Opinion
CAUSE NO. 1:02-CV-223
February 26, 2003
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
This matter is before the Court for judicial review of a final decision of the defendant Commissioner of Social Security ("Commissioner"), denying the application of the plaintiff, Joseph Hupp ("Plaintiff"), for Disability Insurance Benefits ("DIB") and for Supplemental Security Income ("SSI") beginning May 6, 1997.
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 63(f)(c), all parties consenting.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g).
For the following reasons, the ALJ's decision will be AFFIRMED in part and REMANDED in part.
II. THE PROCEDURAL AND FACTUAL BACKGROUND
A. The Procedural Background
On January 28, 1998, the Plaintiff filed an application for DIB, and later filed a claim for SSI on February 9, 1998. Social Security denied the Plaintiff's claims initially and upon reconsideration. On April 15, 1999, the Administrative Law Judge Bryan J. Bernstein (the "ALJ") conducted a hearing at which the Plaintiff was represented by counsel and testified. Also testifying were the Plaintiff's mother, Mary Ann Hupp, and Christopher Young, a vocational expert ("VE").
On June 21, 1999, the ALJ issued his decision wherein he made the following findings:
1. The claimant met the disability insured status requirements of the Act on May 6, 1997, the date the claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured through at least December 31, 2002.
2. The claimant has not engaged in disqualifying substantial gainful activity since August 5, 1997.
3. The medical evidence establishes that the claimant has spondylolisthesis with lower back pain and bilateral leg pain and numbness, an impairment which is severe, but which does not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning his impairment and its impact on his ability to work are somewhat reliable, as they support a functional capacity to perform work. However, other statements such as one stating that "he has fallen as much as twenty times in one day" imply considerable exaggeration.
5. The claimant retains the residual functional capacity to perform sedentary exertional work activity with no closely regimented pace of production, an option to sit/stand, and a ten to fifteen pound lifting/carrying limit. In addition, he cannot perform extreme downward or upward postural maneuvers, cannot operate foot controls, nor perform at a closely regimented pace of production.
6. The claimant is unable to perform his past relevant work as a machine operator, a grinder, a fork-lift operator, a marine, and as a press operator.
7. The claimant is 31 years old, a "younger individual."
8. The claimant has a high school education.
9. The claimant has semi-skilled work experience, but has acquired no transferable work skills.
10. Based on an exertional capacity for sedentary work, and the claimant's age, educational background, and work experience, Sections 404.1569 and 416.969 and Rule 201.28, Table 1, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled."
11. Although the claimant is unable to perform the full range of sedentary work, he 15 capable of making an adjustment to work which exists in significant numbers in the national and regional economy. Such work includes employment as an unskilled order taker, with 300 jobs existing; a security systems monitor, with 150 jobs; and an information clerk, with 350 jobs existing. A finding of "not disabled" is therefore reached within the framework of the above-cited rule.
12. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
(Tr. at 23-24.)
Based on these findings, the ALJ determined that the Plaintiff was not entitled to DIB or SSI. The Plaintiff requested review by the Appeals Council, which was denied on April 23, 2002, leaving the ALJ's decision as the final decision of the Commissioner. This appeal followed.
The Plaintiff filed his opening brief on December 2, 2002. After an extension of time, the Commissioner filed her "Memorandum in Support of the Commissioner's Decision" on February 18, 2003. The Plaintiff replied on February 24, 2003.
B. The Factual Background
The Plaintiff was twenty-nine years old in May 6, 1997, the alleged onset date of disability, a "younger individual" as defined in the Act. See 20 C.F.R. § 404.1563(c).
The Plaintiff was thirty-one years old at the date of the hearing.
The Plaintiff has a high school education and previously worked as a machine operator, grinder, forklift operator, marine, and a press operator. (Tr. at 16).
The Plaintiff claims a disability because of his spondylolisthesis at L-5/S-1 vertebrae and right-side S1 radiculopathy.
The Plaintiff first experienced lower back pain in 1991 while serving in the Marine Corp. (Tr. at 347-350). Apparently, the Marine physicians diagnosed right femoral nerve compression, causing right leg numbness and weakness, a condition that ultimately led to his discharge in 1992. (Tr. 350).
Apparently, the Plaintiff's back troubles began following the removal of a pilonidal cyst. A pilonidal cyst is a cyst at the lower end of the spine, near the beginning of the groove between the buttocks. It usually contains hairs with bacteria, and communicates with the surface of the skin by the means of a sinus or narrow passage. See Stedman's Medical Dictionary, 1087 (5th L.Ed. 1982).
For some years thereafter, the Plaintiff's back condition did not bother him too much because he was capable to performing medium to very heavy work. However, on May 6, 1997, the Plaintiff re-injured his back, bringing about a new round of low back and leg pain, and he sought treatment at the Fort Wayne, Department of Veteran's Affairs ("VA") Hospital Emergency Room. (Tr. at 180, 230). The physical examination revealed a limping gait, a positive straight leg raise test on the right and hyperreflexia. ( Id.) The VA diagnosed the Plaintiff with low back pain and associated radiculopathy, and placed him on a course of pain medication. ( Id.)
On May 9, 1997, the Plaintiff reported that the pain medications had helped, but that physical therapy had not. (Tr. at 229). On physical exam, the Plaintiff was tender over his lumbosacral spine and exhibited pain on his right hip. ( Id.)
On May 20, 1997, the VA placed the Plaintiff on Darvocet. (Tr. at 226).
During a May 29, 1997, follow-up examination, the Plaintiff rated his pain as a "10" on a scale from 0 to 10, and reported having vomited twice due to the pain. (Tr. at 223).
On May 30, 1997, the Plaintiff reported that his pain had not improved. (Tr. at 222).
On June 3, 1997, the Plaintiff reported having stopped taking his medication because it upset his stomach and made him nauseous. (Tr. at 221). The VA diagnosed gastritis. ( Id.)
On June 13, 1997, the Plaintiff underwent an MRI scan of his lumbar spine which showed a very small disc bulge at the L4-L5 vertebrae, with minor facet degenerative changes, but with no significant canal stenosis or neural foramina narrowing. Additionally, the MRI revealed Grade I spondylolisthesis at the L5-S1 vertebrae with associated disc bulge and no significant canal stenosis or bilateral neural foramina narrowing. (Tr. at 251.)
On June 17, 1997, the Plaintiff reported having seen a surgeon at the Indianapolis VA Hospital, who felt the Plaintiff was not a surgical candidate. (Tr. at 218).
On July 15, 1997, the Plaintiff saw Dr. Junaid Akhtar at the Fort Wayne VA. (Tr. at 213-216). A physical examination revealed neuralgia and sensory defects in both lower extremities. (Tr. at 214-216). Dr. Akhtar diagnosed the Plaintiff with neuralgia secondary to congenital deformaties of L-S spine. ( Id.) He prescribed Robaxin, Tylenol, and Darvocet.
On August 5, 1997, the Plaintiff returned to Dr. Akhtar with complaints of lower back pain radiating into both legs. (Tr. at 210). He reported that medication helped, but that he had trouble working. ( Id.) Dr. Akhtar advised bed rest from August 4-6, 1997, but refused to place any work restriction on the Plaintiff. ( Id.)
On September 22, 1997, the Plaintiff reported vomiting and diarrhea. (Tr. at 189-190).
On October 21, 1997, the Plaintiff noted during his physical therapy that a TENS unit had helped him sleep better, and he continued stretching exercises. (Tr. at 188).
On December 9, 1997, the Plaintiff returned to the VA hospital in Indianapolis, and exhibited a non-specific limp. (Tr. at 170). He could walk on his toes and heels with some difficulty, and the VA physician noted weakness throughout his lower extremities. ( Id.) The straight leg raise test was negative on the left with some pain on the right. ( Id.) The VA physician noted that the Plaintiff had a questionable history and physical exam inconsistent with MM findings; nevertheless, the MRI was abnormal and contained some significant findings. ( Id.)
On December 12, 1997, the Plaintiff saw Dr. Bryan Kaplansky, with complaints of low back and intermittent leg pain, leg weakness and numbness. (Tr. at 164-165). Dr. Kaplansky noted that the Plaintiff exhibited pain behavior, but also tested positive for Waddell signs and other non-organic findings. (Tr. at 164). The Plaintiff reported pain while heel and toe walking, and during forward flexion, lateral flexion, extension, and rotation of his lumbar spine. ( Id.) Straight-leg raising was negative while sitting, but positive in the supine position. ( Id.) With respect to the Plaintiff's strength, Dr. Kaplansky stated "there [was] rachety give away weakness, making accurate grading difficult." ( Id.) Dr. Kaplansky also noted a non-physiologic sensory abnormality with light touch and pin prick for the lower limbs. ( Id.)
Dr. Kaplansky diagnosed the Plaintiff with chronic low back and lower limb pain from the numbness, weakness of unclear etiology. ( Id.) He also noted that there were non-organic findings complicating the examination and diagnosis. ( Id.) He recommended repeat electrodiagnostic studies and a neurology evaluation. ( Id.)
On December 15, 1997 the Plaintiff returned to the Indianapolis VA for a neurosurgical examination. (Tr. at 180). His lower extremity motor strength was normal; however, he exhibited decreased sensation. ( Id.) His gait was slightly forward, but he had a negative straight leg-raising test. ( Id.) The VA physician diagnosed the Plaintiff with Grade I spondylolisthesis with lower back pain. ( Id.)
On January 15, 1998, the Plaintiff underwent an EMG, and the VA physician diagnosed right-sided 51 radiculopathy. (Tr. at 173-174).
On March 28, 1998, the Plaintiff visited the Indianapolis VA for another physical examination. (Tr. at 170). During testing, he exhibited decreased motor strength but with giveaway weakness throughout and questionable patchy sensation. ( Id.) A straight leg raise test was negative on the left, and on the right there was some pain at the back of the leg into the buttocks. ( Id.)
On April 13, 1998, the Plaintiff saw Dr. Bhupendra Shah, a neurologist. (Tr. at 166-167). On neurological examination the Plaintiff's muscle strength was normal in both the upper and lower extremities. (Tr. at 166). Dr. Shah noted that a CT scan of the lumbar spine showed Grade I spondylolisthesis at the L-5/S-1 level, and there was evidence of foraminal stenosis at several levels. ( Id.) He diagnosed the Plaintiff with back pain, some leg numbness, and a history suggestive of lumbosacral radiculopathy. ( Id.)
On August 12, 1998, a consultative exam was performed by Dr. H. M. Bacchus, Jr. at the request of Social Security. (Tr. at 255-257). Dr. Bacchus indicated that an old MRI showed Grade I spondylolisthesis at the L5-S1 interior with L5 syndrome. (Tr. at 256.) Dr. Bacchus noted that VA specialists were reluctant about surgery because the Plaintiff only had paresthesis without much pain. ( Id.) Dr. Bacchus opined that the Plaintiff would be able to do most moderate industrial duties full-time. ( Id.)
On August 27, 1998, Marie Harrer, who handled the VA rehabilitation program for the Plaintiff, completed a "Special Report of Training," in which she found that an evaluation was needed to determine whether the Plaintiff could perform part-time sedentary work. (Tr. at 143-144).
Significantly, attached to this report was a "Vocational History Survey." (Tr. at 141-142.) Apparently, the Plaintiff completed this form (it appears to be in his handwriting), but Dr. Akhtar was the person who signed it on August 24, 1998. This document contained a number of limitations, including sitting and standing for a maximum of a half hour at a time, and working no more than four hours a day. (Tr. at 142.)
On October 1, 1998, the Plaintiff saw Dr. Akhtar who prescribed Tylenol No. 3. (Tr. at 330).
On March 31, 1999, Harrer completed a letter addressed to the Plaintiff's attorney. (Tr. at 147-148). She noted that the Plaintiff had been volunteering part-time at the Whitley County Head Start program as classroom assistant, custodian, and child care provider since December 1998. (Tr. at 148). She also reported that while the VA required 25 hours per week of volunteer work to receive a stipend, they apparently bent that rule to accommodate Dr. Akhtar's 4 hour per day work limitation. Nevertheless, Harrer noted that, because of pain, the Plaintiff only averaged about 3.7 hours per day, rather than a full 4 hours. ( Id.)
Although the Head Start program considered the Plaintiff an unpaid volunteer, apparently the VA provided him with a "monthly subsistence allowance" for performing this job. (Tr. at 148.)
III. STANDARD OF REVIEW
To be entitled to Social Security benefits, the Plaintiff must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is not enough for the Plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the Plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840, 844 (4th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F. Supp. 1098 (N.D. Ill. 1979).
A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 482, U.S. 137, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:
The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir. 1991) (citing Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)); Nelson v. Bowen, 855 F.2d 503, 504 n. 2 (7th Cir. 1988); accord Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). A claimant has the joint burdens of production and persuasion through at least step four, where the individual's residual functional capacity ("RFC") is determined. Yuckert, 482 U.S. at 146 n. 5; 20 C.F.R. § 404.1545, 416.945. At step five, the Commissioner bears the burden of proving that there are jobs in the national economy the plaintiff can perform. Herron v. Shalala, 19 F.3d 329, 333 n. 18 (7th Cir. 1994). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
IV. DISCUSSION
Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) (citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405(g)); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir. 1987). "Substantial evidence" has been described as "more than a mere scintilla." Anderson v. Bowen, 868 F.2d 921, 923 (7th Cir. 1989). It means, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. . . ." Id. (quoting Richardson v. Perales, 402 U.S. 389 (1971); see also Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed . . . unless there has been an error of law." Garfield, 732 F.2d at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present case, the ALJ found that the Plaintiff had not engaged in any substantial gainful activity since the alleged onset date. At step two, the ALJ found that the Plaintiff's impairments were severe; however, the ALJ found that the Plaintiff's impairments do not meet or exceed one of the listed impairments under step three. Under step four, the ALJ found that the Plaintiff is unable to perform his past relevant work. However, under step five, the ALJ found that the Plaintiff was capable of performing a significant number of jobs in the regional economy.
The Plaintiff contends that the ALJ committed reversible error by (A) failing to evaluate Dr. Akhtar's opinion under the "Treating Physician Rule," (B) improperly considering evidence of the Plaintiff's part-time work; (C) improperly considering his activities of daily living, (D) improperly considering an EMG, and (E) improperly considering the presence of Waddell Signs.
A. The Treating Physician Rule
The Plaintiff claims the ALJ committed reversible error by unequivocally ignoring Dr. Akhtar's opinion that the Plaintiff could only work for four hours per workday. (Tr. at 142.) This opinion is significant because according to SSR 96-8p, if an individual cannot return to his past work, like the Plaintiff, and cannot work for eight hours a day, he is disabled.
Since Dr. Akhtar is a treating physician, Social Security requires a two-prong evaluation of the his medical opinions. First, under what is known as the "Treating Physician Rule," the medical opinion of a treating physician must be given controlling weight if the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record. McGraw v. Apfel, 87 F. Supp.2d 845, 853 (N.D. Ind. 1999). Second, even if not entitled to controlling weight, the physician's opinion is still entitled to deference and must be weighed using the factors set out in the regulations. Id. The regulations also provide that "[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion." Id. Nevertheless, "the final decision on whether a claimant is disabled or not is a legal one rather than a medical one, and it is for the ALJ to make that decision." Kapusta v. Sullivan, 900 F.2d 94, 97 (7th Cir. 1989).
Codified at 20 C.F.R. § 404.1527(d)(2); 416.927(d)(2); Social Security Ruling 96-2p.
The factors cited include: the length of treatment relationship and frequency of examination; nature and extent of the treatment relationship; supportability (e.g., medical signs and laboratory findings); specialization; and other factors. See 20 C.F.R. § 404.1527(d)(2)-(d)(6).
Here, even the Commissioner admits that the ALJ "did not specifically reference this form [opinion], " in his decision. (Mem. in Support of the Commissioner's Decision at 9). But rather than ceding this argument to the Plaintiff, the Commissioner expends considerable effort (more than 3 full pages) attempting to show why the ALJ would have discounted this opinion if he had actually considered it.
However, the Commissioner's position is patently unreasonable. The ALJ is responsible for "sufficiently articulat[ing] [his] assessment of the evidence to assure us that [he] considered the important evidence and . . . to enable us to trace the path of [his] reasoning." Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Hickman v. Apfel, 187 F.3d 683, 689 (7th Cir. 1999). Thus, "the ALJ (not the Commissioner's lawyers) must "build an accurate and logical bridge from the evidence to [his] conclusion,'" so that, as a reviewing court, we may assess the validity of the agency's ultimate findings and afford a claimant meaningful judicial review. Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (quoting Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001)) (emphasis added). In this case, the ALJ's determination falls far short of that mark, since he did not even acknowledge the existence of this critical evidence, let alone address it. This failure makes the Court's review of the ALJ's findings impossible, and this case must be remanded for a proper evaluation of Dr. Akhtar's opinion under the treating physician standard.
B. Consideration of Plaintiff's Part-Time Work
The Plaintiff next claims the ALJ erred by considering the fact that he volunteers part-time at the Head Start program as evidence that he does not have any "total[ly] debilitating functional limitations." (Tr. at 21.)
Of course, the Court is not entirely certain what the ALJ means by "total[ly] debilitating functional limitations" since that terminology is not found in the regulations or rulings, and the ultimate inquiry is whether the Plaintiff can engage in other substantial gainful work activity, see 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A), not whether his condition renders him so physically debilitated as to be bedridden.
Nevertheless, we agree with the Plaintiff that his ability to work 20 hours a week or less at essentially a volunteer job is no evidence of his RFC to perform sustained work activity on a "regular and continuing basis." See SSR 96-8p ("RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.") (emphasis and bold in original). This is particularly true given that SSR 96-8p also provides that the Plaintiff's RFC under Step 5 requires an ability to work "8 hours a day, 5 days a week[.]" Id. As discussed supra, Dr. Ahktar limited the Plaintiff to working only 4 hours a day, and this flexible volunteer position required about that amount, but the Plaintiff averaged only 3.7 because of his pain. (Tr. at 148.) Thus, if this position is representative of the Plaintiff's actual capabilities, he would be considered disabled under the regulations, albeit not totally debilitated.
Therefore, because we cannot determine what the ALJ meant by "total[ly] debilitating functional limitations," and because the Plaintiff's volunteer position is not evidence of an ability to perform work on a regular and continuing basis, the decision of the ALJ must be remanded for further clarification.
We suspect the Commissioner is correct that the ALJ really meant to rely on this part-time job as evidence undercutting the Plaintiff's credibility, a perfectly legitimate proposition. See SSR 96-7p. However, this is not clear from the ALJ's decision, particularly since he addresses credibility elsewhere, and we are unwilling to fill in such analytical gaps for him.
C. Consideration of Activities of Daily Living
Next, the Plaintiff claims the ALJ improperly assessed his credibility by considering his activities of daily living as evidence contradicting the allegation that he cannot work full time.
The Seventh Circuit has repeatedly held that an ALJ's credibility determination will not be overturned so long as the decision has some support in the record and is not patently wrong. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001); Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1994); Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994). After all, a credibility determination often involves inarticulable elements that "leave no trace that can be discerned in this or any other transcript." Herron, 19 F.3d at 335 (quoting Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 541 (7th Cir. 1992). Nevertheless, when credibility determinations "rest on objective factors or fundamental implausibilities rather than subjective considerations such as a claimant's demeanor, " courts have greater freedom to review ALJ decisions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (quoting Herron, 19 F.3d at 335).
Here, the Plaintiff contends the ALJ improperly assessed his credibility by failing to consider other, favorable evidence about his daily activities. Specifically, the Plaintiff argues that the ALJ should have considered that he relies on help from friends and family to perform basic tasks since he can only function for about 30 minutes a day before needing to rest. Additionally, he claims the ALJ failed to consider statements, contained in forms submitted to Social Security, regarding his average day.
However, substantial evidence supports the ALJ's consideration of the Plaintiff's daily activities. Indeed, the ALJ considered the testimony of the Plaintiff and favorable evidence concerning these activities, and the difficulties he has performing them. (Tr. at 18) (recounting the Plaintiff's testimony). SSR 96-7p provides that the ALJ may base her credibility findings on the degree to which an individual's statements are consistent with medical signs and laboratory findings as well as other factors such as the individual's daily activities, behavior and efforts to work. Indeed, 20 C.F.R. § 404.1529(c) provides that the ALJ should consider objective medical evidence and other evidence including the individual's work history, daily activities, and other factors like the intensity of the symptoms in determining how these symptoms limit a claimant's ability to work. In his decision, the ALJ considered the Plaintiff's daily activities of living as one indication of the Plaintiff's credibility regarding the intensity of his pain. Indeed, the ALJ properly considered this evidence and found it inconsistent with the Plaintiff's allegations of pain. Accordingly, we cannot say the ALJ's evaluation of the Plaintiff's daily activities is patently wrong, or that it is not supported by substantial evidence.
D. Consideration of the EMG
While poorly articulated, we think the Plaintiff's next argument is that the ALJ "play[ed] doctor" (i.e., improperly substituted his own opinion for that of a physician), (Pl.'s Opening Br. at 15), when he characterized an EMG as showing "minimal" findings. See Clifford, 227 F.3d at 870; Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990).
In his opening brief, the Plaintiff fails to cite to any case law, regulations, rulings, or other legal authority that might help us follow the path of his reasoning, and his reply brief, while citing two regulations, is no more enlightening.
Apparently, the Plaintiff reasons that since the doctor never used the word "minimal" to describe the EMG, it was reversible error for the ALJ to do so. We disagree. As even the Plaintiff recognizes, the ALJ faithfully recounted the findings of the physician who interpreted the EMG. (Pl.'s Opening Br. at 15.) Further, it hardly stretches the imagination to conclude that the results of an EMG are minimal when that test detects abnormal muscle electrical activity, yet on the Plaintiff, it "did not reveal any abnormal potentials or insertional activity." (Tr. at 173.)
Accordingly, we cannot say that the ALJ erred in this characterization, and his opinion is supported by substantial evidence on this point.
E. Consideration of Waddell Signs
Finally, the Plaintiff claims that the ALJ improperly discredited his testimony based on the mere presence of some unidentified Waddell Signs.
Although the Plaintiff explains what Waddell Signs are, he failed to incorporate the document relied on into the record or otherwise provide it to the Court, as required by N.D. Ind. L.R. 7.1(e). Nevertheless, at least one published case explains that Waddell Signs are indications of non-organic causes of back pain; that is, signs that a patient's reported pain has a behavioral—rather than physiological—origin. Bazile v. Apfel, 113 F. Supp.2d 181, 187 n. 2 (D. Mass. 2000) (citing P. Douglas Kiester, Is It Malingering or Is It `Real'? Eight Signs that Point to Non-organic Back Pain, POSTGRADUATE MEDICINE, Dec. 1999). A positive response to at least three of eight signs is considered predictive of non-organic, non-musculoskeletal causes of pain, and is sometimes indicative of malingering. Id.
The only mention of Waddell Signs in the record are some passing references Dr. Kaplansky made to them in his December 12, 1997 opinion. Indeed, Dr. Kaplansky said that "there are nonorganic findings including positive Waddell Signs, " and that "[t]here are nonorganic findings complicating the examination and diagnosis." (Tr. at 164 165). The ALJ decided that positive Waddell Signs meant malingering, and completely "undermined the [Plaintiff's] credibility." (Tr. at 21.)
But this is too much to read into the record. Given Dr. Kaplansky's rather vague comments, neither the Court nor the ALJ knows which Waddell Signs were positive, or if there were even three. See Bazile, 113 F. Supp.2d at 187 n. 2 (three or more Waddell Signs might indicate malingering). Moreover no doctor including Dr. Kaplansky ever opined that the Plaintiff was malingering or exaggerating his symptoms, and Dr. Kaplansky certainly made no effort to explain the significance of Waddell Signs.
All of this begs the question: how did the ALJ jump from unilluminating comments about Waddell Signs to a conclusion of malingering and incredibility? Given the absence of evidence, we must conclude that he went outside the record to perform his own medical research. But this is forbidden, see Nelson v. Apfel, 131 F.3d 1228, 1236 (7th Cir. 1997) (ALJ cannot go outside the record); Papendick v. Sullivan, 969 F.2d 298, 302 (7th Cir. 1992), and amounts to playing doctor. See Schmidt v. Sullivan, 914 F.2d at 118 ("judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor"); Clifford, 227 F.3d at 870 (ALJ must not substitute his judgment for a physician's opinion without relying on other medical evidence or authority in the record).
Accordingly, the decision of the ALJ on this point is not supported by substantial evidence and must be remanded.
CONCLUSION
For the foregoing reasons, the decision of the ALJ is AFFIRMED regarding his consideration of the Plaintiff's daily activities of living and the EMG, but is REMANDED for further development regarding his consideration of the treating physician rule (as it relates to Dr. Akhtar), the Plaintiff's part-time work, and the presence of Waddell Signs. SO ORDERED. Enter for February 26, 2003.