concentration, persistence or pace resulting in failure to complete tasks in a timely
manner. (R. at 33-84.)

The Ald also determined that Plaintiff's allegations were not consistent with the
objective medical record. He considered the factors discussed in 20 C.F. §§
(04.1529(¢)(3) and 416.929(¢)(3)) as well as Social Security Ruling 96-7p7! in

determining whether Plaintiffs allegations should be a septed in light of the

Inconsistent medical evidence. (R. at 26.) The ALJ determined that Plaintiff's
allegations should not be accepted and listed the following seven reasons in support of

his decision:

I. The fact that Plaintiff received only “routine and conservative”
care for what were purportedly disabling conditions. (R. at 26.)
2. Dr. Gerenberg’s and Ms. Zarifi’s opinions that Plaintiff can not

work were not supported by objective treatment record findings

Both regulatory sections incorporate the same factors, which are “(i) Your
daily activities: (ti) The location, duration, frequency, and intens ty of your pain or
other symptoms: (iii) Precipitating and aggravating factors; (iv) The type, dosage,
effectiveness, and side effects of any medication you take or have taken to alleviate
your pain or other symptoms; (v) Treatment, other than medication, you receive or
have received for relief of your pain or other symptoms; (vi) Any measures you use or
have used to relieve your pain or other symptoms (¢.g., lying flat on your back,
standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other
factors concerning your functional limitations and restrictions due to pain or other
symptoms.” 20 CIR. §§ 404,.1529(c)(3), 416.929(¢)(3). See Knight v. Chater, P.3d
309, 314 (7th Cir, 1995).

u Under Social Security Ruling 96-7p, the ALd's decision regarding claimant
credibility "must contain specific reasons for the finding on ¢ redibility, supported by
the evidence in the case record, and must be sufficiently spec o 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." See Zurawski v. Halter, 245
F.3d 881, 887 (7th Cir. 2001).

Dr. Gerenberg completed only a one page form that set forth no objective
findings. (R. at 229.) The ALJ determined that Ms. Zarifi’s opinion that the Plaintiff
can not work was not fully persuasive because it was “not clearly or fully supported by

(continued...)

19


Plaintiffwas nevertheless “unable to maintain focus and concentration for an extended
period of time as a result, making it difficult to retain information or carry out
instructions” and that her “ability to maintain these activities and functions over a
normal workday, and on an ongoing basis is significantly limited.” (R. at 276.) All of
the documents she completed while at St. Francis Hospital were signed by her
supervisor, Dr. Scott Ambers, M.D. (R. at 309-326, 266-273.)

Afier Ms. Zarifi began working for United Stand Family Counseling Center, she
counscled Plaintiff at her home on sixteen additional occasions. (R. at 615, 617-625.)
In her final May 2000 summary of Plaintiffs counseling sessions, Ms. Zarifi noted that
the Plaintiff “continues to suffer from Major Depressive Disorder and Panic Disorder,
both of which, with her medical condition, significantly impair her ability to function
outside her home and to sustain any type of employment.” (R. at 616.)

C. Plaintiff's Employment History

From 1984 to 1995, Plaintiff worked at School District 202 in Evanston
‘Township, first as an attendance officer for four years and then as a registrar
secretary. (Rat 47, 53.) Her job required computer skills as well as some light lifting.
It also required her to spend roughly two-thirds of her time sitting and the rest
standing. (R. at 46-48.) On an unspecified date in April 1995, the Plaintiff stopped
working because of her medical problems. (R. at 50, 72.) She was first prevented from
working by arthritis and later, after her skin graft surgery, by her hip wound. (R. at
72.)

lL. Testimony of Plaintiff's Case Worker

Rosemary Jean-Paul is a case coordinator at the Evanston Township General

18


Although the court recognizes that the record might support a different. conclusion,
Plaintiffs arguments do not establish that the ALJ’s decision was not based on
substantial evidence.

Step (3) requires the ALd to determine whether Plaintiff's impairments meet the
requisite level of severity as defined by the Social Security Act. 20 C.F.R. § 404. Subpt.
P. App. I. In order for Plaintiffs condition to be considered sufficiently severe to
establish a “disability” under section 14.02, either (a) hey hip wound have to satisfy
section 8.00, (b) her arthritis would have to satisfy section 1.00. (c) her depression
would have to satisfy section 12.00, or (d) a combination of two or more of these
impairments would have to satisfy section 14.02B. Jd. The ALd determined that. test
was not met. and the court finds no basis to disturb that. determination.

First. with respect to Plaintiffs hip wound, section 8.00 requires that the wound
bo “resistiunt to treatment.” 20 CR. § 404, Subpt. P, App. 1. The ALd’s finding that
Plaintiffs hip wound was not “resistant to treatment” was based on substantial
evidence in the record indicating that Plaintiffs hip wound was “healing well” and
“well controlled.” (R. at 24-25, 210, 290.) While there is evidence in the record that
supports the opposite conclusion, it is the ALJ's job to weigh the evidence, not that of
this court,

Further, with respect to Plaintiffs arthritis, section 1.00 requires that it cause
“significant limitation of motion.” 20 C.FLR. § 404 App. 1. The ALd’s finding that
Plaintiffs arthritis did not cause “significant limitation of motion” was based on

substantial evidence in the record indicating that Plaintiffs arthritis had caused no

“deficiency of manipulation,” and “no evident abnormality of grip.” (R. at 24, 222, 212,

23


wound will not heal.® (R. at 50.) Her lupus causes flare-ups every month, more during
the summer. (R. at 54.) During a flare-up, Plaintiffs hands swell for two to three days
at a time, she gets a dark rash under her eyes, vomits, has “throbbing pain” lke a
toothache, is weak, and “ache[s] all over.” (R. at 54-55, 59, 63.) She rates her pain
during a flare-up as a ten out of ten and a seven out of ten at all other times. (R. at
59.) Anxiety, clothing, and prolonged sitting increase her pain. (R. at 60.) Plaintiff
also claims that during lupus flare-ups, her arthritis causes joint pain, particularly in
her knees, feet, and hands. (R. at 53, 62.) Finally, she claims her lupus has affected
her memory, cyesight, and concentration. (R. at 68.)

Plaintiff also suffers from fatigue and depression. (R. at 64, 68.) She claims her
depression began when she was diagnosed with lupus, but she does not state when this
diagnosis was made.’ She states that she “doesn’t go out,” “doesn’t want to be with

people,” is “cranky” and “angry,” feels “intimidated and unfeminine and embarrassed,”

. Non-healing wounds are not a common symptom of lupus. The most.
common symptoms associated with lupus as indicated by the percentage of people with
lupus who exhibit the symptom are achy joints (arthralgia) (95%), fever greater than
100 degrees I? (38 degrees C) (90%), arthritis (swollen joints) (90%), prolonged or
extreme fatigue (81%), skin rashes (74%), anemia (71%), kidney involvement (50%),
pain in the chest on deep breathing (pleurisy) (45%), butterfly-shaped rash across the
checks and nose (42%), sun or light sensitivity (photosensitivity) (30%), hair loss (27%),
abnormal blood clotting problems (20%), Raynaud's phenomenon (fingers turning white
and/oy blue in the cold) (17%), seizures (15%), and mouth or nose ulcers (12%).
Symptoms of Lupus, a¢ http://www.lupus.org/info/sym.html (last accessed on January
22, 2002).

. Plaintiff believes that she has lupus and the Ald so found, (R. at 29-30)
but the record does not contain medical test results supporting this diagnosis. Even
though the record is replete with references to her lupus, this court cannot determine
if these references are based on her belief or on a medical determination. (See R. at 99,

55, 159, 207, 220, 229, 243, 564.) Blood work in February 1995 was negative for
lupus (R. at 330-31) and in June 1996 a medical doctor stated he did not have enough
information to make a diagnosis. (R. at 389-90.)

4


(R. at 27.)

Medical evidence shows that medications, particularly Prednisone,
Plaquenil, and Paxil, have been effective at controlling Plaintiff's
symptoms. (R. at 27.)

On one occasion, Plaintiff expressed an unwillingness to see a
psychiatrist while complaining of depression, (R. at 27.)
Plaintiffs alleged limited daily activities cannot be “objectively
verified” or attributed to Plaintiffs medical condition. (R. at 27.)
Ms. Jean-Paul’s opinion that Plaintiff cannot work is not. “deemed
persuasive” since she is a case worker — a non-medical source. (R.
at 27.)

The medical record contained several findings that the Plaintiff was not
disabled. (R. at 28.)

Finally, he determined the Plaintiffs residual functional capacity in order to complete

stops (4) and (5). He determined that the Plaintiffs impairments

preclude only the following work-related activitic

iftin:

rrying up to

10 pounds more than occasionally or lighter items such as small hand

tools

or individual case files more than frequently; standing and/or

walking (using a cane for ambulation) for more than brief periods of 10-15
minutes on each occasion and for more than a combined total of 2 hours

inan

8 hour day; sitting with normal breaks, for more than a total of 6

hours in an 8 hour workday, but must be allowed to alternate between
sitting and standing at intervals of 45 minutes for a period of 5 to 10

minutes on cach such «
climbing ramps and stairs more than occasionally

scaffolds, and ladder
performing activities

asion; climbing ropes,

such as balancing, stooping, kneeling, crouching, and crawling more than
occasionally; working in settings containing any respiratory irritant at

concentrated levels; unde

tanding, remembering, and/or carrying out

detailed and complex work instructions and/or tasks: and performing

tasks

requiring independent setting of work goals or planning of daily

work activities.

(Roat 22.) The ALJ determined that given Plaintalfs residual functional capacity, she

could not perform any past relevant work (R. at 28) yet she could perform the

(continued)

the noted records of counseling.” (R. at 26.) He noted the findings made on

Pebruary 3,

1998, especiz

1999 were not consistent with the initial assessment made on December 4,
uly given the frequency with which Plaintiffmissed appointments, the fact

that Plaintiff was able to visit her son in Michigan, and the noted observation that
Plaintiff was responding well to medication. (R. at. 25-26.)

20


constitutional symptoms and signs” of fever or weight loss. These symptoms are only

noted on one occasion in February 1995 and on another occasion by Plainti se

worker. (Ro at 330, 79.) Thus, the ALJ's finding that the aggregate effect of her
Mupairments does not mect the requisite level of severity is also supported by

substantial evidence.

Because the objective medical record contained evidence that both supported and

contradicted Plaintiffs allegations, the ALJ, relying on 20 C.F.R. § 404.1529(c),

presented seven reasons why he determined that the Plaintiff's allegations were not

consistent with the objective medical record. Plaintiff argues that the ALJ's decision
was nevertheless not based on substantial evidence because he did not properly
consider Plamtiffs allegations of pain and fatigue as well as the effect of her
medications on her symptoms. (Plaintiffs Memo, at 17, 18.) When the ALJ explains
the reasons behind his decision logically and accurately, he is not. required to address

every piece of evidence in the record. Clifford, 227 F.3d at 872. Thus, Plaintiffs

arguments regarding her pain and fatigue are unpersuasive. Nor is the court moved

SeVOn reasons

by Plaintiffs suggestion that one of the ALJ's s flawed — specifically,
that the objective medical evidence does not show that Plaintiff's medications were
effective at controlling hey symptoms. The fact that one of the seven factors identified
by the Ald may not withstand scrutiny does not convince the court that the ALd's
findings are not supported.

2. Plaintiff's Employability at step (5)

Plaindffalso challenges the ALd’s step (5) finding that the Plaintiffcan perform

6,000 jobs in the national economy. Griffith contends this finding is not supported by

26


Apfel. 207 3d 431, 485 (7th Civ. 2000).

The AliJ’s findings and conclusions are not, however, entitled to unlimited
judicial deference. This court may not uncritically “rubber stamp” the Ald’s decision.
Clifford, 227 ¥.3d at 869, Thus, the Seventh Circuit has noted the court’s obligation
to critically review the record to ensure that the ALJ did not “play doctor” by making

“independent medical findings.” Rohan v. Charter, 98 I°.3d 966, 970 (7th Cir. 1996).

Similarly, the court must also critically review the Al.J’s decision to ensure that the

ALd “articulate[d] some legitimate reason for his decision” and built an “accurate and

logical bridge from the evidence to his conclusion.” Clifford, 227 I".3d at. 872.
ANALYSIS

Plaintiffargucs that the ALJ's decision that her impairments do not constitute
a “disability” should be vacated because it was not based on substantial evidence
(Plaintiffs Memorandum in Support of Motion for Summary Judgment (Plaintiffs
Memo"), at 11-16.) The specific findings that the Plaintuff alleges are not supported by
substantial evidence are that the Plaintiffs impairments do not meet the requisite
level of severity at step (3) and that the Plaintiff could perform approximately 6,000
jobs in the six-county Chicago regional economy at step (5). (Plaintiffs Memo, at 11.)
The court considers the Plaintiff's arguments in turn.

i. The Severity of Plaintiff's Impairments at Step (3)

Plaintiff argues that the ALJ lacked a “rational basis” for his decision.
~mischaracterized the medical evidence,” gave insufficient weight to the opinion of
Plaintiffs treating counselor, and failed to properly consider Plaintiffs symptoms of

pam and fatigue and her use of medication. (Plainuffs Memo at 11, 12, 13, 17, 18.)

22


(A) Can the claimant perform his or her past. relevant work?
(5) Can the claimant perform any other work in the national economy
in light of her age, education, and work experience? 20 C.F.R. §
A04,1520, 416.920
See Dixon v, Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). A claimant will be found
to have a “disability” under the Social Security Act upon making the requisite showing
that the claimant's impairment meets the requisite level of severity at step (3) or upon
determining that the claimant cannot perform any other work in the national! economy
al step (5),
2. The ALJ’s Findings and Reasoning
The Ald applied the five-step test and found that the Plaintiff was not under a
“disability” at any time through the date of his decision. Thus, he denied her claim of
disability, and her request for disability insurance benctfits and supplemental security
income. (R.at 31.) The ALJ determined that (1) Plaintiff was not employed during the
period for which she is claiming a “disability” and (2) Plaintiff had a “severe”
Impairment. At step (8), however, he determined that her impairments did not meet
the requisite level of severity. He stated that “the claimant’s lupus/skin lesion
Impatrment is not associated with findings of resistance to treatment as required under

section 14.02" when evaluated under the criteria of section 8.00," that there is no

£..conunued)
Appendix f.
u Section 14.02(A) states that lupus must be documented with one of the
following: joint, muscle, ocular, respiratory, cardiovascular, digestive, renal, skin,
neurological involvement, or mental involvement. Section 14.02(B) states that lupus
van be documented by the “lesser involvement of two or more organs/body systems
listed in paragraph A, with significant, documented, constitutional symptoms and
signs of severe fatigue, fever, malaise, and weight loss. At least one of the organs/body

(continucd...)

17


a. Dr. Rama Embar, M.D.

On August 10, 1998, Dr. Rama Embar, M.D. conducted a psychiatric evaluation
of Plaintiff at the Lake Shore Medical Clinic. Dr. Embar diagnosed a depressive
disorder. In summarizing Plaintiffs illness, Dr. Embar pointed to a “history of lupus
erythematosus,” a “history of depression,” and “the fact that she is not able to work or
do her datly activities.” (R. at 217-19.) In making the diagnosis, Dr. Embar noted that
Plaintiffs “posture and gait were normal”; her psychomotor activity was normal; “she

was pleasant and cooperative”; she “complained of pain in various parts of her body”;
her “speech was normal in rate and rhythm”; her mood was “depressed”; her affect was
“sad, appropriate”; she had “no paucity of thought, flight of ideas, loose associations,
circuunstantiality or tangentiality”; there was “no evidence of thought disorder”; she
was “alert and oriented to time, place and person”; “able to recall four digits forwards
and four backwards”; “able to recall two out of three objects”; knew that Clinton was
the President, thought Reagan was his predecessor, and knew that Richard Daley was
the Mayor of Chicago; able to do serial 3’s; and was capable of abstraction, recognized
distinctions, and exercised judgment. (R. at 217-19.)
b. Dr. George Bridgeforth, M.D.
On August 10, 1998, Dr. George Bridgeforth, M.D. performed an internal
medicine evaluation of Plaintiff at Lake Shore Medical Clinic.” His clinical

16

impressions weve that Plaintiffhad systemic lupus erythematosus, a left hip absc

" The court assumes that the purpose of these visits, both on August 10,

1998, was to support the disability claim which Plaintiff filed two months carher.
“A localised collection of pus caused by suppuration buried in tissues,
(continued...)


hypothetical question could have affected her testimony. See Balenton v. Halter, 156
FP. Supp. 2d 776, 784-85 (N.D. HL 2001) @emanding case notwithstanding vocational
expert's pre-hearing review of record and presence during plaintiffs testimony where
omitted limitation could have affected the vocational expert's testimony).

The court notes, further, an important ambiguity in the medical record reviewed
by the ALd and the vocational expert, also significant enough to warrant remand. See
Brooks v. Chater, No. 95 © 1154, 1996 WL 11108, at *2 (N.D. TL dan. 8, 1996)
(remanding Ald Social Security decision where crucial term in medical report was

ambiguous). Dr. Drevlow’s medical assessment stated that Plaintiff could neither

“continuously stand for at least 6 of 8 hours” nor “continuously sit upright for at least
Gol8 hours.” (R. at 263.) On one understanding of these phrases, they are irrelevant
io Plaintiff's employability: sitting or standing for six consecutive hours 1s unnecessary
for the 6.000 jobs that Ms. Entenberg said Plaintiff could perform in the Chicago
metropolitan area. The phrases are also susceptible to a second interpretation,
however, which would direetly influence Plaintiffs employability. If Dr. Drevlow’s
assessments mean that Plaintiff can not regularly either sit or stand for a folal of six
hours out ofa given eight-hour interval, then Plaintiff would not be able to alternate
sitting for forty-five minutes with standing for five minutes throughout an eight-hour
work day. This pattern of alternation would result in more than six hours of sitting
per work day. Although Ms. Entenberg called Dr. Drevlow’s summary “a confusing
statement” and the ALJ specifically noted the ambiguity of this part of the record

during the heaving (R. at 96), his finding ultimately fails to adequately acknowledge

the second possible interpretation of Dr. Drevlow’s entric During the hearing, the

29


Plaintiff was unable to work because of the wound on her left hip and pain associated
with it. (R. at 410.)

2. Dr. Matthew J. Hyser, M.D.

On May 19, 1995, Dr. Matthew J Hyser, M.D., a general surgeon, operated on
Plaintiff's wound in his Evanston office. (R. at 854-55.) He removed fluid and pus from
the wound and placed a Penrose drain’ in her wound so that it would drain completely
without additional surgery. (R. at 354-55.) On May 24, the week after he drained her
wound, he stated that “the wound looks good and clean.” (R. at 380.) She was
discharged with “wet-to-dry dressing.” (Id.) The record does not state when the
Penrose drain was removed. On June 19, 1995, Dr. Hyser saw the Plaintiff again in
his office and noted that her “wound is clean and granulating and it is faixly wide
open,” that she is “getting along with the dressing changes much better,” and that the
“skin surrounding [the wound] has healed.” (R. at 397.) On July 12, he discussed the
feasibility of performing a skin graft to address a “large defect that will not close.” (R.
at 398.) While it is certain that the skin graft was performed in 1996, this court could
not determine from the record which doctor performed the operation.

3. Dr. Harvey Friedman, M.D.

In June 1995, Dr. Harvey Friedman, M.D. performed a physical exam and noted
that he lacked sufficient information to determine whether Plaintiff had active lupus.

(R. at 389-90.) The record does not explain why Plaintiff was referred to Dr. Friedman

° A Penrose drain is a “cigarette-shaped gauze wick enclosed in rubber dam

tissue or rubber tubing for draining wounds.” Fast Health, at http://www.
fasthealth.com/dictionary/c/cigarette_drain.php (last accessed January 22, 2002).

6


and claims that she is “not happy at all” and has not “been at peace since she was

working.” (R. at 67, 70.) Plaintiff stated that she takes care of her own personal
hygiene except when her arthritis is flaring up; at these times her daughter takes care
of Plaintiffs personal hygiene. Plaintiffs daughter and grandson also take care of all
the houschold chores such as cleaning, cooking, paying bills, and grocery shopping. (R.
at.70, 75.) Plaintifftakes the anti-depressant medication Paxil to treat her depression;
the record does not state who prescribed this medication. (R. at 69.)

B. Plaintiff's Medical Record

Tn addition to the Plaintiffs testimony, the ALJ relied on the following medical
records:

1. Dr. M. Lang-Carney, M.D.

On February 14, 1995 Plaintiffwas admitted to St. Francis Hospital and treated
by her primary care provider, Dr. M. Lang-Carney, M.D. Dr. Lang-Carney’s records
show that Plaintiff had a fever and complained of pain and the swelling of her hand
joints. Dr. Lang-Carney also noted that Plaintiff had lost five pounds in one weck.
While she was at St. Francis Hospital, the wound on her left hip was drained and her
blood tested negative for lupus antibodies. She was discharged on February 22, 1995.
(R. at 330-31.) Dr. Lang-Carney’s notes from August 30, 1995 indicate that Plaintiff
“continues to deal with a large non-healing wound over her right hip” * and that

“[slitting aggravates the lesion.” (R. at 409.) The doctor’s notes also indicated that

. Dr. Lang-Carney’s medical notes indicate that the wound is on Plaintiffs
right hip. This is the only reference to a wound on Plaintiffs right hip and is
apparently a mistake. (See R. at 409, 410, 411.)

5


“evidence of significant limitation of motion of the claimant's left hip when evaluated
under section 1.00," and that the requisite level of severity is not met even when
“considering the combination of the claimant's impairments.” (R. at 21-22 (footnotes
not in original).)

The ALd discussed all the relevant medical evidence and concluded that
Plaintiffs allegations of disabling impairments were not supported by the objective
medical record. (R. at 23.) Regarding Plaintiffs hip wound, he determined that. “the
evidence shows that [although] at times the claimant’s lesion has Jeakage/drainage,
various treatment notes show that the claimant's left hip skin lesion was dry and was
healing well.” (R. at 24.) He observed that “[o]verall, the evidence does show that the
claimant's condition is attended by flares of tenderness, and reduced range of motion.
but it has also been described as well controlled.” (R. at 25.) Regarding Plaimtiffs
arthritis. he noted evidence that supported her allegations of arthritis, but also found
evidence in the record indicating no “deficiency of manipulation,” “no evident
abnormality of grip,” and “normal range of motion” in the majority of Plaintiffs joints.
(Ro at 24.) Regarding Plaintiffs depression, the ALJ determined that the Plaintaffhad
a depressive disorder which moderately restricted hoy daily living activities, caused

slight difficulties in maintaining social function, and offen caused deficiencies of

(..continucd)
systems must be involved to at least a moderate level of severity.” 20 C.F.R. § 404 App.
I.

Section 8.00 states that “[s]kin lesions may result in a marked. long-
lasting impairment if they involve extensive body areas or critical areas such us the
hands or feet and become resistant to treatment.” 20 CIR. § 404 App. 1.

Section 1.00 states that joint involvement can qualify as an impaument
if, inter alia, there is “significant restriction of function of the affected joints.” 20
CLELR. § 404 App. 1.

18


Plaintiffs “hump” affects her daily living activities and causes her to favor her left side.
(R. at 209.) He also noted that her arthralgia'! was especially worse when her lupus
flaves up, that she was concerned about her long-term prognosis, that she had no
evident abnormality in her speech and mental capacity, and that she can manage her
own funds. (R. at 208, 209, 211.) He diagnosed her with systemic lupus erythematosus
CSLE”). but it is not known if he made this diagnosis independently or if it was based
on Plaintiffs assertions.'® (R. at 211.) He found that the prescribed medications —
ibuprofen, plaquenil,” and prednisone" — had reduced the wound’s drainage. He was
unable to assess her ability to do work-related activities. (R. at 211.) Additionally, on
August 25, 1998 he noted that Plaintiff did not want to sce a psychiatrist even though
she was depressed. (R. at 297.)

6. Consulting Physicians

In August 1998, Plaintiff saw several additional physicians, apparently in
connection with this claim for benefits. Except where noted, the record does not reveal

the medical specialties of these doctors, each of whom Plaintiff saw only once.

" “Pain in a joint.” The On-line Medical Dictionary, at
hitp:/Awww.graylab.ac.uk/cgi-bin/omd?arthralgia (last modified November 18, 1997).

a Dr. Luyun’s notes explicitly state that he was “[nJot able to review prior
records complete” [sic].

® Plaquenil is a drug commonly used to treat both lupus and rheumatoid
arthritis. HealthSquare.com at http://www.healthsquare.com/newrx/PLA1337.HTM
(last acecssed January 22, 2002).

" Prednisone is used to suppress inflammation and prescribed for both
lupus and arthritis. FocusonArthritis.com at http://www.focusonarthritis.com/script/
muin/art.asp?articlekey=809 (last accessed January 22, 2002).

8


287-290.) Again, while there is evidence that supports the opposite conclusion, the
court defers to the ALd’s assessment of the evidence,

With respect to Plaintiff's depression, section 12.00 requires the Ald to follow
the procedures outlined in 20 C.F.R. § 404.1520a. "The ALd’s psychiatric evaluation
stunmuized specific findings supporting his determination that Plaintiffs depressive
disorder doos not meet the requisite level of severity. (R. at. 32-34.) These findings are
supported by substantial evidence because they resi on evidence in the record that
Plaintiff had “no evident abnormality with her speech and mental capacity” and that
she had the “mental capacity to perform simple tasks.” (R. at 210, 232.)

Plaintiffalleges that the ALJ’s findings concerning Plaintiff's depression were
not based on substantial evidence because he “mischaracterized” Dr. Embar's medical
evidence, and gave insufficient weight to Ms. Zarili's opinion, The ALJ did reject Dr.
Kmbar's conclusion that the Plaintiff could not work, but he never disputed Dy.

em bar’s

conclusion that Plaintiff had a depressive disorder. (R. at 32.) The heart of
the issue is the severity of her depression, and particularly whether it prevents her
from working. Because Dr. Embar and Dr. Hermsmeyer reached contradictory
conclusions in (he exact same month, August 1998, about Plaintilf's ability to work. the
Ald was justified in looking beyond their conclusions to determine whether ber

depressive disorder precluded hex from working. Using Dr. Embar’s objective findings

as well as other evidence in the record to resolve inconsistencies does not constitute
mischaractorization as alleged by the Plaintiff. Furthermore. where the record contains
medical opinions that the Plaintiff's depression does not prevent her from working. the

ALJ did not “play doctor” by making “independent medical findings.” Rohan v.

24


=

«-Mirnile Order For (06797)

United States District Court, Northern District of Illinois

Nagite of Adgigned Judge Rebecca R. Pallr r Sitting Judge if Other
Nor Magistrate Judge » than Assigned Judge
CASE)NUMBER 00 C 7305 DATE 2/6/2002
/ CASE Gerlene Griffith vs. Jo Anne B. Barnhart
~ TITLE

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

MOTION: of the motion being presented. |

DOCKET ENTRY:

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

(2) o Brief in support of motion due

G3) Oo Answer brief to motion due . Reply to answer brief due

(4) a Ruling/Hearing on set for at

(5) oO Status hearing[held/continued to] [set for/re-set for] on set for 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) ia [Bench/Jury trial] [Hearing] held/continued to at

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

OFRCP4(m) O General Rule21 CPFRCP41(a)(1) CO FRCP41(a)(2).

(10) a [Other docket entry] Enter Memorandum Opinion And Order. Plaintiffs motion for summary
judgment (No. 17-1) is granted and Defendant’s motion for summary judgment is denied. The case is
remanded to the ALJ to re-determine Plaintiff's residual functional capacity and determine whether
Plaintiff could perform any jobs in the national economy.

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

No notices required, advised in open court. Document
, Number
No notices required. umber of notices
Y | Notices mailed by judge’s stat. PS

Docketing to mail notices. a >
v | Mail AO 450 form. Lung asa

Copy to judge/magistrate judge.

courtroom

HIV deputy’s

initials eran
Daceimbreecivdd:in

central Clerk’s Office mailing deput) ighials



eC. Dr. B. Drevlow, M.D.

Dr. B. Drevlow, M.D. saw the Plaintiff twice: once in August 1998, and a second
(ime on January 12, 1999. On January 12, 1999, Dr. Drevlow stated that he had
previously diagnosed Plaintiff with systemic lupus erythematosus and a skin lesion.
(R. at. 262.) Again, the court can not determine whethcr Dr. Drevlow’s lupus diagnosis
was made independently or was based on Plaintiffs self-report. Dr. Drevlow noted that
asa resull of the pressure on her thigh wound, Plaintiff could neither sit nor stand
continuously for six out of cight hours. (R. at 263.) Dr. Drevlow noted that Plaintiff
had difficulty bending and squatting, and stated that her credibility was “good,” and
her pain “real.” (R. at 264.)

f Dr. Earl W. Donelon, M.D.

On August 27, 1998, Dr. Earl W. Donelon, M.D. assessed Plaintiff's Residual
Functional Capacity. (R. at 243.) He noted that Plaintiff could stand for a total of
about six hows in an eight-hour workday, and sit for about six hours in an eight-hour
work day. (R. at 244.) He noted that she occasionally had postural Limitations in
clumbing, balancing, stooping, kneeling, crouching, and crawling, but had no
manipulative, visual, communicative, or environmental limitations. (R. at 245.)

7. Virginia Zarifi, M.A.

Virginia Zarifi counseled the Plaintiff from December 1998 until April 2000.'"

Ms. Zavifi claims to have met with the plaintiff nine times at St. Francis Hospital

' Ms. Zarifi worked at the Mental Health Center of St. Francis Hospital
between December 1998 and June 1999 before leaving to work for United Stand
Family Counseling Center, where she continued to counsel Plaintiff until April 2000.

11


and depression. (R. at 222.) He also noted that her cooperation, comprehension, and
effort were “good.” (R. at 227.)
C Dr. Carl Hermsmeyer, Ph.D.

Dr. Carl Hermsmeyer, Ph.D. assessed Plaintiff's Functional Capacity on
August 25, 1998. (R. at 230.) He determined that Plaintiffs ability to understand and
remember detailed instructions and her ability to carry out detailed instructions were
moderately lamited, but that her remaining mental capabilities were not significantly
limited. (R. at 230-31.) He noted that she suffered a slight restriction in her daily
living activities and slight difficulties in maintaining social functioning, but seldom
had deficiencies of concentration and persistence of pace resulting in failure to
complete tasks in a timely manner. (R. at 241.) He diagnosed a depressive disorder
and indicated that she has the mental capacity to perform simple tasks. (R. at 232,
237.)

d. Dr. Greg Gerenberg, M.D.

On September 24, 1998, Dr. Greg Gerenberg, M.D. assessed Plaintiffs

psychiatric and medical condition. He diagnosed lupus and arthritis, but once again
it is not known if he made the lupus diagnosis independently or if it was based on
Plaintiffs assertions. He also stated that the Plaintiff would not be capable of full-time
employment for a year or more since she “cannot be on [her] feet for a long time [and]

cannot sit for long periods.” (R. at 229.)

(continued)

organs or confined spaces. Usually due to an infective process.” The On-line Medical
Dictionary, af http://www.graylab.ac.uk/egi-bin/omd?abscess (last modified
November 18, L997).

10


ALJ told Plaintiffs counsel that “fijfyou want [Dr. Drevlow] to clarify, we can do that.
too, because we'll be looking for some records,” but no such clarification appears in the
record before this court. (R. at 96.)
CONCLUSION

For the reasons discussed above, Plaintiffs motion for summary judgment (No.
17-1) is granted and Defendant’s motion for summary judgment is denied. The case
is remanded to the ALJ to ve-determine Plaintiffs residual functional capacity and
determine whether Plaintiff could perform any jobs in the national economy.

ENTER

Dated: February 6, 2002 DR pcablaryton—~ —.
REBECCA R. PAYLMEYER
United States District Sudge

30


by her primary care physician, Dr. Lang-Carney, nor does it identify Dr. Friedman’s
medical specialty.

A, Dr. Steven Kavka, M.D.

Dr. Steven Kavka, M.D. saw the Plaintiff from October 14, 1995 to
September 12, 1996. (R. at 192.) The record does not state how frequently Plaintiff
saw Dr. Kavka during this period, who referred Plaintiff to him, or the nature of the
treatment he provided. Dr. Kavka completed a respiratory report and psychiatric
report for the Bureau of Disability Determination Services in July 1998."" In these
reports he noted that the Plaintiff“was unable to work because of pain both sitting and
standing” and that “[s]he walked awkwardly, bent to the side.” He also noted that he
did not know her present condition, but that when he last saw her “she was walking
normally and gradually casing into her normal activity level.” Finally, when
describing Plaintiffs mood and affect, Dr. Kavka stated that “[b]ecause of her
prolonged course, I think she hadn’t fully adjusted to being well again,” (R. at 191-98),
a statement suggesting that Dr. Kavka believed Plaintiffs wound had healed.

5. Dr. Ronnie F. Luyun, M.D.

Dr. Ronnie F. Luyun, M.D. is a doctor at Evanston Township Hospital. The
record does not state Dr. Luyun’s medical specialty. Dr. Luyun treated the Plaintiff
several Limes between April 14, 1998 and May 11, 1999. (R. at 284-304.) He completed
a respiratory and psychiatric report for the Bureau of Disability Determination

Services on July 14, 1998. (R. at 206-215.) In these reports, Dr. Luyun noted that

" The respiratory report was completed on July 7, 1998. (R. at 189.) The
psychiatric report is undated, but presumably was completed at approximately the
same time as the respiratory report.


sedentary unskilled jobs of assembler, inspector, or packager, with respectively 3,000,
1,000, and 200 [sic] jobs available in the 6 county Chicago regional economy.”" (R.
at 29,31.) Thus, he determined that Plaintiff was never under a “disability” as defined
by the Social Security Act.
DISCUSSION

A Standard of Review

Judicial review of the Commissioner's final decision is authorized by section
408(g) of the Social Security Act. See 42 U.S.C. § A05(2):; Dixon, 270 F.3d at 1176. “The
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). When the
medical evidence is inconsistent, the ALJ must “weigh all of the evidence and...
decide whether [the claimant is] disabled.” 20 C.F.R. § 404,1527(c)(2). See Knight v.
Chater. 55 F.3d 309, 813-14 (7th Cir. 1995) (ALJ properly discounted medical opinions
which lacked adequate clinical support). This court “does not reweigh the evidence.
resolve conflicts, decide questions of credibility, or substitute [the court's] own
judgment for that of the commissioner.” Clifford, 227 3d at 869. Furthermore, this
court affords the ALd’s determination of credibility “special deference” and will only

reverse this finding if the Plaintiff can show that it. is “patently wrong.” Powers v.

* The ALJ’s decision stated that there were only 200 packaging jobs
available to the Claimant, (R. at 29, 31) but this summary appears to accidentally

contvadict the vocation expert’s testimony that there were 2,000 such Jobs. (R. at 89.)

21


substantial evidence in light. of a discrepancy between the ALd’s objective medical
findings and the hypothetical question he posed to Ms. Entenberg, the vocational
expert. (Plaintiff's Memo, at 15-16.) The ALd found that Plaintiffs depressive disorder

often caused deficiencies of concentration, persistence or pace resulting in failure to

complete tasks in a timely manner. (R. at 34.) His hypothetical question to the
vocational expert included a reference to an arguably less-severe condition, however.
The only mental limitation included in the hypothetical question was “by reason of a
depressive condition [a worker like Plaintiff] does not have the capacity to understand,
recall, carey out complex or detailed instructions or to perform complex or detailed
(asks, but does vetain the capacity to understand, recall and carry out simple tasks and
simple instructions on a sustained basis.” (R. at. 87.)

In the court’s view, the omission may be significant. The vocational expert's
testimony focused on Plaintiffs ability to “maintain production.” She determined that
the Plaintiff could “maintain production” if she could alternate sitting for forty-five
minutes and standing for five minutes, but not if she could sit for only thirty minutes
before having to stand. (R. at 92-93.) Omitting any reference to Plaintiffs difficulties
of concentration might well have affected the vocational expert's conclusion, given her
testimony that forty-five minutes was adequate to enable Plaintiff to work but thirty
minutes was not. Defendant urges that the ALJ effectively mentioned the omitted
limitation by noting that Plaintiffis limited to “unskilled” work as defined by 20 CAR.
$404. 15G68(a). (Defendant's Memorandum in Support of Summary Judgment, at 14-35.)
The court is not satisfied. While unskilled work docs not require judgment, it does

require an ability to complete projects in a timely manner. Furthermore, even if the

27


A. Plaintiff's Medical Testimony

In 1993 Plaintiff developed a cyst? on her left hip after an injection that she
received as treatment for dehydration caused an infection. The cyst caused her to walk
with a limp, so her physician, Dy. Story, had it excised and drained.’ (R. at 45-46.) The
wound from this procedure did not heal and, in 1995, Dr. Matthew J. Hyser drained
ber wound again. (R. at 45-46, 50, 380.) In June 1996, Dr. Steven Kafka drained her
wound a third time and skin from Plaintiffs thigh was grafted onto her wound. (R. at
45-46, 50-51.) Yet the wound continued to drain and, according to Plaintiff, drains “for
about three or four months, and then it would go away, and then it would come back
and drain again.” (R. at 51.) At the time of the hearing, her wound was draining once
again. (Id.)

Plaintiff refers to her skin-grafted wound as a “hump.” (R. at 72.) Her “hump”
makes it hard for her to sit, stand, or bend over. (R. at 53.) For example, after five
minutes of sitting, Plaintiff claims she must sit on her right side to be comfortable and
after ten minutes of standing, Plaintiff claims she must lift one of her feet to avoid
painful swelling. (R. at 60-61.) She claims that the most comfortable position is lying
on her stomach or on her left side. (R. at 62.)

Plaintiff also claims she suffers from lupus and believes this is the reason her

' “Any closed cavity or sac that is lined by epithelium often contains liquid
or semi-solid material.” The On-line Medical Dictionary, at http://www.graylab.ac.uk/
cgi-bin/omd?cyst (last modified October 9, 1997).

> The only evidence in the record relating to the source of Plaintiffs cyst is
Plaintiffs testimony. The record also lacks any of Dr. Story’s medical records, but
there is a mention that he was a consulting physician in 1994. (R. at 340.)

3


tial

ssistance Office (GAO”). (R. at 76.) She has a bachelor’s degree in criminal s¢

justice. (R. at 77, 82.) Between March 1998 and April 1999 when she testified at the
administrative hearing, Ms. Jean-Paul saw the Plaintiff in her office two to three times
a month for somewhere between LO and 30 minutes and spoke to her on the phone
twiee a month. The purpose of these meetings was to help Plaintiff find work. (R. at
78.) Ms. Jean-Paul noted that Plaintiffhas “trouble concentrating” and “doesn’t focus”
during thei thirty-minute meetings. Ud.) She also noted Plaintiffs loss of energy, loss
of weight, dark circles under her eyes, medical problems, and social isolation, as well
as Plaintiff's daughter's concern for Plaintiffs health. (R. 79-80.)

In March and April of 1998, Plaintiff unsuccessfully participated in a GAO work
program designed to match participants with interviewing employers. (R. at 78, 82-
$3.) She stopped participating in the program after Ms. Jean-Paul determined that she
was not physically or mentally capable of participation and that she was unable to
perform any of the available receptionist, data-entry, or labor jobs. (R. at 79, 82.) Ms.
Jean-Paul also testified that she believed Plaintiff was depressed and referred her to
the adult guidance center at St. Francis Hospital. (R. at 79-80.)

2. Testimony of Vocational Expert

Susan Entenberg is a vocational expert with the Social Security Administration
and is a licensed clinical professional counselor in Illinois. (R. at 84, 128.) She stated
that she had reviewed the case file and heard the Plaintiffs testimony regarding her
work history. (R. at 85.) The ALJ presented Ms. Entenberg with the following

hypothetical:

14


maintain a competitive rate. (R. at 88-90, 92-93.)

Ms. Entenberg also addressed Dr. Drevlow’s assessment that Plaintiffcould not
sitor stand continuously for six out of eight hours. (R. at 268.) Ms. Entenberg stated
ihat under one interpretation of this assessment — that Plaintiff could not sit or stand
for six consecutive hours within an eight hour period — Plaintiff would be able to
perform the jobs noted above. (R. at 95-96.) Ms. Entenberg echoed the ALd in noting
that Dr. Drevlow’s assessment could be understood in other ways, however. (R. at 95.)
She called the assessment a “confusing statement.” (R. at 96.)

dD. The ALJ’s Decision

1. ‘The Five-Step Test

The Social Security Act defines a “disability” as the “inability to engage in any
substantial gainful activity by reason ofany medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to lust for a continuous period of not less than 12 months.” 42 U.S.C. §
f23(D)C)(A). The Social Security regulations prescribe the following five-step test to
determine whether an individual is disabled:

(1) fs the claimant presently employed?

(2) Is the claimant “severely” impaired? Do the claimant's physical or

mental impairment(s) “significantly limit [claimant's] ability to do
basic work activities?”

(3) Does the claimant's impairment(s) mect the level of severity
identified in 20 C.F.R. § 404, Appendix 12!"

" Appendix 1 to Subpart P of 20 C.F.R. §404 provides a list of all the
medical conditions that may constitute a disability under the Social Security Act. It
also describes how these medical conditions need to be documented in order to be
~severe” cnough to constitute a “disability.” Both lupus and depression are listed in

(continued...)

16


the record is inadequate to support the ALJ’s determination that Plaintiff had the
residual functional capacity to work. Accordingly, the Commissioner’s decision is
reversed and the case is remanded to properly determine Plaintiff's residual functional
capacity and whether she is able to perform any work in the national economy.

PROCEDURAL BACKGROUND

Plaintiff applied for Disability Insurance Bencfits and Supplementary Security
Income on June 18, 1998." (Record (“R.”) at 578-580.) Her application was denied on
September 4, 1998 (R. at 102-05) and her request for reconsideration was denied on
October 30, 1998. (R. at 108-10.) She appealed the decision to an ALJ (R. at 107, 111)
who denied her disability benefits on November 22, 1999. (R. at 17.) Plaintiff
appealed the ALJ’s decision to the Appeals Council of the Office of Hearings and
Appeals “Appeals Council”) on January 24, 2000 (R. at 604) and on November 21, 2000
the Appeals Council announced that it would not reverse the ALJ’s decision. (R. at 9-
14.) The final decision of the Appeals Council is deemed the decision of the

Commissioner. (R. at 9.)

FACTUAL BACKGROUND

The following statement of facts is drawn from testimony, medical records, and

other materials in the administrative record.

Plaintiff had previously applied for disability insurance benefits in 1995.
This application and her subsequent request for reconsideration were denied. (R. at
505-07, 509-12, 522-26.) There is no evidence in the record that she appealed this
decision. The record also does not contain a second application for disability insurance
benefits, but the court presumes that she re-applied for these benefits because the ALJ
denied them in his decision. (R. at 20.)


Charter, 98 F.3d 966, 970 (7th Cir. 1996).

Much of this reasoning applies to Plaintiffs additional allegation that the Ald

gave Ms. Zarifis opinion insufficient weight. The ALJ noted that Ms. Zarifi’s
psychological assessments reported inconsistent svmptoms and suggested that

claimant had responded well to medication and treatment, although she needed to

continue with therapy. The ALJ also noted that Dr. Embar’s report on August. 10. 1998
indicated that Plaintiff displayed no thought abnormality. The ALJ noted further that

in Plaintiffs original psychological assessment, Ms. Zarifi concluded that Plaintiff

suffered from neither short- nor long-term memory impairments. In light of

inconsistencies between Ms. Zarifiis own varying assessments, and between the

conclusions drawn by Ms. Zavifi and those drawn by other medical professionals. this
court is not inclined to reweigh the evidence or disturb the ALJ's conclusion.

Finally, the ALJ considered whether Plaintiffs lupus met the requisite level of
severity through the combination of her impairments under section 14.02B. (R. at 22.)
To make such a showing under this section, Plaintiff must present evidence of:

The lesser involvement of two or more of the following organs/body
joint, muscle, ocular, respiratory, cardiovascular, digestive.
renal. skin, neurological involvement, or mental involvement;
Significant, documented, constitutional symptoms and signs of
severe fatigue, fever, malaise, and weight loss; and
Atleast one of the organs/body systems must be involved to at least
a moderate level of severity.

systems

20 CAR. § 404, Subpt. P, App. 1. Given the inconsistencies in the medical record

noted above regarding the severity of Plaintiffs impairments, a finding that. none of

them reaches “a moderate level of severity” would be supported by substantial

evidence. Furthermore, the medical record does not contain “significant, documented,

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
GERLENE GRIFFITH )
ke —
ep a)
Plaintiff, a a)
Oo ¢
a) No. 00 C 7302
)
JO ANNE B. BARNHART,' Commissioner, ) Judge
of the Social Security Administration, ) Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Gerlene Griffith is a 51-year-old high school graduate who lives by
herself in Evanston, Illinois, a few blocks from her daughter and grandson. Plaintiff
suffers from a persistent wound on her left hip, arthritis, and depression, all of which
may be caused by systemic lupus erythematosus.” On June 18, 1998, Plaintiff applied
for Disability Insurance Benefits and Supplementary Security Income under Titles II
and XVI of the Social Security Act. 42 U.S.C. §§ 416(), 423, 1881a. On November 21,
2000, Defendant, the Commissioner of the Social Security Administration (“the
Commissioner’), denied her claim. On December 6, 2000, Plaintiff filed this action for
judicial review pursuant to 42 U.S.C. § 405(g).

For the reasons set forth herein, this court agrees with the Administrative Law
Judge (“ALJ”)'s November 22, 1999 decision that Plaintiffs disability did not meet the

requisite level of severity for impairment under federal regulations, but concludes that

Pursuant to FED. R. Civ. P. 25(d)(1) and Pub. L. No. 103-296, Jo Anne B.
Barnhart is substituted as the named Defendant for Kenneth S. Apfel.

> “A chronic, relapsing, inflammatory, and often febrile multisystemic
disorder of connective tissue, characterised principally by involvement of the skin,
joints, kidneys, and serosal membranes.” The On-line Medical Dictionary, at
http://www.graylab.ac.uk/cgi-bin/omd?lupus+erythematosus,+systemic (last modified
December 12, 1998.)


Add did include the omitted limitation, it is clear that his decision at step (5) was
based primarily on Ms. Entenberg’s testimony, which, for reasons given below, docs not
constitute substantial evidence.

The bypothetical question to a vocational expert must set forth limitations that
are supported by objective medical evidence. The fact that a hypothetical question docs
not sct forth every such limitation does not mandate reversal in every case. See
Ragsdale v. Shalala, 53 F.3d 816, 820 (7th Cir. 1995); Herron v. Shalala, 19 F.3d 329,
337 (7th Cir. 1994); Lhrhart v. Secretary of HHS, 969 F.2d 534, 540 (7th Cir. 1992).
‘Thus, the Seventh Circuit has upheld findings based on incomplete ALJ hypotheticals
where (a) plaintiffs attorney subsequently posed additional hypothetical questions that
included the omitted impairment, ferron, 19 F.3d at 337; (b) the ALJ's hypothetical
reflected the plaintiffs impairments to the extent the ALJ found them supported by the
record, Mhrhart, 969 F.2d at 540; or (c) the vocational expert had reviewed the record
prior to the hearing and been present during the plaintiffs testimony, Ragsdale, 53
8d at 820.

In the case at hand, Plaintiff's attorney did not pose additional hypotheticals
addressing the omitted impairment, and, as noted above, the ALd’s hypothetical does
hot appear to have fully reflected his conclusions about Plaintiffs mental impairments.
While the vocational expert did review the record prior to the hearimg and attend
Plaintiffs testimony, the court concludes that the case must still be remanded for a
determination of the effect of Plaintiffs mental condition, as determined by the Ald.
on her ability to maintain production. Ultimately, the expert's testimony in this case

is not probative of which jobs Plaintiff could perform because the omission from the

28


between December 1998 and June 1999,'* (R. at 615.) Ms. Zarifi’s progress notes
contain twenty-four entries for these seven months. (R. at 309-320.) Twenty-three of
them identify scheduled appointments. Plaintiff cancelled thirteen appointments,

failed to show up for three others, and attended seven appointments. In notes

summarizing Plaintiffs appointments and phone calls cancelling appointments,
Zavili noted that Plaintiff was depressed on thirteen occasions; suffered from fear,
helplessness, or anger nine times; experienced pain ten times; and was fatigued cight
times. (R. at 309-20.) Additionally, on March 30, 1999, she noted that the Plaintiff

was away in Michigan to visit her son. (R. at 313.)

In addition to her progress notes, Ms. Zarifi twice diagnosed the Plaintiff with
a major depressive disorder, first on December 4, 1998 and a second time on

February 8, 1999. (R. at 321, 324, 271.) In her first diagnosis, she noted that

Plaintiff's affect was constricted; she was angry, depressed, and ashamed; she was
hypoactive; had an organized thought process; had intact attention: fair insight; fair
Judgment; average intelligence; intact short-term and long-term memory; impaired
recent memory; impaired sleep; impaired appetite; normal hygiene: no violence risk:
and minimal suicide risk. (R. at 323-24.) In her second diagnosis, Ms. Zarifi stated
that the Plaintiff's “mental and physical condition make {her] capacity to maintain
sustained work-related activity markedly limited.” (R. at 271.) She observed that
Plaimtiff had responded well to treatment, which included psychotherapy, a support

group, and the anti-depression medication Paxil. (R. at 272.) She concluded that

Is

(R. 309-320.)

Ms. Zarifi’s progress notes reflect only seven meetings with the Plaintiff.

12


Ifwe were to assume .. .a hypothetical female individual who's 48 years
old, has a high school education, having the ability to read, write, and
numbers, also having the same prior work history as the claimant, having
had the capacity to perform work with the following, no other additional
limitations. The individual would have the capacity to lift and carry up
toa maximum of 10 pounds on an occasional basis, and lighter items such
as small hand tools or individual case files on a frequent basis, with the
capacity to sit with normal breaks for up to six hours each within an eight
hour day, the individual has the capacity to stand and walk again with
normal breaks for a combined total of let’s say two hours within the eight
hour day. An individual may not climb ladders, ropes or scaffolds, may
otherwise climb ramps or stairs no more than occasionally, and may also
occasionally perform other activities such as balancing, stooping,
knecling, crouching, crawling. The individual must avoid concentrated
exposure to fumes, odors, dust, gases and pulmonary irritants, and by
reason ofa depressive condition does not have the capacity to understand,
recall, carry out complex or detailed instructions or to perform complex
or detailed tasks, but does retain the capacity to understand, recall and
carry out simple tasks and simple instructions on a sustained basis.

(R. at 86-87), Ms. Entenberg testified that the hypothetical individual described by the
ALd could not perform the Plaintiffs prior work — which is classified as a sedentary
semi-skilled job - due to an inability to perform detailed, complex tasks, but would
retain the ability to perform the full range of sedentary, unskilled work. (R. at 86-88.)

Alter the ALJ modified the hypothetical to include an additional limitation —
that the individual must be allowed to alternate from the seated to the standing
position at intervals of 45 minutes for a period of 5 to 10 minutes on cach occasion —
the vocational expert stated that the individual could perform sedentary work that has
asit/stand option. She testified that there are 3,000 assembly jobs, 2,000 packing jobs,
and 1.000 inspection jobs within that category in the Chicago metropolitan area. (R.
at 87-89.) She also testified, however, that maintaining a position for 30 minutes is the
“bare minimum” in order to “maintain production” and if the individual had to change

position every 30 minutes, she would not have enough time to finish a task and