decision
of the Commissioner. (R. 5-6, 8-11.) Pursuant to 42 U.S.C. § 405(g), Plaintiff initiated this civil
action for judicial review of the Commissioner’s final decision.

BACKGROUND FACTS
I. PLAINTIFF’S BACKGROUND/TESTIMONY

Plaintiff was born on January 12, 1965, and was thirty-six years old at the time of the
administrative hearing. (R. 20.)

At the hearing, Plaintiff testified that she lived in subsidized housing with her three children
and boyfriend. (R. 193-94.) She stated she had attended an alternative high schoo} and completed
approximately the eleventh grade. (R. 195.) Plaintiff testified she had worked at several jobs in the

past,” but she had not held any of them for any length of time because the jobs were “too strenuous

?Plaintiff last worked as a cashier in December of 2000 for only three days due to her
back pain. (R. 196-97.) Prior to that time, in February or March of 2000, Plaintiff worked as a
receptionist for a week and a half, but left the job. because she constantly needed to “move
around” when she was supposed to be sitting and answering the telephone. (R. 197.) The
receptionist job also required that Plaintiff lift bags of frozen foods which she stated were “real
painful.” (R. 197.)

In March of 1999, Plaintiff indicated on her Work History Report that she had worked as
a sales clerk, waitress, hostess, cashier, mail and fax deliver, and unloader. (R. 98.)


I. THE ALJ ERRED IN HER CREDIBILITY DETERMINATION AS TO PLAINTIFF.

Plaintiff asserts that the ALJ’s credibility determination is insufficient as a matter of law and

finding, indicating she had limited flexion and extension of her lumbar spine. (PI.’s Mem. at 14-
15; Pl.’s Reply at 10.) Defendant, however, avers that substantial evidence supports the ALJ’s
decision because two state agency physicians (i.c., Dr. Boyd McCracken and Dr. E.C. Bone)
opined, that although Plaintiff's decreased range of lumbar motion would not accommodate
frequent bending, she would still be capable of occasionally stooping. (Def.’s Mem. at 16, R.
139.)

The Court agrees with Plaintiff and finds that the case cited by Plaintiff, Golembiewski v.
Barnhart, 322 F.3d 912 (7" Cir. 2003), is directly on point. In Golembiewski, the Seventh
Circuit inter alia remanded the cause for further consideration because:

[T]he ALJ’s decision contains no discussion of Golembiewski’s limited ability to
bend on account of his bad back. After an examination in August 1997, Dr.
Schroeder reported that Golembiewski could rotate his neck only 60 degrees and that
motion in his lower back was reduced to 40 degrees of flexion, 15 degrees of
extension, and 10 degrees of tilting. In contrast, Dr. Davis opined in his July 1999
report for the State of Indiana that Golembiewski could “stoop occasionally,”
meaning that he could bend at the waist for up to a third of an eight-hour day. See
SSR 83-14. The reports of Dr. Schroeder.and Dr. Davis thus establish potentially
conflicting assessments of Golembiewski’s bending ability. Yet despite this
obligation to resolve such conflicts, e.g., Scott, 297 F.3d at 596; see also Godbey v.
Apfel, 238 F.3d 803, 808 (7 Cir. 2000), the ALJ did not address either doctor’s
assessment-a significant omission since Golembiewski would have to bend at the
waist occasionally in order to perform light work, SSR 83-10, see Lauer v. Apfel, 169
F.3d 489, 492 (7" Cir. 1999). 322 F.3d at 917.

Accordingly, the ALJ erred in not resolving the potential conflict between Dr. Suvanich’s
(consultative examiner) medical assessment that Plaintiff had limited flexion and extension of
her lumbar spine (0 to 30 degrees) and Dr. McCracken’s and Dr. Bone’s (state agency reviewing
physicians) medical assessments that Plaintiff could occasionally stoop. (R. 133, 136, 139.)
Moreover, it bears noting that Dr. McCracken and Dr. Bone did not examine Plaintiff; rather,
they merely reviewed Plaintiff's medical record. See e.g., 20 C.F.R. § 416.927(d)(1)(more
weight is given to the opinion of a physician who has examined the claimant than one who did
not examine the claimant); Allen v. Weinberger, 552 F.2d 781, 786 (7" Cir. 1977)(regarding the
conclusions of the physicians who merely reviewed the plaintiff's medical file and performed no
examinations, the court noted, “. . . the weight to be attached to the reports must be considered in
light of the fact that neither physician examined. the plaintiff... Their reports, without personal
examination of the claimant, deserve little weight in the overall evaluation of disability. The
(medical) advisers’ assessment of what other doctors find is hardly a basis for competent
evaluation.” 552 F.2d at 786. (Parenthetically, the Court notes that the ALJ never mentions Dr.
McCracken’s and Dr. Bone’s medical assessments in the body of her decision, but basis her RFC
finding, in part, on their assessments.)

25


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

EASTERN DIVISION OF 5
) JA “HET
N
CAPRISE MANNEY, ) 16 2094
)
Plaintiff, )
) Case No. 03 C 1780
v. )
: ) District Judge Joan B. Gottschall
JO ANNE B. BARNHART, ) Magistrate Judge Ian H. Levin
Commissioner of the Social Security )
Administration, )
)
Defendant. )

REPORT AND RECOMMENDATION

Plaintiff Caprise Manney (hereinafter “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 denying her application for Social Security Income (hereinafter “SSI”) benefits under
Title XVI of 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 recommends that the
cause be remanded for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On November 20, 1998, Plaintiff applied for SSI benefits alleging inter alia that she became
disabled due to back impairments and a lung disease.! (R. 30-36, 65-67.) Plaintiff's application for
benefits was initially denied on August 27, 1999. (R. 30-33.) Subsequently, on October 29, 1999,

Plaintiff's request for reconsideration was also denied. (R. 34-38.) Plaintiff then filed a timely

"References are to the certified administrative record prepared by the Commissioner and

filed with this Court pursuant to 42 U.S.C. § 405(g).



supra, there are a number of objective medical diagnoses and assessments (including bilateral
bilateral spondylolysis, nerve and joint disease, a limited range of motion, and severe lower back and
leg pain) which could substantiate Plaintiff’s subjective complaints of severe pain and limitations.
Therefore, the ALJ fails to explain in what manner this evidence fails to support Plaintiff's testimony
regarding her severe lower back and leg pain. See e.g., Scivally, 966 F.2d at 1077 (holding that the
ALJ’s dismissal of the claimant’s complaints of pain as not being supported by clinical signs and
findings was unsustainable because at no point did the ALJ or the Appeals Council find that the
claimant’s severe impairment entailing a severe degenerative alteration of the spine, could not be
reasonably expected to produce pain).

Therefore, for the aforesaid reasons, the. Court finds the ALJ erred in her credibility
determination by finding that Plaintiff was not credible. Accordingly, a remand on this issue is
warranted.

iil. THE ALJ SHOULD HAVE OBTAINED A REVIEW FROM A MEDICAL
EXPERT(S).

The procedure for adjudicating a social security disability insurance benefits claim differs
significantly from the adversarial model. Green y. 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.”) In Green, inter alia “[t}he 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

33


have stated she is asymptomatic for this impairment and there is no reason for her not to return to
work. This statement was noted in the claimant’s treatment records when she was consistently
calling her doctors, not because of pain or symptoms, but because she wanted them to complete
forms for public aid stating she was unable to return to work.” (R. 18.) The record, however,
demonstrates that Plaintiff only called her physician on two different days, September 15, 1999 and
September 16, 1999, regarding public aid forms. (R.158-59.) Considering the Plaintiff's entire
medical record in context, and that these are the only two documented telephone calls indicating that
Plaintiff contacted her physician regarding public aid forms, the ALJ’s finding with regard to this
issue is erroneous and based on an inference not supported by the record. See e.g., Herron, 19 F.3d
at 335-36 (an ALJ’s credibility finding will be overturned when it is based on unreasonable
inferences and inferences not supported by the record).

In her decision, when referring to Plaintiffs lack of compliance with her physicians’
recommendations regarding Plaintiff's back brace. and medications, the ALJ makes erroneous
statements and findings that are not supported by the record. For example, with regard to Plaintiff's
back brace, the ALI states that “(Plaintiff] has been given a back brace, which she admits to not
wearing frequently, and she did not have it on during the hearing.” (R. 18.) Plaintiff, however,
testified that she would wear her back brace most of the day, but she did not leave it on all day
because “sometimes it bec{ame] hot and uncomfortable because it has metal plates at the back of it.

And it does not help. Once the pain starts, it does not help relieve [it].”*' (R. 202.) Moreover,

3\Plaintiff testified as follows when questioned by the ALJ regarding her back brace:

Q. Do you wear it [back brace]?
A. Yes, Ido.
Q. How often do you wear it?
(continued...)

28


(R.137-44.) Dr. McCracken opined that Plaintiff could lift fifty pounds occasionally and twenty-five
pounds frequently, stand and walk for about six hours in an eight hour workday, sit for about six
hours in an eight hour workday, and had unlimited pushing and pulling abilities. (R. 138.) Moreover,
Dr. McCracken indicated that Plaintiff could climb, balance, kneel, crouch and crawl without
limitation, but she could stoop only occasionally because the reduced range of motion in her back
“may prevent more than occasional stooping.” (R. 139.) Dr. E.C. Bone, a state agency physician,
subsequently concurred in Dr. McCracken’s assessment of Plaintiff. (R. 144.)

On August 30, 1999, Plaintiff was treated by physicians at Palatine Internal Medicine for
pneumonia and flu-like symptoms. (R. 156.) At that time, it was noted that Plaintiff needed to
undergo a mediastinoscopy"* to rule out sarcoidosis’ or lymphoma" because an abnormal chest X-
ray examination revealed enlarged lymph nodes in the area of her mediastinum.'* (R. 146, 156.) A

CT scan, at the time, was done which showed the presence of lesions concentrated in Plaintiff's

‘SMediastinoscopy is “the direct visual examination of the area of the chest between the
two lungs (the mediastinum) through a viewing tube (mediastinoscope). The mediastinum
contains the heart, trachea, esophagus, thymus, and lymph nodes.” Merck Manual, at 163.

'8Sarcoidosis is a “disease in which abnormal collections of inflammatory cells
(granulomas) form in many organs in the body . .. Granulomas commonly appear in the lymph
nodes, lungs, liver, eyes, and skin... The symptoms of sarcoidosis vary according to the site and
extent of the disease. Fever, weight loss, and aching joints may be the first indications of a
problem .. . The organ most affected by sarcoidosis is the lung. Enlarged lymph nodes at the
place where the lungs meet the heart or to the right of the trachea may be seen on a chest x-ray.
Sarcoidosis produces inflammation in the lungs that may eventually lead to scarring and cyst
formation, which can cause coughing and shortness of breath. Severe lung disease can eventually
weaken the heart.” Merck Manual, at 192-93.

Lymphoma is a cancer (malignancy) of.the lymphatic system. Merck Manual, at 770.

'8The mediastinum contains the heart, trachea, esophagus, thymus, and lymph nodes.
Merck Manual, at 163.

12


had had a constant headache for two weeks; however, she denied having chest pain or shortness of
breath at the time of her follow-up examination. (R.168.) Upon examination, Plaintiffs blood
pressure was 135/70 and she had mild crackles in her right lung, (R.169.) Her neurological
examination indicated her strength was normal, but she had difficulty with heal-to-toe walking. (R.
169.) Plaintiff was prescribed Atrovent for her cold and headache symptoms and it was noted that
her medication for sarcoidosis (Prednisone) was to be reduced. (R. 169.) Moreover, treatment notes
from that date indicate that Plaintiff was advised to decrease her fast food and salt intake because
she had gained weight. (R. 168.)

On January 27, 2000, a pulmonary function report indicated that Plaintiff has a mild
obstructive ventilatory lung defect. (R. 182.)

On April 17, 2000, Plaintiff failed to keep her medical appointment. (R. 167.)

Ill. VOCATIONAL EXPERT’S TESTIMONY

Mr. Frank Mendrick, a vocational expert, testified at the administrative hearing on February
27, 2001. (R. 224-29.) At the hearing, the ALJ first asked Mr. Mendrick to classify Plaintiff's
previous work. (R. 224.) In response, Mr. Mendrick testified that Plaintiff’s previous jobs (i.e.,
cashier, waitress, hostess, sales clerk, mail sorter, and unloader) ranged in skill level from unskilled
to semi-skilled work and entailed light to medium exertional levels. (R. 224-25.)

The ALJ next asked Mr. Mendrick to assume a hypothetical person of Plaintiff's age (35
years old), educational level, and past work expefience. (R. 225.) The ALJ asked Mr. Mendrick if
a hypothetical person with Plaintiff's exertional limitations who could sit, stand and walk for six
hours, lift and carry up to twenty-five pounds frequently and fifty pounds occasionally, stoop

occasionally, and avoid concentrated exposure to.dust, odors, fumes and gases could perform her

15