Discussion

Judicial review of the ALJ’s decision is limited to determining whether the ALJ
applied the correct legal standards in reaching a decision and whether there is substantial
evidence in the record to support the findings. 42 U.S.C. §405(g); see also Scivally v. Sullivan,
966 F.2d 1070, 1075 (7th Cir. 1992). The “substantial evidence” standard “requires no more
than ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971); Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)). In
deciding whether substantial evidence exists to support the ALJ’s decision, the district court
“may not decide the facts anew, re-weigh the evidence, or substitute its own judgment for that of
the [ALJ].” Powers, 207 F.3d at 434-35, The Court may reverse the ALJ’s decision “only if the
evidence ‘compels’ reversal, not merely because the evidence supports a contrary decision.”
Betancourt v. Apfel, 23 F. Supp. 2d at 875, 880 (N.D. Ill. 1998) (quoting JNS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)).

To be eligible for disability insurance benefits, King must be unable to perform
“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.” 20 C.F.R. § 416.905. In determining
whether King suffered from a disability, the ALJ conducted the standard five-step inquiry: (1)
whether the claimant is engaged in any substantial gainful activity; (2) whether the impairment is
severe; (3) whether the impairment meets or equals an impairment listed in 20 C.F.R. § 404, Sub.

P, Appendix 1; (4) whether the claimant can perform his past work; and (5) whether the

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King also argues that remand is warranted because the Appeals Council improperly failed to
provide him an exhibit list and hearing tape from the ALJ hearing and refused to permit him to
submit additional briefs. Neither contention compels remand.

A reviewing court’s power to remand on the basis of new evidence is governed by
42 U.S.C. § 405(g), which requires King to establish that the evidence is new and material to the
issues at hand, and that there was good cause for the failure to previously incorporate the
evidence into the record. See 42 U.S.C. § 405(g); see also Sample v. Shalala, 999 F.2d 1138,
1144 (7th Cir. 1993) (to be entitled to Section 405(g) remand, plaintiff must meet the
requirements of newness, materiality, and good cause). King’s new evidence, which is attached
to his motion for summary judgment, includes, among other things, a November 1998 diagnosis
of osteoarthritis (made the same day as the ALJ hearing) and treatment for knee problems in May
and August 1999. King has failed, however, to demonstrate the requirements for remand under §
405(g).

As an initial matter, evidence is “new” if it was not in existence at the time of the
administrative proceedings. Sears v. Bowen, 840 F.2d 394. Here, at least some of the evidence
was in existence prior to the hearing or, at the very least, during the time that the ALJ specifically
held the record open for further submissions. King also has failed to show that he had good
cause for failing to previously incorporate this evidence in the record. All of the evidence
predates the ALJ’s decision denying King’s claim. Though some of the evidence postdates the
hearing, King made no attempt to bring this material to the ALJ’s attention following the hearing,
either during time the ALJ held the record open, Record at 71, or thereafter. Accordingly, King’s

request for remand fails without consideration of the issue of materiality. See Sample, 999 F.2d

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physician’s opinion as unsupported by the medical evidence). Criteria relevant in weighing the
value of a medical opinion include, among other things, the nature and extent of the treatment
relationship, the degree to which other medical evidence supports the opinion, and the
consistency of the opinion with the record as a whole. See 20 C.F.R. § 404.1527(d); §
416.927(d); Butera, 173 F.3d at 1056-57.

In light of these criteria, we do not find that the ALJ improperly discounted the
opinions of Dr. Garman and Harrison. Dr. Garman diagnosed King with substance abuse
disorder in full remission, an organic brain disorder, and affective disorder (i.e., depression).
Record at 262. Todd Harrison also evaluated King and concluded that he suffered from “Major
Depression, Recurrent, Severe.” Record at 357.

Dr. Garman’s diagnoses resulted from a single evaluative session with King, and
her conclusions were contradicted by other medical evidence. Contrary to Dr. Garman’s
conclusion that King’s substance abuse was in “full remission,” the record is replete with
evidence regarding King’s ongoing drug and alcohol problems. For example, the medical
records reveal treatment for substance abuse in December 1993 through January 1994, Record at
313-316, and October though November 1995, Record at 359, as well as other evidence of
recurrent substance abuse, including King’s admissions of drinking and drug abuse. See, e.g.,
Record at 241; 250-258; 352. In addition, Dr. Garman’s finding of an organic brain disorder,
independent of any substance abuse, was rebutted by Dr. Schiff, who testified that Dr. Garman’s
diagnosis of organic brain disorder based on King’s I.Q. scores was highly questionable and that
a more telling indicator of King’s mental impairment was the results of the Bender and Trail

Making tests, which, even according to Dr. Garman, did not indicate an organic disorder.

6-


claimant’s impairment prevents him from doing other work in the national economy. See, e.g.,
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). But even if the claimant is found to be
“disabled,” if there is medical evidence of drug addiction or alcoholism the ALJ must decide
whether the addiction or alcoholism is a contributing factor material to the determination of
disability. See 20 C.F.R. §§ 404.1535; 416.935. Ifso, the ALJ must find the claimant not to be
disabled. Id.

The ALJ concluded that King had not engaged in substantial gainful activity since
the alleged onset of disability and that his impairments are severe. The ALJ further determined
that King’s impairments meet or equal a listed impairment, but that King’s alcohol and drug use
were contributing factors material to the finding of disability. The ALJ additionally found that,
absent drug and/or alcohol use, the medical evidence did not support a finding of disability.
Though King could not perform his past work, the ALJ concluded that he retained the capacity to
perform at least unskilled sedentary work.

I. Substantial Evidence

King first argues that the ALJ’s decision is not supported by substantial evidence.
King asserts that the ALJ improperly discounted the evaluations of Dr. Garman and Todd
Harrison, a clinical social worker, and improperly discounted King’s complaints of debilitating
pain. King further argues that the ALJ’s conclusion that King could perform sedentary work is
not supported by substantial evidence. As explained below, we affirm the ALJ’s findings.

With respect to the opinions of Dr. Garman and Todd Harrison, the law is clear
that ALJs have wide discretion to accept or reject medical testimony. See, e.g., Butera v. Apfel,

173 F.3d 1049, 1056-57 (7th Cir. 1999) (affirming an ALJ’s decision to reject a treating

5.


standard is appropriate “because hearing officers are in the best position to see and hear the
witnesses and assess their forthrightness.” Jd. Though the medical records do show that King
has a history of migraine headaches, the records also show that the headaches have been treated
with strong pain medication and that King reported to his doctors that the medications had some
degree of success. King appears to suggest that he also suffers from disabling pain in his knees.
However, King had surgeries to correct his knee problems, and the record does not indicate that
these knee problems are either permanent or disabling. In short, we cannot conclude that the
ALJ’s assessment of King’s credibility was “patently wrong,” and we therefore decline to disturb
that finding.

Finally, King argues that the ALJ improperly concluded that King could still
perform a range of unskilled, sedentary work activity. The governing regulation defines
sedentary work as involving “no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools ... Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §
404.1567(a). Again, the record supports the ALJ’s conclusion. The medical evidence indicates
that King can lift substantially more than ten pounds at a time, e.g., Record at 140, and the record
as a whole indicates that King goes about his daily activities without substantial limitation. In
short, King has failed to demonstrate that the ALJ’s findings regarding his ability to perform
sedentary work in the national economy should be reversed.

I. Remand to the Appeals Council
King argues that the case should be remanded to the Appeals Council pursuant to

42 U.S.C. § 405(g) because he has new evidence that should have been considered by the SSA.

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Minute Order Form (06/97)

a vu United States District Court, Northern District of Illinois

Name a Assigned Judge Matthew F. Kennelly Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 4320 DATE 4/18/2002
CASE King vs. Jo Anne B. Barnhart
TITLE

of the motion being presented.}

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

CUFRCP4(m) CO General Rule 21 COFRCP41(a)(1) OO FRCP41(a)(2).

the alternative for remand is denied. Judgment is entered in favor of defendant.

(1) ff [For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

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

(2) im Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due

(4) a Ruling/Hearing on set ffor___at

(5) oO Status hearing[held/continued to] [set for/re-set for]on____setfor___— at.
(6) Oo Pretrial conference[held/continued to] (set for/re-set for]on__—_—sset for at.
(7) oO Trial[set for/re-set for]on__s at

(8) im} [Bench/Jury trial] [Hearing] held/continued to___at

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

ao [Other docket entry] Enter Memorandum Opinion and Order. Defendant Commissioner’s motion
for summary judgment is granted (document 11). Plaintiff King’s motion for summary judgment or in

No notices required, advised in open court.

No notices required.
lo not a number of notices

Document
Number

Notices mailed by judge’s staff.

Notified counsel by telephone APR 2 3 2002
v | Docketing to mail notices.
Gl

Mail AQ 450 form. docketing deputy initials

Copy to judge/magistrate judge. 4
date mailed notice
courtroom bts
OR deputy’s mt
initials
Date/time received in
central Clerk's Office nailing deputy iniols

/3



Welch v. Sullivan, 1989 WL 129236, No. 88-6017 (W.D. Mo., Oct. 30, 1989), a case in which a
disability claimant was given no notice before the Appeals Council reopened and reversed a
favorable ALJ award. The clear thrust of Welch and the cases it cites, however, is that due
process concerns may be implicated where a claimant receives no notice that a favorable
disability decision has been placed in jeopardy: “reversal without a notice which occurs long
after a claimant would legitimately believe that his administrative proceedings are concluded and
that his benefits are secure ... violates ... procedural due process.” /d. at * 3. That is not what
occurred here.

Further, Seventh Circuit case law is contrary to Welch. See DeLong v. Heckler,
771 F.2d 266 (7th Cir. 1985). The claimant in DeLong appealed an award of benefits on the sole
ground that the benefits were not generous enough. The Appeals Council never provided notice
of its intent to review the case; the Council subsequently reversed the grant of benefits entirely.
In affirming that decision, the Seventh Circuit noted that “it would be a quite pointless exercise
in shuffling paper for the Council, having received the claimant’s notice of appeal within 60
days, to then have to issue its own notice of intent to review the case.” Jd. at 268.

Ultimately, however, the question of whether a successful claimant’s due process
rights are violated is not at issue in this case. King had been denied benefits before the ALJ and
was fully aware of the Appeals Council review, having requested it. King also complains that he
was not given the opportunity to offer additional evidence to the Council. The applicable
regulations, however, clearly provide that King should have presented any additional evidence to
the Appeals Council at the time he requested review. See 20 C.F.R. § 404.968 (“You may

request Appeals Council review by filing a written request. Any documents or other evidence

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at 1144 (claimant not entitled to remand; her additional evidence was “not fairly characterized as
new” because the medical evidence was available prior to the ALJ’s decision and she failed to
demonstrate sufficient reason for failing to submit the evidence to the ALJ).

More importantly, King has not shown that his evidence is material to the issues
at hand. “Evidence is material if there is a reasonable possibility that it would have changed the
outcome of the Secretary’s determination.” Sears, 840 F.2d at 400. Here, if anything, the
evidence tends to further undermine King’s claims. For example, the records contain admissions
of King’s continued drinking. With respect to the problems that King claimed to have with his
knees, the documents further indicate that the injuries were not disabling — they showed that
King could walk three miles without difficulty. Accordingly, King is not entitled to remand
under 42 U.S.C. § 405(g).

King next argues that his constitutional due process rights were violated (and thus
he is entitled to a remand) because the Appeals Council failed to provide him with exhibits and a
hearing tape from the ALJ hearing so he could determine what additional evidence to file and
failed to permit him to file additional briefs. We agree that the C-F.R. sections cited by King
indicate that he should have been given the opportunity to obtain the exhibits and a tape of the
hearing and to submit additional briefs. However, we do not agree with King that this failure
rose to the level of a constitutional due process violation, or indeed anything more than harmless
error.

In support of his argument, King cites 20 C.F.R. § 404.973, which provides for
notice and an opportunity to be heard if the Appeals Council, on its own motion and absent a

request from the parties, seeks to review a case. See 20 C.F.R. § 404.973. King further cites

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Similarly, Dr. Garman’s and Harrison’s findings that King suffered from
depression were controverted by other evidence. Both Dr. Garman and Harrison “treated” King
on only one occasion, and their conclusions were based solely on King’s own account of his
symptoms. Dr. Schiff testified that with proper attention, depression is a highly treatable illness,
and that there was no indication in King’s records of any serious, ongoing attempt to obtain
treatment for depression. See Record at 48, 242. Further, Dr. Garman’s own report cut against
her finding of persistent, non-transient depression: on the day of testing, Dr. Garman reported
that King “was very cooperative ... his speech was clear and his thought process was logical ....
He mentioned feeling well ... He reacted positively to social reinforcements. When praised for
his performance, he smiled and tried his best to achieve.” Record at 261.

For these reasons, we find that King has fallen short of demonstrating that the ALJ
improperly discounted the opinions of Dr. Garman and Harrison. Indeed, substantial evidence
exists to support the ALJ’s conclusions rejecting those opinions. As noted above, we may
reverse the ALJ’s decision “only if the evidence ‘compels’ reversal, not merely because the
evidence supports a contrary decision.” Betancourt, 23 F. Supp. 2d at 880 (citations omitted).
Though King can point to snippets of the medical records that might support his case, his
evidence does not compel reversal.

King also argues that the ALJ improperly discounted King’s own testimony
regarding his pain. The ALJ discounted King’s claims of disabling pain based on King’s
demeanor at the hearings and the lack of objective medical support for his claims. As the SSA
correctly notes, we must affirm an ALJ’s credibility determination unless the claimant

demonstrates that it is patently wrong. See, e.g., Powers, 207 F.3d at 435. This stringent

-7-


remanded with directions to the ALJ to develop the record more fully as to the extent of King’s
alleged mental impairments.

King testified at a supplemental hearing held on November 10, 1998, as did
psychiatrist Dr. Daniel Schiff. At the second hearing, Dr. Schiff testified that Dr. Garman’s
diagnoses were flawed. Record at 45. He opined that Dr. Garman’s assessment of an organic
brain disease was contradicted by the results of the Bender and Trail Tests, and that a diagnosis
of organic brain disorder based on the information presented to Dr. Garman was improper. Jd.
Dr. Schiff further testified that depression is typically a transient condition that is largely
treatable if proper measures are taken; he found no indication in King’s records that he had
participated in any ongoing treatment for depression. Record at 47. Dr. Schiff also noted the
repeated evidence in King’s medical records of substance abuse. Record at 44-45. At the
conclusion of the supplemental hearing, the ALJ agreed to hold open the record for an additional
28 days to permit the submission of additional evidence. Record at 71.

On January 20, 2000, the ALJ issued a second decision denying benefits to King.
The ALJ concluded that King had an “impairment that meets the requirements of an impairment
listed in Appendix 1. However, ... the claimant cannot be found ‘disabled’ ... because the
claimant’s drug and/or alcohol impairment is a contributing factor material to that finding of
disability.” Record at 15. The ALJ further concluded that, absent substance abuse, King’s
alleged impairments did not meet or equal any listed impairment. Record at 21. The Appeals
Council subsequently denied King’s request for review of the ALJ’s January 20, 2000 decision,

and the ruling became a final agency decision on April 12, 2001.


In mid-1989, King was diagnosed with an arteriovenous malformation (“AVM”)
in the right frontal lobe of his brain. He underwent a craniotomy to remove the AVM on July 25,
1989 and was cleared to return to work on September 8, 1989. In June 1992, King’s surgeon,
Dr. Mullan at the University of Chicago Hospital, deemed that King had “made a full recovery
from the effects of his surgery.” Record at 142. Prior to and since the surgery, King has
experienced migraine headaches for which he has sought medical treatment and which have been
treated with pain medications with at least some degree of success.

King’s initial application for disability insurance benefits was denied, as was his
request for reconsideration. King then filed a timely request for a hearing before an
Administrative Law Judge. ALJ Alan Jonas held a hearing in King’s case on May 17, 1995. Just
prior to that hearing, on April 12, 1995, King underwent a psychological examination by Dr.
Garman, a clinical psychologist, who performed a series of intellectual and personality tests. She
diagnosed him with organic brain disease based on her interviews with King, his medical history,
and his IQ testing. Record at 262. Dr. Garman also reported, however, that the results of a
Bender Gestalt test (which measures the ability to reproduce geometric designs) and the results of
a Trail-Making Test (which tests visual-conceptual and visual-motor tracking) revealed no signs
of an organic brain impairment. Dr. Garman also diagnosed King with depression and with
alcohol and cocaine dependence in full remission. Record at 262. Dr. Garman ultimately
concluded that King’s impairments fell within the categories of “organic mental disorders;”
“affective disorders;” and “substance addiction disorders in full remission.” Record at 266.

After reviewing the entirety of the medical evidence, on January 5, 1996, the ALJ

denied King’s claim. On April 15, 1998, the Appeals Council vacated the ALJ’s decision and

-2-


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

EASTERN DIVISION
HOWARD KING, )
)
Plaintiff, )
)
ys. y Case No. 01 C 4320
)
JO ANNE B. BARNHART, )
Commissioner of the Social Security y
Administration, )
)
Defendant. )
fm
fos

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff Howard King, who claims to suffer from a combination of impairments
including depression, organic mental disorder, and migraines, filed this lawsuit seeking review of
the Social Security Administration’s decision to deny his claim for disability insurance benefits.
Both the SSA and King have moved for summary judgment.

Facts

King applied for disability insurance benefits under the Social Security Act on
January 27, 1994, alleging that he became disabled on December 18, 1993 due to the residual
effects of brain surgery. King complains that he suffers from migraine headaches, loss of
concentration and memory, lethargy, and knee problems; he further alleges that he suffers from

an organic mental disorder, depression, and substance abuse disorder in full remission.

/3


you wish to have considered by the Appeals Council should be submitted with your request for
review”). Though King argues that he could not discern what to present to the Appeals Council
because he was not provided the exhibits and the tape from the ALJ hearing, this argument is
unavailing. Both King and his counsel were present at the hearing, and the documents submitted
there were largely King’s own medical records.

For these reasons, we cannot conclude that King’s constitutional due process
rights were violated, and we therefore deny King’s request for remand on this basis.

Conclusion

Defendant Commissioner’s motion for summary judgment [docket item # 11] is
granted. Plaintiff King’s motion for summary judgment or in the alternative for remand [docket
items # 8-1, 8-2] is denied. King’s motion in the alternative for remand is denied. The Clerk is

directed to enter judgment in favor of the defendant.

Date: April 18, 2002

MATTHEW F. KENNELLY
United States District Ju

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