before the ALJ about Fay’s post-operative status, so that the
quoted statement is entirely speculative. Indeed, the record
evidence as to the effect of the surgery supports quite the
opposite conclusion: Fay testified that he was told by the
orthopedic doctors at Cook County Hospital that he would have to
wear a leg brace for over a year after the surgery (R. 44), and
Ikert likewise testified that she was present when Fay was told
that it would take up to one year for him to recuperate after the
surgery (R. 59). Finally on the issue of disability vel non,
vocational expert Horseth opined that based on that testimony the
surgery and recuperative time would preclude work (R. 64).

Once again, an ALJ is not of course required to address
every piece of evidence or testimony (see Zurawski, 245 F.3d at
889). But here ALJ Mondi’s complete failure to acknowledge
expressly contrary lines of evidence also necessitates a remand
for a redetermination of Fay’s RFC.

Fay's Final Application

Fay filed a third application for social security benefits
that led to his being granted supplemental security income
benefits effective May 1999. Nina Fay argues that because Fay’s
prior claim was still pending before the Appeals Council when his
third application was filed, the new application should have been
sent to the Appeals Council to see if it contained new and

material evidence relating to the prior claim. Hence she also

19


ALJ Mondi asserted as to Fay’s testimony (R. 19):

Testimony by the claimant as to symptoms and their

functional affects [sic], when evaluated using the

criteria of SSR 96-7p, was not credible in establishing

disabling limitations for any 12-month period because

such limitations were inconsistent with the objective

findings, the claimant’s use of medications, and even

his current daily activities, which included cutting

the grass with a power mower.

That conclusory statement that Fay’s testimony was “inconsistent
with the objective findings” simply does not “build an accurate
and logical bridge between the evidence and the result” (Sarchet,
78 F.3d at 307). Not only did ALJ Mondi fail to explain how the
objective medical evidence contradicted Fay’s assessment of his
symptoms and their effects, but he also failed to address the
objective medical evidence and Ikert’s corroborative testimony,
both of which supported Fay’s subjective complaints.

In the former regard, the objective medical record reveals
that Fay’s right leg was two inches shorter than his left, that
his lower right leg was bowed laterally and swollen and that the
metal rods were later replaced because they were displaced and
infected. That is more than ample evidence of an impairment that
could reasonably be expected to produce the pain and other
symptoms and limitations of which Fay complained. So ALJ Mondi
could not disregard Fay’s testimony entirely without addressing
that evidence (see Reg. §416.929).

In the latter regard, the ALJ’s credibility determination

also failed to address at all Ikert’s testimony, which

13


observations of Fay, that he could walk 50 feet without a cane.

Dr. Nicholas I. Gemell, who conducted a followup
examination the same day, found upon review of x-rays taken of
Fay’s lower right leg that the fracture “seems to have well
advanced into the healing stage” (R. 131). But Dr. Gemell also
remarked “a rather marked degree of periosteal callous” (bulging
of the bone) at the fracture site (id.).

There is then a 1-1/2 year gap in the medical evidence, with
the next record reference to Fay’s leg being the report of an
April 11, 1997 exam conducted by Dr. Gemell (R. 253). At that
time he concluded that the fracture was “more or less” completely
healed, but he observed a certain degree of “bowing” that he had
not noticed in his July 1995 exam (id.).

Fay was referred by SSA to Dr. Rochelle Hawkins for an
internal medicine evaluation on June 30, 1997. Dr. Hawkins also
noted some bowing, swelling and tenderness in Fay’s lower right
leg (R. 274-75). She further observed a “slight limp” favoring
the right lower extremity and a “toeing in” of Fay’s gait (R.
274).

Fay was next reexamined by Dr. Mehta on October 2, 1997.

Dr. Mehta repeated her earlier observation of “a slight bowing of
the right leg laterally,” and she described Fay’s limp as
“significant” (R. 285-86).

Another nine months passed without further medical evidence.


seeks a remand on that basis. Because this case is being
remanded for a new hearing in any event, this opinion need not
reach the issue whether the Appeals Council should have
associated Fay’s third application with his prior and still
pending claim.
Conclusion

ALJ Mondi’s erroneous references to the record, his complete
failure to articulate even minimally his reasons for rejecting
contrary lines of evidence and his completely unfounded
speculation as to the results of Fay’s surgery necessitate a
redetermination of the weight that should have been given to
Fay’s testimony and to Fay’s FRC from the alleged onset date of
his disability until his death. Accordingly, both sides’ motions
for a disposition summary judgment are denied, but Nina Fay’s
alternative motion for remand is granted.”

Given the nature of the factors that have led to the remand,
there is obviously room for concern as to returning the case for

a new look by the same ALJ.’ Hence this Court urges

2 This is of course a “sentence four” remand under Section

405(g) and hence a final order within the scope of Melkonyan v.
Sullivan, 501 U.S. 89, 97-102 (1991).

13° This opinion is being written just after a per curiam
opinion from the Court of Appeals of the District of Columbia has
reversed a District Judge in the Microsoft litigation on grounds
of his manifested bias. Though what is reflected in the record
here does not of course even remotely begin to approach the type
of egregious judicial (really nonjudicial) conduct disclosed
there, the need for reassignment to a new judicial officer is not

20


regularly observed Fay take his insulin as prescribed and helped
him monitor his blood sugar levels (R. 50).

Furthermore, as Shramek v. Apfel, 226 F.3d 809, 812 (7th
Cir. 2000) recently quoted from Rousey v. Heckler, 771 F.2d 1065,
1069 (7th Cir. 1985):

Essential to a denial of benefits pursuant to Section

404.1530 is a finding that if the claimant followed her

prescribed treatment she could return to work.

Here ALJ Mondi made no finding that if Fay followed his
prescribed diabetes treatment he could return to work, and there
is no medical evidence in the record as to whether Fay’s bouts
with hypoglycemia were entirely (or even almost entirely)
avoidable.

As for Fay’s problems with his right leg, ALJ Mondi again
miscited an exhibit and ignored evidence that was contrary to his
finding that Fay’s leg problems did not render him unable to
work. While the ALJ did note the medical evidence from July 1995
reporting that Fay’s right leg was 2 inches shorter than his left
and was deformed by significant bulging of the bone and localized
redness (R. 18), he ultimately determined that Fay could stand
and walk long enough to be able to engage in light work (R. 20):

While his foot problems appear to have recently worsened

such that he underwent surgery to remove infected hardware

on July 10, 1998, prior to this his walk was described as
involving only a slight limp (Exhibit 7F). Further, there
is no reason to conclude that the surgery was unsuccessful

in restoring his ability to perform the standing and walking
required by the jobs cited by the vocational expert.

17


problems, each of which would alone preclude work: Fay’s
inability to stand for more than 5 minutes, his upcoming surgery
and recovery time, the frequency and duration of his “emergency
episodes” (a reference to his bouts with hypoglycemia) and the
physical belligerence caused by those episodes (R. 64-65).
Legal Standard

Fay must have suffered from a disability to be eligible for
each of his claims for benefits. Because of Fay’s death, with
his claim being pursued by his surviving parent, only his claim
for disability insurance benefits is now at issue. That is so
because under Reg. §416.542(b) (4) underpayments of supplemental
security income benefits may be made to a surviving parent only
for months of eligibility during which the deceased underpaid
recipient was a child. And because Fay was not of course a child
from the alleged onset date until his death (see Reg. §416.1856),
Nina Fay cannot recover any supplemental security income benefits
to which he may have been entitled during that period.®

“Disability” is defined in pertinent part as the inability
(Section 423 (d) (1) (A)):

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 twelve months.

5 Commissioner does not dispute, however, that Nina Fay may

recover any disability insurance benefits to which her son may
have been entitled.


sedentary work (R. 156).

Dr. Gonzales again completed a RFC Assessment on July 15,
1997. That report concluded that Fay could lift 20 pounds
occasionally and 10 pounds frequently and could stand for 6 hours
out of 8 an hour work day and sit for 6 out of 8 hours. Another
RFC Assessment completed on October 24, 1997 by Dr. Robert T.
Patey came to the same conclusions.

Hearing Testimony

At the Hearing ALJ Mondi heard testimony from three
individuals: Pay, his live-in girlfriend of two years Janet
Ikert ("“Ikert”) and vocational expert Cheryl Horseth (“Horseth”).
What follows sets out the testimony of each witness.

Fay testified that he had a tenth grade education but was
functionally illiterate (R. 34). After his motorcycle accident
he held a job with Butell Builder doing fire restoration work (R.
35). According to Fay, he was required to leave that job because
his “diabetes was too out of control” with “[llow blood sugar[ ]”
episodes (R. 36). Fay further testified that he took three types
of insulin for his diabetes and had slight damage to his eyes as
a result of that disease (R. 38-39). Fay also stated that he was
not eligible to have an Illinois driver’s license because of his
diabetes (R. 45).

Regarding the injury to his leg, Fay testified that his

right leg was 4 cm. shorter than his left leg and that his left


Then on July 9, 1998 the rods in Fay’s right leg were replaced
because they were infected, displaced superiorly and causing
right knee pain (R. 367).

During the same extended time period Fay was also
experiencing difficulties caused by his diabetes. Fay was taken
to an emergency room due to acute hypoglycemia on September 20,
1994, March 20, 1995, December 3, 1995, December 13, 1995 and
September 24, 1996 (R. 119, 122, 144, 149, 362). During a one-
week period in November 1997 Fay went to the hospital three times
complaining of vomiting and abdominal pain, which the doctors
attributed to diabetic gastroparesis and hyperglycemia (R. 333,
347). On August 17, 1997 Fay had suffered from gastroenteritis
that may also have been related to his diabetes (R. 355).

Finally, various non-examining physicians completed Residual
Physical Functional Capacity (“RFC”*) Assessments for Fay during
the time period from August 1995 to October 1997. Dr. J.L.
Gonzales’ August 27, 1995 report opined that Fay should be able
to lift 20 pounds occasionally and 10 pounds frequently, to stand
for 2 hours out of an 8 hour work day and to sit for 2 out of 8
hours. Dr. W.B. Donnelly’s July 21, 1996 RFC report came to
similar conclusions, but it added that Fay could not operate
repetitive foot controls with his right leg (R. 152) and stated

that his level of pain should not prevent him from doing

See n.5.


Although Dr. Hawkins did describe Fay’s limp as “slight” (in
Ex. 5F), Ex. 7F--to which ALJ Mondi mistakenly cited--contained
Dr. Mehta’s description of the observed limp as “significant” (R.
286). ALJ Mondi simply ignored that evidence of the greater
extent of Fay’s limp, as well as other evidence that his leg
injury was more severe, such as Dr. Mehta’s July 27, 1997
observation that Fay “has deformity of his lower leg and has
significant difficulty in walking. He cannot stand on his right
leg.” (R. 129). While the ALJ was entitled ultimately to accept
evidence suggesting that Fay could walk and stand with less
difficulty, rather than the contrary line of evidence, he could
not do so without acknowledging that contrary evidence at all.

ALJ Mondi’s statement that “there is no reason to conclude
that the surgery was unsuccessful in restoring his ability to
perform the walking and standing required” is particularly

troublesome.11. There was no evidence whatever in the record

41 In that respect, it should be remembered that the
walking-standing findings were made by medical reviewers who
based their conclusions entirely on the medical records of
others, not on their own first-hand diagnoses. And the medical
records can be searched in vain for any direct diagnoses to
support those quantified conclusions (standing or walking or both
for 6 hours, and sitting for 6 hours, out of an 8 hour workday).
It is distressing to find government counsel labeling the two
paper-reading state agency consulting physicians as “very
familiar with the condition of Mr. Fay’s right leg” (Mem. 9-10)
when nothing in the underlying evaluations really supported the
necessary numerical evaluations, and then compounding that
overstretch by saying “[t]hose opinions were uncontradicted”
(Mem. 10) when the direct evidence was entirely at odds with
those numbers.

18


the instructions of the doctors at Cook County hospital by fixing
Fay “full” dinners with meat, potatoes, rice and vegetables in
order to stabilize his blood sugar levels (R. 56).

As for her observations of Fay’s ability to walk and stand,
Ikert said that Fay went grocery shopping with her (R. 57). On
those occasions Fay used the grocery cart to adjust his weight
and started to limp almost immediately (id.). These shopping
trips lasted 20 to 25 minutes, and Ikert opined that Fay would
not have been able to stand and walk for that length of time
without the aid of the cart (R. 58). Finally Ikert expressed her
understanding that Fay would need six months to one year to
recover from his upcoming leg surgery.

Finally, the ALJ heard from vocational expert Horseth.

Based on her review of the record, Horseth had concluded that Fay
could not do his past work as a construction laborer, yardman,
mover or machine operator but that he could perform other jobs
such as cashier, assembler, hand packager, stock clerk or
shipping and receiving clerk, although the latter of those might
be precluded if in fact Fay was unable to read or write with any
proficiency.

ALJ Mondi then asked Horseth if her opinion would be
different if the testimony of Fay and Ikert were to be accepted
as an accurate description of Fay’s capabilities and limitations.

Horseth responded that both individuals had testified to many


’

Minute ee) l

United States District Court, Northern District of Illinois

_Reoe of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Milton I. Shadur than Assigned Judge

SN

CASE NUMBER 00 C7399 DATE 6/29/2001
CASE Nina Fay vs. Larry G. Massanari
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:
(d) o Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at _
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on setfor at
) Qo Trial[set for/re-set for] on at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4G@n) [General Rule21 COFRCP41(a)\(1) OO FRCP41(a)(2).
ao) [Other docket entry] Enter Memorandum Opinion and Order. Accordingly, both sides’ motions
for a disposition summary judgment are denied, (11-1) but Nina Fay’s alternative motion for remand is
granted. (2-1)
dl) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required. aber of notes
Notices mailed by judge’s staff. JUL 0 2 2001
Notified counsel by telephone.
7 | Docketing to mail nds.
7 _| Mail AO 450 form. Toatehds pur nas
Copy to judge/magistrate jud
1

dato mailed notice

deputy’s
initials

Date/time received in
central Clerk’s Office

mailing deputy initials



at 638).

Nonetheless a court “cannot uphold a decision by an
administrative agency...if, while there is enough evidence in the
record to support the decision, the reasons given by the trier of
fact do not build an accurate and logical bridge between the
evidence and the result” (Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996)). Finally, in contrast to the “substantial
evidence” standard applicable to factual determinations, the
ALJ‘s legal conclusions are reviewed de novo (see, e.g., Dotson
v. Shalala, 1 F.3d 571, 575 (7th Cir. 1993)).

ALJ Mondi’‘s Decision

ALJ Mondi first found that Pay met the disability insured
status requirements under Title II of the Act only through June
30, 1997. Next he went through the five-step inquiry set out
above. First he found that while Fay performed some work after
his alleged onset date, that work was not “substantial gainful
activity.” Then the ALJ determined that although Fay’s
impairments did produce “severe” limitations, no impairment or
combination of impairments met or equaled in severity any of the
specific impairments listed in Reg. §404, Subpt. P App. 1.
Further the ALJ found that Fay was unable to perform his past

relevant work as a laborer. Finally he found that Fay’s RFC®

6 ‘Residual functional capacity” is how much an adult can

do despite his impairment (Zurawski, 245 F.3d at 886 n.5).

121


Zurawski_v. Halter, 245 F.3d 881, 885 (7th Cir. 2001) (internal
citations, quotation marks and brackets omitted) most recently
reiterated the customary five-step inquiry prescribed by Reg.
§404.1520 to determine whether that standard has been met:

(1) whether the claimant is currently unemployed; (2)
whether the claimant has a severe impairment; (3) whether
the claimant’s impairment meets or equals one of the
impairments listed by the Commissioner, see 20 C.F.R. §404,
Subpt. P, App. 1; (4) whether the claimant can perform his
past relevant work; and (5) whether the claimant is capable
of performing work in the national economy. Under the five-
part sequential evaluation process, an affirmative answer
leads either to the next step, or, on Steps 3 and 5, toa
finding that the claimant is disabled. A negative answer at
any point, other than Step 3, ends the inquiry and leads to
a determination that a claimant is not disabled. If a
claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in
the national economy.

As for this Court’s review of the ALJ’s determination, Estok

v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998) exemplifies the
multitude of cases teaching that judicial review of an ALJ’s
factual determinations is limited to whether they were supported
by substantial evidence in the record. “Substantial evidence” is
consistently defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion”

(Richardson v. Perales, 402 U.S. 389, 401 (1971)). And while

this Court reviews the whole administrative record, it “does not
substitute its judgment for that of the Commissioner [or ALJ] by
reconsidering facts, reweighing evidence, resolving conflicts in

evidence, or deciding questions of credibility” (Estok, 152 F.3d

10


hip was deteriorating and causing him pain from carrying all of
his weight (R. 39). At that time Fay had been told that he
needed further surgery on his right leg (R. 43). Fay asserted
that due to those leg problems he believed he could only walk
one-half to one block, could only stand for 5 minutes and had
difficulty sitting in one place for too long, but he believed he
could probably lift up to 50 pounds (R. 39-41).* As for his
daily activities, Fay stated that he occasionally did chores such
as dishes and laundry and mowed the lawn with a power mower,
although he said that mowing the lawn was dangerous for him
because it caused his blood sugar level to drop (R. 44).

As for Ikert, she described incidents in which she would
wake up in the middle of the night and find Fay with blood sugar
levels as low as 38 (the normal range is 80-150) (R. 48). Ikert
testified that Fay’s blood sugar dropped into the 40s or lower 6
to 8 times a week and that at such times he could be incoherent
and unable to tell who she was, and he sometimes became
physically belligerent (R. 50-51). Ikert also testified that she
was present when Fay took his insulin shots in the morning,

afternoon and at night (R. 50) and that she was trying to follow

4 That last component is iffy at best, for the question to

Fay and his answer read this way (R. 41):
Q. And how about [lifting] 50 pounds?

A. To lift it is one thing but to lift and do
something with it is something else.

7


Commissioner to exercise his discretion in favor of referring the
case to a new ALJ because of the “legitimate and compelling

reason[s]” disclosed here (see, e.g., Travis v. Sullivan, 985

F.2d 919, 924 (7 Cir. 1993)),

Cente. DS wt.

Milton I. Shadur
Senior United States District Judge

Date: June 29, 2001

limited to situations in which the first judge’s predilections
are manifested in such an overt way--indeed, that is why
“appearance of impropriety” rather than actual impropriety is
made the standard for disqualification. Here the reader is left
with a sense of disquietude, and it would seem that should
suffice to call for the new look suggested in the text. Although
the money at stake in Microsoft obviously dwarfs what is at issue
in this case, the amount at issue here is of course just as
important to a plaintiff of modest (if not meager) means.

21


2000 (R. 7-8). Thereafter Nina Fay, as Fay’s surviving parent ,?
filed this action for review of the Agency’s final decision
pursuant to Section 405(g).

Medical Evidence

Fay, who had been diagnosed with diabetes when he was 12,
was involved in a motorcycle accident on April 2, 1994 that
caused the fracture of his right tibia and right fibula (R. 111).
As a result of the fractures, two steel rods were inserted into
Fay’s lower right leg (R. 114).

In response to a request by the Social Security
Administration (“SSA”), Dr. Karim Valika completed a medical
assessment report regarding Fay on June 6, 1995. That report
simply notes that Fay then had insulin dependent diabetes
mellitus, that his compliance with his prescribed therapy for
that condition was poor and that he had fractured his right tibia
and right fibula in a motorcycle accident (R. 128).

Fay was then examined by Dr. Daksha Mehta on July 27, 1995
(R. 129). At that time Dr. Mehta noted that Fay had “significant
difficulty in walking” and could not stand on his right leg, that
Fay’s right leg appeared to be 2 inches shorter than his left,
that there was a deformity on the lower half of the right leg
with significant bulging of the bone and that Fay limped on his

right leg (R. 129-30). Dr. Mehta later confirmed, based on her

2 Nothing in the record indicates the cause of Fay’s death.

3


corroborated Fay’s assessment of his symptoms and limitations as
well. SSR 96-7p teaches that an adjudicator must consider any
statements by the individual “and other persons” concerning the
individual's symptoms and their functional effects. Ikert gave
extensive testimony on that score, and ALJ Mondi could not ignore
that line of evidence entirely.’

In sum, it is not at all clear from ALJ Mondi’s decision
whether he examined the evidence that supported Fay’s testimony
as well as any evidence suggesting his testimony was not
credible. That alone warrants remand (see Zurawski, 245 F.3d at

888) .°

7 It should also be noted that Ikert’s testimony was not

“essentially redundant” of Fay’s testimony (contrast Books v.
Chater, 91 F.3d 972, 980 (7th Cir. 1996)). Ikert gave more
detailed testimony about Fay’s hypoglycemic episodes and his
ability to walk, and she relayed more information about what they
had learned from the doctors at Cook County Hospital regarding
Fay’s impending surgery.

8 Moreover, Fay’s occasional ability to assist in household
chores such as doing the dishes and laundry, and the fact that he
cut the grass with a power mower, are not really substantial
evidence that his testimony was incredible. Our Court of Appeals
has repeatedly pointed out that minimal daily activities such as
household chores do not establish that a person is capable of
engaging in substantial physical activity (see Clifford, 227 F.3d
at 870). Moreover, Fay testified that mowing the lawn was in
fact a dangerous activity for him because it caused his blood
sugar to drop. And there is no indication that Fay walked
farther than a half block or stood for more than 5 minutes while
mowing the lawn. Finally, Ikert’s testimony that Fay was able to
accompany her grocery shopping because he could use the cart for
support suggests that Fay might be able to mow the lawn because
he could use the power mower to assist him in carrying his
weight. Similarly, Fay’s use of medications does not
substantially undermine his credibility. Fay used three types of

14


of Fay’s diabetes mellitus on his ability to work at all once the
ALJ concluded that Fay’s bouts with hypoglycemia were due to non-
compliance.® To be sure, noncompliance with a prescribed regime
may be cause for a denial of benefits: Reg. §404.1530(a)
provides that “[i]n order to get benefits, you must follow
treatment prescribed by your physician if this treatment can
restore your ability to work.” But there are several problems
with the ALJ's decision on that issue.

First, the exhibits that ALJ Mondi cites (Exs. 24F
[incorrectly referred to as 24/2], 7F and 4F/7) en route to his
assertion that Fay was noncompliant do not in fact support that
conclusion. Exs. 7F (R. 285-86) and 4F/7 (R. 268-70) say nothing
at all about Fay’s compliance or noncompliance with his
prescribed treatment.’® Ex. 24F does say that Fay “did not take
his insulin today nor did he eat this morning” (R. 355). But at
that time Fay was in the Sherman Hospital Emergency Department
complaining of vomiting since the night before. Such an incident
surely does not even suggest that Fay was chronically non-
compliant. More importantly, the ALJ’s decision fails to

consider contrary evidence, such as Ikert’s testimony that she

®° ALJ Mondi erroneously referred to those as bouts of

hyperglycemia (R.20).

10 In fact, Ex. 4F/7 states that Fay “keeps good record of
Acuchecks” (R. 268), which indicates that Fay regularly monitored
his blood sugar levels as instructed.

16


has filed a cross-motion for summary judgment seeking affirmance
of the decision. For the reasons set out in this memorandum
opinion and order, both motions for a dispositive summary
judgment are denied, but Nina Fay’s motion for remand is granted.
Procedural Background

Fay filed an application for supplemental security income on
May 1, 1995, asserting that he had become disabled on March 27,
1994 as a result of (1) broken bones in his right leg that had
not healed and (2) his diabetes (R. 68, 86). That application
was denied both initially and upon reconsideration (R. 71-74, 78-
80). Fay then filed a second application asking for a period of
disability, disability insurance benefits and supplemental
security income on May 20, 1997 (R. 173). That second applica-
tion was also denied both initially and upon reconsideration (R.
161-164, 166-168). At that time Fay requested a hearing, a
request that was granted and resulted in the “Hearing” held on
May 21, 1998 before Administrative Law Judge (“ALJ”) John Mondi.

On August 28, 1998 ALJ Mondi issued an opinion denying Fay’s
request for disability benefits, finding that although Fay’s
impairments were severe and he was incapable of performing his
past relevant work, he was not disabled because he was able to
perform a significant number of other jobs in the national
economy (R. 20-21). ALJ Mondi’s decision became final when the

Appeals Council denied Fay’s request for review on September 22,


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

NINA FAY, surviving parent of
THOMAS FAY, deceased,
SSN .

Plaintiff,
Vv. No. 00 C 7399
LARRY G. MASSANARI, Acting

Commissioner of Social Security
Administration,

Defendant.

MEMORANDUM OPINION AND ORDER

Nina Fay, on behalf of her deceased son Thomas Fay (“Fay”),
seeks judicial review of a final decision of Commissioner of
Social Security Larry Massanari (“Commissioner”) that denied
Fay’s applications for Title II Disability Insurance Benefits and
Title XVI Supplemental Security Income under the Social Security
Act (“Act”), 42 U.S.C. §§423(d), 1382c.* Nina Fay’s current
motion for summary judgment under Fed. R. Civ. P. (“Rule”) 56
asks for alternative relief: either (1) the reversal of
Commissioner's decision and an award of benefits dating from the
onset of her son's alleged disability to the date of his death on
September 12, 2000 (three months before his 56 birthday) or

(2) a reversal and remand for further proceedings. Commissioner

1 All further statutory references 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. §--.” Citations to the administrative record will take the

form “R.--.” Finally, Social Security Rulings are cited “SSR--,|”


allowed him to perform the physical exertion requirements for
light work (work that requires maximum lifting of 20 pounds and
frequent lifting of 10 pounds).

In making his determinations, ALJ Mondi found that Fay’s
allegations of disabling symptoms and limitations were not
eredible. And based on Fay’s RFC, age and education and the
testimony of the vocational expert, the ALJ concluded that under
Medical-Vocational Rule 202.17 Fay was “not disabled.”

Fay’s Credibility

Nina Fay contends that ALJ Mondi erred in finding Fay’s
testimony not credible. Courts will not disturb an ALJ's
credibility determination unless it is “patently wrong”
(Zurawski, 245 F.3d at 887). But that deference is not absolute
(Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000), quoting
Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994)):

Although an ALJ’s credibility determination is usually

entitled to deference, “when such determinations rest on

objective factors or fundamental implausibilities rather
than subjective considerations [such as a claimant’s
demeanor], appellate courts have greater freedom to review
the ALJ's decision.”
Furthermore, as this Court said in Aidinovski_v. Apfel, 27
F.Supp.2d 1097, 1102-03 (N.D. I11. 1998):

{Bloth administrative regulations and case law require

ALds to explicate their reasoning fully, precluding

them from rejecting evidence favorable to the claimant

without explaining (within reason) why they have done
so.

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REC

Nina Fay also argues that ALJ Mondi made numerous errors in
deciding that Fay was not totally disabled. Once the ALJ
determined that Fay had no past relevant work, a finding of no
disability would depend on a further determination that Fay
nevertheless had the capability to perform some work in the
national economy (Clifford, 227 F.3d at 873). Hence ALJ Mondi’s
determination that Fay was capable of performing light work must
be supported by substantial evidence in the record (id.).

In contesting that determination, Nina Fay argues that in
making that finding the ALJ again incorrectly cited medical
evidence and disregarded evidence contrary to his conclusion. On
that score Zurawski, 245 F.3d at 888 is again instructive:

It is worth repeating that “an ALJ may not ignore an entire
line of evidence that is contrary to her findings,”
Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir. 1999),
rather she must “articulate at some minimum level [her]
analysis of the evidence” to permit an informed review.
Clifford, 227 F.3d at 872. Here (as noted above), the ALJ
mentions only the medical evidence favoring the denial of
benefits. And from her analysis, we are unable to discern
whether she considered the record as a whole.

In this instance ALJ Mondi declined to consider the impact

insulin a day in an attempt to control his blood sugar levels.

As for pain medication, Fay testified that he took about 14
aspirin tablets a day (R. 42). While there is no evidence that
Fay was ever prescribed pain medication, it isn’t clear from
Fay’s testimony that his inability to walk and stand for longer
periods was due to the pain that such activity caused him, as
opposed to a physical inability to do so because of the damage to
his right leg.

15