Opinion
Civ. No. 99 C 3830.
February 24, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Francisco Anaya ("Anaya") brings this action pursuant to 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security ("Commissioner") denying Anaya's claim for Disability Insurance Benefits under the Social Security Act ("Act"). The Administrative Law Judge ("ALJ") found that Anaya was not disabled. The Appeals Council denied Anaya's request for review, therefore making the ALJ's decision the final decision of the Commissioner.
This matter comes before the Court on cross-motions for summary judgment. The issue to be decided is whether substantial evidence in the record supports the ALJ's finding that Anaya is not disabled under the Act. For the reasons set forth below, the Court grants Anaya's motion for summary judgment, denies Defendant's motion for summary judgment, and remands the case back to the ALJ for further proceedings.
I. FACTUAL BACKGROUND
Francisco Anaya, a 51 year old man, first applied for Disability Insurance Benefits ("DIB") on January 25, 1994. This application was denied October 5, 1994, and Anaya filed for reconsideration of his application. The application was denied upon reconsideration on April 10, 1995. (R. 88). Anaya then requested a hearing with an Administrative Law Judge ("ALJ"). A hearing before ALJ William Wilkin was held October 22, 1996, and the claimant, the claimant's wife, and vocational expert Thomas F. Dunleavy testified. ALJ Wilkin rendered a decision against the claimant on March 11, 1997. (R. 29). Anaya's request for review of the ALJ's decision was denied by the Appeals Council on October 19, 1998, making the ALJ's decision the final decision of the Commissioner. (R. 12).
A. Testimony
1. Francisco Anaya's Testimony
Anaya alleges disability due to a back injury suffered while he was working as a mechanic for A. J. Canfield Co., where he was employed from September, 1988 until August, 1993. On August 10, 1993, while on the 10th or 12th rung of a ladder, he slipped and fell. Upon getting up and walking away from the ladder, Anaya fell into an open space, wrenching his lower back. (R. 35). Anaya was admitted to South Chicago Community Hospital on August 13, 1993 and was diagnosed with an acute lumbar sprain and acute ruptured disc. Anaya was discharged August 19, 1993, with instructions to avoid heavy lifting or straining. (R. 125).
In May of 1994, Anaya underwent back surgery, but his pain increased following the procedure. (R. 46). He has pain and numbness in his lower back and left leg, and gets very weak at times. (R. 47). At the time of the hearing, Anaya had been using a cane to walk for six or seven months, and had been experiencing seizures since approximately November of 1994. (R. 48, 49).
Anaya is unable to sit or stand for extended periods of time, and must change positions frequently to relieve his discomfort. (R. 53). While he is able to drive a short distance to pick his son up from school, he had not walked farther than six blocks for several months prior to the hearing. He attends church on Sundays, and visits with the neighbor across the street, but otherwise does not leave his residence. (R. 55).
When asked to do so by the ALJ, Anaya was able to extend his arms parallel in a seated position, but it caused some discomfort in his back. ALJ Wilkin noted that Anaya's hands were shaking, and Anaya explained that they shook due to all of the problems he was experiencing. (R. 58). Anaya cannot stand more than 10 or 15 minutes without being seated, and cannot sit for more than 20 minutes before again changing position. (R. 59). His ability to lift is impaired, but he can lift a gallon of milk. He also experiences forgetfulness and "feeling lost." (R. 62).
2. Carmen Anaya's Testimony
Carmen Anaya, Francisco Anaya's wife, testified that she had witnessed Anaya's seizures and had also been told of their occurrence by their 4-year-old son after periods when he had been left home alone with his father. (R. 65). She said that Anaya's condition had not improved following his surgery. (R. 64). She also testified that Anaya experienced times of disorientation, telling her that he did not know where he was or why. (R. 65-66).
3. Thomas Dunleavy's Testimony
Thomas Dunleavy, a vocational expert ("VE"), testified at the hearing. The VE stated that Anaya's past work was classified as skilled heavy occupation. (R. 69).
The ALJ asked the VE to give his opinion under several hypothetical situations. (R. 71-75). First, examining the functional capacity evaluation ("FCE") prepared by Ingalls Center for Rehabilitation on February 28, 1995, and purporting to derive from that a residual functional capacity ("RFC"), the ALJ opined that Anaya was able to perform sedentary level work. (R. 70). Based on the RFC selected by the ALJ, the VE testified that there were a large number of unskilled sedentary jobs in the Chicago metropolitan area and surrounding counties, such as 10,000 to 12,000 small parts assemblers and 4,000 to 5,000 hand packagers. (R. 71).
The FCE was prepared prior to Anaya's attempted return to work, which was unsuccessful after only two days at only two hours per day. (R. 265). Following Anaya's failed attempt, Dr. Luken noted that Anaya was "completely disabled." (R. 257).
Second, the VE was asked to consider a hypothetical claimant who was able to perform sedentary level work but could not be around moving machinery or be required to work at heights because of possible seizure activity. Based on this scenario, the VE opined that the type and number of jobs previously cited would remain unchanged from the first hypothetical. (R. 73).
Third, the VE was also asked to consider the same claimant, adding in two new factors: a necessity for a change of position at will and a reduced ability to concentrate. (R. 74). The VE responded that these limitations reduced the numbers he had previously cited by 25%. (R. 74).
Finally, the ALJ asked the VE if the same claimant, if unable to fulfill an eight-hour workday because of pain and medication, would be precluded from full-time work. (R. 74-75). The VE responded that such a claimant would be precluded from full-time work. (R. 75).
B. Medical Evidence
1. Dr. Saroj K. Verma, Treating Physician
Dr. Saroj K. Verma, Anaya's treating physician since 1977, saw Anaya upon his admission to South Chicago Community Hospital on August 13, 1993. Dr. Verma's medical report states that a lumbosacral spine x-ray indicated mild degenerative facet arthritis at the level of the fifth lumbar and sacrum and mild lateral recess stenosis at the same level. Tiny central disc herniation, or central bulging, was also evidenced at the level of L4-5 disc. Cervical spine disc degeneration C4-5 with marginal osteophytes and mild foraminal spinal canal stenosis was also noted on the report, along with hypertrophic spurring of the lumbar spine. (R. 125).
On July 7, 1995, Dr. Verma listed Anaya's diagnoses as severe spinal stenosis, severe pain of the back, depression, and seizures. At this time, he opined that Anaya "has been and is still totally disabled," and said "the patient is unable to work indefinitely." (R. 207). On April 12, 1996 Dr. Verma said that Anaya has "multiple medical problems and is totally disabled . . . the patient has severe backache which leaves him unable to do any work . . . at present he has developed seizures and severe tension headaches." (R. 265). At this time, Dr. Verma diagnosed Anaya with the following: acute and chronic lumbar radiculopathy, severe cervical radiculopathy, seizures, tension headaches, chronic gout, degenerative arthritis of the spine, depression, and severe backache.
2. Dr. Martin G. Luken, III, Neurosurgeon
Dr. Martin G. Luken, III, a specialist in neurosurgery, first saw Anaya on October 29, 1993, based upon a referral by Dr. Verma. Dr. Luken found Anaya to be "subject to low back pain variably radiating into both legs, very much more severely on the left side, with painful paresthesias diffusely involving the left foot." (R. 148). Dr. Luken also noted that prolonged sitting caused Anaya "quite agonizing distress." (R. 148).
An electromyography ordered by Dr. Luken and conducted on December 29, 1993 showed a "subacute and mildly active bilateral L5-S1 lumbosacral radiculopathy with evidence primarily of axonal involvement," along with "evidence of a right compression/entrapment peroneal neuropathy across the fibular head with evidence of focal demyelination and subacute axonal involvement." (R. 154).
On March 17, 1994, Dr. Luken reported that an MRI of Anaya's lumbosacral spine showed marked lumbar splondylitic changes in the lower spinal segments. At this time, Dr. Luken opined that Anaya was "completely disabled," and "likely to remain so for the foreseeable future." (R. 160).
On May 19, 1994 Anaya underwent surgery at Ingalls Memorial Hospital at the advice of his physicians. (R. 175). While Dr. Luken expressed some doubts about whether surgery would relieve Anaya's distress because his imaging studies failed to lateralize consistently with his symptoms, it was still determined that surgery was a reasonable undertaking because Anaya's symptoms "remain[ed] completely disabling in spite of a careful and protracted conservative course of treatment." (R. 189). The surgery consisted of L4 and L5 decompressive laminectomies with left L4-5 partial facetectomy and foraminotomy.
Three months following the surgery, in August 1994, Dr. Luken wrote to Dr. Verma that Anaya continued to experience very severe pain, and again stated that Anaya was "completely disabled." (R. 190). On December 9, 1994, Dr. Luken wrote to Dr. Verma that he had documented Anaya's "continued disability" for the Illinois Department of Rehabilitation Services. (R. 262). On December 13, 1994, in a letter to Dr. Verma regarding a follow-up visit with Anaya, Dr. Luken wrote, "[i]n spite of the surgical effort, Mr. Anaya has been unable to achieve satisfactory sustained relief, and he continues to suffer disabling pain . . . Mr. Anaya is currently completely disabled and likely to remain so for the foreseeable future." (R. 194).
On the subject of Anaya's seizures, a electroencephalogram (EEG) was performed on December 28, 1994 and showed no focal abnormality or epileptiform activity. (R. 226-227). An MRI conducted the same day had similar results, and was deemed "normal." (R. 228). Dr. Luken, however, diagnosed Anaya as having seizures and reported after a January 20, 1995 office visit that Anaya had experienced two seizures in the preceding weeks. (R. 211). Dr. Verma also listed "seizures" as part of his diagnoses of Anaya on both July 7, 1995, and April 12, 1996. (R. 207, 265). In addition, physical therapy notes from Anaya's third course of therapy indicate on February 17, 1995, that "patient had seizure in therapy yesterday." (R. 236).
In June of 1995, Dr. Luken wrote to Dr. Verma that Anaya was still experiencing "severe and disabling low back and left leg pain." (R. 258). On October 13, 1995, Dr. Luken again wrote, "I have advised Mr. Anaya and his wife in the course of our follow-up visit today that in my opinion he should regard himself as completely disabled and likely to remain so indefinitely." (R. 257)
3. Physical Therapy
Anaya attended physical therapy while in the hospital, and returned to the hospital for physical therapy on September 1, 1993. The physical therapy notes indicate that Anaya rated his pain at an 8 on a scale of 0 to 10, and state that Anaya demonstrated muscular pain with SI joint and lumbosacral joint strain on the left side. They also state that "pain aggravating factors for patient are standing, change of posture from sit to stand, walking and sitting," while "pain relieving factors are medication and lying down." (R. 150).
Anaya underwent a protracted second course of physical therapy with another provider, Industrial Rehabilitation Clinic, in late 1993. (R. 215-218). Physical therapy notes from this second course of therapy report that Anaya experiences "needle" sensations in his lower left side and numbness in his toes from prolonged sitting, and that he is unable to stand upright without pain. Also, the notes indicate that "standing after prolonged sitting continues to increase pain." (R. 215-218).
Anaya had a third course of therapy with a third provider, Ingalls Center for Outpatient Rehabilitation. This course of therapy lasted from mid-1994 until early 1995. Anaya's progress notes from this provider vary. For example, on August 25, 1994, the notes say that Anaya reported no pain in his back. (R. 232). However, a month later the notes report that Anaya had a decreased range of motion, and a few months following the notes report that Anaya had "instability and pain" and "left leg numbness, tingling, and heaviness." (R. 231, 230, 229).
Ingalls Center for Outpatient Rehabilitation performed a FCE on Anaya on February 28, 1995. (R. 239, 220-223). This FCE found that Anaya had a workplace tolerance of only six hours. (R. 221) The FCE also found that Anaya could do no more than "occasional" sitting, walking, kneeling, squatting, reaching, climbing, stooping, and crouching, and that he was not able to exhibit manual dexterity more than occasionally. (R. 222). The FCE defined "occasional" as one-third of the work day or less. (R. 223)
4. Residual Physical Functional Capacity Assessment
A Residual Physical Functional Capacity Assessment of Anaya was performed on September 21, 1994, by physicians employed with the State Disability Determination Services. (R. 196-203). The assessment was completed as a result of review of Anaya's medical records, and the medical consultant did not examine Anaya. The consultant noted that while a treating/examining source statement regarding the claimant's physical capacity was on file, namely Dr. Luken's opinion that Anaya was completely disabled, the consultant disagreed, saying that Anaya "should be able to do sedentary work." (R. 202). A second state consultant reviewed the evidence in February of 1995, and affirmed the initial findings. (R. 196).
5. Dr. Thomas Y. C. Pang, Physical Medicine and Rehabilitation
Dr. Thomas Pang, a specialist in physical medicine and rehabilitation at Ingalls Center for Rehabilitation, first performed a consultative exam of Anaya on December 1, 1994 for Anaya's employer. (R. 247-251). The purpose of the exam was to evaluate both Anaya's complaints of chronic back pain and his interests in returning to work. (R. 247).
As discussed previously, Anaya's physical therapists at the same facility, Ingalls Center for Outpatient Rehabilitation, performed a FCE on Anaya on February 28, 1995. (R. 239, 220-223). Notably, this FCE found that Anaya had a workplace tolerance of only 6 hours, and that he could do no more than "occasional" sitting. (R. 221, 222). The FCE defined "occasional" as one-third of the work day or less. (R. 223)
When Dr. Pang again met with Anaya on March 8, 1995, he reported that this FCE had been performed and called the evaluation "valid and consistent." (R. 245). In his notes from this visit, Dr. Pang reported that a work capacity assessment had been completed by him for Anaya as part of Anaya's desire to return to work for a trial period of two hours per day. In an effort to evaluate what Anaya could do when he tried to return to work, Dr. Pang said that Anaya ". . . cannot crouch, bend, or climb. He can occasionally stand, walk, sit, bend, balance, recline, push, pull, or drive an auto or truck. He can frequently crawl, reach above the shoulder, light weight squat, and kneel. He will have restriction to light duty with maximal of 40 pounds and frequently lifting small objects to 10 pound weight. He can also operate foot controls. He is to avoid moving machinery, excessive vibration, or excessive temperatures." (R. 245-246).
On March 24, 1995, Dr. Pang noted that Anaya had "chronic low back pain status post lower lumbar surgery," and also noted that "patient would like to go on with life." (R. 253). As of April 7, 1995, Dr. Verma reported that Anaya was not yet cleared to return to work (R. 212). The work capacity assessment performed by Dr. Pang on March 8, 1995, was reviewed by Dr. Luken in May of 1995, and he said that a trial return to work under the restrictions outlined by Dr. Pang would be a reasonable undertaking for Anaya. (R. 260).
Anaya's attempted return to work was unsuccessful. He was not able to work more than two days at even just two hours per day. (R. 265). In a statement dated October 13, 1995, Dr. Uuken stated that a "trial return to work in August of this year ended unsuccessfully after two days." (R. 257). Dr. Luken told Anaya that "he should regard himself as completely disabled." (R. 257).
II. ESTABLISHING A DISABILITY
Disability insurance benefits are available only to claimants who can establish "disability" under the terms of the Social Security Act. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). Establishing a disability under the Act is a two-part process. First, the claimant must show that he is suffering from a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or is expected to last for at least twelve months, and which renders the claimant unable to engage in any substantial gainful employment. 42 U.S.C. § 423 (d)(1)(A). Second, there must be a factual determination that the impairment renders the claimant unable to engage in any substantial gainful employment. Brewer, 103 F.3d at 1390. The factual determination of disability follows a five-step evaluation laid out in the Social Security Regulations: (1) is the claimant presently employed? (2) is the claimant's impairment severe? (3) does the impairment meet or equal one of the impairments specified in 20 C.F.R. § 404, Subpt. P, App. 1? (4) is the claimant unable to perform his past relevant work? and (5) does the claimant's age, education, and past work experience enable him to do other work? 20 C.F.R. § 404.1520; see also Brewer, 103 F.3d at 1391.
The claimant bears the burden of establishing a disability in steps one through four of this five-step analysis. Id. If the claimant satisfies his burden of proof on each of the first four steps in the analysis, the burden shifts to the Commissioner to show that the claimant has the ability to engage in another type of legal employment. Id.
III. THE DECISION OF THE ALJ
Applying the five-step evaluation, the ALJ made the following factual determinations. First, the ALJ found that Anaya was not engaged in any substantially gainful activity, satisfying the first step. (R. 28) Second, the ALJ found that Anaya's impairment was severe, satisfying the second step. (R. 28). Third, the ALJ found that Anaya's impairment was not one of those listed in 20 C.F.R. § 404, Subpt. P, App. 1, not satisfying the third step. (R. 28). However, a failure to satisfy the third step is not fatal to the Disability Insurance Benefits effort, and the evaluation proceeded to the last two steps. Fourth, the ALJ determined that Anaya could not perform his past relevant work, satisfying the fourth step. (R. 28). Finally, the ALJ examined the FCE performed by Ingalls Center for Rehabilitation, along with Dr. Thomas Pang's work capacity assessment of Anaya, which was performed prior to Anaya's failed return to work in an effort to determine what his work capacities may have been. (R. 70, 26). From these evaluations, the ALJ derived a RFC for sedentary work, reduced by several nonexertional limitations. (R. 70, 28). The ALJ then found that, based on this RFC, along with Anaya's age, education, and work experience, there were a significant number of jobs in the national economy that Anaya could perform. (R. 28-29).
Because the ALJ found that there were a significant number of jobs that Anaya could perform, even with the limitations placed on his RFC, the ALJ found that Anaya was not disabled under the Social Security Act.
IV. THE STANDARD OF REVIEW
Judicial review of the Commissioner's final decision is governed by 42 U.S.C. § 405 (g), which provides that "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ." An ALJ's decision becomes the Commissioner's final decision if the Appeals Council denies a request for review. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993). Under such circumstances, the decision reviewed by the district court is the decision of the ALJ. Eads v. Secretary of the Dept. of Health and Human Serv., 983 F.2d 815, 816 (7th Cir. 1993). A reviewing court may not decide the facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995). Judicial review is limited to determining whether the ALJ applied the correct legal standards in reaching its decision and whether there is substantial evidence in the record to support the findings. Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992); 42 U.S.C. § 405(g). 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, 91 S.Ct. 1420, 1427 (1971). The ALJ's decision must be affirmed if the findings and inferences reasonably drawn from the record are supported by substantial evidence, even though some evidence may also support the claimant's argument. 42 U.S.C. § 405 (g); see also Pope v. Shalala, 998 F.2d 473, 480 (7th Cir. 1993). The court may reverse the Commissioner's decision only if the evidence "compels" reversal, not merely because the evidence supports a contrary decision. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815 n. 1 (1992).
V. THE ALJ'S DECISION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
The Court finds that the ALJ's decision was not supported by substantial evidence for three reasons. First, the ALJ's failure to develop a complete record requires remand. Second, the fact that two of the ALJ's findings were irreconcilable requires remand. Finally, the ALJ's failure to adequately articulate the reasons for his findings requires remand.
A. THE ALJ'S FAILURE TO DEVELOP A COMPLETE RECORD REQUIRES REMAND.
Agency proceedings are not intended to be adversarial in nature. Sullivan v. Hudson, 490 U.S. 877, 891, 109 S.Ct. 2248, 2257 (1989). In this non-adversarial setting, the procedures are informal, evidentiary rules do not apply, and the ALJ has a duty to develop a complete record. Kendrick v. Shalala, 998 F.2d 455, 456 (7th Cir. 1993); see also Richardson v. Perales, 402 U.S. 389, 400, 91 S.Ct. 1420, 1426 (1971).
The Code of Federal Regulations provides that, as part of the duty to develop a complete record, the ALJ may need to either recontact the claimant's physicians or order consultative examinations. On the subject of recontacting treating physicians, Social Security Ruling 96-5p provides: "our rules provide that adjudicators must always carefully consider medical source opinions about any issue, including opinions about issues that are reserved to the commissioner. For treating sources, the rules also require that we make every reasonable effort to recontact such sources for clarification when they provide opinions on issues reserved to the Commissioner and the bases for such opinions are not clear to us." Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, 61 Fed. Reg. 34,473, 34,474 (1996).
The ALJ is required to recontact a treating physician when the evidence received "is inadequate for [the ALJ] to determine whether [the claimant is] disabled." 20 C.F.R. § 404.1512(e) (1999), see also DiBrito v. Apfel, 1999 U.S. Dist. LEXIS 12722 at *41 (N.D. Ill. Aug. 11, 1999). The Code requires that an ALJ obtain additional evidence or clarification when, first, the medical source's report contains a conflict or ambiguity that must be resolved; second, the report is missing necessary information; or, third, the report does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1512(e)(1) (1999).
On the subject of consultative exams, the Code provides, "[i]f the information we need is not readily available from the records of your medical treatment source, or we are unable to seek clarification from your medical source, we will ask you to attend one or more consultative examinations at our expense." 20 C.F.R. § 404.1512(f) (1999).
The ALJ failed to develop a complete record in this case in three ways. First, the ALJ failed to develop a complete record when he did not recontact Anaya's treating physicians for clarification of their bases for finding Anaya disabled. The rules clearly require that if a treating source provides an opinion on an issue reserved to the Commissioner, and the adjudicator does not understand the bases for such an opinion, the adjudicator has a duty to "make every reasonable effort to recontact such sources for clarification." Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, 61 Fed. Reg. 34,473, 34,474 (1996). In this case, the issue reserved to the Commissioner was the issue of legal disability, a subject on which Anaya's treating sources offered several opinions. The ALJ explicitly said in his decision that letters from Dr. Verma indicated that Anaya was "disabled," but did not "indicate how [Anaya's] medical problems prevented [him] from working." (R. 25). The ALJ also said that while there were several letters in the record from Dr. Luken indicating his opinion that Anaya was "completely disabled," "he did not give the basis for his opinion." (R. 26). Because the ALJ clearly did not understand the bases for Drs. Luken and Verma's opinions that Anaya was disabled, he had a duty to recontact them for clarification, and he did not do so.
Second, the ALJ failed to explore the ramifications of Anaya's hand and leg tremors, which Anaya testified to and which the ALJ personally observed at the hearing. (R. 58-60). Even after observing the tremors, and having Anaya testify as to their severity, the ALJ did not include the tremors in his hypotheticals to the vocational expert, nor did he include them in his RFC finding. He also did not recontact Anaya's treating physicians to solicit information on the impact the tremors may have on Anaya's ability to work, nor did he order a consultative exam for the same purpose. The Court agrees with plaintiff that these impairments could potentially impact upon the work that the ALJ found Anaya could perform, which was that of a small parts assembler and hand packager. The ALJ failed to explore the potential ramifications of the tremors.
Finally, the ALJ failed to explore the ramifications of Anaya's workplace tolerance of only six hours on Anaya's ability to work. Social Security Regulation (SSR) 96-8p provides that a claimant's RFC "is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 61 Fed. Reg. 34,474, 34,475 (1996) (emphasis added). In this case, the FCE performed by Anaya's third physical therapist and purportedly relied upon by the ALJ in his RFC determination explicitly stated that Anaya had a workplace tolerance of only six hours. (R. 70, 221).
While the ALJ acknowledged this important limitation in one of his hypotheticals to the vocational expert, he failed to further explore this essential issue by recontacting Anaya's physicians or ordering a consultative examination for the purpose of clarifying Anaya's ability to work an entire day. The rules clearly require that the ALJ's RFC determination assess the claimant's ability to work for eight hours a day, five days a week. With uncontroverted evidence in the record of Anaya's inability to work for such a period of time, the ALJ should have explored the issue further before giving Anaya an RFC for full-time sedentary work.
B. THE ALJ'S FINDINGS WERE IRRECONCILABLE AND REQUIRE REMAND.
The ALJ's finding that Anaya could not do more than occasional sitting is inconsistent with his finding that Anaya had an RFC for sedentary work. Because these two findings are irreconcilable, they necessitate a remand of the case. See, e.g., Peterson v. Chater, 96 F.3d 1015 (7th Cir. 1996) (holding that the ALJ's determination that the plaintiff was not capable of prolonged sitting was irreconcilable with the ALJ's determination that the plaintiff could perform sedentary work).
In the Ingalls Center FCE of Anaya, where Anaya was determined to not be capable of more than "occasional" sitting, "occasional" was defined as one-third of the work day or less. (R. 222-223). Although the ALJ did not specifically define what he meant by occasional in his findings, it is reasonable to presume that he attributed the same meaning to the word as others in the field; that is, one-third of the work day or less.
The Social Security Administration has determined, in Regulation 83-12, that a claimant who "may be able to sit for a time, but must then get up and stand or walk for a while before returning to sitting . . . is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work . . . or the prolonged standing or walking contemplated for most light work." Peterson v. Chater, 96 F.3d 1015, 1016 (7th Cir. 1996), (citing SSR 83-12 and holding that the findings of the ALJ were irreconcilable and required remand). If, as the ALJ found, Anaya is not capable of prolonged sitting, it follows that he cannot be capable of performing sedentary work. This premise is established under the Regulation.
C. THE ALJ'S FAILURE TO ADEQUATELY ARTICULATE THE REASONS FOR HIS FINDINGS REQUIRES REMAND.
The ALJ has a duty to articulate his assessment of the evidence and the reasons for his conclusions in cases where "considerable evidence is presented to counter the agency's position." Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir. 1984). The Seventh Circuit has said, "an ALJ may not select only the evidence that favors his ultimate conclusion. His written decision should contain, and his ultimate determination should be based upon, all of the relevant evidence in the record . . . [t]he decision should contain and should be based upon a fair and impartial presentation of the medical evidence." Id. at 609-610. The ALJ's duty to articulate the steps in his reasoning has been dubbed not simply "helpful," but "absolutely essential for meaningful appellate review." Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir. 1984).
The ALJ failed to adequately articulate "the steps in his reasoning" in this case. First, as discussed above, the ALJ made two findings that were irreconcilable with each other. The steps he took in reaching these two conflicting findings — that Anaya could not sit for more than one-third of the day and that Anaya has an RFC for full-time sedentary work — are not clear to the Court.
Second, the ALJ's reason for discounting Anaya's physical therapists' explicit finding that Anaya could not work an eight hour day is not clear. The ALJ did not state that he disbelieved this contention, or that he found other evidence superseding it; instead, he determined that Anaya had an RFC for full-time sedentary work without addressing the important issue of Anaya's ability to work an eight hour day. (R. 70, 74-75).
Finally, it is not clear to the Court why the wealth of medical evidence in the record in favor of Anaya's disabled status was discounted by the ALJ. The two pieces of evidence upon which the ALJ seemed to principally rely were the FCE performed by Ingalls Center for Rehabilitation and the work capacity assessment performed by Dr. Thomas Pang. (R. 70, 25-26). As was found in both of these assessments, the ALJ determined that Anaya could do no more than "occasional" sitting. (R. 28). However, as discussed above, this finding was in direct and complete conflict with the ALJ's finding that Anaya had an RFC for full-time sedentary work, where almost constant sitting would be the norm. In addition, Dr. Pang's assessment was merely meant to be a prediction of what he hoped Anaya could perform upon his attempted return to work on a trial basis in August 1995. Because Anaya's return to work for a mere two hours per day was a failure after only two days, it is clear that Anaya could not perform what Dr. Pang predicted he might. It follows then, that the ALJ's reliance on the FCE and the work capacity assessment was misplaced, as neither form gives a true assessment of Anaya's actual capacity.
The record is replete with repeated statements from Anaya's physicians that their patient is "completely disabled." It is clear that these opinions were not sufficient for the ALJ, because he found that Anaya was "not disabled." However, the steps that he took in reaching this conclusion are not clear. Because this was a case where "considerable evidence [was] presented to counter the agency's position," the ALJ had a duty to "articulate his assessment of the evidence and the reasons for his conclusions." Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir. 1984).
VII. CONCLUSION
For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED, the Commissioner's motion for summary judgment is DENIED, and judgment is entered reversing the Commissioner of Social Security's decision and remanding this case to the Commissioner for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g) .
SO ORDERED THIS 24TH DAY OF FEBRUARY, 2000.
Copies delivered in open court or mailed to:
Frederick J. Daley, Ltd. 727 South Dearborn Street Suite 613 Chicago, Illinois 60605 Attorney for Plaintiff
Jack Donatelli Assistant U.S. Attorney 219 South Dearborn Street 5th Floor Chicago, Illinois 60604
James B. Geren Assistant Regional Counsel Social Security Administration 200 West Adams Street 30th Floor Chicago, Illinois 60606 Attorneys for Commissioner