mention it. The court concludes that plaintiff has not shown that the evidence he submitted
relating to this problem is material.

Nor has plaintiff provided the result of any neurological evaluation received pursuant to
the October 10, 2002 referral, or evidence of any diagnosis of Parkinson’s disease. ‘There is no
evidence that! the hand tremors and muscle rigidity observed on October 10, 2002 were severe
enough to limit plaintifi’s ability to work. In any event, this evidence is not material because it
reports plaintiff's then-current condition, and does not relate back to the period that was at issue

before the ALJ. See Kapusta v, Sullivan, 900 F.2d 94, 97 (7" Cir, 1990) (medical reports that

postdate the ALI’s decision arc not material if thcy speak only to the claimant’s current condition
and do not relate back to the period that was at issue before the ALJ). The court concludes that
plaintiff has not established a reasonable probability that these new records would have changed
the ALJ’s de¢ision. Accordingly, plaintiff's motion for remand is denied.

ORDERED: Defendant’s Motion for Summary Judgment is granted, Plaintiff's Motion
for Summary Judgment [9-1] is denied. Plaintiff's Motion for Remand [9-2] is denied.
Plaintiff's Motion to Supplement the Record [10-1] is granted.

ENTER:

George W. Lindberg Cc
Scnior United States District Judge

G-3-03

DATED:



i
lower back (pain and hypertension. Hc was instructed to remain active, but to limit lifling heavy
i

weights. On March 7, 2002, plaintiff filled a prescription for Motrin and Robaxin.
i
C, Vocational Expert’s Testimony
Vocational expert Gleeann Kehr (“Kehr”) testified at the ALJ’s request, Kehr testified

that plaintiff's prior work at the shoe company would be classified as light, and at the very low

end of semi+skilled work (offering no benefit over an unskilled position). She classified the

remainder of plaintiff” § prior work as heavy or medium and unskilled.

At the hearing, Kehr responded to scveral hypothetical questions posed by the ALJ. The
ALJ first asked Kehr to assume a literate individual of plaintiff's age and with his education who
was:

limited to lifting no more than 50 pounds on an occasionally [sic] basis and no
mord than 25 pounds on a frequent basis. Was unlimited in the ability to stand,
walk, bend, stoop, kneel, crouch, and crawl, Was restricted against work
involving environments with high concentrations of dust, fumes, or temperature
extremes or respiratory irritants and is unable to work in environments where
there| would be unprotected heights or hazardous machinery,

|
The ALJ then asked Kchr whether a person with such hypothetical abilities and limitations could

return to any|past work. Kehr testified that such a claimant could work as a stock clerk.
‘The ALJ then asked Kehr whether her answer would change if the hypothetical person
could lift no more than twenty pounds on an occasional basis, and no more than ten pounds on a

frequent basis. Kehr responded that such a claimant still could work as a stock clerk. Finally,

Kehr testified that such a claimant could work as a stock clerk even if he were limited to lifting
no more than ten pounds.

Finally, Kchr testified that based on plaintiff's testimony that hc could lift up to ten

4
I
|



D. Consultative Mental Health Examination

Plaintiff next argues that the ALJ erred in failing to order a consultative mental health
examination, On March 9, 2002, plaintiffs counsel requested that the SSA refer plaintiff for a
mental health cxamination. The ALJ denied the request on the basis that there was no evidence
in the record that was “suggestive of a cognitive impairment or of an affective or anxiety-related
disorder.” According to the ALI, the only evidence of a possible mental impairment was past
substance abuse, which plaintiff maintained was no longer a problem. In any event, noted the
ALJ, even if plaintiff's substance abusc were a current, severe impairment, disability benctfits are
barred wher| drug or alcohol abuse is material to a finding that a claimant is disabled.

Plaintiff argues that the ALJ improperly disregarded evidence in the record that indicated
that plaintiff could have a cognitive impairment or mental health problem, For example, an SSA
employee who interviewed plaintiff on May 2, 2000 observed that plaintiff “talks really fast. He
moves around alot. Lc makes a Jot of quick movements. He walks really fast.” Another SSA
employee who intervicwed plaintiff on July 13, 2000 observed that plaintiff “sccmed jittery and
nervous, He talked real fast and [sic] jerky movements. He also seem [sic] a little slow
mentally.” At the hearing, plaintiff testified that he has a problem with his nerves and had had
difficulty sleeping the previous night, He testified that his medication causes nervousness and
drowsiness. Although he testified thal he has never been given medication for his nervous state,
in an Augusti 5, 2000 questionnaire and in an undated document titled “Claimant’s Statement
When Request for Hearing is Filed and the Issue is Disability,” plaintiff indicated that he was
taking Diazepam (more commonly known as Valium).

An ALJ has an obligation to develop a full and fair record, sce Thompson v. Sullivan,



WwW. Analysis
A. ALJ’s Decision

At atop one, the ALJ found that plaintiif is not currently employed. Next, at step two, the
ALJ found that plaintiff’s hypertension, back pain, asthma, and history of substance abuse, at
least in contbination, constitute a severe impairment, At step three, the ALJ found that plaintiff's
impairments, cven in combination, do not meet or medically equal a listed impatrment, At step
four, the ALI found that plaintiff can perform past rclevant work, such as that of a stock clerk.
Accordingly, the ALJ concluded that plaintiff was not under a “disability,” as defined under the
Social Secuntity Act.

B. Hypothetical Posed to Vocational Expert

Plaintiff first argues that the ALJ erred in incorporating the assumption in his hypothetical
posed to the vocational expert that plaintiff was unlimited in the ability to stand, walk, bend,
stoop, kneel, |crouch, and crawl, Although plaintiff concedes that he testified that he could walk
two miles, he notes that there was no discussion at the hearing of his ability to stand, bend, stoop,
kneel, crouchi, or crawl, In addition, plaintiff contends that this assumption conflicted with
plaintiff's medical evidence, which cven the AL) agreed showed severe medical impairments.

“Wheh an applicant for social sccurity benefits is represented by counscl (he
administrative law judge is entitled to assume that the applicant is making his strongest case for

benefits.” Glen v. Secretary of Health & Human Serys., 814 F.2d 387, 391 (7" Cir. 1987).

Here, plaintiff was represented by counscl at the hearing. The ALJ specifically invited counsel to
pose a different hypothetical question to Kchr that would better teflect what the record showed,

an invitation that counsel declined, The court concludes that the ALJ’s hypothetical questions


pounds and'could wajk as far as two miles, he would be able to perform his past relevant work.

TIL; Legal Standard

Under Section 405(g), a district court may affirm, modify, or reverse the decision of the
Commissioner of Social Security, with or without remanding the case for a rehearing. 42 U.S.C.
§ 405(g). The court must uphold the Commissioner’s findings of fact if they are supported by
substantial dvidence. Id.; Clifford v. Apfel, 227 F.3d 863, 869 (7" Cir. 2000). Substantial
evidence is evidence that ‘a reasonable mind would accept as adequate to support a conclusion.”
Binion ex rel. Binion v. Chater, 108 F.3d 780, 782 (7" Cir. 1997). The court may not reweigh
the evidence, resolve conflicts, decide credibility questions, or substitute its judgment for that of
the ALJ. Clifford, 227 F.3d at 869. However, the review must be more than an uncritical rubber
stamp. Id,

The Social Security regulations provide a five-step inquiry to use in determining whether
a claimant isidisabled:

(1) whether the claimant is currently employed;

(2) whether the claimant has a severe impairment;

(3) whether the claimant’s impairment meets or equals one of the impairments

listed by the SSA, sec 20 C.V.R. § 404, Subpt. P, App. 1;
(4) whether the claimant can perform [his] past work; and
(5) whether the claimant is capable of performing work in the national
cconomy,

See Knight v, Chater, $5 F.3d 309, 313 (7 Cir. 1995) (citing 20 CF.R. § 404.1920). Ifa
claimant satisfies the first three steps, he will automatically be found disabled. Id. Ifa claimant
satisfies the lirst two stops, but not the third, then he must satisfy step four. Id, Once step four is

satisticd, the burden shifis to the Social Security Administration (“SSA”) to establish step five.

Id.


the subject of his January 1998 hospitalization. In addition, as the ALJ noted, plaintiff went to
the hospital on February 6, 2001 for a medication refill when he had no symptoms and was not in
distress.

The ALI did not reference plaintiff's hospital visits on April 7, 2000, June 1, 2000, and
July 18, 2006 in which plaintiff complained of back pain, and fails lo note that the record of
plaintiff's Odtober 3, 2000 hospital visit indicated that plaintiffs pain was progressively
worsening. However, the ALJ noted that at plaintiff's February 21, 2002 hospital visit — the most
recent visit about which evidence was presented to the ALJ — plaintiff was advised to remain
active, while limiting heavy weights, doing back-strengthening exercises, and taking pain
medication, as needed. Elsewhere in his decision, the ALJ observed that plaintiff had testified
that he can walk up to 2-1/2 miles.’ Finally, the ALI stated that there was no persuasive evidence
in the record that plaintiff would be unable to stand, walk, and sit for six hours in an eight-hour
workday.

Although the ALJ could have more clearly laid out his reasons for finding that plaintiff's
allegations regarding his limitations were not credible, the decision adequately shows an accurate
bridge between the evidence and the result. The ALJ’s conclusion that plaintiff suffers from
severe impairments including hypertension, back pain, and asthma, but that thesc impairments
did not limit plaintiff's ability to perform past relevant work, are consistent with the medical
evidence, along with plaintiff's own testimony that he was able to walk two miles and Lift up to
ten pounds. the court finds that the ALJ’s determination that plaintiff was not disabled was

supported by substantial evidence.

} Plaipti ff actually testified that he could walk two miles.

8



Minule Order Ferm (06/97)

\, United States District Court, Northern District of Illinois
Name of Assigned Judge: i Sitting Judge if Other
or Magistrate Judge: George W. Lindberg than Assigned Judge
CASE NUMBER: 03 C 2109 DATE 9/3/2003
if
CASE James Sosa vs. Jo Anne Barnhart
TITLE
[ln the following box (a) indicate the party filing the motion, c.g. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
+
i
DOCKET ENTRY:
(1) Oo Filed| motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) oO Answer brief to motion due __ . Reply to answer bricf duc.
(4) oC Ruling/Hearing on set for at
(3) 0 Status hearing[held/continued to] [set for/re-set for] on set for at
(6) ao Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) oa ‘Trialfset for/re-set for) on at
(8) Oo (Bengh/Jury trial] [Hearing] held/continued to at.
(9) oO This|casc is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
oO FRCP4(m) Otocal Rule 41.1 OOFRCP41(a)(1) CI FRCP41(a)(2).
ao =o {Other docket entry] Defendant’s motion for summary judgment is granted. Plaintiff's motion for
summary judgment (9-1) is denied. Plaintiff's motion for remand (9-2) is denied. Plaintiff's motion to
supplement the record (10-1) is granted. Enter memorandum opinion and order.
a) @ [For further detail see order attached to the original minute order. |
No notices required advised in open court, Document
i Number
No notices required. numberof novices
Notices mailed by judge's staff, al
Notified counsel by telephone. BEP 0 4 2003 .
v Docketing to mail nptices. ..
; ! yy
v¥_| Mail 80.450 form. ; Lynda axing dpury ini
Copy to judge/magifirate judge.
PER Wd €- dis C9 date med evice
courtroom
se ete Balj lid
Date/tirde-rebe) ved in
central Clerk’s Office naling deputy initia



ALJ’s decision not to ordcr a consultative mental examination was unreasonable. Cf. Howell,
950 F.2d at 349 (finding that ALJ was under no duty to order a consultative examination where
there was nojobjective evidence to support claimant’s complaints of depression and alcoholism).
E. Request for Remand

As an altcrnative to his request that this court reverse the ALJ’s decision, plaintiff urges
the court to remand the casc to the ALJ for further hearing based on new evidence, pursuant to
sentence six of 42 U.S.C. § 405(g).? Plaintiff submitted to the Appeals Council records of
medical evaluations he received after the ALI made his decision. These records show that
plaintiff was examined at Cook County Hospital on April 4, 2002 based on his complaint that he
became dizzy for approximately onc minute in the mornings when he got out of bed; the
discharge diagnosis indicates “dizziness — resolved.” The records also include an Apri] 4, 2002
referral for phiysical therapy and a list of physical therapy appointments from April 25, 2002 to
June 13, 2002. The records show a May 30, 2002 referral to an ophthalmologist for plaintiff's
“longstanding [history] of intermittent difficulty in focusing” in his right eye. Records of an
October 10, 2002 examination reveal that plaintiff had generalized tremors in his hands, and
muscle rigidity; he was referred to a neurologist for cvaluation for possible Parkinson’s disease.
Plaintiff was also referred for a CT scan and MRI of his back. The records do not include the

results of any of the referrals, tests, or physical therapy sessions.

* Plaintiff has also filed a separate Motion to Supplement the Record to include this new
evidence. Sin¢e this new evidence was presented to the Appeals Council, it technically is part of
the administrative record. See Eads v. Secretary of Dep’t of Health & Numan Servs., 983 F.2d
815, 817 (7" Cir, 1993). However, the court may not consider the new evidence in reviewing the
correctness of the ALJ’s decision, because the cvidence was not presented to the ALJ. See id.
Accordingly, the court grants plaintiff's mation to supplement the record, but reviews the new
evidence only for the purpose of determining whether to grant a remand, Sec id.

i


933 F.2d 581, 585 (7" Cir. 1991), and may order a consultative examination “when the evidence
as a whole, both medical and nonmedical, is not sufficient to support a decision on [the] claim.”
20 C.E.R. § 416.919a(b). “It is the claimant, however, who bears the responsibility of providing
medical evidence of a mental impairment.” Howell v, Sullivan, 950 F.2d 343, 348 (7" Cir.

1991). The courts generally defer to the ALJ's judgment in deciding how much evidence to

gather. See. e.g., Luna v. Shalala, 22 F.3d 687, 692 (7" Cir. 1994); Kendrick v. Shalala, 998

F.2d 455, 498 (7" Cir. 1993).

The court finds that the AT.J did not err in declining to order a mental examination.
Although plaintiff notes that SSA employees observed in interviews that he talked fast, made
quick moverhents, and seemed nervous, these arc lay observations that do not necessarily compel
a conclusion! that plaintiff had a mental impairment. In addition, while plaintiff claims that he
was taking Diazepam in 2000, he has offered no medical evidence to support his claim that he
was prescribed Diazepam at any time after his hospital stay for alcohol detoxification in 1998?
There is no duidene in the record that indicates that plaintiff was cver seen by a physician ot
therapist for Incntal problems, and his medical records reveal no mental health complaints or
symptoms. :

Indeed, plaintiff testified that he has no problems with his memory or concentration, and
has no probléms getting along with people. He is able to make his meals, wash his clothes, and

occasionally go to the storc. He testified that he does not currently abuse alcohol. Given the

absence of objective medical evidence of a mental impairment, the court cannot Find that the

2 An|October 3, 2000 prescription form from Cook County Hospital appears to include a
prescription for Diazepam that was crossed out,

10



were proper.
C. Credibility Finding

Next, plaintiff argues that the ALJ did not sufficiently explain his basis for finding that
plaintiff's testimony was not credible. Under Social Security Ruling 96-7p, the ALI's
determination regarding a claimant's credibility

must contain specific reasons for the finding on credibility, supported by the

evidence in the casc record, and must be sufficiently specific to make clear to the

individual and to any subsequent reviewers the weight the adjudicator gave to the

individual's statements and the reasons for that weight.
It is not sufficient for the ALJ to make “a single conclusory statement that ‘the individual’s
allegations have been considered’ or that ‘the allegations are (or are not) credible.” Zurawski v.
Halter, 245 F.3d 881, 887 (7 Cir, 2001) (quoting Social Security Ruling 96-7p). Rather, the
ALJ must supply reasons for his or her credibility assessment that “build an accurate and logical
bridge between the evidence and the result.” See Shramek vy, Apfel, 226 F.3d 809, 811 (7" Cir.
2000). In determining whether such a gap or contradiction exists between the evidence and the
result, the court must “give the [ALJ’s] opinion a commonsensical reading rather than nitpicking
at it.” Id. (quoting Johngon v. Apfel, 189 F.3d 561, 564 (7" Cir, 1999).

In this case, the ATJ stated in his decision that plaintiff's “testimony, when compared
against the objective evidence and evaluated using factors in SSR 96-7p, was not credible.” The
ALJ observed that plaintiff was scen on January 29, 1998 for alcohol withdrawal, and noted that
plaintiff was Seen on two occasions for medication refills when he was having no symptoms and

was not in distress. The court agrees that two of plaintiff’s hospital visits noted by the AL) were

for reasons inlelevant to plaintiff's disability claim. V'irst, plaintiff denies that he abuses alcohol,

~


two weeks earlier. A chest x-ray taken at that time revealed “mild degenerative changes of the
thoracic spine,” but no abnormality was seen. Plaintiff was diagnosed with a chest contusion and
prescribed Vicodin and Motrin.

On April 7, 2000, plaintiff went to Cook County Hospital, complaining of back pain. At

i
that time, he was prescribed Robaxin (a pain medication), Motrin, and Albuterol (an asthma
medication); Plaintiff returned to Cook County Hospital on May 15, 2000, seeking refills of his
prescriptiong. X-rays taken of plaintiff’s spine at that visit indicated degenerative changes.

Plaintiff again returned to Cook County Hospital on June 1, 2000, complaining of back
pain, “sniff_lés,” and a cough. Plaintiff was diagnosed with an upper respiratory infection and
back pain. At that time, he was prescribed Tylenol, Methocarbamol (the generic name for the
pain medication Robaxin), and cough syrup, and was instructed to avoid lifting hcavy weights.

Plaintiff returned to Cook County Hospital on July 18, 2000, where he was diagnosed
with lumbosacral muscle strain.

On October 3, 2000, plaintiff went to Cook County Hospital, secking refills of his
prescriptiong. The medical records for this visit indicate that plaintiff's pain was progressively
worsening.

Plaintiff returned to Cook County Hospital on February 6, 2001, again sccking refills of
his prescriptions. The medical records for this visit indicate that at that time plaintiff reported no
symptoms, dnd was not in distress.

Plaintiff returned to Cook County Hospital on February 21, 2002, complaining of back

pain. At that time, plainti(f indicated that the pain was worse when he was inactive, and that he

could walk approximately 25 blocks before his legs began to hurt. Plaintiff was diagnosed with



TI. : Factual Background
A. Plaintiff's Hearing Testimony

Plaihtift was born on April 25, 1956, and was 45 years old at the time of the ALI’s
decision. He has an eighth-grade education. For approximately fiftcen years, ending in
December i998, plaintiff did stock work at a shoe company. Plaintiff then worked for Handy
Andy as a material handler until April 2000. At some point, plaintiff worked as a laborer at a
paint factory, where he moved five-gallon paint containers; plaintiff was unsure when he worked
at this job. Plaintiff states that he has been unable to work since Apri] 2000, Plaintiff claims that
he became disabled on June 7, 1999.

Plaihliff testified that he is unable to work because of asthma, arthritis, and back pain. He
stated that he could lift ten pounds, and could walk two miles. Although he testified that he has a
problem. with his nerves, he stated that he has never been given medication for his mental
condition. He has no problems with his memory or concentration, and has no problems getting
along with people. He testified that he was not able to slecp the night before the hearing. His
medications; make him nervous and drowsy. He testified at one point that he never abused
alcohol, and! at another point that he stopped abusing alcoho] in 1999, [le lives with his mother,
and described his typical activities as watching television, making his meals, and washing his
clothes. Occasionally he goes to the store. His only hobby or interest is music.

B. Medical Evidence
Plaintiff's medical records indicate that he was admitted to MacNeal Hospital on January

26, 1998 forialcohol detoxification. Plaintiff was discharged on January 29, 1998.

Plaintiff was scen at MacNeal Hospital on October 13, 1998 for rib pain following a fall



a“

TN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS DOCKETED
EASTERN DIVISION SEP 04 2003
JAMES SO$A, )
)
Plaintiff, )
) 03 C2109
v. )
) Judge George W. Lindberg
JO ANNE BIARNHART, COMMISSIONER )
OF SOCIAL SECURITY, )
: )
_ Defendant. )

MEMORANDUM OPINION AND ORDER

Plain| iff James Sosa secks judicial review of a final decision of defendant Commissioner
of Social Sedurity denying his claim for Supplemental Security Income (“SSI”) benefits, Before
the court arelthe parties’ cross-motions for summary judgment. For the reasons stated below,
defendant's motion is granted, and plaintiffs motion is denied.

i

1. Procedural History
On May 2, 2000, plaintiff filed an application for SSI disability benefits, claiming that

back pain, dizziness, stroke, a nervous condition, high blood pressure, and asthma limited his

ability to work. The claim was denied hoth initially and on reconsideration. Plaintiff requested

and receivedia hearing before an Administrative Law Judge (“ATJ”), which took place on
September 2), 2001. On March 18, 2002, the ALJ denied plaintiff's request for benefits.
Plaintiff requested teview by the Appeals Council, which was denied on December 26, 2002,
leaving the AI.J’s decision as the final decision of the Commissioner. On March 24, 2003,

plaintiff filed this action,

[5



Under sentence six of 42 U.S.C, § 405(g), the court “may at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon a showing that
there is ncwicvidence which is material and that there is good cause for the failure to incorporate
such evidente into the record in a prior proceeding.” Plaintiff bears the burden of demonstrating
that remand . appropriate. Sec Sample y. Shalala, 999 F.2d 1138, 1144 (7" Cir. 1993).

Here} defendant concedes that the evidence plaintiff submits is new. In addition, plaintiff
had good cabse for not having presented this evidence at the administrative hearing, because it
was not in existence al that time. Defendant argues that the new evidence is not material.

New evidence is “material” if there is a reasonable probability that the ALJ would have
reached a different conclusion had the evidence been considered. Perkins v. Chater, 107 F.3d
1290, 1296 a Cir. 1997). Here, evidence that plaintiff experienced minor dizziness in April
2002 would hot be sufficicnt to change the ALJ’s decision. Nor would evidence that plaintiff
was scheduled for physical therapy, or for a CT and MRI of his back, change the AL]’s
conclusion that plaintiff's back pain did not prevent him from performing past relevant work.
The ALJ uckhowledged that plaintiff's back pain was a severe impairment (at least in
combination with plaintiff's other impairments), and evidence that plaintiff was scheduled for
treatment and further testing, without the results of such treatment and testing, adds nothing of
consequence to the record.

Similarly, plaintiff has not provided the result of any ophthalmological cvaluation for
plaintiff's “iitermittent” difficulty focusing in one eye. Nor has he presented any evidence that

this difficulty is a severe problem, Indeed, although the May 30, 2002 referral characterizes the

eye problem s a longstanding one, plaintif(’s prior medical records and testimony do not