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icaamne TNT Tee anemia pe

Brief at 12-13. In support of her argument, Ms. Scheer cites excerpts from 1A Roscoe N. Gray, M.D.,
Attorney Textbook of Medicine, § 4.72. However, as stated in Gray's, epicondylitis (i.., tennis elbow) is
caused by “too frequent repetition of intensive muscular activity involving strong hand grasps or
dorsiflexion (backward bending) of the wrist.” Plaintiffs Brief at 12, citing Gray’s, § 4.72 (emphasis
added). Thus, according to Gray ‘s, epicondylitis is caused by intense, strong gripping or intense, strong
wrist dorsiflexion. Such activities are not involved in typing. Typing requires fingering, not gripping or
grasping. And typing involves mainly wrist extension (bending the wrist downward) or holding the wrist

straight out, not intense, strong backward bending as is required with a tennis backhand (hence the term

“tennis elbow”). In short, typing primarily involves the fingers, with some added mild wrist use, but does
not involve the type of strong, intense pull that is Tequired to cause epicondylitis. See Gray, supra.

Importantly, Gray corroborated Dr. Newman’s testimony. Dr. Newman testified that typing
would not cause either (1) epicondylitis or (2) ulnar neuropathy (Tr. 279, 286-288). He explained that
medial epicondylitis involved the flexor muscles, which were much stronger than the extensor muscles of
the arm, and that in order to damage or impact the strong flexor muscles, the individual needed to engage
in strenuous activity (Tr. 286, 288). Dr. Newman explained that typing was not strenuous enough to
cause medial epicondylitis (Tr. 286, 288). Dr. Newman further explained that typing did not impact the
ulnar nerve and, hence could not cause ulnar neuropathy (Tr. 287).

With regard to the ulnar neuropathy, Ms. Scheer cites a portion of Grays which states that “Tt}he
nerve may be injured by occupational activities.” Plaintiffs Brief at 14. This is true. However, Ms.
Scheer does not identify what kind of occupational activities could cause the problem. Dr. Newman
testified that typing is not the kind of occupational activity that would cause ulnar neuropathy (Tr. 287).

Indeed, he stated that “[t]yping has nothing to do with” the ulnar nerve (Tr. 287). There is no evidence to

13


1998, Ms. Scheer had a followup visit with Dr. Chand. Ms. Scheer continued to complain of pain
occasionary in her Left arm. (Tr. 192).

In September 1998, Ms. Scheer saw Dr. Hamilton, a consultative examiner, at the request of the Bureau
of Disability Determination Services (Tr. 193). Ms. Scheer told Dr. Hamilton that she could sit for
twenty minutes, walk one or two blocks and lift ten-to-twenty pounds (Tr. 194). She lived by herself, and
cooked, cleaned, and did the laundry (Tr. 194). On examination, Ms. Scheer had minimally decreased
ranges of shoulder motion (1400 out of a possible 1500), and limited ranges of knee motion (Tr. 195,
198). She was able to make a fist, had normal grip strength, and had normal fine manipulation and gross
dexterity (Tr. 195-96). Ms. Scheer was able to heel and toe walk, and tandem walk (Tr. 196). There was
no evidence of sensory or reflex loss (Tr. 196). Dr. Hamilton diagnosed arthralgias in the shoulders and
knees, and found that “the claimant’s complaints outweigh her physical findings” (Tr. 197).

In October 1998, Dr. Free reviewed the record, and opined that Ms. Scheer could lift up to twenty
pounds; sit, stand and walk for six hours each per workday; occasionally crawl, crouch, kneel, stoop, and
climb ladders and ropes; but never climb scaffolds (Tr. 202-03). She also had a limited ability to reach
(Tr. 204).

In March 1999, Dr. Chand reported that Ms. Scheer had a limited range of motion in both

shoulders, and a limited ability to lift (Tr. 212). He stated that “she should be on disability” (Tr. 212). Dr.
Chand stated that “the Department of Public Aid approved her status and she is on public assistance
because she is unable to perform the duties of her occupation” (Tr. 213). Ms Scheer returned to see Dr.
Chand in September 1999, she had a full range of shoulder motion, but tenderness over the left elbow and
decreased sensation in the ulnar nerve (Tr. 211). Dr. Chand diagnosed Ms Scheer with epicondylitis and

prescribed Relafen.


While it is undisputed that Ms. Scheer has a history or persistent joint pain, swelling, and
tenderness involving multiple major joints it is also undisputed that the objective medical evidence
required to corroborate the degree of severity of this condition is absent from the record. Dr. Newman, a
consultative examiner, testified that there were some degenerative changes in Scheer’s left knee, and
some“minor” degenerative changes in her left shoulder, but there was “not anything significant func-
tionally to indicate the degree [of arthritis] or anything to compare with her complaints” (Tr. 285). Dr.
Newman opined that Ms. Scheer could perform light work (Tr.280). Likewise, Dr. Hamilton, who
examined Ms. Scheer, concluded that “the claimant’s complaints outweigh her physical findings” (Tr.
197) and that Ms. Scheer had minimally decreased ranges of shoulder motion (140: out of a possible
150-), and limited ranges of knee motion (Tr. 195, 198). Dr. Free, who reviewed the record only, found
that Ms. Scheer could lift up to twenty pounds; sit, stand and walk for six hours each per workday;
occasionally crawl, crouch, kneel, stoop, and climb ladders and ropes; but had a limited ability to reach
(Tr. 202-04). In addition, Dr. Villaflor reviewed the record and opined that Ms. Scheer could sit, stand
and walk for six hours each per day and lift up to fifty pounds, but could not lift more than twenty-five
pounds to a level higher than her hips (Tr. 118). He also concluded that Ms. Scheer had a limited ability
to reach, and could only occasionally crawl and climb ladders (Tr. 1 19~20).! There is no documented
presence of antinuclear antibodies, elevated sedimentation rate, subcontanous nodules, gross anatomical
deformities, or x-ray evidence of significant space narrowing or bone destruction.

Relying on Carver v. Harris, 634 F.2d 363 (7th Cir. 1980), Ms. Scheer argues that the opinion of a
treating physician is “entitled to greater weight than those of state agency physicians who had never

examined the Claimant.” Memorandum Brief (Plaintiffs Brief) at 11. However, Carver is a long-outdated

"The ALJ disregarded Dr. Villaflor's testimony in reaching
her decision.


enough to cause medial epicondylitis (Tr. 288). Dr. Newman also explained that typing did not impact
the ulnar nerve and, hence, could not cause ulnar neuropathy (Tr. 287). Dr. Newman opined that Ms.
Scheer could perform light work (Tr. 280). Dr. Komie, the vocational expert, classified Ms. Scheer’s past

work as a medical transcriber as sedentary (Tr. 291).

ARGUMENT.

This court’s review is limited to determining whether the Secretary’s final decision “is both
supported by substantial evidence and based on the proper legal criteria.” Erhart v. Secretary of Health &
Human Servs., 969 F. 2d 534, 538 (7" Cir. 1992). Substantial Evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971). In reviewing the Secretary’s final decision, the court may not reweigh the evidence or
reconsider credibility determinations made by the ALJ. Herr y. Sullivan, 912 F. 2d 178, 180 (7" Cir.
1990). Thus, “the critical question here is not whether the claimant is actually disabled, but rather
whether substantial evidence supports the ALJ’s conclusion that the claimant is not disabled. Marco v.
Apfel, No. 97 C. 6824, 1999 WL 311695, at *4 (N.D. IH. May 13, 1999). If reasonable minds could
disagree as to whether an individual is disabled, a court must affirm the Secretary’s decision. Books v.
Chater, 91 F. 3d 972, 978 (7" Cir. 1996).

The Social security Act authorizes disability benefits for those who are unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
To determine whether an adult claimant is disabled under the Act, the ALJ must address the following
questions in sequential order:

(1) Is the claimant presently unemployed?
P y
(2) Is the claimant’s impairment or combination of impairments severe?

6


Testimony

During the September 7, 1999 hearing, Ms. Scheer complained of arm, shoulder and knee pain (Tr.
263). Her arms hurt in a specific area, located on the inside of her arm, above her elbow, but below her
armpit (Tr. 263-64). She stated that both of her shoulders hurt, but that they hurt more at night than they
did during the day, and that her right shoulder hurt more than her left shoulder during the night (Tr. 264-
65). She stated that her job involved mostly typing, but that she sometimes lifted files that were quite
heavy (Tr. 244, 269). However, she stated that she did not have to file more than two hours a day, and
usually lifted only cassette tapes (Tr. 269, 290). She had elbow pain prior to August 2, 1997, but had no
trouble working despite the condition (Tr. 246, 260). She stated that she left her job on August 2, 1997
because she was involved in a bus accident in which she fractured her ribs, injured her knees and hurt her
left arm (Tr. 247). Ms. Scheer stated that Dr. Chand told her she should not lift more than ten pounds or
type (Tr. 248). Ms. Scheer estimated that she could walk for fifteen or twenty minutes, and stand for a
few minutes (Tr. 251). She did not have any trouble sitting (Tr. 251).

Dr. Newman, the medical expert, suspected Ms. Scheer had arthritis, but was not certain because
no blood tests were performed to confirm the diagnosis (Tr. 276, 28 1-82, 284). He also noted that there
were no clinical exam findings such as swelling and inflammation that are normally present in cases of ;
significant arthritis (Tr. 284-85). He stated that there were some degenerative changes in the left knee,
and some “minor” degenerative changes in the left shoulder, but there was “not anything significant
repeatedly stated that typing would not cause epicondylitis or ulnar neuropathy (Tr. 279, 287). He stated
that medial epicondylitis involved the flexor muscles, which were much stronger than the extensor
muscles of the arm, and that in order to damage or impact the strong flexor muscles, the individual

needed to engage in strenuous activity (Tr. 288). Dr. Newman explained that typing was not strenuous


There are three categories of impairments of the musculoskeletal system that the Secretary has
listed as conclusively disabling: (1) Active rheumatoid arthritis and other inflammatory arthritis; arthritis
of a major weight-bearing joint and arthritis of one major joint in each of the upper extremities (due to
any cause). In order to qualify as having “active rheumatoid arthritis and other inflammatory arthritis”
under section 1.02, a claimant must show, among other things, a [h]istory of persistent joint pain,
swelling tenderness involving multiple major joints (see 1.00D) and with signs of joint inflammation
(swelling and tenderness) on current physical examination despite prescribed therapy for at least three
months, resulting in significant restriction of function of the affected joints, and clinical activity expected
to last at least 12 months; and corroboration of the diagnosis at some point in time by either positive
serologic test for rheumatoid factor or antinuclear antibodies; or elevated sedimentation rate; or
characteristic histologic changes in biopsy of synovial membrane or subcutaneous nodule (obtained
independent of Social Security disability evaluation). See 20 C.F.R. Pt, 404, Subpt. P., App. 1 §102. The
arthritis of one major joint in the each of the upper extremities (due to any cause) requires abduction and
forward flexion (elevation) of both arms at the shoulders, including scapular motion, restricted to less
than 90 degrees; or gross anatomical deformity (e.g. subluxation, contracture, bony or fibrous ankylosis,
instability or effusion of the affected joints). A history of persistent joint pain and stiffness with signs of
marked limitation of motion or abnormal motion of the affected joints on current gross physical
examination is also required. See 20 C-F.R. Pt. 404, Subpt. P., App. 1 § 1.04.

With regard to Scheer’s alleged epicondylitis condition Section 1.13 require[s] a series of staged
surgical procedures within 12 months after onset for salvage and/or restoration of major function of the
extremity, and such major function was not restored or expected to be restored within 12 months after
onset. See 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 1.13. The Court addresses Ms. Scheer’s arthritic

condition first.


Minute Order Form (06/97)

United States District Court, Northern District of Minois

ive

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Ronald A. Guzman than Assigned Judge
CASE NUMBER 00 C 6478 DATE 9/27/2001
CASE JOY SCHEER vs. LARRY G. MASSANARI
TITLE
{In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3d party plaintiff, and (®) state briefly thenature
MOTION: of the motion being presented,]
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due o
(4) a Ruling/Hearing on __ set for at
(5) ao Status hearing[held/continued to] [set for/re-set for] on set for at
(6) im} Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) im Trial[set for/re-set for] on _ at
(8) Qa [Bench/Jury trial) [Hearing] held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) General Rule21 COFRCP41(a)(1) CO FRCP4i(a)(2).
(0) «ox {Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Plaintiff Joy Scheer’s
motion for summary judgment [7-1] is denied. This case is hereby terminated.
(1) of [For further detail see order attached to the original minute order,]

No notices required, advised in open court.

No notices required.

number of notices

Notices mailed by judge’s staff.

oY | Docketing to mail notices.

wv | Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

TBK

Date/time received in
central Clerk’s Office

Notified counsel by telephone. SEP

28 200

date docketed

docketing doputy initials

date mailed notice

mailing deputy initials



dexterous movements (Tr. 113-14). Moreover, both Dr. Knott and Dr. Hamilton found that there was no :
evidence of reflex, motor or sensory loss (Tr. 113-14, 196). And, Ms. Scheer told Dr. Knott that her knee ——
problem had resolved (Tr. 111). Thus, the opinions of Drs. Newman, Hamilton, Free and Villaflor were
supported by the record. As such, the opinions of these physicians could be given significant weight. 20

C.F.R. §§ 404.1527d), (f), 416.927(d), (f}); SSRs 96-2p; 96-Sp; 96-6p; Limberopoulos v. Shalala, 17 F.3d

975, 978 (7th Cir. 1994).

Ms. Scheer argues that the ALJ should have given the most weight to the opinion of Dr. Chand,
her treating physician. Plaintiffs Brief at 14. Dr. Chand opined that Ms. Scheer “should be on disability”
(Tr. 212). However, this opinion did not identify any of Ms. Scheer’s abilities or limitations. Dr. Chand
noted that Ms. Scheer had a limited range of shoulder motion, and would have difficulty lifting weights
(Tr. 212). However, Dr. Chand did not indicate whether the limited range of shoulder motion caused any
functional restrictions. In addition, Dr. Chand did not specify how much weight Ms. Scheer could lift (Tr.
212). To be sure the computerized mechanical isometric muscle test revealed inconsistent effort during
adduction and external rotation of Ms. Scheer’s left shoulder but this test is unclear as to the significance
of such. Thus, Dr. Chand’s opinion that Ms. Scheer should be on disability is not supported by any
objective medical evidence and provides little useful information. Moreover, the ALJ imposed a ten-
pound lifting limitation, and found that Ms. Scheer could not engage in repetitive, overhead lifting or
teaching (Tr. 24). These restrictions accommodated Ms. Scheer’s problems with lifting and shoulder
movement, and were consistent with the opinion of Dr. Newman, and the detailed opinions of Drs. Free

and Villaflor.

Furthermore, there is substantial evidence in the record that Ms. Scheer’s elbow condition does

not qualify under section 1.13 soft tissue injuries of an upper or lower extremity. Ms. Scheer claims that

11



case, and her reliance on it is misplaced. Carver significantly predates the regulations and Social Security

Rulings concerning the weight to be given to physician opinions. See 20 C.F.R. §§ 404.1527 et. sec.,

416.927 et seq.; Social Security Ruling (SSR) 96-2p; SSR 96-Sp; SSR 96-6p. The current regulations,
published in 1991, and amended in 1997, provide that the agency will consider all physician opinions of

record, and that the weight to be accorded any particular opinion depends on a variety of factors set forth

at 20 C-F.R. §§ 404.1527(d)-(f). Jd. The Social Security Rulings, published in 1996, further explain the

regulations. Pursuant to the regulations and Rulings, a physician’s opinion, including that of a non-
examining physician, may be entitled to significant weight if it is supported by the medical evidence and
is consistent with the other evidence of record. 20 C.F.R. §§ 404.1527(d), (), 416.927(d), (); SSR’s 96-
2p; 96-Sp; 96-6p.

In the instant case, Dr. Newman’s opinion was supported by the medical findings, and was
consistent with the statements and conclusions drawn by the other doctors. Specifically, as noted by Dr.
Newman, there were some degenerative changes in Ms. Scheer’s left knee, and some “minor”
degenerative changes in her left shoulder, but there was “not anything significant functionally to indicate
to the degree, anything to compare with her complaints” (Tr. 285). Dr. Hamilton, who thoroughly
examined Ms. Scheer, similarly concluded that “the claimant’s complaints outweigh her physical
findings” (Tr. 197). The conclusions drawn by Drs. Newman and Hamilton were supported by the exam
findings of record. Dr. Hamilton’s exam revealed that Ms. Scheer had a limited range of shoulder
motion, but she was able to make a fist, and had normal grip strength, normal fine manipulation and
normal gross dexterity (Tr. 195-96). Likewise, Dr. Knott examined Ms. Scheer, and found that she had a
limited range of shoulder motion, but normal motor function in all extremities (Tr. 113-14). She

performed fine and gross manipulation without difficulty, and was able to perform both skilled and

10


(3) Do his or her impairments meet or exceed any of the specific impairments listed in 20 C.F.R. Pt.

404, Subpt. P., App. 1 which the Secretary acknowledges to be conclusively disabling?

(4) If the impairment has not been listed by the Secretary as conclusively disabling, given the

claimant's residual functional capacity, is the claimant unable to perform his or her past relevant

On ‘the claimant unable to perform any other work in the national economy given his or her age,

education and work experience?
20 C.F.R. § 416 .920(a)(£); Young v. Secretary of Health & Human Servs., 957 F. 2d 386, 389 (7" Cir.
1992). “A negative conclusion at any step (except for step three) precludes a finding of disability.”
Young, 957 F. 2d at 389. “An affirmative answer at steps one, two or four leads to the next step. An
affirmative answer at steps three or five results ina finding of disability.” Jd. “[P]laintiff has the burden
of production and persuasion on steps one through four, and the burden shifts to SSA on step five to show
ability to engage in some other type of [word].” Terry v. Apfel, No. 97 C. 3369, 1998 WL. 704322, at *1
(N.D. IH. Sept. 24, 1998).

In Scheer’s case, the ALJ found that she was not presently employed (step one) and that she had at
least one severe impairment of arthritis (step two). However, the ALJ found that Scheer did not have an
impairment or combinations of impairments listed in or medically equal to one listed in 20 C.F.R. Pt.
404, Subpt. P., App. 1 (step three). Next the ALJ found that Scheer had a long relevant work history as a
medical transcriber (step four). Finally, the ALJ determined that Scheer had a residual functional
capacity (“RFC”) to perform a full range of sedentary work (step five), and found that due to her RFC,
age, education, and work experience, she was not disabled.

In Scheer’s case, the ALJ answered the inquiry at step three in the negative. Therefore, the Court
begins its analysis there. There is substantial evidence in the record to support the ALJ’s find that
Scheer’s conditions did not meet or exceed the specific impairments listed in 20 C.F.R. Pt. 404, Subpt. P,

App. 1. The Court addresses Scheer’s shoulder periarthritis condition and her chronic medial

epicondylitis condition.


some tenderness (Tr. 175). She stated that her pain was a level “three” at rest, and a level “five” after
work, on a scale of one-to-ten, where ten was the highest level of pain (Tr. 177). Occupational therapy,
including heat and exercise, was prescribed (Tr. 175, 177). At the end of May, Ms. Scheer had a limited
range of shoulder motion, with 60 pounds of grip strength in her right hand and 40 pounds of grip
strength in her left hand (Tr. 178).

In June 1998, Ms. Scheer had a limited range of left shoulder motion, and shoulder strength testing
revealed that Ms. Scheer’s right shoulder was stronger than her left shoulder (Tr. 189-90,216).
Ms. Scheer saw Dr. Knott at the request of the Illinois Bureau of Disability on July 8, 1998 (Tr. 111).
She told Dr. Knott that she started having left shoulder pain in May 1994, and that the pain was
aggravated by a bus accident in August 1997 (Tr. 111). She noted that she also injured her knee in the
bus accident, but stated that her knee problem had resolved (Tr. 11 1). On examination, Ms. Scheer had a
limited range of left shoulder motion, but normal ranges of motion elsewhere (Tr. 113, 115). She had
normal reflexes, sensation and motor function in all extremities (Tr. 113-14). She performed fine and
gross manipulation without difficulty, and was able to perform both skilled and dexterous movements
(Tr. 113-14). There was no evidence of muscle wasting (Tr. 113). A+1 crepitation was noted on the
Right knee joint (Tr. 113). Left shoulder x-rays showed “slight” arthritic sclerosis, suggestive of possible
impingement syndrome or a rotator cuff problem (Tr. 116). Left knee x-rays showed medial joint space
narrowing and some spurs (Tr. 116). Dr. Knott diagnosed a painful left shoulder and mild osteoarthritis
of the right knee (Tr. 114).

On July 17, 1998, Dr. Villaflor reviewed the record and concluded that Ms. Scheer could sit, stand
and walk for six hours each per day, and lift up to fifty pounds, but could not lift more than twenty-five
pounds to a level higher than her hips (Tr. 118). In addition, the doctor determined that Ms. Scheer had a

limited ability to reach, and could only occasionally craw] and climb ladders (Tr. 119-20). In August


contradict this testimony.

Ms. Scheer also attempts to discredit Dr. Newman by claiming that he “did not know if Claimant
suffered from medial epicondylitis” and “vacillated back and forth about what type of conditions the
Claimant suffers from.” Plaintiffs Brief at 5, 12. Again, Ms. Scheer misunderstood Dr. Newman’s
testimony. Dr. Newman noted that the typical cause of epicondylitis (pitching) was not present in the case
at bar (Tr. 279). And he noted that Ms. Scheer’s epicondylitis was transient, in that it switched from one
arm to the other, and then improved (i.e., disappeared), and then recurred (Tr. 278-79). He did not,
however, state that he was unsure if she suffered from epicondylitis versus some other condition. Rather,
given that Ms. Scheer stated it improved or was resolved, Dr. Newman was unsure whether she had any
condition during the period before the epicondylitis flared up again (Tr. 278-79). Dr. Newman explained
that he suspected that Ms. Scheer had rheumatoid arthritis in her shoulder, but could not be sure of the
diagnosis or of its severity, because none of the objective findings that are usually present in arthritis
cases (such as swelling, inflammation, positive rheumatoid factor blood test) were present in Ms.
Scheer’s case (Tr. 279-82, 284-85). This line of testimony, however, was not related to the epicondylitis
or ulnar neuropathy. Dr. Newman provided certain, strong, repeated opinions regarding the epicondylitis
and the ulnar neuropathy.

Having found that the ALJ’s finding at step three is supported by substantial evidence, the Court
continues to step four. The ALJ determined that Scheer had a RFC to perform the full range of sedentary
work. “Sedentary work involves primarily sitting and minimal lifting.” Edwards v. Sullivan, 985 F, 2d
334, 339 (7 Cir, 1993); see 20 C.F.R. §§ 404.1567(a), 416.967. “[A] claimant can do sedentary work if
he can (1) sit up, (2) do occasional lifting of objects weighing up to ten pounds, and (3) occasionally walk

or stand.” Kapusta v. Sullivan, 900 F. 2d 94, 96 (7" Cir. 1989). “for a claimant to be considered not

14


Ms. Scheer claims that the vocational expert testified that Ms. Scheer’s past work “is not
transferable to other jobs.” Plaintiffs Brief at 10. However, Ms. Scheer misinterpreted the vocational
expert’s testimony. Dr. Komie testified that Ms. Scheer had skills that were of limited transferability and
that her skills would transfer to similar jobs (Tr. 291). He did not, however, state that she had no
transferable skills. Finally, it cannot be concluded that the ALJ erred when she failed to consider Ms.
Scheer’s advanced age. The ALJ discussed Ms. Sheer’s advanced age and acknowledged such. Ms.
Scheer’s impairments do not require that she embark on a new career where the advanced age element
becomes significant or where the grid would be applied.

CONCLUSION
For the foregoing reasons, plaintiffs motion for summary judgment is denied. (#7) This case is

hereby terminated.

SO ORDERED Y22/ o/ Ha, C

Ronald A. Guzman
United States Judge

16


two (Tr. 14, 25). She graduated from high school and completed one year of college (Tr. 81, 242-43).
She worked as a secretary and medical transcriber until August 2, 1997, when she was involved in a bus
accident (Tr. 81, 111).

Medical Evidence

In September 1996, Ms. Scheer went to the Southeastern Medical Center due to left elbow pain (Tr.
127). A doctor diagnosed tendonitis and prescribed physical therapy and an external support (Tr. 127).
Two weeks later, Ms. Scheer stated that the physical therapy had helped (Tr. 128). In October 1996, Ms.
Scheer stated that her pain had decreased, and an exam revealed that Ms. Scheer’s grip strength was
sixty-five pounds in each hand (Tr. 129-30, 134). In November 1996, Ms. Scheer had some tenderness
and pain with resistive supination of the arm, and some increased sensation over the ulnar nerve, but a
normal range of motion, fifty-five pounds of grip strength on the right and forty-five pounds of grip
strength on the left (Tr. 133, 135-36).

In February 1997, Ms. Scheer felt better, but still had tenderness over the medial flexor and some
slight tenderness over the ulnar nerve (Tr. 139). Likewise, in April 1997, Ms. Scheer had some pain and
medial flexor tenderness, but stated that her elbow felt better (Tr. 142). On August 2, 1997, Ms. Scheer
fell while getting off a bus (Tr. 149). She had two fractured ribs and left upper back soreness (Tr. 149-
50). She was given Tylenol #3 and a rib belt, and her doctor prescribed an exercise program (Tr. 149).
On September 16, 1997, x-rays showed “marked” healing of the rib fractures (Tr. 155). The next day, an
exam revealed a limited range of shoulder motion, and 4/5 left shoulder strength (Tr. 159, 164, 169 ).
She was doing much better in October 1997 (Tr. 161). By December 1997, she had decreased rib and left
shoulder pain (Tr. 145, 147).

In January 1998, Ms. Scheer stated that her shoulder was better (Tr. 174). She did not see her

doctor again until May 1998 (Tr. 175). At that time, she had a limited range of shoulder motion and


DOCKETED

UNITED STATES DISTRICT COURT SEP 2 8 2001
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOY SCHEER,

Plaintiff,

No. 00 C 6478

LARRY G. MASSANARI
Acting Commissioner of
Social Security,

Judge Ronald A. Guzman

wwe ewe we ww Se

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Joy Sheer, seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“Commissioner”). Ms. Scheer applied for DIB and SSI in May 1998, alleging
that she became disabled on August 2, 1997, due to left knee and shoulder pain, and fractured ribs (Tr.
50, 77, 217-18). Her applications were denied initially and on reconsideration (Tr. 30, 35, 221, 226). A
hearing was held on September 7, 1999, before Administrative Law Judge (ALJ) Helen Cropper (Tr. 235-
95). Ms. Scheer testified and was represented by counsel (Tr. 23 7-72). Dr. William Newman, a medical
expert, and Michael Komie, Ph.D., a vocational expert, also testified (Tr. 272-95). On September 22,
1998, the ALJ found that Ms. Scheer was not disabled because she could perform her past relevant work

(Tr. 14-25). The Appeals Council denied Ms. Scheer’s request for review, and the ALJ’s decision
became the agency’s final decision (Tr. 6-7). Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Ms.
Scheer commenced a civil action for judicial review of the ALJ’s decision.

STATEMENT OF FACTS

Ms. Scheer was born on May 26, 1937 (Tr. 50). She was sixty years old when she allegedly

became disabled, and she began receiving Social Security retirement benefits after she turned age sixty-

1

{2


eae

the ALJ ignored Dr. Chand’s diagnoses of medial epicondylitis (tennis elbow). Plaintiffs Brief at 11.
This is untrue. The ALJ found that Ms. Scheer had arthritis and tendonitis, but that these conditions were
not of a disabling severity (Tr. 17). Indeed, a mere diagnosis, by itself, is not disabling. Higgs v. Bowen,
880 F.2d 860, 863(6th Cir. 1988) ("mere diagnosis of arthritis says nothing about the severity of the
condition.”). Once again it is undisputed that the objective medical evidence supporting this epicondylitis
condition is absent from the record. Ms. Scheer has not had a series of staged surgical procedures within
12 months after onset for salvage and/or restoration of. major function of the extremity.

Ms. Scheer argues that she cannot perform her past work because she cannot type. Plaintiffs Brief
at 11-15. However, the record does not support this claim. The physical exam findings did not show that
Ms. Scheer had any problems that prevented her from typing. As previously discussed, Dr. Hamilton’s
exam revealed that Ms. Scheer had a limited range of shoulder motion, but she was able to make a fist,
and had normal grip strength, normal fine manipulation and normal gross dexterity (Tr. 195-96).
Likewise, Dr. Knott examined Ms. Scheer, and found that she had a limited range of shoulder motion, but
normal motor function in all extremities (Tr. 113-14). She performed fine and gross manipulation
without difficulty, and was able to perform both skilled and dexterous movements (Tr. 113-14).
Moreover, both Dr. Knott and Dr. Hamilton found that there was no evidence of reflex, motor or sensory
loss (Tr. 113-14, 196). In fact, no doctor reported that Ms. Scheer had any problems with fine
manipulation, fingering, feeling, or gross dexterity, Since Ms. Scheer retained normal abilities to perform
fine manipulation, fingering, feeling, and gross dexterity, and had no motor loss or muscle wasting in her
hands or fingers, the record failed to support Ms. Scheer’s claim that she was unable to type.

Ms. Scheer takes issue with Dr. Newman’s testimony that epicondylitis and ulnar neuropathy are

not caused by typing. In fact, she characterizes his testimony as “disturbing” and “hogwash.” Plaintiffs

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disabled, he must be able to perform sedentary work ‘for more than a brief period.” Husbands v. Chater,
No. 94 C 5280, 1996 WL 153879, at *3 (N.D. IIL. Apr. 1, 1996(quoting Rousey v. Heckler, 771 F.2d
1065, 1071 (7" Cir. 1985)). The physical exam findings did not show that Ms. Scheer had any problems
that prevented her from typing and she was capable of lifting up to ten pounds. As previously discussed,
Dr. Hamilton’s exam revealed that Ms. Scheer was capable of engaging in sedentary work and had a
limited range of shoulder motion, but she was able to make a fist, and had normal grip strength, normal
fine manipulation and normal gross dexterity (Tr. 195-96). Likewise, Dr. Knott examined Ms. Scheer,
and found that she had a limited range of shoulder motion, but normal motor function in all extremities
(Tr. 113-14). She performed fine and gross manipulation without difficulty, and was able to perform both
skilled and dexterous movements (Tr. 113-14). Moreover, both Dr. Knott and Dr. Hamilton found that
there was no evidence of reflex, motor or sensory loss (Tr. 113-14, 196). In fact, no doctor reported that
Ms. Scheer had any problems with fine manipulation, fingering, feeling, or gross dexterity. Since Ms.
Scheer retained normal abilities to perform fine manipulation, fingering, feeling, and gross dexterity, and
had no motor loss or muscle wasting in her hands or fingers, the record failed to support Ms. Scheer’s
claim that she was unable to type.

Once the claimant establishes her RFC, the ALJ compares the RFC to the requirements of the

claimant’s past relevant work. 20 C.F.R. §§ 404.1520(e), 4 16.920(e). Past relevant work includes the

claimant’s job as she performed it, and her job as it is usually performed in the national economy. SSR
82-62; SSR 82-61. In the case at bar, Dr. Komie, the vocational expert, testified that Ms. Scheer’s job as
a medical transcriber was sedentary work as it is usually performed in the national economy (Tr. 291).
Given Ms. Scheer’s RFC, the ALJ reasonably found that Ms. Scheer could perform her past relevant

work as it was usually performed in the national economy.

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