referencing the findings of Dr. Tomassetti, which directly contradicted the findings of Dr.
Piszczor. Failure to address the findings of plaintiff's treating physician and adopting
contrary findings of non-treating physicians without explanation constitutes error and
requires that we remand the case to the ALJ for further review. See Zurawski v. Halter,
245 F.3d 881, 889 (7th Cir. 2001).

The ALJ also did not address the confusing testimony of Dr. Johnson, the
medical expert. The ALJ accepted Dr. Johnson's testimony without referencing or
explaining away its internal inconsistencies. Dr. Johnson opined that plaintiff had not
had documented episodes of decompensation and did not require a sheltered work
environment. Dr. Johnson further testified that he did not disagree with Dr. Piszczors
findings. However, Dr. Piszczor's records included findings that plaintiff did in fact have
episodes of decompensation and did require a sheltered work environment. Dr.
Johnson cannot make conclusions contrary to Dr. Piszczor's findings and still
completely agree with them. The ALJ never addressed this issue.

Having found all of this, it is inportant to note that ultimately, the ALJ may well
be correct regarding plaintiff's mental impairments. His substance abuse may very well
turn out to have been a material contributing factor to his depression and any disability
may stem in a material way from his substance abuse. However, on the record before
us, we cannot sustain such a conclusion. The ALJ must address the opinion of Dr.
Piszezor, plaintiffs treating physician, and must provide a more well reasoned basis for
adopting the findings of Dr. Johnson. The ALJ has not provided us with an accurate
and logical bridge from the evidence to her conclusions.

Plaintiff also contends that the ALJ erred because she did not give appropriate

19


C4 to C5, where there was a large central osteophyte and associated disc herniation.
/d. The report also indicated “moderate central stenosis” and ischemic (decreased
blood flow) changes in the middle part of the brain stem. /d. After reviewing the
cervical MRI, Dr. Matthews found degenerative disc disease, worse at C4 to C5 and C5
to C6, and moderate central stenosis. (R. 629). He also found central disc hemiation
and a bone spur at C4 to C5, some narrowing of the foramen (passage for the nerve) at
C4 to C5, and a disc bulge at C5 to C6 and C6 to C7. (R. 631). Dr. Matthew diagnosed
bilateral cervical radiculopathy with other degenerative changes in the bone and discs,
and advised plaintiff to continue to take Neurontin and prescribed Tylenol #3. Id. He
also noted the need for a neurosurgical evaluation and made a physical therapy
referral. /d. He prescribed Salsalate for arthritic pain control and recommended
Aspercreme for neck pain. /d. Dr. Matthews found that plaintiff was unable to perform
even sedentary work due to his cervical disease and that “a major cause of the patient's
substance abuse is due to chronic debilitating pain from the patient's neck.” (R. 475-
478). Dr. Matthews also noted that plaintiff "may require neurosurgery for his neck
arthritis, spinal cord compression, [and] nerve impairment.” (R. 476).

Based on the testimony at the March 1, 2001 hearing and the medical evidence
in the record, the ALJ issued her decision on April 27, 2001. The ALJ found that
plaintiff's disability did not meet or equal any listed impairments and that he had the
physical RFC to perform and sustain a wide range of light work. She also found that
plaintiff lacked the mental RFC to sustain even simple, unskilled work, but would be
able to sustain such work if he were able to achieve and maintain full sobriety.

Additionally, the ALJ concluded that there would be a significant number of jobs in the

13


of income. (R. 60). At home, plaintiff did chores around his apartment, including
sweeping and making his bed, however, it hurt to sweep. (R. 77).

At the hearing, plaintiff stated that he did not think he could currently work. (R.
66). Plaintiff thought that he could comfortably lift ten to twenty pounds, and could
comfortably stand in place for about twenty to thirty minutes before his back would start
to hurt. (R. 78). Plaintiff also stated that he could walk a block before having to rest.
(R. 78-9). He stated that he had trouble using his hands because his fingers became
coid very easily and he had less feeling in them than in the rest of his body. (R. 79).

After Burnett, Dr. Ellis Johnson testified as a medical expert and Edward Steffen
testified asa vocational expert. Mr. Burnett's representative stipulated that both
witnesses were competent to testify as experts in their respective fields. (R. 80).
Before the ALJ asked the witnesses for their opinions, she allowed them to question the
plaintiff. (R. 81). Thereafter, Dr. Johnson testified that, in his opinion, Burnett suffers
from the mental impairment of depression, but that it does not meet or equal a listed
impairment. (R. 89). As a basis for his opinion, Dr. Johnson stated that Dr. Piszezor
“listed about five different - eight different characterizations of depression under
affective order.” (R. 90). Then, Dr. Johnson testified that Dr. Piszezor found that
“under the degree of limitations of those problems, . . . [plaintiff's] restrictions of

activities of daily living was slight, [and] difficulties in maintaining social functioning was

‘ Specifically, Dr. Piszczor found that plaintiff suffered from the following affective
disorders; anhedonia, weight loss, sleep loss, psychomotor retardation, decreased energy,
feelings of guilt! feelings of worthlessness, acting without regard to likely painful consequences,
infrequent suicidal thoughts, and difficulty concentrating or thinking. (R. 250).

4


weight to the findings of Dr. Matthews, his treating physician, regarding the severity of
his neck problems. Dr. Matthews opined that plaintiff was “unable to perform even
sedentary work due to his cervical disease, and that ‘a major cause of [his] substance
abuse is due to chronic debilitating [neck] pain’.” Dr. Matthews found that plaintiffs
cervical MRI showed severe cervical arthritis and moderate central stenosis, which may
require surgery.

The ALJ found that she could not give Dr. Matthews’ opinion controlling weight.
In support of that finding, the ALJ cited the fact that plaintiff only had three documented
visits with Dr. Matthews as of the date he completed the RFC form. The ALJ also
stated that Dr. Matthews’ notes did not document that plaintiff made frequent or
consistent complaints to him about severe and persistent back or neck pain, or about
significant problems affecting his ability to stand or walk. He also noted that Dr.
Matthews’ RFC opinion was inconsistent with plaintiff's statements to his other doctors,
and with their more detailed and extensive objective exams and findings. In support,
the ALJ cited to a number of findings from other physicians, all of which predated
plaintiffs February, 2001 cervical MRI. The ALJ also found that Dr. Matthews’ opinion
that plaintiff's substance abuse was caused by his long history of debilitating neck pain
was not consistent or supported by the other evidence in the record. Finally, the ALJ
mentioned the fact that Dr. Matthews was an internist, “apparently early in his medical
career, and apparently (did] not have orthopedic, neurological or psychiatric specialty
training.”

Dr. Matthews’ findings were in large part based on plaintiffs February, 2001

cervical MRI. Dr. Matthews found that plaintiffs MR! showed degenerative disc

20


case to the ALJ to further explore plaintiff's possible work limitations based on the
tesults of his February, 2001 cervical MRI.
Conclusion

For the reasons set forth above, the Court finds that the ALJ's findings at Step
three are not supported by substantial evidence, and that the ALJ failed to build an
accurate and logical bridge between the record evidence and his conclusions that
Burnett was not disabled, that his additions were a material contributing factor in his
mental impairments, and that if sober he would be capable of performing other jobs in
the national economy. The Court, therefore, grants Burnett's motion for summary
judgment, and denies the Commissioner's. This Court remands this case to the

Commissioner for further proceedings consistent with this opinion. It is so ordered.

ENTER:
.

(DEP ——

T

MICHAEL T. MASON
United States Magistrate Judge

Dated: May 5, 2004

22


As stated above, the ALJ must build an accurate and logical bridge from the
evidence to his conclusion. Green v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000). The ALJ
must “sufficiently articulate his assessment of the evidence to ‘assure us that the ALJ
considered the important evidence . . . [and to enable} us to trace the path of the ALJ's
reasoning.” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (per curium) (quoting
Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985). “An ALJ may not simply select
and discuss only that evidence which favors his ultimate conclusion. Rather, an ALJ's
decision must be based upon consideration of all relevant evidence.” Smith v. Apfel,
231 F.3d 433, 438 (7th Cir. 2000) (internal citations omitted). Further, “[mjore weight is
generally given to the opinion of a treating physician because of his greater familiarity
with the claimant's conditions and circumstances,” Clifford v. Apfel, 227 F.3d 863, 870
(7th Cir. 2000).

In Burnett’s case, the ALJ found that “the objective evidence does not establish
that claimant's combined substance dependence and resulting moderate major
depression are currently so severe as to medically meet or equal listings 12.09 or
12.04.” (R. 20). In support, the ALJ cites Dr. Johnson’s testimony that “claimant's
mental impairments currently impose only slight limitations on claimant's daily and
social activities.” The ALJ's also cites Dr. Johnson's opinion that “claimant has not had
documented episodes of decompensation,” and “his mental function would improve if
claimant were able to achieve and maintain full sobriety for an extended period.” The
ALJ further relies on Dr. Tomassetti’s consultative exam results which state that
plaintiffs mental impairment “is not so severe as to meet or equal listing 12.09 and/or
12.04, since it imposes only slight limitations on [his] daily and social activities, and

17


He re-prescribed anti-depressant medication and increased plaintiffs Methadone dose
because Burnett complained of cravings for heroin. /d.

At the March 13 visit, plaintiff asked Dr. Piszczor to fill our a Psychological/
Psychiatric Impairment Report, which he did. (R. 248). Dr. Piszczor found that plaintiff
suffered from depression with the following symptoms; anhedonia, weight loss, sleep
loss, psychomotor retardation, decreased energy, feelings of guilt, feelings of
worthlessness, acting without regard to likely painful consequences, infrequent suicidal
thoughts and difficulty concentrating or thinking, (R. 250), Dr. Piszczor found that
these symptoms were triggered or caused by encounters with people, being at home
with family, and that they were worsened by his occasional cocaine use. (R. 252). Dr.
Piszezor found that plaintiff's depression restricted his daily activities and that he
“jsolates” when depressed. /d. He also found that plaintiff's illness caused repeated
episodes of deterioration or decompensation in work or worklike situations, specifically
problems with concentration. (R. 253). Or. Piszczor further opined that Burnett would
not be able to work in a non-sheltered work setting. /d. Specifically, he stated that
“problems with concentration, his tendency to isolate and problems dealing with people
would prevent [non-sheltered work] at present.” /d.

On May 15, 2000, Dr. Piszczor found that plaintiff's depression was still
significant. /d. In July, Dr. Piszezor found that Burnett's depression was “well-
controlled.” (R. 405). In August, Dr. Piszczor found that plaintiff's depression was
worse because he was worried about possibly having a serious medical itiness. (R.

403). In October, Dr. Piszczor found that plaintiffs depression was well controlled since


Mr. Steffan responded to the ALu’s hypothetical about possible employment for a
person with the residual functional capacity (“RFC”), “to perform the full range of work at
the light exertional level, with the following exceptions or limitations; that he should
never climb ladders, ropes or scaffolds, that he can occasionally climb ramps and
stairs, occasionally balance, stoop, kneel crouch and craw, that he should avoid
exposure to extreme coldness, to concentrated respiratory irritants, to unprotected
heights, or unguarded hazardous equipment, and that he is moderately limited in his
ability to understand, remember and carry out complex or detailed instructions or tasks,”
by stating that such a person could perform work as a food assembler and security
guard. (R. 96).

The ALJ also asked Mr. Steffan if it would affect his opinion if the hypothetical
person was moderately limited in his ability to sustain concentration. /d. Mr. Steffan
opined that it would not affect the food assembler position, but could affect the security
guard position because being a security guard requires a higher degree of attention and
concentration. /d. The ALJ then asked Mr. Steffan to identify other occupations, with
sufficient positions in this economy, that the hypothetical person could perform. Id. Mr.
Steffan responded with assembler, cashier and general office clerk. /d. Mr. Steffan
was also asked to identify positions for the hypothetical person if he was limited to
sedentary work. /d. Mr. Steffan stated sedentary assembler, file clerk, and general
office clerk. (R. 98).

Finally, Mr. Steffan said that if the hypothetical person was distracted by feelings
of pain, fatigue, depression or any other kind of distraction for less than five percent of

the work day - outside of ordinary breaks - he could still perform the previously cited

6


slight."? Dr. Johnson further testified that “on the basis of that report, and that is the
only report that | saw, he caused me to fee! that he does not meet or equal a listed —.”
Id.

Thereafter, the ALJ informed Dr. Johnson that she thought he was looking at Dr.
Tomassetti's report and not Dr. Piszczor’s report because Dr. Piszczor did not complete
aPRTF. Dr. Johnson then stated that he was in fact looking at Dr. Tomassetti’s PRTF,
not Dr. Piszczor’s report, and that he agreed with Dr. Tomassetti. Dr. Johnson further
opined that plaintiff's functional capacity would improve if he were 100% sober for an
extended period of time. He based that opinion on the statements that plaintiff used
drugs and is in a Methadone program. (R. 91). He opined that “[ijf [plaintiff] were not
using at all, } think that he would be able to function better, and be able to work at a
more acceptable pace than he has been.” The ALJ did not ask Dr. Johnson any
questions about Dr. Piszczor’s March, 2000 evaluation of plaintiff. However, Bumett's
representative asked Dr. Johnson whether he disagreed with Dr. Piszczor’s report. Dr.
Johnson responded that he did “not disagree with Dr. Pizszcor's report. If fact [he] was
reading from his report ---.” That was the end of Dr. Johnson’s testimony.

Finally, Edward Steffen, a vocational expert, testified. He stated that plaintiff's
past relevant jobs included security guard, food assembler and telephone
installer/repairman. (R. 95). The security guard position was considered light, unskilled
employment, and the food assembler and phone installer/repairman positions were

considered medium employment. /d.

? As discussed below, Dr. Piszczor never made such a finding. In fact, Dr. Piszczor
made an opposite finding.


often (but not frequently) interferes with claimant's concentration.”

As support for his conclusion, the ALJ stated that he primarily relied on Dr.
Piszczor’s contemporaneous progress notes. However, the ALJ completely ignored Dr.
Piszezor's Psychological Psychiatric Impairment Report, dated March 13, 2000. In that
report, Dr. Piszczor found that plaintiff suffered from the following affective disorders;
anhedonia, weight loss, sleep loss, psychomotor retardation, decreased energy,
feelings of guilt, feelings of worthlessness, acting without regard to likely painful
consequences, infrequent suicidal thoughts, and difficulty concentrating or thinking. Dr.
Piszezor found that these symptoms were triggered or caused by “encounter{s] with
people”, being “at home with family” and “other,” namely that “occasional cocaine usage
worsens [the depression}." Dr. Piszczor further found that plaintiff's illness caused
repeated episodes of deterioration or decompensation and that he needs a highly
structured and supportive living situation. He also opined that plaintiff was not able to
work ina non-sheltered work setting because of his problems with concentration, his
tendency to isolate, and his problems dealing with people. (R. 253).

In making his decision, the ALJ never addressed this March, 2000 report from
Dr. Piszczor and his findings therein. The ALJ completely ignored the findings of
plaintiff's treating physician for over a year. Instead, the ALJ relied on the contrary
findings of Dr. Tomassetti a DDS doctor, and the testimony of a confused medical
expert, Dr. Johnson: At the hearing, Dr. Johnson testified that Dr. Piszezor indicated
that plaintiff's restrictions on daily living activities and maintaining social functioning
were slight. He also testified that Dr. Piszczor stated that plaintiff never had episodes of
deterioration or decompensation in work or worklike settings. Dr. Johnson was

18


Id. He also stated that was not sleeping or eating well and could not concentrate. /d.
He had frequent crying spells and occasional feelings of helplessness and
hopelessness. /d. He also admitted to frequent drinking and frequent use of small
quantities of cocaine, heroin, and marijuana. Id. Dr. Piszezor diagnosed major
depression; opiate, cocaine, and cannabis dependence; and opiate withdrawal. (R.
549). He prescribed a low dose of an anti-depressant and increased Burnett's
Methadone dosage. /d. 2 f

At their August visit, Dr. Piszczor prescribed an additional anti-depressant,
Trazedone, and increased plaintiffs anti-depressant dosage. (R. 553). The Trazedone
was discontinued a week later due to side effects. /d. Ata November visit, Dr.
Piszczor’s found that plaintiff's depression was generally improved and would improve
more when his homelessness problem was resolved. (R. 305). In the end of
November, plaintiff returned, complaining of poor sleep, poor concentration, and
frequent crying spells due to his depression. (R. 307). He also occasionally considered
hurting himself or his girlfriend, but was able to refrain from doing so. /d.

In a January 21, 2000 progress note, Dr. Piszczor wrote that he had advised
plaintiff “again that he needs to stop illicit drug usage completely, particularly since this
probably contributes to his depression.” (R. 315). On March 6, 2000, plaintiff reported
that he had not taken his anti-depressant medicine for about one week and that his
mood had been “poor” and “sluggish.” (R. 295). He experienced poor sleep, poor
concentration and thoughts of suicide four days earlier. /d. Dr. Piszczor found him

“mildly depressed” and noted that his depression was “worse off his medication.” /d.


Mute Order Form (06/97)

. \G ; lo United States District Court, Northern District of Illinois

ver Magrateulge Michael T. Mason “than sige Judge
CASE NUMBER 02 C 8462 DATE 5/5/2004
CASE Bumett vs. 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:
(qi) Qo Filed motion of [ use listing in “Motion” box above.]
(2) QO Brief in support of motion due
(3) iat} Answer brief to motion duc. . Reply to answer briefdue___.
(4) 0 Ruling/Hearing on. setfor_ at.
(5) i) Status hearing[held/continued to] [set for/re-set for]on__setfor__—sat_—
(6) oO Pretrial conference[held/continued to] (set for/re-set for}on__——ssetfor at
(e) Qa Trial{set for/re-set for] on at
(8) QO [Bench/Jury trial] [Hearing] held/continued toa
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QFRCPA(m) ClLocal Rule 41.1 COFRCP41(a\(1) OO FRCP41(a)(2).

(10) WE [Otherdocketentry} As stated in the attached Memorandum Opinion and Order, plaintiff's motion
for summary judgment [17-1] is granted and defendant’s motion for summary judgment [19-1] is denied.
This case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. sect. 405(g) for further
proceedings consistent with this Opinion. This is a final judgment and order.

ad (For further detail see order attached to the original minute order.]
‘No notices required, advised in open court

No notices required.

vo | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.

af | Mail AO 450 form.

44N09 Lolytsia *s*
yaaa sn

Copy to judge/magistrate judge.
« cour LYeZINd S- AvNgnz

initials

{time received in
Fatcs Bes Gee

T



VAWS. Plaintiff complained of foot, back, neck, elbow, and knee pain, but his primary
complaint was lower back pain from the injury. (R. 263). Plaintiff reported that he was
injured at work when the chair he was sitting in collapsed. /d. He returned to the clinic
the next day and requested that they fill out worker's compensation forms. (R. 261).
The results of plaintiffs physical exams were generally normal. (R. 261-3).

In March, plaintiff reported unusual sensations affecting both his hands when
they were exposed to cold temperatures. (R. 319-21). The examiner found decreased
sensation to pinpricks in both arms and fingertips, but plaintiffs hand strength was
normal. (R. 321). The examiner prescribed a low dose of hypertension medication for
plaintiffs elevated blood pressure. /d.

On March 14, 2000, plaintiff had a lumbar x-ray. (R. 287). The x-ray showed
some degenerative joint disease and suggested possible metastatic neoplasm (cancer)
at the L4 to L5 level. /d. Plaintiff also had a chest x-ray, which showed chronic
obstructive pulmonary disease (“COPD”). /d. An April electrodiagnostic exam of
plaintiffs elbow showed a “focal injury" to the left ulnar nerve. (R. 456).

On May 15, a doctor evaluated plaintiffs chart and recent test results, and found
that plaintiff's abnormal lumber x-ray was unlikely to be metastatic cancer. (R. 460).
The doctor also noted a positive urine test for heroin and cocaine. /d. In August,
follow-up chest and lumbar x-rays showed that plaintiff's condition was stable. (R. 401).
The doctor noted increased sclerosis in L4 to L5, which was likely a degenerative
change, and ordered a bone scan for evaluation. /d. Plaintiffs bone scan suggested
likely degenerative changes. (R. 421). Plaintiff was advised to have a repeat scan in
three to six months. /d.

11


starting Mirtazapine. (R. 389). Ata March 7, 2001 appointment, Dr. Piszczor
recommended an increase in Bumett's anti-depressant dosage. (R. 633).

In October, 1999, plaintiff also underwent a psychiatric consultative exam
performed by Dr. David Gehlhoff. (R. 230). Dr. Gehlhoff found plaintiff to be a “very
depressed appearing man.” /d. Plaintiff told him his drug habit was $10.00 to $20.00 a
day three or four months ago and is now about $5.00 twice a week. /d. Plaintiff also
stated that he had been depressed for the past six months, but not suicidal. id. He
stated that he was depressed generally and because he had lost his place to live and
possessions. /d. His mental status exam showed a depressed mood and limited
recent memory. (R. 231-2). Plaintiff had difficulty with serial seven subtraction. /d. Dr.
Gehlhoff diagnosed a substance abuse history, though minimal at the present time, and
adjustment reaction with a very significant depressed mood. (R. 232).

Physical Problems

Plaintiff was admitted to VAWS in December,1998 for peptic ulcer disease. (R.
219). In September,1999, Burnett was admitted for observation and discharged with a
diagnosis of gastritis. (R. 229). Plaintiff underwent a colonoscopy and endoscopy,
which were negative. (R. 270). In October, Dr. Ghanim Kassir examined plaintiff on
behest of the Commissioner. (R. 234). Dr. Kassir noted plaintiff's musculoskeletal and
neurological exams as normal. (R. 236). He diagnosed musculoskeletal lower pain,
gastroescophageal reflux disease, previous history of peptic ulcer, arthralgia in both
elbow joints, and illicit substance abuse including heroin and cocaine for the past twenty
years. Id.

Then in February, 2000, plaintiff injured himself at work and sought treatment at

10


jobs. /d. Mr. Steffan also stated that people in these types of jobs are generally off-
task about 20 percent of the day and that is considered to be within adequate
production levels. However, being off-off task more than twenty percent of the day
would interfere with a person's ability to perform those jobs. (R. 99).

Medical Examinations

Mental Problems

In addition to the testimony of the three witnesses, the ALJ considered plaintiff's
extensive medical record. Plaintiff received treatment at the VA West Side Facility
(“VAWS") on October 24, 1996 for drug dependence. (R. 200-1). At the time, he
reported a long history of dependence on alcohol, cocaine, heroin, and marijuana. /d.
He was cleared for the Methadone maintenance program and began receiving
Methadone. (R. 203). However, he was discharged from the program for
noncompliance and nonattendance on February 26, 1997. (R. 216). Plaintiff was
readmitted in February,1998, but again had poor compliance with the treatment. (R.
531).

On May 25, 1999, a case technician at VAWS referred Burnett to Dr. Joseph
Piszczor, a psychiatrist. /d. Dr. Piszezor treated Burnett once or twice a month from
July, 1999 through the time of the ALJ's hearing.* (R. 547). During their entire
treatment relationship, plaintiff reported rather consistent drug usage. At their first visit,
plaintiff reported that he had been depressed the prior six months “over his drug usage,

his living situation, his financial situation and his relationship with his significant other.”

3 We will not reference every appointment between Burnett and Dr. Piszczor. We will
only include appointments with information significant to this opinion.

7


disease, worse at C4 to C5 and C5 to C6, and moderate central stenosis. He also
found central disc herniation and a bone spur at C4 to C5, some narrowing of the
foramen (passage for the nerve) at C4 to C5, and a disc bulge at C5 to C6 and C6 fo
C7. Based on those determinations, Dr. Matthews found that because of plaintiffs
cervical disease, he was not eligible for even sedentary work. (R. 631). From the
record, it appears that plaintiff's first cervical MRI was performed in February, 2001 and
that Dr. Matthews was the first and only physician to review that MRI and make medical
findings based on its results. Plaintiff's prior treating physicians and the DDS doctors
never ordered or reviewed a cervical MRI.

While internal inconsistencies within plaintiff's medical record may provide good
cause to deny controlling weight to a treating physician's opinion, the ALJ must
adequately articulate his reasoning for discounting the opinion. Clifford v. Apfel, 227
F.3d 863, 871 (7th Cir. 2000) (holding that the ALJ erred in discounting a treating
physician's findings because he did not adequately articulate how that opinion was
inconsistent with other evidence in the record). \n this case, the ALJ did not adequately
articulate his reasoning for discounting Dr. Matthews’ opinion. The ALJ cited to
plaintiff's prior complaints of back pain and his extensive April, 2000 exam following an
abnormal lumbar x-ray. The ALJ also noted Dr. Duvel's December, 2000 finding that
plaintiff's neurological exam was essentially normal. However, none of this evidence is
necessarily inconsistent with Dr. Matthews’ evaluation of plaintiffs February, 2001
cervical MRI. Prior to Dr. Matthews, plaintiff's doctors appear to have focused on his
back, not his neck. The ALJ did not adequately articulate his reasoning for discounting

Dr. Matthews’ opinion concerning plaintiff's cervical disease. Therefore, we remand this

21


Mirtazapine for depression. (R. 68-9, 73). Plaintiff also used an inhaler for breathing
problems. (R. 69).

Burnett testified that he had trouble remembering doctor's appointments and
remembering to take his medication. (R. 52). At times, he felt like someone was
watching him and trying to harm him. He also felt guilty about his way of life and not
being there for his son. (R. 52-3). He watched TV for enjoyment, but sometimes had
problems following the programs. /d. He testified that he had trouble sleeping and had
been prescribed medication to help him sleep. (R. 54). He also stated that sometimes
he had thoughts of suicide and thought about harming his girlfriend, but he never acted
on those thoughts. (R. 55).

At the time of the hearing, plaintiff had also been in a Methadone program for
drug dependency for the prior two years. (R. 73-4). He stated that he did not miss
more than a day of his Methadone treatments because if he did, he became depressed,
sick, and weaker. /d. He also testified that he still occasionally used drugs and had
used them the previous night. /d. His biggest problem was cocaine and marijuana. He
obtained drugs by making purchases for others who gave him some as payment. (R.
75). Plaintiff had positive urine drops throughout 2000, and he testified that the longest
time he had gone without using was “[a] few weeks maybe.” (R. 76).

Plaintiff supported himself with food stamps, occasional work through Earmfair, a
government job program, and financial help from his aunt and uncle. (R. 57). His most
recent Earnfair job lasted about a month and involved cleaning and letting cars in and
out at a car glass replacement shop. /d. Prior to that, plaintiff worked unloading trucks

for a retailer for approximately four months. /d. Plaintiff did not have any other sources

3


national economy that plaintiff could perform if he achieved and maintained sobriety,
including assembler, cashier, and general office clerk. On that basis, the ALJ found
plaintiff not disabled and denied his request for benefits.
Standard of Review

We must affirm the ALJ's decision if it is supported by substantial evidence and
free from legal error. 42 U.S.C. §405(g); Steele v. Bamhart, 290 F.3d 936, 940 (7th Cir.
2002). Substantial evidence is more than a scintilla of evidence and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). The ALJ need not weigh every piece of evidence, however,
when the Commissioner's “decision lacks evidentiary support or is so poorly articulated
as to prevent meaningful review, the case must be remanded.” Steele, 290 F.3d at
940. Generally, we cannot substitute our judgment for that of the ALJ by deciding facts
anew, reweighing the evidence, resolving conflicts in evidence, or deciding questions of
credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998).
Analysis

A person is disabled under the Act if he or she has an “inability to engage in any
substantial gainful activity by reason of a 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 twelve months." 42 U.S.C. §
423(d)(1)(A). In determining whether a claimant is disabled, the ALJ conducts a five
step analysis: (1) whether the claimant is presently unemployed, (2) whether the
claimant's impairment is severe, (3) whether the impairment meets or exceeds any of

14


step three, the ALJ considered both plaintiffs metal and physical impairments. As to
plaintiff's mental impairments, the ALJ found that the record did not establish that
plaintiff met listings 12.04 or 12.09, and additionally, that “in the event [plaintiff] were
able to achieve and maintain sobriety, his mental functioning would improve
significantly, to the extent that he would be only slightly limited in his ability to perform
and sustain the mental demands of work.” (R. 20). As for plaintiff's physical
impairments, the ALJ found that they did not meet or equal listing 1.05. (R. 21).

At step four, the ALJ found that plaintiff could not perform his past relevant work.
(R. 30). Specifically, the ALJ found that “during the period [plaintiff] admittedly has
continued to use street drugs frequently, he has lacked, and will continue to lack, the
mental RFC to sustain simple unskilled work, because his reliability and ability to keep
to a daily and weekly schedule are markedly impaired by his drug use.” (R. 30).
However, the ALJ further stated that “if [plaintiff] were able to achieve and maintain
sobriety, and to improve his treatment compliance for his mild underlying depression,
[plaintiff] would be only slightly limited in his ability to perform the mental demands of
work." /d. As for the plaintiff's physical RFC, the ALJ found that he could perform and
sustain a wide range of light work. (R. 32).

Finally, the ALJ determined that at the fifth step, considering the plaintiff's age,
educational background, work experience and RFC, if he were able to achieve and
sustain sobriety, he would be capable of making a successful adjustment to work that
exists in significant numbers in the national economy and that his substance
dependence is a contributing factor material to any disability. (R. 34). Therefore, the

ALJ concluded that plaintiff was not disabled under the Act. /d.

16


drugs. (R. 45). However, his benefit eligibility ceased in January, 1997 after the
enactment of Public Law 104-121, the “Contract With America Advancement Act of
1996.” On March 1, 2001, ALJ Helen G. Copper conducted a hearing on plaintiff's
current petition. Mr. Burnett, Dr. Ellis Johnson, a psychiatrist, and Mr. Edward Steffan,
a vocational expert, testified at the hearing. (R. 37). Afterwards, plaintiff
supplemented the ALJ's record with additional medical evidence. (R. 142) The ALJ
closed the record and issued an opinion denying plaintiff's claim. The Appeals Council
denied plaintiff's request for review and ALJ Copper’s decision became the final
decision of the Commissioner. See Zurawski v. Halter, 245 F.3d 881 (7th Cir. 2001);
Reg. § 416.1481.

Plaintiff's Testimony

Richard Burnett, now fifty-four years old, is an Air Force veteran with a twelfth-
grade education. (R. 47-8). Burnett was honorably discharged from the Air Force
under special conditions and his past work experience includes employment as a
security guard, food assembler, and telephone installer/repairman. (R. 48, 95).

At the hearing, plaintiff testified that, physically, his main problem was his back,
and pain in his elbow and knee joints. (R. 50). He also stated that lately he had been
having bad cramps in his legs and that he experienced daily pain in various locations.
(R. 50, 71). He further stated that his condition had progressively worsened. If he
worked one day, the next day, his body was too sore to go to work. (R. 50). He also
stated that his body was just too tired after a day's work and that he had difficultly
finishing tasks assigned at work, (R. 50-1). At the time of the hearing, plaintiff was on

a daily regimen of extra strength Tylenol for pain, blood pressure medication, and

2


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD BURNETT,
Plaintiff,

v.

)
)
)
} No. 02 C 8462
)
} Mag. Judge Michael T. Mason
)

JO ANNE B. BARNHART
Commissioner of Social Security, )

Defendant. )
DOCKETED

MEMORANDUM OPINION AND ORDER
MAY 0 6 2004

Michael T. Mason, United States Magistrate Judge:

Plaintiff, Richard Burnett (“Burnett” or plaintiff”), has brought a motion for
summary judgment seeking judicial review of the final decision of the Commissioner of
the Social Security Administration (‘Commissioner” of “defendant’), who denied
Burnett's claim for disability insurance benefits (“DIB”) and Supplemental Security
Income ("SSI") under the Social Security Act (“Act”), 42 U.S.C. §§ 416(i), 423(d), 1381a.
Defendant, Barnhart, filed a cross motion for summary judgment asking that we uphold
the decision of the Administrative Law Judge (“ALJ”). We have jurisdiction to hear this
matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the following reasons, we
grant plaintiff's motion and deny defendant's motion, remanding this case to the ALJ for
further proceedings consistent with this opinion.

Procedural History

Burnett filed an application for DIB and SS! on August 20, 1999, alleging

disability since July 4, 1999, without regard to his substance abuse. (R. 146-9). Prior

to this application, plaintiff had been awarded benefits based on his dependence on


In November, plaintiff had a lumbar MRI, which showed “mild disc bulge ...at L5-
S1" and atrophy of the psoas muscle. (R. 520). In December, Plaintiff sought
treatment for pain, but the attending physician refused to prescribe narcotic strength
pain medication due to plaintiff's history of drug use. (R. 617-19). A straight leg raising
exam (“SLR”) was negative and Dr. Duvel noted that plaintiff November, 2000 MRI
showed degenerative disc disease at L4 to L5 and at L5 to $1, with a mild bulge and no
significant stenosis. (R. 61 9). The doctor advised plaintiff to continue taking other pain
medication and made a physical therapy evaluation referral. /d.

in January, 2001, plaintiff still complained of low back pain and an abnormal
sensation in his right neck and shoulder that traveled down his right arm. (R. 621). Dr.
Matthews examined him, finding that his cervical spine was tender and his reflexes
were equal bilaterally. Id, Dr. Matthews noted that plaintiffs symptoms were
“described ina dermatomal fashion across the right rotator cuff muscle group.” fd. A
straight leg raising exam (“SLR”) was reported positive at 75 degrees. /d. Dr. Matthews
found that plaints neck pain was likely cervical in origin and he ordered an x-ray and
cervical MRI. /d,' This was the first time a cervical MRI had been performed. Dr.
Matthews also refused to prescribe Tylenol #3 despite plaintiff's request and instead
prescribed Neurontin. Id.

On January 24, plaintiff sought treatment for a persistent cold. (R. 623). Dr.
Medina prescribed antibiotics and advised plaintiff to stop smoking. /d. Plaintiff
returned a few days later with continued cold symptoms. (R. 625). The doctor found
that plaintiffs upper respiratory infection was improving slowly. (R. 627).

In February, plaintiffs cervical MRI showed degenerative disc disease, worse at

12


the specific impairments listed in the regulation, (4) whether the claimant is unable to
perform his or her previous occupation and (5) whether the cldimant is unable to
perform any other work in the national economy given his or her age, education, or
work experience. Cichon v. Bamhart, 222 F. Supp. 2d 1019, 1025 (N.D. Ill. 2002)
(citing 20 C.F.R. § 416.920(a) - (f)). Affirmative answers at steps three and five will lead
to a finding that the claimant is disabled. Zalewski v. Heckler, 760 F.2d 160, 162 n.2
(7th Cir, 1985). A negative answer at any step, other than three, will result in a finding
that the claimant is not disabled. /d. The claimant carries the burden of proof for steps
one through four. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). If the analysis
reaches step five, the burden shifts to the Commissioner to show that there are other
jobs in the economy that plaintiff is capable of performing. /d.

Additionally, the ALJ must “build an accurate and logical bridge from the
evidence to [her] conclusions so that [the Court] may afford the claimant meaningful
review of the [Commissioner's] ultimate findings.” Blakes ex rel. Wolfe v. Bamhart, 331
F.3d 565, 569 (7th Cir. 2002). Therefore, the record must contain evidence to support
the ALu's findings, and the ALJ must rationally articulate a basis for those findings.
Steele, 290 F.3d at 941.

In this case, the ALJ applied the five-step analysis outlined above, finding at step
one that plaintiff was not engaged in substantial gainful activity and had not been since
the alleged onset of his disability. (R. 18). At step two, the ALJ noted that plaintiff had
been treated for depression, substance dependence, and various physical complaints,
and found that his mental impairments were severe because “they impose at least
minimal restrictions on [plaintiffs] ability to perform work related activities.” (R. 19). At

15