to which findings carry greater force and hence as to who should
prevail .®

ALJ Kraybill’s Credibility Determination

Additionally, Young correctly notes the incompleteness of
the ALU's determination as to Young’s credibility. ALJ
Kraybill’s credibility determination consisted entirely of his
conclusory statement that he “did not find the claimant credible.
Her complaints were overstated and not corroborated by objective
medical evidence” (R. 18 (citations omitted)). That statement
directly flouts the mandate of SSR 96-7p (61 FR 34483, 34484):

It is not sufficient for the adjudicator to make a single,

conclusory statement that "the individual's allegations have

been considered" or that "the allegations are (or are not)
credible." It is also not enough for the adjudicator to
recite the factors that are described in the regulations for
evaluating symptoms. The determination or decision must
contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to
any subsequent reviewers the weight the adjudicator gave to
the individual's statements and the reasons for that weight.

Here ALJ Kraybill provided no explanation nor any reference
to evidence in the case record, as mandated by SSR 96-7p.
Moreover, ALJ Kraybill failed to refer in his credibility
determination to any of Young’s complaints regarding her

symptoms. Consequently “the ALJ must conduct a reevaluation of

[Young's] complaints of pain with due regard for the full range

6 Although C. Mem. 13-15 advances a number of suggested
explanations, such argument smacks of post-hoc rationalizations,
rather than reflecting anything that the ALJ actually said and
did.

13


Patel also found her unable to walk on heels and toes and unable
to squat, and also that she had ronchi upon lung examination,
moderately elevated high blood pressure despite medications,
obesity and a chronic cough (id. 125-28). Dr. Patel further
found that Young could walk 50 feet without support and had no
difficulty getting on and off the examination table (id. 126).
Dr. Patel listed three impressions: COPD, high blood pressure
and obesity (id. 128).

Young also underwent two pulmonary tests that indicated an
FEV1 level of 1.49 on December 27, 1999 (R. 121) and 1.89 to 3.05
on January 13, 2000 (id. 131-34). Listing 3.02(a) in Reg. §404
Subpt. P, App. 1 charts an FEV1 level of 1.45 to 1.55 or less to
indicate substantial and disabling chronic pulmonary obstruction
for someone of Young’s height.

On January 21, 2000 Dr. Harry Bergmann, a non-treating non-
examining state agency physician, reviewed the medical evidence
ef record and opined that Young had no exertional limitations but
needed to avoid concentrated dust and fumes (R. 135-42). Next,
on February 25, 2000 Dr. Martinez completed a pulmonary RFC that
reported that Young’s symptoms were severe enough to interfere
often with concentration and attention and that she was incapable
of even low stress jobs (id. 164). Additionally, Dr. Martinez
found that Young could walk less than one block, sit for only one

hour at a time, stand for 15 minutes at a time and sit, stand and


Reg. §416.927(e) (2) charges an ALJ with making the ultimate
determination of disability. But in making that determination,
an ALJ (whose decision typically becomes that of Commissioner
herself) "must minimally articulate his reasons for crediting or

rejecting evidence of disability" (Scivally v. Sullivan, 966 F.2d

1070, 1076 (7th Cir. 1992)) and "build an accurate and logical
bridge between the evidence and the result" (Sarchet v. Chater,
78 F.3d 305, 307 (7th Cir. 1996)). As Herron, 19 F.3d at 333
(internal citation omitted) teaches:
Although a written evaluation of each piece of evidence or
testimony is not required, neither may the ALJ select and
discuss only that evidence that favors his ultimate
conclusion.
Finally, “as this Court [our Court of Appeals] has counseled on
many occasions, ALJs must not succumb to the temptation to play
doctor and make their own independent medical findings" (Rohan v.
Chater, 98 F.3d 966, 970 (7th Cir. 1996)). In assessing a
claimant's RFC an ALJ must consider all of the claimant's
symptoms, including pain, that can reasonably be found to be

consistent with the available evidence (Reg. §416.929).

Impact of Young’s Obesity

Neither side disputes the first two steps in the inguiry,
but their conflicts arise in advancing to the third step and
beyond. At the third step, it is Young’s burden to show that she
satisfied all of the criteria of the listing (Pope v. Shalala,

998 F.2d 473, 480 (7th Cir. 1993)). On that score, after Young's


Hoiseth testified as a vocational expert that based on just
the physical limitations detailed in Dr. Martinez’s report, Young
would not be able to perform any work (id. 220). Hoiseth
identified Young’s past work as a general office clerk as
sedentary semi-skilled work (id. 217). ALJ Kraybill did not
propound any hypotheticals, but Young’s attorney asked Hoiseth a
few questions, including whether or not an individual who would
need to miss work once a week could perform any jobs--and Hoiseth
answered “no” (id. 220).

ALJ Kraybill reviewed the submitted evidence and made a
series of findings adverse to Young's claim:

1, While Young had multiple impairments that were
severe, she was not under a disability because “the
condition failed to meet or equal any section of the Listing
of Impairments” (R. 19).

2. Dr. Bergmann's assessment of the combination of
impairments was correct, for “[t]here were no exertional
limitations; notwithstanding claimant’s complaints of
shortness of breath and high blood pressure” (id. 16).

3. Dr. Martinez’s opinion “on the issue of the nature
and severity of the claimant’s impairments was not well-
supported by medically acceptable clinical and laboratory
diagnostic techniques and was inconsistent with the other

substantial evidence in the case record” (R. 18).


walk for less than two hours in an eight-hour workday (id. 165).
Dr. Martinez also opined that Young could never lift anything
(id. 166-67).

On March 9, 2000 Dr. Martinez examined Young again and
opined that she was doing well with a mild cough with sputum, but
that her lungs were clear (R. 175). Then on April 20 Dr.
Martinez found that Young had bronchitis/emphysema, hypertension,
shortness of breath upon exertion and sharp substernal pain at
rest that occurs spontaneously one to two times a week (id. 143-
46). Dr. Martinez also opined that Plaintiff could not do much
lifting (id. 148), that half of the days in a month are bad for
Young and that she could not sustain a normal workday (id. 167).
Finally before the Hearing, on May 6, 2000 Dr. Virgil Pilapil, a
non-treating non-examining state agency physician, reviewed the
medical evidence of record and opined that Young could perform
work despite her impairments (R. 153-61).

As stated earlier, ALJ Kraybill conducted the Hearing on
June 2, 2000. Dr. Hilton Gordon testified as an impartial
medical expert. Dr. Gordon opined (1) that although Young had
“significant shortness of breath,” her pulmonary impairment did
not meet or equal a listing (R. 213) and (2) that she has a
functional capacity for sedentary work with restriction on
environmental exposure (id.). ALJ Kraybill did not ask any

questions of Dr. Gordon as to the impact of Young's obesity.


substitute its own judgment for Commissioner's (Clifford, 227
F.3d at 869). That does not however call for an uncritical
rubber-stamping of Commissioner's decision (id.).

To be eligible for benefits, Young must suffer from a
"disability," defined in pertinent part as (Section
423 (d) (1) (A)):

inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous
period of not less than 12 months.

Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995) (citations
omitted) sets out the familiar five-step inquiry prescribed by
Reg. §416.920 to determine whether a claimant is disabled:

(1) whether the claimant is currently employed;

(2) whether the claimant has a severe impairment;

(3) whether the claimant's impairment meets or equals one
of the impairments listed by the SSA, see 20 C.F.R. § 404,
Subpt. P, App. 1;

(4) whether the claimant can perform her past work; and

(5) whether the claimant is capable of performing work in
the national economy.

If a claimant satisfies steps one, two, and three, she will
automatically be found disabled. If a claimant satisfies
steps one and two, but not three, then she must satisfy step
four. Once step four is satisfied, the burden shifts to the
SSA to establish that the claimant is capable of performing
work in the national economy.

And if a disability determination reaches step five, the ALJ must

discharge Commissioner's burden of proof either by applying the

Medical Vocational Guidelines or through the use of a vocational

expert (Herron v. Shalala, 19 F.3d 329, 336-37 (7th Cir.1994)).


eee eee
‘Minute Order Form (06/97
United States District Court, Northern District of Ilinois
2

Namne of Assigned Judge Milton L. Shadur Sitting Judge if Other
or Magistrate Judge than Assigned Judge

CASE NUMBER 02 C 6588 DATE 9/16/2003

CASE Janice Young vs. Jo Anne 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
of the motion being presented. ]

MOTION:

DOCKET ENTRY:
ay
@
GB)
@)
(5)
(6)
7)
(8)
©)

a

Filed motion of [ use listing in “Motion” box above.] 7

Brief in support of motion due

Answer brief to motion due___. Reply to answer brief due
Ruling/Hearing on___—_sset for at

Status hearing[held/continued to] [set for/re-set for] on set for at

Pretrial conference[held/continued to] (set for/re-set for] on set for at

Trial[set for/re-set for] on at

[Bench/Jury trial] [Hearing] held/continued to at

goag0adcadao0

Typo re
This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O Local Rule 41.1 OO FRCP41(a)(1) 0 FRCP41(a)(2).

(10) «x [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in this
memorandum opinion and order, both parties’ Rule 56 motions are denied (18-1), but Young’s alternative
motion to remand is granted. (18-2)

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

No notices required, advised in open court,

Document
Number

on

No notices required. number of notices

EP 17 2003

date docketed

o | Notices mailed by judge’s staff, d
Notified counsel by telephone. $

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

9nis/2003

courtroom dave maited notice

SN deputy’s

on SN
initials

Date/time received in
central Clerk’s Office mailing deputy initials



simply relied on Dr. Bergmann’s opinion, which in turn relied on
the brief consultative examination of Dr. Patel (in spending a
total of 40 minutes on Young's case, including the review of the
prior paper record, Dr. Patel would appear to have devoted only a
short time to his actual examination of Young) (R. 16). ALJ
Kraybill merely agreed “in Dr. Bergmann's assessment that there
were no exertional limitations; notwithstanding the claimant’s
complaints of shortness or [sic] breath and high blood pressure”
(id. 16). But on his part, Dr. Bergmann failed to provide any
documentation that he considered Young’s obesity in his analysis.
And though Dr. Patel’s identification of obesity as Problem #3
(id. 128) lists obesity as a relevant factor, ALJ Kraybill
mentioned that just once in passing and only as one of Dr.
Patel’s findings. Finally, the ALJ failed to discuss obesity as
a factor in determining whether or not the combinations of
impairments is equal to a listed impairment as required by Reg.
§§404.1526(a) and 416.926(a). That overall delinquency must be
corrected and is a sufficient reason to remand the case.

Other evidence at the hearing further supports the notion
that ALJ Kraybill failed to consider Young’s obesity. In
response to questioning by ALJ Kraybill, Dr. Gordon addressed
only whether or not Young met the listing of shortness of breath

and did not consider whether other impairments met the listing or

“extreme” is a term of art that applies to a Body Mass Index that
Young is a hairsbreadth short of reaching (see SSR 02-I1p).

11


initial pulmonary function test, a second pulmonary test showed
that her condition was not severe (R. 131-34), and two testifying
medical experts opined that Young’s impairment was not of
listing-level severity (id. 31, 32, 213)

But Young argues correctly that her obesity should be
considered when evaluating the extent of her functional loss due
to her other documented illnesses. According to SSR 02-1p (67 FR
57859, 57862 (footnote omitted) )*:

Thus, we (the Social Security Administration] may find that

the combination of a pulmonary or cardiovascular impairment

and obesity has signs, symptoms and laboratory findings that
are of equal medical significance to one of the respiratory
or cardiovascular listings. However, we will not make
assumptions about the severity of functional effects of
obesity combined with other impairments. Obesity in
combination with another impairment may or may not increase
the severity or functional limitations of the other
impairment. We will evaluate each case based on the
information in the case record.

ALJ Kraybill failed entirely to consider the impact of

Young's extreme obesity* on her impairments. Instead the ALJ

> Commissioner argues that “SSR 02-l1p requires a claimant

to have another impairment of Listing-level severity in order for
the claimant’s obesity to be considered Listing-level. Plaintiff
clearly does not have nor does she suggest if and how any of her
impairments meet a listing, and thus SSR 01-1p is inapplicable”
(C. Mem. 9). But SSR 02~1p’s provisions (67 FR at 57860) “remind
adjudicators that the combined effects of obesity with other
impairments can be greater than the effects of each of the
impairments considered separately. They also instruct
adjudicators to consider the effects of obesity not only under
the listings but also when assessing a claim at other steps of
the sequential evaluation process, including when assessing an
individual's residual functional capacity.”

* This is a lay characterization by this Court-~under the
National Institutes of Health medical criteria the adjective

10


4. Young was not credible because “{h]er complaints
were overstated and not corroborated by objective medical
evidence” (id. 18).

ALJ Kraybill mentioned Young’s obesity only once and just as an
impression of Dr. Patel (id. 16). In sum, the ALJ held that
Young’s RFC allowed her to perform sedentary work, so that Young
was “not entitled to a period of disability...and to disability
insurance benefits...of the Social Security Act.” (id. 20).

Standard of Review and Applicable Law

Judicial review of any decision by Commissioner, as
authorized by Section 405(g), requires that findings of fact must
be upheld if they are supported by substantial evidence. Such
review is therefore limited to determining (1) whether
Commissioner applied the correct legal standards in reaching the
decision and (2) whether there is substantial evidence in the
record to support the findings (Clifford v. Apfel, 227 F.3d 863,
869 (7th Cir.2000)).

Substantial evidence means "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion"
(Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001), quoting

(as always) Richardson v. Perales, 402 U.S. 389, 401 (1971)). In

reviewing Commissioner's determination this Court must look at
the entire administrative record, but it may not reweigh the

evidence, resolve conflicts, decide credibility questions or


entrant, receptionist and general office worker at a number of
places (id. 68, 76-79). Young's complaints of numerous ailments
have included chronic obstructive pulmonary disorder (“COPD”),
knee strain, chronic edema, obesity, diabetes mellitus,
hypertension and recurrent chest pain (Y. Mem. 2).

On April 29, 1995 Young was seen in the emergency room for
complaints of left knee pain that had lasted approximately one
month (R. 103-107). She was treated with one dose of Toradol,
was also prescribed Advil or Motrin and was discharged (id.).

On January 19, 1999 Young was seen at Cook County Hospital
for sharp central chest and back pain, chronic pedal edema,
obesity, urinary tract infection and hypertension (R. 111-12).
Her chest x-ray showed mild cardiomegaly without congestive heart
failure and no pneumonia or chronic pulmonary disease (id. 113).
On December 2, 1999 Young's treating physician, Dr. Enrique
Martinez, completed a report stating that Young had asthma
attacks every two months and that her breath exhibited expiratory
wheezes and mild prolonged expiration (id. 117). Dr. Martinez
opined that Young could not do physically active work but that
she could stand, hear and speak well (id. 118).

Dr. Bhupendra Patel conducted a 40-minute internal medicine
consultative examination on January 6, 2000 (R. 124-28). Young
complained then that she had suffered for about a year from

shortness of breath that worsened with activity (id. 124). Dr.


of medical evidence” (Zurawski_ v. Halter, 245 F.3d 881, 888 (7th
Cir. 2001)), including the impact of Young’s obesity. Those
errors too must not be repeated on remand.

Impact of Young's Other Complaints

Just as discussed here with regard to obesity, the ALJ on
remand must reconsider the impact of Young’s knee strain, chest
pain and edema on her condition. As Stephens v. Heckler, 766
F.2d 284, 287 (7th Cir. 1985) (among other cases) has taught:

This court insists that the finder of fact explain why

he rejects uncontradicted evidence. One inference from

a silent opinion is that the ALJ did not reject the

evidence but simply forgot it or thought it irrelevant.

That is the reason the ALJ must mention and discuss,

however briefly, uncontradicted evidence that supports

the claim for benefits.

Although Commissioner does provide possible explanations for
rejecting Young’s additional complaints (C. Mem. 16-19), ALJ
Kraybill neither mentioned nor rejected them in his opinion.
Upon remand, the ALJ assigned to the case must specifically
address those complaints as well as any impact they may have upon

Young's credibility.

Failure To Consider Obesity in the RFC

Because of ALJ Kraybill’s failure to take into account
Young's obesity, his analysis of Young’s RFC also is flawed. No
RFC can be valid without taking into account all medical
impairments and their impact upon the type of work that a

petitioner can perform, for SSR 96-8p (61 FR 34474, 34477)

14


summary judgment are denied, while Young’s motion to remand is
granted (a “sentence four” remand under Section 405(g)). It
seems a close call as to whether ALJ Kraybill can be certain to
separate himself from his earlier omissions to start afresh and
reach a wholly objective result on remand,’ but this Court will
leave to Commissioner the decision as to the assignment of an ALJ
to handle the remand (see the discussion in such cases as

Sarchet, 78 F.3d at 309).°

TC OE tase

Milton I. Shadur
Senior United States District Judge

Date: September 16, 2003

’ This is not of course to suggest that the ALJ would
consciously adhere to his earlier conclusion even though a fresh
pair of eyes might take a different view. It is rather that,
just as a matter of human nature, the subliminal effect of an
earlier decision may on occasion get in the way of the required
total objectivity.

® This opinion in draft form was the final work product of
this Court's fine (and just-departed) law clerk, Nathaniel
Edmonds, Esq. Although the subject matter was less demanding
than many of the difficult problems on which he worked during his
clerkship, it exemplified the high quality that consistently
marked his work. Having said that, this Court hastens to add (as
it invariably does when it is appropriate to pay such a tribute
to one of its always outstanding law clerks) that it has
carefully reworked each sentence and read each case cited in this
opinion (and, of course, some uncited cases as well), so that the
end product is this Court’s own. If then any errors have found
their way into the final version of this opinion, the sole
responsibility must be laid at this Court's doorstep and not that
of its law clerk.

16


and SSI benefits on October 26, 1999, asserting an onset date of
October 1, 1994 (R. 31, 32). On February 7, 2000 her application
was initially denied, and it was again denied upon reconsidera-~-
tion on May 15, 2000 (id. 33-36, 39-41). After filing a timely
request for hearing, on June 2, 2000 Young--represented by
attorney Roger S. Hutchinson (id. 197)--appeared before
Administrative Law Judge (“ALJ”) John Kraybill (id. 42, 197).
Testifying at the June 2 hearing (“Hearing”) were Young, her
daughter Christine Young, medical expert Dr. Hilton Gordon and
vocational expert Cheryl Hoiseth (“Hoiseth”) (id. 198). ALJ
Kraybill's January 18, 2001 decision concluded that Young was not
disabled and that her medically determinable impairments did not
prevent her from performing her past work (id. 14-20)

Young filed a request for review with the Appeals Council on
January 22, 2001 (R. 10). After reviewing the ALJ's decision,
the Appeals Council denied reversal or remand on July 17, 2002
(id. 5-6). On September 16, 2002 Young filed a timely complaint
for judicial review.

Background

Young was born on May 8, 1943 (and was thus 57 years old at
the time of the ALJ's decision), is 5 feet 9-1/2 inches tall and
weighs 264 pounds (R. 52, 125). She has completed 12 years of
education and one year of college at Bryant Station Bus school

(id. 73). Her previous work experience has included that of data


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

EASTERN DIVISION DOCKETED

JANICE YOUNG, SEP j 7 2003

Plaintiff,
Vv. No. 02 C 6588

JO ANNE B. BARNHART, Commissioner,
Social Security Administration,

)
)
)
)
)
)
)
)
)
)

Defendant.

MEMORANDUM OPINION AND ORDER

Janice Young (“Young”) seeks judicial review pursuant to the
Social Security Act ("Act"), more specifically Sections 405 (g)
and 1383(c) (3), of the final decision of Commissioner of Social
Security Jo Anne Barnhart ("Commissioner") denying Young's claim
for supplemental security income ("SSI") disability benefits.
Both sides have moved for summary judgment under Fed. R. Civ. P.
("Rule") 56, and Young has alternatively moved to remand for
further proceedings. For the reasons stated in this memorandum
opinion and order, both parties' Rule 56 motions are denied, but
Young's alternative motion to remand is granted.

Procedural Background’

Young filed an application for disability insurance benefits

1 All references to the Act will take the form “Section--,”

using the Title 42 numbering rather than the Act's internal
numbering. All portions of 20 C.F.R. will be cited "Reg. § -~.”
Finally, citations to Young’s and Commissioner's memoranda take
the form "¥. Mem.--" and "C. Mem.-~,” respectively.

? What follows in the next sections of the text is drawn
from the administrative record (cited "R.--”).

a |


if obesity factored into the analysis (R. 213). Even though
Young was represented by counsel at the hearing, an ALJ is
required to develop the record and the arguments both for and
against granting benefits (see, e.g., Sims v. Apfel, 530 U.S.
103, 110-11 (2000)). Thus ALJ Kraybill failed to address how
Young’s obesity impacted her other impairments, and such
incompleteness must also be cured upon remand.

In addition, the ALJ failed to discuss completely why the
detailed findings of Dr. Martinez, Young’s treating doctor, were
not given weight, while substantial weight was given to Dr.
Bergmann’s incomplete RFC.® Every ALJ is required to give “good
reasons” as to the weight (whether greater or lesser, though the
general rule is to ascribe greater weight) that is given to the
treating source’s opinion (Reg. §404.1527(d)(2)). But here the
ALJ merely stated that Dr. Martinez' opinion was inconsistent
with the rest of the evidence in the record (R. 18) and focused
upon Dr. Martinez’ description of Young’s “stable” COPD as
inconsistent with Young’s inability to walk a block (id. 16).
ALJ Kraybill's use of such a phrase as “inexplicably” (id. 16)
comes very close to “playing doctor.” Upon remand the ALJ should
consider whether and how Dr. Martinez’ findings contradict other

evidence in the record in the course of reaching a conclusion as

5 Dr. Bergmann failed to complete the exertional limitations
portion, implying that Young can perform all work, and he
specifically marked that he had not been able to review the
treating source’s statement (R. 16).

12


requires that the ALJ “must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that
are not ‘severe.’” In this instance the failure to consider
Young’s obesity was harmful error in the ALJ’s RFC determination,
because one of the main characteristics of that impairment is an
increase in fatigue and pain and decrease in activity as
discussed in SSR 02-1lp. Moreover, the ALJ's consideration of
Young's other complaints may impact the final RFC.

Conclusion

What has been said here bars judgment as a matter of law in
favor of Commissioner. Instead a remand is necessary to see
whether or not a full analysis and articulation in the respect
that this opinion has found wanting will produce the same
conclusion that the ALJ reached.

But what of the other side of the coin--the possibility that
Young can prevail at this stage of the dispute? On that score no
protracted discussion is needed, for the already discussed
uncertainty as to the effect of Young’s obesity (as well as other
complaints) bars Young from a current victory when reasonable
inferences are drawn in Commissioner's favor, as they must be on
Young's Rule 56 motion. Absent the factoring of Young's obesity
into ALJ Kraybill’s final assessment of Young's functioning,
Young cannot gain judgment as a matter of law.

Consequently, both Young’s and Commissioner’s motions for

15