Opinion
Case No. 99 C 4132
September 8, 2000
MEMORANDUM OPINION AND ORDER
The Plaintiff, Annie M. Neely, pursuant to 42 U.S.C. § 405(g), 1383(c)(3), moves this Court for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure reversing the decision of the Commissioner of Social Security ("Commissioner") which denied her application for Supplemental Security Income. In the alternative, Plaintiff moves that the case be remanded to the Commissioner for further proceedings. The Commissioner has filed a Cross-Motion for Summary Judgment in his favor. For the reasons set forth below, the Court grants Plaintiff's motion, in part, and denies the Commissioner's Motion. Specifically, the Court remands the case to the Commissioner for further proceedings consistent with this Opinion.
Procedural History
On July 17, 1996, Plaintiff filed an application for Supplemental Security Income, alleging that she had been disabled since February 2, 1960 on the basis of chronic lung disease and asthma. (R. at 19-20, 39.)
References are to the certified administrative record prepared by the Commissioner and filed with this Court pursuant to 42 U.S.C. § 405(g).
On September 23, 1996, Plaintiff's application was denied. (R. at 23-26.) On October 2, 1996, Plaintiff filed a request for reconsideration. (R. at 27.) Upon reconsideration, the application was again denied on January 14, 1997. (R. at 30-32.) On February 18, 1997, Plaintiff filed a Request for Hearing by an Administrative Law Judge, (R. at 33), pursuant to which a hearing was held before Administrative Law Judge ("ALJ") William L. Hafer on May 16, 1998. (R. at 216-237.) On July 10, 1998, the ALJ issued his decision, finding that Plaintiff was not disabled. (R. at 11-17.) On July 22, 1998, Plaintiff filed a Request for Review of the ALJ's decision with the Commissioner's Appeals Council. (R. at 7.) On June 4, 1999, the Appeals Council denied Plaintiff's request, concluding that there was no basis for review, which denial stands as the final decision of the Commissioner and is the subject of the Motions now before the Court. (R. at 4-5.)
Factual Background
A. Testimony of Plaintiff
Plaintiff testified at the May 16, 1998 hearing that she was born on February 2, 1960 and that she attended school to the eleventh grade. She had not worked in the previous 19 years. She had a 12-year-old daughter who lived with her and for whom she received $278.00 per month in welfare payments and $50.00 per month in child support.
The only work Plaintiff has performed was as a waitress at a restaurant for six months when she was 10 years of age. (R. at 43, 226.)
Plaintiff testified that she underwent reconstructive bowel surgery on December 29, 1997, after which she returned to the hospital on January 24, 1998 where she was diagnosed as having Crohn's Disease. On February 24, 1998, she had a colonoscopy and on February 27, 1998, she had an x-ray taken of her small bowel. Because of the problems in her lower intestines, Plaintiff's bowels are not regulated, resulting in a build-up of gas. Sometimes she has to use the bathroom once a day, then she may not feel the need to go for two days. This results in pain, sometimes to the extent that she has to sit up all night and for which she takes pain pills. The pain comes and goes.
Plaintiff testified that she has had asthma since birth, for which she uses a nebulizer three times a day at home, which takes about ten to fifteen minutes. She also takes pills for her asthma. Her asthma is exacerbated by heat, humidity, and pollen in the air. She gets tired upon walking up four stair steps and from her driveway to her garage. Plaintiff did walk a little more than two blocks in order to get to the hearing, but testified that she was puffing as she walked.
Plaintiff testified that she lived in a house with her daughter and that she cooked for herself and her daughter. She made her own bed and did the grocery shopping, but her daughter did all of the other household chores. She had applied for jobs, but had been unsuccessful. (R. at 224-237.)
B. Medical Records
Plaintiff's medical records begin on December 7, 1960, when she was ten months old and was admitted to a hospital in Mississippi, where she was diagnosed with iron deficiency anemia and chronic lung disease. (R. at 62-75.) She was hospitalized from November 11, 1985 to November 20, 1985, where she apparently underwent some type of surgery. (R. at 76-80.) Treatment notes from the Lakeside Medical Center from June 6, 1995 through September 3, 1997 show that Plaintiff was seen nine times, mostly related to medication refills and test results relating to her asthma. (R. at 81-103, 114-119, 123.) On October 30, 1996, Plaintiff was treated in a hospital emergency room for shortness of breath, which was diagnosed as an exacerbation of her asthma. (R. at 106-110.) It was noted that Plaintiff had previously undergone surgery for removal of her thyroid and that she was taking medication for that condition.
On December 28, 1997, Plaintiff was admitted to the hospital complaining of abdominal cramping and vomiting. She was diagnosed as having a small bowel obstruction, for which she underwent surgery on December 29, 1997. She was discharged from the hospital on January 3, 1998. (R. at 144-146.)
On February 18, 1998 — after again complaining of abdominal pain, but no nausea or vomiting — Plaintiff was administered a colonoscopy and a small bowel x-ray, which revealed no evidence of Crohn's Disease in the colon. (R. at 148-155.) It was decided to treat Plaintiff with diet and medications rather than surgery. (R. at 155.) On July 22, 1998, Plaintiff visited her doctor for a check-up and refill of her prescriptions. She complained of chronic diarrhea, feeling bloated, and having an obsession with washing and cleaning the same items over and over. (R. at 210.)
Crohn's Disease had been identified as the cause of the small bowel obstruction for which Plaintiff underwent surgery on December 29, 1997.
On August 14, 1998, Plaintiff's treating physician completed a questionnaire from the Illinois Department of Public Aid, apparently in support of Plaintiff's request to be exempt from seeking employment. On the form, the physician noted the problems for which Plaintiff had been treated and her medications. The physician noted that Plaintiff's condition currently prevented her from seeking employment and that the date on which she would be able to seek employment was unknown because her condition exacerbates from time to time, especially the Crohn's Disease. (R. at 213.)
The July 22, 1998 and August 14, 1998 documents were not presented to the ALJ at or prior to the hearing because they were not then in existence. Therefore, they will not be considered in determining whether the ALJ's decision was supported by substantial evidence.
C. The ALJ's Decision
In his July 10, 1998 decision, the ALJ noted Plaintiff's testimony at the hearing and cited all of the medical records received into evidence. He noted the results of all the tests that Plaintiff had undergone and the thyroid and small bowel surgeries which had been performed. With regard to her asthma, the ALJ noted that, while asthma had been listed in several of her records as a secondary diagnosis, Plaintiff had not been hospitalized for that condition, although she had been treated in a hospital emergency room on one occasion. He concluded, therefore, that Plaintiff's use of the nebulizer three times a day controlled her asthma.
With regard to her abdominal problems, the ALJ noted that Plaintiff had undergone surgery for the bowel obstruction in December 1997 (four and one-half months prior to the hearing) and her physician's notation that her condition had improved substantially since the surgery and that she would be treated with diet and medication. He noted that, thereafter, the February 18, 1998 colonoscopy was normal.
Considering the lack of medical documentation to support Plaintiff's testimony regarding her debilitating pain, weakness and shortness of breath, the ALJ discredited her testimony in that regard, especially her testimony that she could not climb more than four stair steps or walk more than two blocks. The ALJ also noted Plaintiff's testimony that she had been seeking jobs and opined that this was inconsistent with her testimony that she could not work. He noted that she lived with her fiancé, took care of her 12-year-old daughter, and needed no help with her grooming.
After considering all of Plaintiff's medical records and discrediting most of her testimony regarding the extent to which her impairments restricted her ability to engage in everyday activities, the ALJ concluded that Plaintiff's impairments were not "severe" within the meaning of the Commissioner's regulations and that, therefore, she was not disabled. (R. at 11-17.)
Standard of Review
In reviewing the Commissioner's (here the ALJ's) decision, the court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). Rather, the court must accept findings of fact that are supported by "substantial evidence," 42 U.S.C. § 405(g), where substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Herron 19 F.3d at 333 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The ALJ must consider all relevant evidence and may not select and discuss only that evidence that favors his ultimate conclusion. Herron, 19 F.3d at 333. Where conflicting evidence allows reasonable minds to differ, the responsibility for determining whether a claimant is disabled falls upon the Commissioner (or ALJ), not the courts. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). See also Stuckey v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989) (the ALJ has the authority to assess medical evidence and give greater weight to that which he finds more credible). This Court is limited to determining whether the Commissioner's final decision is supported by substantial evidence and based upon proper legal criteria. Erhart v. Secretary of Health and Human Services, 969 F.2d 534, 538 (7th Cir. 1992)
This does not mean that the Commissioner (or ALJ) is entitled to unlimited judicial deference, however. In addition to relying on substantial evidence, the ALJ must articulate his analysis at some minimal level and state his reasons for accepting or rejecting "entire lines of evidence," although he need not evaluate in writing every piece of evidence in the record. See Herron, 19 F.3d. at 333; see also Young v. Secretary of Health and Human Services, 957 F.2d 386, 393 (7th Cir. 1992) (ALJ must articulate his reason for rejecting evidence "within reasonable limits" in order for meaningful appellate review); Guercio v. Shalala, No. 93 C 323, 1994 WL 66102, *9 (N.D. Ill. 1994) (ALJ need not spell out every step in his reasoning, provided he has given sufficient direction that the full course of his decision may be discerned) (citing Brown v. Bowen, 847 F.2d 342, 346 (7th Cir. 1988)).
The Social Security regulations prescribe a sequential five-part test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520 and 416.920 (2000). The ALJ must consider: (1) whether the claimant is presently unemployed; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the claimant's impairment meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) whether the claimant is unable to perform his past relevant work; and (5) whether the claimant is unable to perform any other work existing in significant numbers in the national economy. 20 C.F.R. § 404.1520 and 416.920 (2000); see also Young v. Secretary of Health and Human Services, 957 F.2d 386, 389 (7th Cir. 1992). A finding of disability requires an affirmative answer at either step 3 or step 5. A negative answer at any step (other than step 3) precludes a finding of disability. Id. The claimant bears the burden of proof at steps 1-4, after which the burden shifts to the Commissioner at step 5. Id.
Analysis
At the outset, the Court notes that Plaintiff waived her right to be represented by an attorney or other individual at the hearing before the ALJ and chose to represent herself, after clearly and unambiguously being informed of those rights by the ALJ. (R. at 220-223.) The Court also notes that the ALJ had a heightened duty to probe into and explore all relevant facts in developing the record in this case, where Plaintiff was not represented by counsel. That having been said, the Court can find no fault with the ALJ's development of the record herein. In this regard, the Court specifically rejects Plaintiff's assertion or implication that the ALJ had an obligation to explore the possibility that she suffered from a mental impairment when she testified that she did not have many friends. (R. at 235.) Also, in a three-page diatribe dated February 10, 1997 and addressed to, "whatever judge hearin [sic] my case," Plaintiff mentioned, among many other complaints, that her medication made her "nervous." (R. at 57.) In her request for hearing, Plaintiff concluded her list of medical complaints by stating, "my nerves is [sic] not so good." (R. at 37.) In another statement filed with her request for hearing, when describing the effects of the removal of her thyroid, Plaintiff stated that she was "nervous" and that she had hot and cold flashes. (R. at 60.) In yet another statement, explaining her lack of any work background, Plaintiff cited her lack of education and job skills and stated that she would feel worthless if she did not have her daughter. (R. at 131.)
Plaintiff argues that these indications by Plaintiff that she was nervous at times and that she felt worthless at times should have put the ALJ on notice that, perhaps, she was suffering from a mental impairment, which obligated him to further develop that issue. In addition, Plaintiff notes that one of the medications that she listed as being prescribed for her is an anti-depressant — even though she did not indicate that on the list — and that several of her other medications have the possible side effect of anxiety or nervousness. Although there was nothing in the record or in Plaintiff's testimony to indicate that she suffered from a mental impairment that would affect her ability to work, Plaintiff implies that, because she was unrepresented, the ALJ had an obligation to conduct his own investigation into the possible side effects of her medications in search of evidence to find her disabled on a basis that she had not alleged and apparently did not recognize. Based on the record that was before the ALJ, including Plaintiff's testimony, the Court rejects Plaintiff's assertion that the ALJ had an obligation to develop the record regarding a possible mental impairment.
The ALJ ended his analysis at Step 2 of the five-part sequential evaluation, when he found that Plaintiff's impairments were not "severe" within the meaning of The regulations. The regulations provide that an impairment or combination of impairments is not severe if, "it does not significantly limit [the individual's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.921(a). Basic work activities are described as the abilities and aptitudes necessary to do most jobs, including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling as well as non — physical and mental functions not relevant herein, in view of the record that was before the ALJ. 20 C.F.R. § 416.921(b).
With regard to the ALJ's finding that Plaintiff's inflammatory bowel disease/small bowel obstruction/Crohn's Disease and her hyperthyroidism were not severe, the Court finds that his decision is supported by substantial evidence. Thus, although Plaintiff has been prescribed medication since the removal of her thyroid, there is no indication in any of her treatment notes that this condition would have any impact upon her ability to work. Likewise, after undergoing surgery on December 29, 1997 for a small bowel obstruction, the small bowel study performed on February 18, 1998 showed no evidence of Crohn's Disease and, as of the time of the hearing, Plaintiff was being treated with diet and medications and further surgery had been ruled out. In describing the effects of her small bowel problem, Plaintiff testified that she has pain, which comes and goes, and which is relieved by pain pills. She also sometimes has a build-up of gas and her bowels are not regulated, although she uses the bathroom only once a day. These impairments would not significantly restrict Plaintiff's ability to do work-related activities.
In finding that Plaintiff's asthma was not severe, the ALJ noted that she had not required any hospitalizations or repeated hospital emergency room visits for that condition. He noted further that Plaintiff was required to use a nebulizer three times per day, for 15 minutes each time, which could be done at times that would not interfere with her normal work hours.
Plaintiff testified that she has had asthma since birth, for which she uses a nebulizer three times a day and takes pills. It takes about 15 minutes to administer each treatment. She testified further that, as a result of her asthma, she becomes tired after minimal walking. She stated that it takes her longer to bathe and dress herself and to perform her household chores because she becomes short of breath. (R. at 49, 53.) The ALJ discredited Plaintiff's testimony that she was unable to climb more than four stairs or walk more than two blocks. However, he credited her testimony regarding the frequency and duration of her nebulizer treatments during the day. He did not question Plaintiff as to whether the treatments had to be administered at or around the same rime every day or the mechanics of administering them, in view of her credited testimony that the treatments took 15 minutes each. The ALJ concluded, however, that the treatments could be done at times that would not interfere with Plaintiff's normal work hours. The ALJ's reasoning in this regard was not explained and is not obvious. It certainly would appear that the need to be absent from one s assigned job duties three times, for 15 minutes each, during the course of an eight-hour workday, could significantly impact upon one s ability to perform basic work activities over a sustained period of time and would, therefore, be severe within the meaning of the regulations.
The Court notes — as did the ALJ — that Plaintiff, who had not worked in her adult life, testified that she had been seeking work. Moreover, in a statement submitted for consideration by the ALJ, Plaintiff attributed her inability to work to her lack of clerical skills that would qualify her for working in an office setting, rather than an inability to perform any work. She cited her inabilities to engage in prolonged standing or walking and to be exposed to dust and fumes. (R. at 57.) As the ALJ found, these statements, and Plaintiff's description of her daily activities, are inconsistent with her allegations that she is unable to perform any work. However, they are not necessarily inconsistent with a finding that Plaintiff's asthma — which apparently would require her to administer nebulizer treatments to herself throughout the workday — are severe. The ALJ's finding that Plaintiff would be able to administer the treatments in a manner that would not interfere with her performance of work-related activities has no support in the record. Therefore, it is not supported by substantial evidence. Having carefully reviewed the entire record upon which the ALJ based his decision, the Court emphasizes that it is only this finding — that Plaintiff's need to use the nebulizer three times per day, for a total of 45 minutes out of an eight-hour workday, would not impose significant restrictions upon her ability to work — that is not supported by substantial evidence. However, this unsupported finding was one of the factors considered by the ALJ in determining that Plaintiff's asthma was not severe and it requires a remand for further consideration.
Upon remand, if the ALJ again determines that Plaintiff's asthma is not severe, the record should be more fully developed in that regard. On the other hand, the ALJ could conclude that Plaintiff's asthma is severe, but that it would not preclude her performance of a significant number of jobs that exist in the economy. In so finding, the ALJ might wish to utilize the services of a vocational expert, as authorized by 20 C.F.R. § 416.966(e) (2000). Finally, the ALJ may take any other actions not inconsistent with this Opinion.
Conclusion
The Court finds that the ALJ's determination that Plaintiff's asthma is not severe is not supported by substantial evidence. Accordingly,
IT IS HEREBY ORDERED that the Commissioner's Motion for Summary Judgment be, and the same hereby is, denied.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment be, and the same hereby is, granted in part. This cause is remanded to the Commissioner for further proceedings not inconsistent with this Opinion.