Lusher further testified that she suffers from constant fatigue. (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 thai during the relevant time period, she did dishes for herself, could pull up the covers
on her bed, and occasionally read (but only for very limited periods of time, due 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, Lusher explained that has suffered from depression for most of her lifo,
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/week 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 week, for one hour a day, as a spiritual
counselor doing psychic readings over the telephone from her home. (R. 160-61.)

With 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 approximatcly

fifteen years earlier, “she was felt to have fibromyalgia.”® (R. 95.) In another letter dated

‘Dr. 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



fibromyalgia, he must properly conduct and explain the RFC assessment. “The RFC assessment
must include a narrative discussion describing how the evidence supports each conclusion, citing
specific medical facts (¢.g. laboratory findings) and nonmedical evidence (e.g. daily activities,
observations),” SSR 96-8p, 61 FR 34474, 34477. In other words, in determining Lusher’s RFC,
the ALJ 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 plaintiff's 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 v. Apfel, 11 F. Supp. 2d 235, 238 (N.D.N.Y.
1998). Further, the ALJ cannot rely only on evidence that supports his conclusion (whatever that

may be).!° Herron, 19 F.3d at 333; Dominguese v. Massanari, 172 F. Supp. 2d 1087, 1101 (E.D.

In the ALJ’s original RFC assessment focusing on the disabling effects of Lusher’s
cardiomyopathy, the written analysis was conclusory. For example, 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 (estimony 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 were based on
selective evidence. The ALJ noted Lusher’s complaints about exhaustion, but rejected them
because, despite those complaints, the record showed that Lusher “lifted weights almost daily.
(R. 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 cxercise is part of a comprehensive treatment
course for 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 thai 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, Lusher’s “part-time” work was for one hour/day for a total
of 7 hours/week from her home. (R. 160-61.) Regarding the cross-couniry move, Lusher
testified that she moved to Illinois to live with her mother out of necessity after her husband
forced her out of their house in Maryland. (R. 164.) Even more significantly, that move took

9



cardiomyopathy, a severe impairment, but not one that satisfied 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
work (step 4).

At the fifth step of the evaluation process, the burden of proof shifted to the ALI, 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. In assessing
Lusher’s residual functional capacily (“RIC”), 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 more than 10 pounds al a
time,” and (4) “occasionally lift 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 T,usher’s
“capacity for the full range of sedentary work was diminished by significant non-exertional
limitations which made it impossible for her to more 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 ALJ thus found that Lusher was not disabled

within the meaning of the Social Security Act when her insured status expired, and was not



October 23, 1997, Dr. Paul Epstcin 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 fatigue was associated with poor sleep.
(R. 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 impairment 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 F.3d 863, 868 (7th Cir. 2000). A conclusion that a claimant’s impairment
qualifies as one of the Listing impairments results in a finding that a claimant is disabled. Jd.
Likewise, even if the impairment does not qualify as a Listing impairment, if the ALJ concludes
that 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
meaning of the Social Security Act.

Here, after 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 Lusher had not been engaged 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 from

7A 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



2004), The most evident omission is thc 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
discussion of fibromyalgia whatsoever.

In opposing summary judgmeni, 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 true, 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
record shows that Lusher has suffered from fibromyalgia since 1981, (R. 95), and continued to
suffer from il 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 had 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 engaging 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 ALJ implicitly rejected an entire
line of evidence without explanation. That failure warrants reversal and remand. Herron, 19
F.3d at 333. On remand, the ALJ must properly assess Lushet’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

*The following discussion is based on other arguments raised by the parties in the
briefing. ‘Ihe 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



Minntcaider Havas (048097)

United States District Court, Northern District of Mlinois

Namie of Assigned Judge Nan R. Nolan Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 5298 DATE 9/16/2004

CASE Christina Lusher vs. Jo Anne Barnhart
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintilY, defendant, 31d party plaintitt, and (hy state briefly the nature
MOTION: ol the motion being presented. ]

DOCKET ENTRY;

ISEP

Notitied counsel by telephone

Dackuting 10 mail notiges

Packs

dockeving deputy initials

Mait AQ 480 form.

Copy to judgemagisirate judge een
‘ 6/2004

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

Q) o Brief in support of motion due

Q) a) Answer brief lo motion due . Reply to answer bricf duc.

a oO Ruling/learing on___ set for al

(Ss) Oo Status hearing[held/continued to] [set for/re-set for] on _ set for at _.

(6) Oo Prewial conference[held/continued to] [set for/re-set for] on set for at .

(7) o ‘Trial[set for/re-set for] on at

(8) o [Bench/Iury trial] [Hearing] held/continued to Lat

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

OFRCP4(m) Local Rule 41.1 OO FRCP41(a)\(}) OO FRCP41(a)(2)

(0) [Other docket entry] Enter Amended Mcmorandum Opinion and Order granting plaintiff's motion
for summary judgment [12-1] and/or remand [12-2] to the extent plaintiff seeks a new administrative
hearing, and denying the motion to the extent plaintiff asked the court to award her disability insurance
benefits, This amended opinion is issucd to clarify and supercede the Memorandum Opinion and Order
issued on May 12, 2004 [17-1].

a1) |For further detail see order attached to the original minute order.]

No nonces required, aclvised in open court Document
3 Number
No motives required uinoe atoaiees
Y | Notices muiled by judge’s start

date un pote

squriroam:

hn

hb deputy’s ' ye
initials x
v4 Date/time received ins 4 ch
central Clerk's Ctige

railing depuly initats



procedures set forth in 20 C.F.R. § 404.1520a. Kenoyer v. Barnhart, No. 01-35469, 2002 WL
31396379, at *1 (9" Cir. Oct. 23, 2002) (unpublished opinion).

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

Conclusion

For the reasons explained above, Christiana Lusher’s motion for summary judgment is
granted to the extent she seeks a new administrative hearing, but denied to the extent she asks the
court to award her disability insurance benefits, This case is remanded for a new hearing for
proper consideration of Lusher’s 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: September 16, 2004

11



Wisc. 2001) (ALJ must “explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved.”) (citing SSR 96-8p).

Additionally, the ALJ 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 the Commissioner’s argument. (R. 121) (record dated
10.23.97 stating that Lusher 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 does not excuse the ALJ from making an
assessment. In fact, the regulations in place at the time the ALJ issued his written opinion on
June 30, 2000, required an ALJ to complete a Psychiatric Review Technique Form (“PRTF”)
whenever a claimant alleges a mental health impairment. See Cook v, Apfel, No. C 98-2204S1,
1999 WL 342038, at *7-8 (N.D. Cal. May 18, 1999); 20 C.F.R. § 404.1520a (before August 21,
2000 amendment), The ALJ neither filled out the requisite PRTF for Lusher nor made any other
assessment regarding Lusher’s depression. Again, an entire line of evidence was implicitly
rejected without explanation.

The court recognizes that effective September 20, 2000, the regulations no longer require
the ALJ to complete a PRTF. See 20 C,F.R. § 404.1520a(e)(2); Social Security Rules &
Regulations, 20 C.F.R. Parts 404 and 416 Revised Medical Criteria for Evaluating Mental
Disorders and Traumatic Brain Injury, 65 FR 50746, 2000 WL 1173632 (Aug. 21, 2000).

Accordingly, on remand the ALJ should evaluate Lusher’s depression using the current

place in March 1999, 1 '4 years after Lusher’s insured status expired. (R. 164.) Further, the
court’s review of the record revealed no evidence that Lusher took carc of her mother. (If such
evidence is in the record, the ALJ did not properly cite to it.)

10



entitled to reccive 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
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 v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). Although
the reviewing court considers the entire record, the court “may not decide the facts anew, re-
weigh the evidence or substitute its own judgment 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 cvidence 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, 834 F.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 AI.J must provide more than conclusory statements for his decision to be upheld, In
order for appellate review to be meaningful, the ALJ must “articulate reasons for accepting or
rejecting entire lines of evidence.” Lerron v. Shalala, 19 ¥.3d 329, 333 (7th Cir. 1994), While
the ALJ need not provide “a written evaluation of every piece 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 [Lusher] was not totally disabled.” Burret v. Barnhart, 355 F.3d 1065, 1069 (7th Cir.



Lusher’s insured status expired on September 30, 1997, (R. 16), when she was 49 years
old, (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
date her insured status expired. (RK. 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 from the shoulder blades, neck, and down the trapezes [sic] arca.” (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 keep the muscle cramping from
worsening. (R. 167.) Lusher stated that she began doctor-prescribed exercises “toward the cnd”

of the 1995-1997 time period. (R. 173.)

3¥ibromyalgia is “a painful rheumatic condition of uncertain cause that is characterized by
diffuse or localized pain, tenderness, and stiffness of skeletal muscles and associated connective
tissue and that is usually accompanied by fatigue.” Merriam-Webster Online Dictionary,
www.mertiam-webster,com.

‘Cardiomyopathy is “any structural or functional disease of heart muscle that is marked
especially by hypertrophy of cardiac muscle, by enlargement of the heart, by rigidity and loss of
flexibility 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.merriam-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 contemporancous with the eligible period,” Estok v. Apfel, 152 F.3d
636, 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



a new hearing consistent with this opinion.
Procedural History

Lusher filed an application for Title I disability insurance benefits (“DIB”) on August 11,
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,
Sturek (“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 letter dated May 20, 2002 (R. 3-6), thus making
the ALJ’s decision the Agency’s final decision regarding her August 11, 1999 application. See
20 C.F.R. §§ 416.1481. Lusher has appealed the ALJ’s decision to the federal district court. The
parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28
ULS.C. § 636(c).
Background

A. The Medical Evidence and Testimony at the Administrative Hearing

*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

FOR THE NORTHERN DISTRICT OF ILLINOIS a
EASTERN DIVISION DOCKETED
Sep 17 2004

CHRISTIANA M. LUSHER, )
)

Plaintiff, )

)

vs, ) Case No. 02 C 5298

)

JO ANNE B. BARNHART, Commissioner )
of Social Security, )
)

Defendant, )

AMENDED MEMORANDUM 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 II of the Social Security Act. 42
U.S.C, §§ 416, 423. This matter is before the court on the parties’ cross-motions for summary
judgment. Lusher asks the court to cither reverse the decision denying her application and grant
her 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. For the reasons explained below, Lusher’s motion for summary
judgment is granted to the extent she seeks a new administrative hearing regarding her
application for disability insurance benefits, but denied to the extent she asks the court to award

her disability insurance benefits. ‘he court therefore remands this case to the Commissioner for

‘This amended opinion is issued to clarify and supercede the Memorandum Opinion and

Order issued on May 12, 2004. iN