on hee bed, and occasionally read (but only for very limited periods of time, duc to her inability
to maintain concentration). (R. 170-71.) She did not do the laundry, take care of paying the
bills, or participate in any activities outside the home. (R. 170-71.) She spent most of her time
in bed. (R. 171.)

Additionally, usher explained that has suffered from depression for most of her life,
since before she was ever diagnosed with fibromyalgia. (R. 169.) Lusher was seen by a
psychiatrist in or around 1995, who diagnosed her with and treated her for depression. (R. 121.)
At the time of the hearing, she was taking an anti-depressant prescribed by Dr. Schecter. (R.
168.)

Lusher has a college education, but no history of past relevant work, (R, 11.) Indeed,
Lusher testified that she had never been able to work a 20-hour/weck part-time job, let alone a
full-time job. (R. 160.) According to her testimony, the most she had ever worked during the
relevant time period (or ever) was seven hours a weck, for one hour a day, as a spiritual
counselor doing psychic readings over the telephone from her home. (R. 160-61.)

Wiith respect to the fibromyalgia diagnosis, Lusher’s medical records include a letter from
Dr. Stephen Schecter dated June 21, 1996, stating that when Lusher saw him approximately
fifteen years earlier, “she was felt to have fibromyalgia.” (R. 95.) In another letter dated
October 23, 1997, Dr. Paul Epstein noted that Lusher “has a long history of fatigue” and had
been previously diagnosed with fibromyalgia. (R. 120.) Dr. Epstein opined that Lusher suffered

from depression, and that, at a minimum, he thought her latigue was associated with poor sleep.

5Dr, Schecter treated Lusher again in 1999, His records from June 7, 1999 indicate that
his original chart regarding Lusher (from twenty years earlier) had been discarded. (R. 143.)

4



observations).” SSR 96-8p, 61 FR 34474, 34477. In other words, in determining Lusher's RFC,
the AIJ has an “affirmative obligation to consider plaintiff s pain and fatigue complaints when
determining whether plaintiff could perform a certain category of work, When a factor is basic to
a plaintiffs claim of disability, it is not enough for the ALJ to state that he examined the entire
record. He should also explain whether the evidence of a critical factor, although considered,
was insufficient for a finding of disability.’ Knapp vy. Apfel, 11 F, Supp. 2d 235, 238 (N.D.NY,
1998). Further, the ALJ camot rely only on evidence that supports his conclusion (whatever that
may be).” Herron, 19 F.3d al 333; Dominguese v. Massunari, 172 F. Supp. 2d 1087, 1101 (E.D.

Wise. 2001) (ALJ must “explain how any material inconsistencies or ambiguities in the evidence

‘In the ALIJ’s original RFC asscssment focusing on the disabling effects of Lusher’s
cardiomyopathy, the written analysis was conclusory. For cxample, the ALJ concluded that
Lusher could sit for up to 6 hours in an 8 hour workday, and stand or walk for up to 6 hours in an
8 hour workday, without ever mentioning Lusher’s testimony that, during the relevant time
period, she had to spend most of the time in bed.

“In the original assessment, for example, the ALJ's credibility findings werc based on
selective evidence, The ALJ noted Lusher’s complaints about exhaustion, but rejected then
occause, despite those complaints, the record showed that Lusher “lifted weights almost daily,”
JR. 14.) The ALJ did not, however, address the amount of weight Lusher lifted (was she lifting 2
pounds. or 25 pounds?). Nor did he consider that exercise is part of a comprehensive treatment
course [or fibromyalgia, Dominguese v. Massanari, 172 F. Supp. 2d 1087, 1096 (E.D. Wis.
2001) (citing The Merck Manual of Diagnosis and Therapy (17th ed. 1999)); see also Liscano v.
Barnhart, 230 F. Supp. 2d 871, 877 (N.D. Ind. 2002) (physician prescribed 5-days/week exercise
routine for fibromyalgia patient he considered unable to work).

Similarly, the ALJ noted that Lusher “reported that she was able to take care of her
mother, move from Illinois to Maryland, and work part-time.” (R. 14.) The context, which is
significant, is lacking. For example, Lushee’s “part-time” work was for one hour/day for a total
of ? hours/week from her home. (R. 160-61.) Regarding the cross-country move, Lusher
sestified that she moved to [llinois to live with her mother out of necessity after her husband
foreed her out of their house in Maryland. (R. 164.) Even more significantly, that move took
place in March 1999, 1 % years after Lusher’s insured status expired. (R. 164.) Further, the
court’s review of the record revealed no evidence that Lusher took care of her mother. (If such
evidence is in the record, the ALJ did not properly cite to it.)

9


work (step 4).

At the fifih step of the evaluation process, the burden of proof shifted to the ALJ, as
designate of the Commissioner, to show that Lusher was capable of performing work in the
national economy when her insured status expired. Clifford, 227 F.3d at 868. Tn assessing
Lusher’s residual functional capacity (“RFC”), the ALJ concluded that when Lusher’s insured
status expired, she had the ability to: (1) “sit for up to 6 hours in an 8 hour workday,” (2) “to
stand and/or walk for up to 6 hours in an 8 hour workday,” (3) “lift no morc than 10 pounds at a
time,” and (4) “occasionally lifl or carry small articles[.]” (R. 17.) According to the ALJ, Lusher
also had unlimited ability to push and pull. (R. 17.) The ALJ further concluded that Lusher’s
“capacity for the (ull range of sedentary work was diminished by significant non-exertional
limitations which made it impossible for her to morc than occasionally climb, balance, bend,
stoop, kneel, crouch, squat and crawl, work while exposed to concentrated hazards, and perform
work precluded by a slight inability to concentrate, maintain attention for extended periods, and
keep up a pace as a function of pain.” (R. 17.) Although the ALJ found that Lusher was unable
to perform the full range of sedentary work, he ultimately concluded that “she was able to make
an adjustment to work which exists in significant numbers in the national economy” (step 5). (R.
11, 16-18.) Examples of work he concluded that Lusher had the ability to perform were sales
order taker and clerical worker. (R. 18.) The AL] thus found that Lusher was not disabled
within the meaning of the Social Security Act when her insured status expired, and was not
entitled to receive disability insurance benefits. (R. 11, 17-18.)

Discussion

Under the Social Security Act, 42 U.S.C. § 405(g), the ALJ’s decision must be upheld as



(RK. 120.)

B, The ALJ's Ruling

In determining whether Lusher is disabled within the meaning of the Social Security Act,
the ALJ had to evaluate: (1) whether Lusher was currently unemployed; (2) whether she has a
severe impairment,* (3) whether her impainnent satisfies the criteria for any of the impairments
listed in 20 C-F.R. § 404, Subpt. P, App. 1 (“Listing”); (4) whether Lusher is able to perform her
past work, and (5) whether she has the ability to perform work available in the national economy.
Clifford v, Apfel, 227 U'.3d 863, 868 (7th Cir. 2000). A conclusion that a claimant’s impairment
qualifics as one of the Listing impairments results in a finding that a claimant is disabled. 7a.
Likewise, even ifthe impainnent does not qualify as a Listing impairment, if the ALJ concludes
thal the claimant lacks the ability to perform work available in the national economy after
assessing the claimant’s residual functional capacity, the claimant is deemed disabled within the
meaniny of the Social Sccurity Act.

Mere, alter conducting this five-step inquiry, the ALJ issued a written decision dated June
30, 2000, denying Lusher’s application for disability insurance benefits. Specifically, he found
that T.usher had not been cngaged in substantial gainful activity since April 8, 1995 (the first
step). (R. 16.) He also found that at the time her disability insurance expired, she suffered ftom
cardiomyopathy, a severe impairment, but not one that satisficd the Listing criteria (steps 2 and
3). (R. 16.) The ALJ did not address the severity of either Lusher's fibromyalgia or depression.

‘The ALJ further concluded that as of September 30, 1997, Lusher had no history of past relevant

°A severe impairment is one “which significantly limits [the claimant’s] physical or
mental ability to do basic work activities[.]” 20 C.F.R. § 404.1520(c).

5



discussion of fibromyalgia whatsoever.

In opposing summary judgment, the Commissioner contends that there is no evidence in
the record that Lusher received any treatment for fibromyalgia between her alleged onset date
and her date last insured. (Resp. at 9.) That is truc, but fibromyalgia is a chronic condition
without a known cure. Estok v. Apfel, 152 F.3d 636, 637 n. 1 and 642 (7th Cir. 1998). The
cecord shows that Lusher has suffered {rom fibromyalgia since 1981, (R. 95), and continued to
suffer from it at the time of the administrative hearing, (R. 143). Of course, the fact that Lusher
had fibromyalgia during the relevant time period does not mean she was disabled. Fibromyalgia
often is not disabling. Estok, 152 F.3d at 640 (7th Cir, 1998). Nevertheless, the ALJ bad an
obligation to assess whether Lusher’s symptoms of fibromyalgia -namely, pain and fatigue-
were severe cnough during the relevant period to prevent her from cngaging in substantial gainful
activity, thus rendering her disabled, See 20 C.F.R. § 416,905(a) (defining disability under
Social Security Act), In failing to make that assessment, the ALI implicitly rejected an entire
line of evidence without explanation. That failure warrants reversal and remand, Herran, 19
F.3d at 333. On remand, the ALJ must properly assess Lusher’s fibromyalgia.

The court also finds it necessary to provide additional instruction on remand, in light of
certain other omissions from the ALJ’s written decision.’ When the ALJ assesses Lusher’s
fibromyalgia, he must properly conduct and explain the RFC assessment. “The RFC assessment
must include a narrative discussion describing how the evidence supports cach conclusion, citing

specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activitics,

*Phe following discussion is based on other arguments raised by the parties in the
briefing. The court addresses those arguments to the extent the arguments were comprehensible,
and only to the extent necessary to clarify what must be done on remand.

8



I ———____

ee Maung, Garder kom (U9

United States District Court, Northern District of Iinois

~/

Shome signed Judge ing Judge if Other
Pre asa te Nan R. Nolan se
CASE NUMBER 02 C 5298 DATE 5/12/2004
CASE Christina Lusher vs. Jo Anne Barnhart
TITLE

[In the fatlowing box (a) indicate the party filing the motion, e.g... plaintiff, defendant, 3rd party plaintiff, and (bh) state briefly ihe nature
of the motion being presented.}

MOTION:

DOCKET ENTRY;

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

(2) a Brief in support of motion due

(3) ica) Answer brief to motion due____. Reply to answer brief due____.

(4) a Ruling/Hearing on___ set for at

(3) q Status hearing[held/continued to] [set for/re-set forfon____esetfor at

(6) i) Pretrial conference|held/continucd to) [set for/re-set for]on set for = at
(7) Oo Trial{set for/re-set for)on__— at

(8) a \Bench/Jury trial] [Hearing] held/continucd to at

(9) a This case is dismissed | with/without) prejudice and without costs[by/agrecment/pursuant to}

CUFRCP4(m) CO} Local Role 41.1 CUFRCP41(a)(1) C1 FRCP4i(a)(2),

(10) @ {Other docket entry] For the reasons stated in the attached Memorandum Opinion and Order, the
Court grants sammary judgment in favor of plaintiff and remands her case for a new hearing for proper
consideration of plaintiff's allegations. Plaintiffs’ motion for summary judgment and or remand [12-1]
is granted, and defendants’ motion for summary judgment (15-1] is denied,

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

No notices required, advised in open court. Document
; Number

sumnber of notices

No notices required

oY | Notices mailed by judge's staff,

Notitied enunsel by telephone. 13,2004

Docketing to mail notices

Muil AO 450 form.

dog) ppalty ingly
Coy to judye/magistrate judge.
sichboo
date mated naice
courtraom
hmb deputy's. . hobs
initials

Date/time received in ;
central Clerk's Office srt deputy inns



allegations that she was disabled by fibromyalgia and depression prior to the expiration of her

insured status on September 30, 1997.

ENTERED:

NAN R. NOLAN

United States Magistrate Judge

Dated: May 12, 2004

ll



in (he case record were considered and resolved.”) (citing SSR 96-8p).

Additionally, the AT_J failed to assess Lusher’s depression. Again, the Commissioner
argues that there is no evidence that Lusher was treated for depression during the relevant time
frame. The record, however, contradicts {he Commissioner’s argument. (R. 121) (record dated
10.23.97 stating that J.usher was seen by a psychiatrist 2 years earlier, who diagnosed and treated
her for depression). Moreover, even if Lusher had not sought treatment, that is a factor to
consider in assessing the severity of her depression—it docs not excuse the ALJ from making an
assessment. In fact, the regulations require an ALJ to complete a Psychiatric Review Technique
Form (“PRTF”) whenever a claimant alleges a mental health impairment. Cook y, Apfel, No. C
98-220481, 1999 WL 342038, at *7-8 (N.D. Cal, May 18, 1999); 20 C.F.R. § 404.1520a. The
ALJ neither filled out the requisite PRTF for Lusher nor made any other assessment regarding
Lusher’s depression. Again, an cntire line of evidence was implicilly rejected without
explanation.

Additionally, at the new hearing, the hypotheticals posed to the vocational experi should
include whatever limitations the ALJ finds credible. Koenig v. Chater, 936 F. Supp. 776, 785
(D. Kans. 1996), Ifthe ALJ does not accept certain alleged limitations (and thus does not
include them in the hypothetical), the ALJ should make an express finding that he rejected those
limitations. Le,

Conclusion
lor the reasons explained above, the court grants summary judgment in favor of

Christiana Lusher and remands her case for a now hearing for proper consideration of Lusher’s

10



long as it is supported by substantial evidence. Clifford, 227 F.3d at 869. Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson y, Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted), Although
che reviewing court considers the entire record, the court “may not decide the facts anew, re-
weigh the evidence or substitute its own judement for that of the [ALJ] to decide whether a
claimant is or is not disabled.” Powers v. Apfel, 207 F.3d 431, 434-35 (7th Cir. 2000). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on [the ALJ, as designate of the Commissioner).” Walker v
Bowen, $34 P.2d 635, 640 (7th Cir. 1987).

The standard of review is deferential—but only to a point. Failure to “build an accurate
and logical bridge from the evidence to his conclusion” warrants reversal. Clifford, 227 F.3d at
872. The ALJ must provide more than conclusory statements for his decision lo be upheld. In
order for appellate review to be meaningful, the ALJ must “articulate reasons for accepting or
eejecting entire lines of evidence.” Herron v, Shalala, 19 F.3d 329, 333 (7th Cir. 1994), While
the Al.J need not provide “a written evaluation of every picce of evidence or testimony, |” the
ALJ cannot limit his discussion to the evidence that supports his ultimate conclusion. Jd.

Here, the court remands Lusher’s case for a new hearing because the ALJ’s written
opinion issued on June 30, 2000 fails “to build a rational bridge from the evidence to the finding
that (fusher| was not totally disabled.” Barred y, Barnhart, 355 F.3d 1065, 1069 (7th Cir.
2004), ‘The most evident omission is the ALJ's failure to address Lusher’s fibromyalgia, The
opinion does not assess whether her fibromyalgia constitutes a severe impairment, let alone

whether that condition is disabling, Indeed, the written evaluation is void of any substantive


date her insured status expired. (R. 157.) At the administrative hearing, Lusher offered evidence
that she had been diagnosed with fibromyalgia’ and cardiomyopathy.* (See, e.g., R. 165.) She
testified that as a result of her medical problems, she has constant pain in her “upper legs, lower
back, upper back trom the shoulder blades, neck, and down the trapezes [sic] area.” (R, 165.)
She explained that her muscles cramp up, then the pain becomes sharp, (R. 166.) She followed
doctor-prescribed exercises and stretching in an effort to kcep the muscle cramping from
worsening, (R. 167.) Lusher stated that she began doctor-prescribed exercises “toward the end”
ol the 1995-1997 time period. (R. 173.)

Lusher further testified that she suffers from constant fatiguc. (R. 165.) As a result, she
typically would lie down from 10:30 a.m. or 11:00 a.m. until 4:00 p.m. every day. (R. 170.) She

reported that during the relcvant time period, she did dishes for herself, could pull up the covers

‘Fibromyalgia is “a painful rheumatic condition of uncertain cause that is characterized by
diffuse or localized pain, tendemess, and stiffness of skeletal muscles and associated connective
tissuc and that is usually accompanied by fatigue.” Merriam-Webster Online Dictionary,
www.mcerriam-webster.com.

‘Cardiomyopathy is “any structural or functional disease of heart muscle that is marked
ially by hypertrophy of cardiac muscle, by enlargement of the heart, by rigidity and loss of
ibility of the heart walls, or by narrowing of the ventricles but is not due to a congenital
developmental defect, to coronary atherosclerosis, to valve dysfunction, or to hypertension.”
Merriam-Webster On-Line Medical Dictionary, www2.meriam-webster.com.

“Lusher also offered evidence that she has chronic fatigue syndrome. Although she had
received that diagnosis by the time of the administrative hearing, the court has been unable to
find anything in the administrative record indicating that Lusher was diagnosed with chronic
fatigue syndrome before her insured status expired. (See, e.g., R. 143) (chronic fatigue syndrome
diagnosis dated June 7, 1999). While a retrospective diagnosis may be considered “if it is
corroborated by evidence contemporaneous with the eligible period,” Estok y, Apfel, 152 F.3d
536, 640 (7th Cir, 1998), Lusher does not suggest that Dr. Schecter’s diagnosis in 1999 should be
considered retrospective. Indeed, Lusher does not argue that the ALJ should have considered her
chronic fatigue syndrome, Accordingly, the court shall not address the issue further.

3


1999, asserting that since April 8, 1995, she had been disabled due to fibromyalgia and chronic
fatigue syndrome. The Social Security Administration (the “Agency”) denied both her initial
application and her request for reconsideration.’ (R. 22, 31.) Lusher timely requested an
administrative hearing, which was held on June 13, 2000 by Administrative Law Judge C. J.
Starck (“ALJ”). (R. 10.) Ina decision issued on June 30, 2000, the ALJ concluded that Lusher
was not disabled within the meaning of the Social Security Act or its related regulations because
she had the ability to perform a limited range of sedentary work, and thus was not cntitled to
disability insurance benefits. (R. 15, 18.) Lusher then requested a review of the ALI’s decision
by the Appeals Council, which was denied in a Ictter dated May 20, 2002 (R. 3-6), thus making
the AT.J’s decision the Agency’s final decision regarding her August 11, 1999 application. See
20 CLLR. §§ 416.1481, Lusher has appealed the ALJ’s decision to the federal district court. The
parlics have consented to the jurisdiction of the Uniled States Magistrate Judge pursuant to 28
U.S.C. § 636(c).
Background

A. The Medical Evidence and Testimony at the Administrative Hearing

Lusher’s insured status expired on September 30, 1997, (R. 16), when she was 49 years
ald, (R. 17). Accordingly, during the administrative hearing, the ALJ focused on the period

between April 1995, the disability onset date alleged by Lusher, and September 30, 1997, the

‘Social Security’s original stated reason for rejecting Lusher’s application was that her
medical records showed no treatment for either chronic fatigue syndrome or fibromyalgia prior to
September 30, 1997, when her insurance eligibility expired. (R. 22.) In denying her request for
reconsideration, Social Security explained that although medical evidence indicates Lusher had
problems with fibromyalgia and chronic fatigue syndrome, “both these conditions were stable”
when her eligibility expired. (R. 31.)



IN THE UNITED STATES DISTRICT COURT 0
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION pokey
may 1.3 2004

CHRISTIANA M. LUSHER,
Plaintiff,
Case No. 02 C 5298

vs.

JO ANNE B. BARNHART, Commissioner
of Social Security,

Detendant.

EMORANDUM OPINION AND ORDER
NAN R, NOLAN, Magistrate Judge:

Plaintiff Christiana Lusher seeks review of the final decision of defendant Jo Anne
Barnhart, Commissioner of the Social Security Administration (“Commissioner”), denying
Lusher’s application for disability insurance benefits under Title IT of the Social Security Act. 42
U.S.C. §§ 416, 423. This matter js before the court on the parties’ cross-motions for summary
Judgment, Lusher asks the court to either reverse the decision denying her application and grant
uer disability insurance benefits, or alternatively, to remand her case to the Commissioner for
another hearing. The Commissioner, on the other hand, seeks an order affirming the decision to
deny Lusher’s application. or the reasons explained below, the court grants summary judgment
in favor of the Lusher, and remands this case to the Commissioner for action a new hearing
consistent with this opinion.

Procedural History

Lusher filed an application or Title Il disability insurance benefits (“DIB”) on August 11,

|