Opinion
CAUSE NO. IP 99-1526-C H/G
November 14, 2000
Bull; Charles D Hankey Attorney at Law Indianapolis, IN 46202
Thomas E Kieper United States Attorney's Office Indianapolis, IN 46204-3048
ENTRY ON JUDICIAL REVIEW
Plaintiff Curtis D. Ware seeks judicial review of the Commissioner of Social Security's denial of his application for supplemental security income benefits under the Social Security Act. An Administrative Law Judge (ALJ) determined that Mr. Ware suffered from severe impairments, many of which stemmed from injuries Mr. Ware had sustained in an automobile accident. The ALJ concluded, however, that Mr.
Ware was not disabled for purposes of the Social Security Act because he retained the residual functional capacity to perform, with certain restrictions, a substantial number of sedentary occupations in the regional economy. The Appeals Council denied review of the decision by the ALJ, leaving his determination as the final decision of the Commissioner. As explained below, the ALJ's decision is remanded for further evaluation of Mr. Ware's symptoms under the process outlined in Social Security Ruling 96-7p.
Background
Mr. Ware was born on June 7, 1958. He completed the twelfth grade and has two children. He worked as a painter in a machine shop from 1977 to 1980, and then as a seaman in the United States Navy from 1980 to 1982. From 1983 to 1990, Mr. Ware held several jobs, but each for only a brief period of time. At the hearing, Mr. Ware was unable to recall what his duties at those positions entailed. Mr. Ware's earnings records indicate that he has held no job with reported income since 1990.
On July 30, 1994, Mr. Ware was involved in an automobile accident and sustained severe injuries, including injuries to his upper torso, trachea, left leg, left hip, right orbit, and left upper eyelid. His injuries required multiple surgical procedures and he underwent a period of therapy. Over the course of the year following the accident, some of Mr. Ware's injuries healed. However, he continued to experience pain, stiffness, and some loss of function in his shoulders, arms, back, neck, left hip, and left leg, as well as some difficulty with his breathing, balance, and vision. He also has stated that he has severe arthritis which affects his entire body.
Mr. Ware testified at the hearing that his vision problem — "glassy" vision — is primarily in his right eye.
It is not clear whether all of Mr. Ware's health problems can be traced directly to the 1994 automobile accident. He had broken his left fibula in an unrelated incident shortly before the car accident, and there is evidence that Mr. Ware has had problems with alcohol abuse at times. Nonetheless, the record is clear that Mr. Ware has not worked at all since the automobile accident in 1994. Family members have provided Mr. Ware with a place to live, food, and substantial assistance in performing the tasks of daily living, including the care of his two sons.
On January 19, 1995, Mr. Ware applied for supplemental security income benefits alleging that he became disabled on the date of his accident. The Social Security Administration denied Mr. Ware's application for benefits on May 24, 1995, and the denial was affirmed upon reconsideration. Mr. Ware requested further review of his claim and, on May 5, 1998, he appeared with counsel at an administrative hearing before an ALJ. Based on the testimony gathered at the hearing and the other evidence in the record, the ALJ determined that Mr. Ware was not disabled as that term is defined under the Social Security Act. The ALJ issued a written decision explaining his conclusion on September 18, 1998. The Appeals Council denied Mr. Ware's request for review of the ALJ's decision and he then sought judicial review in this court.
Standard of Review
The Social Security Act provides for judicial review of the Commissioner's denial of benefits. 42 U.S.C. § 405(g), 1383(c)(3). Because the Appeals Council denied further review of the ALJ's findings, the ALJ's findings are treated as the findings of the Commissioner. Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999); Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). If the Commissioner's findings of fact are supported by substantial evidence, the findings must be upheld by a reviewing court. 42 U.S.C. § 405(g); Maggard v. Apfel, 167 F.3d 376, 379 (7th Cir. 1999).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). To determine whether substantial evidence exists, the court reviews the record as a whole, but does not attempt to substitute its judgment for the ALJ's by reweighing the evidence, resolving material conflicts, or reconsidering facts and/or the credibility of witnesses. Luna v. Shalala, 22 F.3d at 689. The court must examine the evidence that favors the claimant as well as the evidence that supports the Commissioner's conclusion. Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits," the court must defer to the Commissioner's resolution of that conflict. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
A reversal and remand may be required, however, if the ALJ committed an error of law, Nelson v. Apfel, 131 F.3d at 1234, or if the ALJ's decision is based on serious factual mistakes or omissions. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996). The ALJ's decision must be based upon consideration of all the relevant evidence, and the ALJ must articulate at some minimal level his analysis of the evidence. Diaz v. Chater, 55 F.3d at 307. In particular, meaningful appellate review requires the ALJ to articulate reasons for accepting or rejecting entire lines of evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
Discussion
I. The ALJ's Decision
To be eligible for supplemental security income benefits, Mr. Ware must establish that he suffered from a disability within the meaning of the Social Security Act. The Act defines "disability" as an inability to engage in substantial gainful activity by reason of a medically determinable impairment that can be expected to cause death or to last for twelve continuous months. 42 U.S.C. § 1382c(a)(3). Mr. Ware was disabled only if his impairments were of such severity that he was unable to perform work that he had done previously and if, based on his age, education, and work experience, he could not engage in any other kind of substantial work existing in the national economy, regardless of whether such work was actually available to him. Id. This standard is a stringent one. A claimant is not necessarily entitled to benefits even if he has substantial impairments. The Act does not contemplate degrees of disability or allow for an award based on partial disability. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir. 1985).
The ALJ's September 18, 1998, decision followed the five-step analysis set forth in 20 C.F.R. § 416.920 to determine whether Mr. Ware was disabled under the Social Security Act. The steps are as follows:
(1) Is the claimant engaging in substantial gainful activity? If so, he or she is not disabled.
(2) If not, does the claimant have an impairment or combination of impairments that are severe? If not, he or she is not disabled.
(3) If so, does the impairment(s) meet or equal a listed impairment in the appendix to the regulations? If so, the claimant is disabled.
(4) If not, can the claimant do his or her past relevant work? If so, he or she is not disabled.
(5) If not, can the claimant perform other work given his or her residual functional capacity, age, education, and experience? If so, then he or she is not disabled. If not, he or she is disabled.
See generally 20 C.F.R. § 416.920. When applying this test, the burden of proof is on the claimant for the first four steps and on the Commissioner for the fifth step. Young v. Secretary of Health and Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
In Mr. Ware's case, the ALJ found at step one that Mr. Ware had not engaged in substantial gainful activity that would have disqualified him from receiving benefits. R. 15. At step two, the ALJ found that Mr. Ware had severe impairments. Specifically, the ALJ found severe "residuals" from a fractured left fibula in June 1994, a right clavicle fracture, a right brachial plexus injury, and a left hip dislocation with left femoral head impaction fracture. The ALJ also noted Mr. Ware's development of avascular necrosis in the left hip, status post-operative core decompression. R. 15. At step three, the ALJ determined that none of Mr. Ware's impairments, alone or in combination, met or equaled any of the impairments listed in the regulations. See 20 C.F.R. § 404, subpt. P, app. 1.; R. 15. At step four, the ALJ found that Mr.
Avascular necrosis involves a loss of the blood supply to a bone. The core decompression is a procedure that attempts to restore blood flow to the affected area.
Ware was incapable of performing any of his past relevant work due to the physical requirements of those jobs. R. 16. Thus, the analysis shifted to step five where the burden was on the Commissioner to show that Mr. Ware retained the residual functional capacity to perform a significant number of jobs within the national economy.
The ALJ determined that Mr. Ware retained the residual functional capacity to perform less than the full range of sedentary work. Mr. Ware's specific limitations, as explained in the written decision, were the following:
[Mr. Ware] has the residual functional capacity to occasionally lift and/or carry fifty pounds, frequently lift and/or carry twenty-pounds; stand and/or walk for three hours in an eight hour workday; sit for six hours in an eight hour workday; is unable to operate foot pedals with his left foot or leg[;] necessity to avoid climbing ladders, ropes, and scaffolds; should never crouch; can occasionally balance, stoop, kneel, and crawl; and necessity to avoid concentrated exposure to cold, heat, wetness, humidity, vibration, and hazards such as machinery, and heights.
R. 16. These limitations were derived directly from a residual physical functional capacity assessment by Dr. Hutson, an orthopaedist who was the medical expert at the hearing. During the hearing, Dr. Hutson indicated that additional evidence was required before he could determine Mr. Ware's physical limitations.
R. 251. As a result, the ALJ ordered a post-hearing examination which was conducted by Dr. Lorber on July 14, 1998. R. 187-88. Dr. Lorber provided a full report, including a physical capacities evaluation, to the ALJ. R. 188-93. Dr. Hutson then reviewed the medical evidence, including Dr. Lorber's report, and completed his final evaluation in writing. R. 202-12.
Based on the medical evaluations from Dr. Hutson and Dr. Lorber, the ALJ posed two hypothetical questions to a vocational expert to determine whether there were jobs that Mr. Ware could perform despite his limitations. The first question incorporated the limitations found by Dr. Hutson. The second question incorporated the limitations noted by Dr. Lorber. R. 217. The vocational expert, who was present at the hearing, responded in writing to each question. R. 219. Taking a cautious approach, the ALJ found that Mr. Ware could perform only the jobs that appeared in the vocational expert's response to both questions.
In other words, the ALJ accepted only the intersection of the two responses, which included the following jobs: sedentary unskilled assembler (4,319 positions); sedentary unskilled hand packager (188 positions); and sedentary unskilled cashier (3,288 positions). R. 13. Finding that these jobs represented a "significant number" of opportunities within the state, the ALJ ultimately concluded that Mr. Ware was not disabled. R. 16.
Mr. Ware challenges the ALJ's decisions at the third and fifth steps of the sequential evaluation. First, Mr. Ware contends that the ALJ improperly evaluated Mr. Ware's self-reported symptoms. Pl. Br. at 7-10. Second, Mr. Ware asserts that the ALJ failed to develop adequately the non-medical testimony of his mother at the hearing and then compounded this error by failing to discuss her testimony in the written decision. Id. at 3. Third, Mr. Ware complains that the ALJ did not have a sufficient evidentiary basis for his conclusions because he failed to secure additional post-hearing medical evidence that a medical expert indicated was necessary for a proper evaluation of Mr. Ware's condition. Id. at 5-7. Fourth, Mr. Ware asserts that the ALJ improperly rejected the testimony of Dr. Graham, the physician whose opinion provides the strongest medical support for a conclusion that Mr. Ware's impairments were disabling. Id. at 4-5. Fifth, he contends that the ALJ erred by failing to discuss the opinions of two agency physicians. Id. at 4.
II. The ALJ's Discussion and Rejection of Mr. Ware's Pain Symptoms
Section 416.929 of the Social Security regulations and Social Security Ruling ("SSR") 96-7p set forth a detailed process for the ALJ's evaluation of symptoms, including complaints of disabling pain. A symptom is an individual's own description of his or her physical or mental impairments. Complaints of pain are perhaps the most common example of a "symptom." Mr. Ware argues that the ALJ did not follow the proper procedure before rejecting his claims of totally debilitating pain, and that the ALJ erred by failing to address the lay testimony of his mother in the written decision. As explained below, these two contentions are related and jointly establish the need for a remand of the ALJ's written decision.
Mr. Ware also argued in his brief that the ALJ failed to properly develop his mother's testimony at the hearing. Pl. Br. at 3. The single case Mr. Ware cites on this point does little to advance his argument that the ALJ committed an error in this case. In Brown v. Shalala, the claimant was not represented by counsel at the administrative hearing and "had great difficulty conveying with any precision the manner in which her various subjective ailments affected her ability to engage in substantial gainful activity." 44 F.3d 931, 936 (11th Cir. 1995). Under those circumstances, the Eleventh Circuit was troubled by the fact that the ALJ failed to secure any testimony from the claimant's friends or relatives at the time of the hearing. The court noted: "Although the Appeals Council was later able to consider [an affidavit from claimant's husband], the value of live testimony, where demeanor can be considered and credibility more readily evaluated, cannot be discounted." Id.
In this case, Mrs. Ware appeared at the hearing and testified in response to a direct examination conducted by Mr. Ware's attorney. Mrs. Ware's testimony generally concerned her son's inability to perform daily activities such as cooking and cleaning since the time of accident. She also expressed concern about his memory, incidents where he has fallen down, and his vision. R. 246-48. If Mrs. Ware could have provided additional clearly relevant and readily available testimony, presumably the attorney was more than capable of soliciting that information. See generally Glenn v. Secretary of Health and Human Servs., 814 F.2d 387, 391 (7th Cir. 1987) ("When an applicant for social security benefits is represented by counsel the administrative law judge is entitled to assume that the applicant is making his strongest case for benefits."). Mr. Ware's brief does not identify the additional "significant disability issues" that further questioning of Mrs. Ware would have clarified and none are readily apparent from the record. Thus, in this case, the ALJ had the full benefit of hearing Mrs. Ware's testimony and it cannot be said that the ALJ failed to elicit important information at the hearing.
A. Evaluating Symptoms
The process for evaluating a claimant's symptoms is organized around two major steps. First, the claimant must provide objective medical evidence of a medically determinable impairment or combination of impairments that reasonably could be expected to produce the alleged symptoms. 20 C.F.R. § 416.929(a)-(b). If there is no impairment that reasonably could cause the symptoms, no symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be. SSR 96-7p, 61 Fed. Reg. 34483, 34484.
Second, if the claimant satisfies the first step, the ALJ must then "evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities." Id. at 34485; 20 C.F.R. § 416.929(a). As part of this second-stage evaluation, an ALJ may determine that the claimant's symptoms are not actually supported by the objective medical evidence. However, "the ALJ may not disregard subjective complaints merely because they are not fully supported by objective medical evidence." Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995); accord Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000); Luna v. Shalala, 22 F.3d at 691; SSR 96-7p, 61 Fed. Reg. at 34484. Thus, a full evaluation of the intensity, persistence, and limiting effects of the individual's symptoms requires an analysis that reaches beyond the objective medical evidence. SSR 96-7p provides more specific direction to the ALJ:
Whenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. This includes the medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record.
SSR 96-7p, 61 Fed. Reg. at 34485. The ALJ is required to look to the "entire case record" precisely because an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone. Id.
Section 416.929(c) and SSR 96-7p identify seven examples of the type of evidence the ALJ must consider, in addition to the objective medical evidence, when assessing the credibility of an individual's statements:
(1) The individual's daily activities;
(2) The location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) Factors that precipitate and aggravate the symptoms;
(4) The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board);
(7) Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
The ALJ need not mechanically recite findings on each factor, but must give specific reasons for the weight given to the individual's statements. SSR 96-7p, 61 Fed. Reg. at 34485. These reasons must be articulated in the determination decision and "cannot be based on an intangible or intuitive notion about an individual's credibility." Id.
B. The Evaluation of Mr. Ware's Symptoms in the ALJ's Written Decision
The ALJ's written discussion of Mr. Ware's symptoms in this case begins at the second step of the process defined in Section 416.929 — implicitly accepting the conclusion that Mr. Ware's impairments reasonably could be expected to produce the severe pain that he describes. The record shows that this "short cut" to step two of the process is supported by extensive objective medical evidence.
fMr. Ware's automobile accident on July 30, 1994, caused "severe trauma" and extensive injuries including a fractured femur, dislocated hip, fractured right clavicle, and a right brachial plexus injury. R. 103. Shortly before the car accident, he had fractured his left fibula. R. 126. From July 1994 through October 1995, Dr. Joseph Baele, an orthopaedist, followed Mr. Ware's recovery and found an area of avascular necrosis in the left hip for which he underwent a core decompression. R. 136, 146. During his treatment and follow-up visits with Dr. Baele, Mr. Ware often complained of severe pain in his leg, neck, and right shoulder. R. 141, 143-44, 147.
The "brachial plexus" is a network of nerves in the area of the neck and shoulder. See Stedman's Medical Dictionary, 1383-84 (26th Ed. 1995).
On April 17, 1995, Dr. Michael J. Reilly examined Mr. Ware. Dr. Reilly's stated findings included mild to moderate left leg weakness due to traumatic dislocation of the left hip and moderate right arm weakness due to the brachial plexus injury. R. 129. Dr. Reilly also documented Mr. Ware's complaints of significant pain in the left leg and ankle, right shoulder, back, and neck. R. 126-27. Mr. Ware told Dr. Reilly that he could not cook a meal without sitting down to rest his hip and that he had discomfort in his right shoulder which radiated into his neck and upper back. R. 127.
Mr. Ware's continuing ailments were reflected in the physical capacity assessments completed by Dr. Lorber and Dr. Hutson in 1998 and in the testimony provided at the hearing before the ALJ. Mr. Ware testified at the hearing that his pain remained completely debilitating. He spends most of every day on the couch. He said that, at best, he can walk two blocks, but some days he can barely move from the couch at all. R. 236-39, 242. The heaviest object he can lift is "a loaf of bread." R. 240. He does no cooking, cleaning, shopping, or yard work. R. 240-41. His family members provide him with a home and food.
R. 240-41. The only "daily activities" Mr. Ware reported were watching television and spending time with his two boys during the week. R. 236, 244.
Given this medical history and Mr. Ware's reported symptoms, the ALJ reasonably proceeded to consider the intensity, persistence, and limiting effects of Mr. Ware's symptoms under the second stage of the analysis defined in SSR 96-7p. After reciting the seven credibility factors identified in SSR 96-7p, the ALJ wrote that Mr. Ware's "allegations of totally debilitating pain, and/or pain of such a degree to prevent him from performing sedentary work activity are not credible." R. 13-14.
The ALJ gave three specific reasons for this conclusion: (1) the objective medical evidence reported by Dr. Lorber did not support or corroborate Mr. Ware's allegations of totally debilitating pain; (2) the lack of any pain medication regimen discredited the plaintiff's symptoms; and (3) Mr. Ware's inability to walk more than one or two blocks at a time and his inability to lift heavy objects such as a lug wrench would not interfere with performance of the sedentary work activities identified as appropriate for someone with Mr. Ware's limitations. Id.
The objective medical evidence provides substantial support for the ALJ's credibility finding. Aside from an ambiguous evaluation by Dr. William Graham, which is discussed below, no medical doctor had indicated that Mr. Ware's condition was disabling to the extent suggested by Mr. Ware's symptoms and his self-reported daily activities. Moreover, the ALJ sought Dr. Lorber's post-hearing consultative examination precisely because Mr. Ware's complaints of pain were difficult for the medical expert to evaluate. R. 251-52. By requesting the post-hearing examination, the ALJ followed the mandate in SSR 96-7p: "When additional information is needed to assess the credibility of the individual's statements about symptoms and their effects, the adjudicator must make every reasonable effort to obtain available information that could shed light on the credibility of the individual's statements." 61 Fed. Reg. at 34485.
The ALJ properly gave Dr. Lorber's opinion significant weight in the absence of well-documented objective medical evidence to the contrary.
Of course, under SSR 96-7p and the case law from the Seventh Circuit, the ALJ cannot rely on the objective medical evidence alone to reject Mr. Ware's complaints of pain. The ALJ must additionally explain how the record as a whole supports the credibility determination. Thus, the question that remains is whether the ALJ's further explanation of the credibility determination in this case is "sufficiently specific to make clear to the individual and any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Id. at 34486.
Although the ALJ need not mechanically recite a finding on every factor affecting the credibility determination, the ALJ's additional two stated reasons for rejecting Mr. Ware's complaints of pain do not show that the ALJ adequately grappled with the full record. The stated reasons indicate that the ALJ did not consider factors that "must be" considered under the terms of SSR 96-7p.
The ALJ's first reason for rejecting Mr. Ware's complaints of completely debilitating pain was that the sedentary work contemplated under the decision would not require Mr. Ware to walk long distances or lift heavy objects. In other words, the limitations expressed in Mr. Ware's residual functional capacity supposedly accounted for his statements that he cannot walk more than two blocks or lift a lug wrench.
However, Mr. Ware's self-reported symptoms, discussed in detail at the hearing, were more severe than the walking and lifting limitations allowed by the ALJ. To say that the residual capacity limitations accounted for some of Mr. Ware's alleged pain indicates only that the ALJ accepted some of Mr. Ware's symptoms as credible. It does not explain why the ALJ rejected the more severe allegations of totally debilitating pain or how the ALJ treated the nearly uncontradicted evidence concerning Mr. Ware's extremely limited daily activities. Thus, the limitation to sedentary work cannot serve as a reason for rejecting Mr. Ware's complaints of totally debilitating pain.
The ALJ's second reason for rejecting Mr. Ware's allegations of totally debilitating pain is similarly unsatisfactory. In finding it significant that Mr. Ware took no medication to control his pain, the ALJ did not discuss Mr. Ware's facially plausible explanation that he simply cannot afford any medication. See, e.g., R. 235-36 (indicating that Mr. Ware did not have money to pay for even nonprescription ibuprofen).
Mr. Ware has had no reported income since 1990, and he apparently lost his Medicaid due to settlement funds received from an insurance company. R. 178, 248-49.
"Many courts, including the Seventh Circuit, have questioned the relevance of a claimant's failure to seek medical treatment, especially when he or she is unable to afford it." Caviness v. Apfel, 4 F. Supp.2d 813, 820-21 (S.D.Ind. 1998) (collecting cases); accord, SSR 96-7p, 61 Fed. Reg. at 34487 (noting that there may be good reasons the individual does not seek medical treatment and that the explanations provided by the individual may provide insight into the individual's credibility). The evidence presented in this case squarely raised a question about Mr. Ware's ability to pay for any medication, but the ALJ gave no indication how he arrived at his implicit conclusion that Mr. Ware could have paid for, or at least obtained, pain-relieving medication.
There is evidence in the record suggesting that Mr. Ware could have acquired at least some over-the-counter medication. Mr. Ware's friends and family provided him with a home, food, and a twelve-pack of beer every weekend. R. 236, 246-47. He also apparently had means to acquire cigarettes on occasion. R. 231. From this evidence it is certainly possible to conclude that Mr. Ware could have obtained at least some over-the-counter medication. However, weighing this evidence against the evidence that Mr. Ware had no income is the ALJ's role, and SSR 96-7p calls for at least some explicit discussion of the ALJ's decision-making process in making symptom-related credibility determinations. Thus, the ALJ's conclusion that the lack of a pain treatment regimen discredited Mr. Ware's complaints of totally debilitating pain is not necessarily wrong, but it is not adequately articulated. Compare Powers v. Apfel, 207 F.3d at 435 ("We will reverse an ALJ's credibility determination only if the claimant can show it was `patently wrong.'").
The ALJ's written decision also fails to address what might be the strongest evidence in support of Mr. Ware's complaints of totally debilitating pain: testimony presented at the hearing concerning Mr. Ware's daily activities. As mentioned above, Mr. Ware testified that on many days, he cannot leave his couch and that he is unable to complete housework or yard work of any kind. His mother's testimony confirmed that he no longer cooks, cleans, or shops for himself. R. 246-47. In addition, the reports from Dr. Baele, Dr. Reilly, and Dr. Graham indicate that Mr. Ware consistently complained about significant pain and associated limitations throughout much of the post-accident time period.
Mr. Ware's brief focuses particularly on the ALJ's failure to so much as mention the testimony of Ms. Jane Ware, Mr. Ware's mother, as a reason to remand the decision. Pl. Br. at 3. Ms. Ware's testimony verified that Mr. Ware's daily activities are almost non-existent:
Q: Okay. And now, he testified that you help him. Do you provide a place for him to live?
A: We provide a place for him to live.
. . . .
Q: And what else do you do?
A: We clean his house, we do his laundry. We do everything for Curtis.
Q: Do you cook the food?
A: We cook the food and we'll pack it in the freezer, and when I go get the boys, you know, at school, we'll stop over and see that he eats or that he has something ready, and his friends come in and they help him quite a bit during the day.
R. 246-47. She also confirmed that Mr. Ware has essentially no resources other than what family and friends provide. R. 247-49.
As Mr. Ware properly points out, testimony of non-medical sources — including family members — is relevant and should be considered by the ALJ in determining the severity of an applicant's impairments and the applicant's ability to work. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); 20 C.F.R. § 416.913(d)(4); SSR 96-7p, 61 Fed. Reg. at 34485 (indicating that the ALJ must consider "any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record."). The Seventh Circuit has remanded several cases where the ALJ failed to discuss relevant lay testimony in the written decision. See, e.g., Young v. Secretary of Health and Human Servs., 957 F.2d 386, 392 (7th Cir. 1992) (remanding for failure to discuss claimant's testimony, affidavits of his former wife and relatives, and the reports of three doctors in evaluation of mental impairments); Look v. Heckler, 775 F.2d 192, 195 (7th Cir. 1985) (remanding for failure to discuss uncontradicted evidence consisting of claimant's and friend's testimonies, as well as medical reports). However, failure to discuss a particular lay person's testimony is not necessarily fatal to an ALJ's decision. See, e.g., Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (per curiam) (finding no remand necessary where ALJ failed to explicitly address testimony of claimant's spouse, which corroborated claimant's account of pain and daily activities).
The test is whether the ALJ adequately addressed the line of evidence to which the lay person's testimony was directed. See id. (noting that because the ALJ explicitly addressed claimant's testimony concerning his pain and daily activities, spouse's testimony was "redundant"); accord Herron v. Shalala, 19 F.3d 329, 337 (7th Cir. 1994).
In this case, the ALJ did not adequately address the line of evidence to which Ms. Ware's testimony was directed. There is no discussion in the written decision concerning Mr. Ware's essentially uncontradicted account of his extremely limited daily activities. This evidence, as corroborated by his mother's testimony, is clearly relevant to any consideration of the intensity, persistence, and limiting effects of Mr. Ware's self-reported symptoms. Perhaps the ALJ had a sound basis for rejecting the evidence concerning Mr. Ware's daily activities, but any such basis must be articulated. The written decision may not ignore the entire line of evidence.
The ALJ also did not articulate specific findings on some evidence that could be considered damaging to Mr. Ware's credibility and, thus, consistent with the ALJ's decision. For example, the ALJ did not discuss Mr. Ware's poor work history between 1990 and 1994. See Clifford v. Apfel, 227 F.3d 863, 871-72 (7th Cir. 2000) ("[T]he ALJ must . . . investigate all avenues presented that relate to pain, including claimant's prior work record information and observations by treating physicians, examining physicians, and third parties."); SSR 96-7p, 61 Fed. Reg. at 34486 (credibility determinations should take account of "prior work record"). Cf. Sarchet v. Chater, 78 F.3d 305, 308 (7th Cir. 1996) (finding in the circumstances of that case that consideration of a poor prior work record suggested bias on the part of the ALJ).
The ALJ's written decision simply falls short of meeting the minimum requirements for specificity and support in the record as outlined in SSR 96-7p. The ALJ's reliance on the objective medical evidence as a reason for rejecting Mr. Ware's complaints of totally debilitating pain is supported by substantial evidence. However, SSR 96-7p explicitly instructs that inconsistency with the objective medical evidence cannot alone serve as the basis for rejecting an individual's complaints of pain. The ALJ's remaining written credibility analysis does not build a complete, accurate, and logical bridge between the evidence in the record and the ultimate decision to reject Mr. Ware's credibility. See Clifford v. Apfel, 227 F.3d at 872 (remanding decision where the ALJ failed to explain why the objective medical evidence did not support claimants complaints of disabling pain). By failing to mention the testimony concerning Mr. Ware's extremely limited daily activities, the ALJ also has ignored an entire line of evidence that bolsters Mr.
Ware's claim. In effect, these deficiencies leave the ALJ's credibility determination standing solely on the inconsistency of Mr. Ware's testimony with the objective medical evidence and, thus, in violation of SSR 96-7p. On this basis, the court finds it necessary to remand the decision for a more complete evaluation of Mr. Ware's daily activities and other evidence affecting the symptom-related credibility determination.
III. Mr. Ware's Remaining Claims
Mr. Ware's brief identifies three additional alleged errors by the ALJ. The court has examined these claims and determined that they do not have merit.
First, Mr. Ware contends that the ALJ failed to develop adequate medical evidence before making decisions about his physical impairments and limitations. However, Dr. Lorber's post-hearing evaluation and Dr. Hutson's post-hearing written conclusions constitute substantial evidence in support of the ALJ's decision at step two, step three, and step five of the sequential evaluation process. R. 188-93, 203-12, 251-52.
Second, Mr. Ware argues that the ALJ "erroneously failed to seek any clarification from Dr. Graham" and also "failed to accord Dr. Graham's opinion significant, if not controlling weight," as a treating physician. Pl. Br. at 4. Dr. William Graham was the only physician in the record who had explicitly concluded that Mr. Ware was disabled, but his treatment notes were very brief and he appears to have attributed Mr. Ware's disability to both alcohol abuse and arthritis. R. 167, 222-24. Further, (1) Dr. Graham did not have an extensive treatment relationship with Mr. Ware, (2) Dr. Graham was not a specialist, (3) the record provides almost no indication of the clinical and laboratory diagnostic techniques Dr. Graham used to formulate his opinion, and, (4) Dr. Graham's ambiguous conclusions, if read to suggest that Mr. Ware had disabling arthritis, are not consistent with other substantial medical evidence in Mr. Ware's case record. Thus, given the length, frequency, and nature of Dr. Graham's treatment of Mr. Ware, the ALJ was not required to give Dr. Graham's opinion significant weight. See Butera v. Apfel, 173 F.3d 1049, 1056-57 (7th Cir. 1999); Books v. Chater, 91 F.3d 972, 978-79 (7th Cir. 1996); see also 20 C.F.R. § 416.927(d)(2) (explaining the weighing of medical opinions during the disability determination). In addition, by ordering the post-hearing evaluation, the ALJ developed an adequate medical record before rejecting the suggestion from Dr. Graham that Mr. Ware suffers from totally disabling arthritis. Cf. Smith v. Apfel, ___ F.3d ___, ___, 2000 WL 1645702, at *4 (7th Cir. Nov. 3, 2000) (remanding determination because the ALJ failed to order updated X-rays after claimant and treating physician raised issue of arthritis-induced pain in his right ankle, knees, shoulders and elbow).
Third, Mr. Ware contends that the ALJ failed to even mention the opinions Dr. Aleksic and Dr. Tucker (both non-examining state agency physicians) and, therefore, failed to evaluate and explain the weight given to their opinion evidence. Pl. Br. at 4; R. 63-81. At most, these omissions amount to harmless error and would not warrant a remand. Neither Dr. Aleksic nor Dr. Tucker concluded that Mr. Ware was disabled, and each of the ALJ's three deviations from Dr. Tucker's physical capacities evaluation is supported by substantial evidence in the form of the more recent assessments completed by Dr. Lorber and Dr. Hutson. See Carlson, 999 F.2d at 181 (a written evaluation of each piece of evidence or testimony is not required); accord Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995).
Conclusion
The court remands the decision of the ALJ for further evaluation of Mr. Ware's daily activities, the lay testimony of Mrs. Jane Ware, and other evidence in the record that affects the symptom-related credibility determination. Final judgment will be entered.
So ordered.