Opinion
Case No. 02-C-1249.
April 8, 2004
RECOMMENDATION TO THE HONORABLE LYNN ADELMAN
I. Procedural History
Plaintiff Audrey E. Wirth has filed an action under 42 U.S.C. §§ 405(g) and 1383(c), seeking judicial review of the Commissioner of Social Security's denial of Supplemental Security Income benefits. This case was randomly assigned to Judge Lynn Adelman and thereafter referred to this court for all pretrial processing. Since the parties have not consented to the exercise of full jurisdiction by a Magistrate Judge, the role of this court is limited to making a recommendation regarding the final disposition of the plaintiff's appeal. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b).
Audrey E. Wirth originally filed her application for supplemental security income disability benefits on March 20, 2000 at the age of 47, alleging degenerative disc disease, headaches, chronic back and neck pain, and bulging lumbar discs, which was denied by the Regional Social Security Commissioner. (Tr. 65-70). After reconsideration, the plaintiff was again denied benefits, and subsequently requested a hearing by an Administrative Law Judge ("ALJ"). (Tr. 73-78). The plaintiff made an initial appearance without counsel, before ALJ Margaret J. O'Grady on March 18, 2002, but was allowed a continuance of an additional month to obtain other evidence and representation. (Tr. 28-33). On May 1, 2002 ALJ O'Grady held the hearing, at which the plaintiff (still without representation), the plaintiff's daughter Rebecca Lehr, and Vocational Expert ("VE") John Schroeder testified. (Tr.12). On June 17, 2002, ALJ O'Grady rendered a decision unfavorable to the plaintiff. (Tr.12-15). On October 25, 2002 the Appeals Council denied plaintiff's request for review of ALJ O'Grady's decision. (Tr. 6). Plaintiff has filed this action seeking judicial review of the Commissioner's decision.
II. Standard of Review
Disability cases are decided by reviewing the final decision of the Commissioner to ensure that it is supported by substantial evidence. Key v. Sullivan, 925 F.2d 1056, 1061 (7th Cir. 1991). The court does not determine if the claimant is disabled or reweigh the evidence; rather, when evaluating whether substantial evidence exists to support the Commissioner's decision, the court considers the relevant evidence that a reasonable person might accept as adequate to support a conclusion, taking into account anything in the record that fairly detracts from its weight.Young v. Sullivan, 957 F.2d 386, 388 (7th Cir. 1992). Substantial evidence may be something less that the greater weight or preponderance of the evidence. Id. However, the reasons for rejecting particular evidence, if uncontradicted, must be clearly articulated. Id.; Walker v. Bowen, 834 F. 2d 635, 640 (7th cir. 1987). Even if substantial evidence supports the Commissioner's findings, this court may reverse if the ALJ committed an error of law. Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1989).
There is a five-step test used to determine if a claimant is disabled. The following steps are addressed in order: (1) Is the claimant presently employed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of the listed 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? Naydihor v. Sullivan, 743 F.Supp. 631, 634 (E.D. Wis. 1990). An affirmative answer at each step leads to the next step in the analysis except that in steps three and five, an affirmative answer leads to a finding that the claimant is disabled. Id. A negative answer at any point, other than at step three, leads to a finding that the claimant is not disabled. Id.
In this case, the ALJ applied the standard five-step process. At step one, the ALJ determined that the plaintiff had not worked since February, 1998. (Tr. 40). At step two, the ALJ determined that the plaintiff's condition was severe. (Tr. 14). At step three, the ALJ determined that the plaintiff's condition did not meet or exceed one of the listed impairments. (Tr. 14-15). At step four, the ALJ found that the plaintiff could not perform her past relevant work as a postal clerk, packager, prep-cook, or kennel worker. (Tr. 13). Finally at step five, the ALJ determined that the plaintiff had the residual functional capacity (RFC) for sedentary work, and that a significant number of jobs exist in the economy that the plaintiff could perform with this RFC. (Tr. 14). Finally, after applying Medical-Vocational Rule 201.21 ("Grid Rule"), the ALJ determined that the plaintiff was not disabled. (Tr. 14-15).
The plaintiff claims that the ALJ made the following errors, and that they require a reversal: (1) the plaintiff's waiver of right to counsel was not valid; (2) the ALJ did not fully and fairly develop the record of the unrepresented plaintiff; (3) the ALJ's credibility determination was improper because it did not comply with Social Security Ruling ("SSR") 96-7p; (4) the ALJ did not properly evaluate the plaintiff's alleged mental impairment; (5) the ALJ's RFC is not supported by substantial evidence; (6) the ALJ failed to rely on a reliable VE at step five of the evaluation process and instead applied the Grid Rule, and (7) that because the plaintiff is now over the age of 50, and is therefore no longer a "younger" individual, a mechanical application of Grid Rule 201.14 requires an award of benefits.
III. Right to Counsel and Development of the Record
A claimant has a statutory right to counsel at a disability hearing. 42 U.S.C § 406, 20 C.F.R. 404.1700. If properly informed of this right, the claimant may waive it. Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1991). To be "properly informed," the ALJ must explain to the claimant how an attorney could aid in the proceedings, the possibility of free counsel or a contingency arrangement, the limitation on attorney's fees to twenty-five percent of past-due benefits and the required, subsequent court approval of the fees charged. Id. The ALJ must specify state that attorney's fees are limited to twenty-five percent of the past due benefits; it is insufficient to simply state that the fees are limited to a certain percentage. See Castrejon v. Apfel, 131 F.Supp.2d 1053, 1056 (E.D. Wis. 2001).
Even if a claimant's waiver of counsel is invalid, this fact alone is not automatic cause for reversing the ALJ's decision.Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994). If a claimant establishes that the waiver was invalid, the burden then shifts to the Secretary to show that the ALJ adequately developed the record. Id. To do this, the Secretary must prove that the ALJ "`. . . scrupulously and conscientiously probe[d] into, inquire[d] of and explore[d] . . . all of the relevant facts. . . .'"Id., citing Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d cir. 1972). Even if the Secretary proves that the ALJ fully and fairly developed the record, a claimant then has an opportunity to rebut this showing by demonstrating prejudice, by proving that the ALJ did not elicit all of the relevant information from the claimant, or by demonstrating an evidentiary gap. Id.
In this case, at the outset of the initial hearing on March 18, 2002, the ALJ explained to the plaintiff that she had a right to be represented by counsel, the benefits of being represented by an attorney, and that the attorney's fees would be limited to a certain percentage and subject to court approval. (Tr.28-33). The ALJ then gave the plaintiff a month-long continuance, to enable her to obtain counsel and additional medical evidence. (Tr. 31). The ALJ also informed the plaintiff that if she did not obtain counsel by the next hearing, she would still have to proceed. (Tr. 32-33). The plaintiff did not obtain representation by the date of the second hearing, May 1, 2002, and therefore continued without counsel. (Tr. 37-38).
Despite the fact that the ALJ advised the plaintiff of the benefits of representation, the plaintiff's waiver of counsel was not valid because she was not "properly informed," of her right as required by Thomson and Castrejon. At the March 18, 2002 hearing, the ALJ informed the plaintiff of three of the four required elements, but did not specifically state the twenty-five percent limitation on attorney's fees. (Tr. 28-29). The ALJ stated only that, "[t]here is a maximum amount allowed by law, and any fee would need to be approved by an ALJ." (Tr. 29). As already indicated, the ALJ must specifically state the twenty-five percent limitation, not just that the fees are limited to a certain, unstated percentage. See Castrejon, 131 F.Supp. 2d at 1056. Without knowing the limited percentage permitted in disability cases, a claimant may erroneously believe that a higher percentage, such as one-third or more could apply. This could serve as a deterrent to a claimant seeking counsel since his or her potential award, if successful, is not as open-ended as it might be in a personal injury case.
When the plaintiff arrived at the subsequent hearing on May 1, 2002, there was no further, substantive discussion of representation, the ALJ simply asked why the plaintiff was not able to obtain counsel, and then moved on. (Tr. 38). Because the ALJ did not specifically explain the twenty-five percent limitation on attorney's fees to the plaintiff, she was not "properly informed," of her right to counsel, and therefore the waiver of counsel was not valid.
Because the plaintiff has established that the waiver of counsel was not valid, the burden now shifts to the Secretary to prove that the ALJ fully and fairly developed the record as required under Binion. 13 F.3d at 245. If the waiver is invalid, this court is required to remand the case unless this burden is met. Harris v. Barnhart, 219 F.Supp.2d 966, 973 (E.D. Wis. 2002). Furthermore, when reviewing the ALJ's decision, federal courts must "carefully scrutinize records developed without counsel" because "even the most thorough ALJ is no substitute for an advocate." Id. at 974.
The Commissioner here has not met her burden of showing that the ALJ fully and fairly developed the record. As will be subsequently discussed in greater detail, the record is deficient in the following respects. The ALJ's questioning of the plaintiff about her mental impairments; the side effects of medications; and the severity of the plaintiff's pain, were all insufficient to be categorized as scrupulous and conscientious inquiries as required. Therefore, the record was not fully or fairly developed.
First, the ALJ's questioning of the plaintiff regarding her depression was deficient. To fully and fairly develop the record, if the ALJ learns that the plaintiff is depressed, at a minimum, she must ask if the claimant has spoken to a doctor about the problem. Naydior v. Sullivan, 743 F.Supp.631, 635 (E.D. Wis. 1990). In Naydior, the questioning was held insufficient where the claimant stated he was coming out of depression, the ALJ asked him if his doctor had referred him to counseling or put him on medication, to which the claimant answered negatively, and then the ALJ moved on. Id. Even if the testimony regarding depression was insufficient to support a finding of disability on that basis alone, the testimony is sufficient to warrant further inquiry because it might alter the ALJ's holding that a claimant does not "have an impairment or combination of impairments which meets or equals the requirements of the listing of impairments." Id. This limited questioning in Naydior was held to be insufficient to fully and fairly develop the record. Id. at 636.
Here, the plaintiff testified that she gets "very depressed." (Tr. 42). The ALJ then asked the plaintiff whether she was taking any medication to treat her depression. Id. When the plaintiff answered yes, the ALJ asked only who prescribed it, and then moved on to questions about other medications. Id. ApplyingNaydior, it was incumbent on the ALJ to ask the plaintiff more probing questions about her depression than simply who prescribed the medication. See Naydior, 743 F.Supp. at 635-636. Based on these two questions, the ALJ could have no idea as to the severity or the overall limiting effects of the plaintiff's depression, or its effects on the overall disability determination when combined with the plaintiff's other impairments. But in her decision, the ALJ simply concluded that the plaintiff's depression was not severe. (Tr. 14). The ALJ never explained how or why she came to this conclusion, and from the few questions she asked the plaintiff, this Court cannot conclude that the determination was supported by substantial evidence. Therefore, the ALJ did not scrupulously probe into the mental condition of the plaintiff, and thus failed to fully and fairly develop the record in this area.
Second, the ALJ did not sufficiently probe into the side effects of the medications the plaintiff was taking. Again, the ALJ asked only what medications the plaintiff was taking, how often, and for what they were prescribed. (Tr. 42-43). Although the plaintiff did state that she did not have any severe side effects on a form she filed over two years prior (Tr. 104), there is no evidence from her decision that the ALJ considered this form or even saw it. (Tr. 12-15). Also, the ALJ seemed to believe that the amount of medications was possibly too substantial, as evidenced by her question to plaintiff whether her doctors knew she was taking all of the medication at once. (Tr. 42). From this, an inference can be drawn that the ALJ entertained the possibility that the medications may have adverse effects, but for some reason the ALJ never actually inquired if there were any such side effects. (Tr. 43). Furthermore, when the plaintiff tried to describe the side effects that she allegedly experiences, the ALJ would not let her finish. (Tr. 55).
The ALJ also failed to probe into the effectiveness of the mental health medication the plaintiff was taking. The plaintiff stated she was taking Xanax for her depression, as prescribed by her primary care physician. (Tr. 42). The ALJ only asked how often the plaintiff took the Xanax and who prescribed it, and then moved on to questioning regarding other medications. Id.
Relying on Binion, the Commissioner argues that even if this Court determined that the plaintiff's waiver of counsel was invalid, this is not grounds to reverse the ALJ's decision because the plaintiff did not point to any specific facts not brought out during the hearing or new medical evidence an attorney could have produced. But, the plaintiff is not required to produce this evidence until the Commissioner meets her burden of proving that the record was fully and fairly developed, which the Commissioner failed to do. Binion, 13 F.3d at 245. Even though she was not required to do so, the plaintiff did produce additional evidence not originally in the record that she claims would have been introduced had she been represented by counsel. Pl.'s Reply Br. 2, (Attached Ex. 1, Dr. Shapiro's report of 3/7/01 of Dr. Middleton diagnosing chronic pain syndrome; Ex. 2 bone scan demonstrating arthritis or fracture of right shoulder).
Third, the ALJ also failed to develop the record when she did not attempt to reconcile the conflict between the record and Dr. Kourakis's medical opinion. (Ex. 14F, Tr. 318). The ALJ, not this Court, has the authority to assess the medical evidence and give some evidence more weight than others. Stuckey v. Sullivan, 881 F.2d 506, (7th Cir. 1989). But, the ALJ must at least articulate enough of her reasoning so this Court can track the reasoning used, to be assured she considered all of the important evidence.Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995). The ALJ is also required to contact a treating source or "other medical source" when the opinion "contains a conflict or ambiguity that must be resolved, . . . or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1512(e)(1) (2003).
In disregarding Dr. Kourakis's report, the ALJ stated that there was no physical basis for the change in capacity. (Tr. 13). In reaching this conclusion, the ALJ was, in effect, stating that Dr. Kourakis's report appeared not to based on medically acceptable techniques. As such, the ALJ was required by section 404.1512 to contact Dr. Kourakis to determine the reason for the discrepancy. See § 404.1512(e)(1). Due to this failure to follow up on reports that the ALJ found to be in conflict with the record, she again failed to fully and fairly develop the record with respect to this medical evidence. Furthermore, the ALJ did not articulate her reasoning thoroughly enough for a reviewing court to be assured she considered all of the important evidence, because as the plaintiff points out, from the ALJ's opinion, this Court cannot know whether the ALJ even considered Dr. Kourakis's second report marked Exhibit 16F. (Tr. 323).
IV. The Credibility Determination
Here, the ALJ found the plaintiff's subjective complaints were not credible. (Tr. 15). The ALJ determined that, based on the record as it stood, the absence of medical evidence supporting the plaintiff's allegations of severe pain, the plaintiff's failure to follow up with an orthopedist, and the plaintiff's "apparent" dependance on pain medication eroded her credibility. (Tr. 14).
An ALJ's credibility determination is given special deference by a reviewing court because the ALJ is in a better situation to see and hear the witness, and therefore determine credibility. Shramek v. Apfel, 226 F.3d 809, 811, (7th Cir. 2000). When analyzing an ALJ's credibility determination, the reviewing court will review it in a "commonsensical" way, as opposed to "nitpicking" at it. Id. Only when the reasons the ALJ gives for her credibility determination "do not build an accurate and logical bridge between the evidence and the result," will the reviewing court not adhere to the ALJ's credibility determination. Id. Furthermore, when making a credibility determination, the ALJ must comply with the requirements of SSR 96-7p. Brindisis ex rel. Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir. 2003). Finally, reviewing courts will not disturb an ALJ's credibility determination unless it fails these aforementioned standards and is therefore "patently wrong." Diaz v. Charter, 55 F.3d 300, 308. (7th Cir. 1995).
Subjective complaints of pain may be a difficult symptom to determine for anyone other than the person experiencing the pain. Especially because a legitimate source of the pain can be physical or psychological. Carradine v. Barnhart, 360 F. 3d 751, 754 (7th Cir. 2004), (Publication page references are not yet available for this document). The ALJ in Carradine held that because there was no medical evidence of physical causes of the pain, the pain could not be disabling. Id. at 755. But, on appeal, Judge Posner found that the ALJ's credibility determination had deep logical flaws and was based on "serious errors in reasoning rather than merely the demeanor of the witness . . .". Id at 754. The case was remanded with instructions to determine whether the claimant's complaints of pain were caused by psychological factors, which is a legitimate cause of disabling pain, and then determine if they were disabling, but not to discredit the complaints simply because there was no medical evidence of physical causes. Id. at 756.
Here, the ALJ determined that the plaintiff's subjective complaints of severe pain were not credible partially because there was no medical evidence of supporting these allegations. (Tr. 14). This is simply not the case, Dr. Wallskog stated that even though the post-surgical etiology of the plaintiff's pain was unclear, he still considered her pain while making his recommendation. (Tr. 246). Furthermore, Dr. Lincer concluded that the plaintiff had chronic pain syndrom with somatization, chronic lower back and neck pain, (tr. 265) and Dr. Galbraith Ph. D. concluded that the plaintiff had chronic pain syndrome and somatization. (Tr. 274).
The ALJ here seems to have made the same mistake in reasoning as the ALJ in Carradine, by determining that because there was not a substantial amount of physical medical evidence of pain, the plaintiff's subjective complaints were therefore not credible. (Tr.13-15). But simply because the pain may have been made more acute because of a psychiatric condition does not make it an exaggeration or fabrication per se; therefore the ALJ must consider the plaintiff's psychiatric as well as her physical conditions when making a credibility determination with respect to subjective complaints of pain. Carradine, 360 F.3d at 755.
The plaintiff also argues that the ALJ's credibility determination was improper because the ALJ did not meet her duty to probe or apply all of the Social Security Ruling ("SSR") No. 96-7p factors. An ALJ is not required to "analyze or elaborate on each of the seven factors," Clay v. Apfel, 64 F.Supp.2d 774, 781 (N.D.Ill. 1999), but is required only to discuss most of the factors and connect them to the credibility determination. Wates v. Barnhart, 274 F. Supp.2d 1024, 1040 (E.D. Wis. 2003).
Social Security Ruling No. 96-7p requires the ALJ to consider: (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 or aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of medication; (5) treatment other than medications the person receives for pain or other symptoms; and (7) any other factors concerning the person's functional limitations and restrictions due to pain or other symptoms. SSR 96-7p.
Here, the ALJ did not probe into the frequency, duration, severity of the plaintiff's mental impairments or the side effects of the medication prescribed for it as required under SSR 96-7p. After the plaintiff stated that she was depressed and was taking medication for mental health three times every day, the ALJ was required to inquire about the symptoms or limitations flowing from the depression and the side effects of the medication, which she did not do. (Testimony discussed more thoroughly at supra, pp. 6-7); (Tr. 42); SSR 96-7p.
The ALJ is required to probe in to the side effects of the medications the plaintiff was taking for pain under SSR 96-7p. In addition to the medication the plaintiff was taking to treat her depression, she was also taking Tylenol-3 (eight per day), Fiorinal (twice per day), and Soma (eight per day). (Tr. 42). The ALJ did not ask about the possible side effects of any of the plaintiff's medications during the initial discussion of the medications, and then later in the hearing when the plaintiff tried to explain the side effects she allegedly experiences, (". . . I get very groogy . . .,") the ALJ would not let her finish. (Tr. 42-3, 55). Also, the plaintiff's daughter testified that the plaintiff would experience periods of two or three consecutive days when she seemed intoxicated from the medication, but the ALJ seemed only interested in this testimony to determine if the plaintiff was abusing the medication, and then subsequently began to discuss possible alcohol abuse. (Tr. 55-56).
In Clifford v. Apfel, the ALJ did not explain why the objective medical evidence did not support the claimant's allegations of pain, rather the ALJ simply stated that the claimant's daily activities were substantial evidence that the claimant did not suffer from disabling pain, and consequently the complaints of pain were not credible. Clifford v. Apfel, 227 F.3d 863, 872, (7th Cir. 2000). Finding that this conclusory statement was insufficient to build an accurate and logical bridge from the evidence to the conclusion, the Court in Clifford therefore held that the credibility determination was not proper. Id. Furthermore, the ALJ must explain how a claimant's allegations of disabling pain are inconsistent with the record, not simply state that they are inconsistent and then move on. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).
The ALJ in the instant case made a similar conclusory statement without stating why "the absence of medical evidence supporting the claimant's allegations of severe pain . . . further erode the claimant's credibility. . . ." (Tr. 14). For example, the ALJ did not state why she did not consider Dr. Lincer's diagnoses of chronic pain syndrome, or his recommendation for enrollment in Colombia Hospital's chronic pain program as medical evidence supporting the plaintiff's allegations of severe pain, and consequently, the ALJ did not build an accurate and logical bridge from the evidence to the conclusion she made. (Tr. 265, 266).
Furthermore, the Commissioner's reliance on Johansen v. Barnhart, is not helpful, as the facts in Johansen are distinguishable from the instant facts, and more importantly, the Court in Johansen was not discussing the facts the Commissioner refers to in her brief at page eleven to make a credibility determination, but rather to make a Residual Functional Capacity determination. Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). In Johansen, the claimant exercised at home, walked one mile daily, shopped and did laundry. Johansen v. Barnhart, 314 F.3d at 288. While the plaintiff here can do small loads of laundry, can do the dishes in shifts, she can not sweep, vacuum or mop, can not do any exercise, and can only could walk a couple of blocks. (Tr. 44-46).
For the reasons stated above, the ALJ did not consider all of the SSR 97-6p factors, and therefore her credibility determination is not adequate. But, as noted in the previous section, the record was not fully developed, and therefore the credibility determination could not be properly based on this fact alone. Simple logic dictates that the ALJ cannot consider the entire record when making her credibility determination if the record was not fully developed at the hearing.
V. The Residual Functional Capacity Finding
The Residual Functional Capacity ("RFC") is that which a claimant can still do, despite the claimant's other limitations.Clifford v. Apfel, 227 F.3d 863, 872, fn7 (7th Cir. 2000); 20 C.F.R. § 416.945(a). This is not the same determination as whether a claimant is disabled, but rather it is done to determine the particular type of work the claimant is still able to do. 20 C.F.R. § 416.945(a). In determining a RFC, the ALJ considers the claimant's ability to sit, stand, walk, lift, carry, pull, push, reach, crouch, etc., and the claimant's mental capacity for various work activities. Id. §§ 416.945(b), (c). The ALJ must consider the entire record when determining the claimant's RFC, including all relevant evidence, such as the claimant's own subjective statements of what she is able or unable to do. Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995); 20 C.F.R. § 416.945(a). After considering these factors, the ALJ then determines the claimant's ability to engage in various levels of work (sedentary, light, medium, heavy, or very heavy).Id. § 416.967. The ALJ's final RFC determination must be supported by substantial evidence. Clifford, 227 F.3d at 873.
Here, the ALJ determined that the plaintiff had a RFC to perform sedentary work, which was lower than the level of the plaintiff's previous work, which was light to medium. (Tr. 3-4). Based on the record as it stands, the ALJ's RFC is supported by substantial evidence, and it is not this Court's job to re-weigh the evidence, but only determine whether the ALJ's decision is supported by substantial evidence. Young v. Sec'y of Health Human Serv.s, 957 F.2d 386, 388 (7th Cir. 1992). But, because the ALJ did not fully develop the record, the RFC can not logically be considered to be based on the `entire record' as required, and consequently this Court cannot determine whether the RFC was supported by substantial evidence because of the inadequately developed record upon which the RFC was based. 20 C.F.R. § 416.945(a).
VI. The ALJ's Decision Not To Rely on a Vocational Expert at Step Five of the Sequential Evaluation Process
At step five in the sequential process, the ALJ determined that the plaintiff's vocational profile and RFC coincided with every factor of Grid Rule 201.21, and applying that rule to the record as the ALJ developed it, required a finding that the plaintiff was not disabled. (Tr. 14-15). But,"[w]here a non-exertional limitation might substantially reduce the range of work an individual can perform, the ALJ must consult a vocational expert". Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994).
The plaintiff asserts that the ALJ was also required to rely on a vocational expert in making her step five determination, and not solely on the Grid Rule, because the plaintiff alleges she has non-exertional limitations, (chronic pain, personality disorder, somatization, and decompensation due to depression) that would reduce the range of work the plaintiff could perform. As such, the ALJ's application of Grid Rule 201.21, alone was not appropriate.
Once again, this Court cannot conclude that the ALJ's decision to rely exclusively on the Grid Rule as opposed to also basing her decision on a VE's testimony is supported by substantial evidence because the record was not fully and fairly developed, (specifically relevant here are: Dr. Kourakis's diagnosis of chronic pain syndrom, Tr. 318, and the plaintiff's alleged mental disorder, depression, and side effects from medications). Due to this fact, this Court cannot determine whether the ALJ's decision that the plaintiff's alleged non-exertional limits are unfounded was based on substantial evidence.
VII. Conclusion
It is therefore recommended that the plaintiff's case be remanded, and the plaintiff be given a new disability hearing. On remand, the ALJ should fully and fairly develop the record regarding plaintiff's depression, her alleged mental disorder, the possible side effects of all of the medications plaintiff is taking, and Dr. Lincer's diagnosis of chronic pain syndrome. After fully and fairly developing the record in these areas, the ALJ should then make new disability and credibility determinations based on this new fully and fairly developed record. Based on this new record, the ALJ should also make a new RFC finding, determine whether the plaintiff has non-exertional limits, and then determine whether reliance on the Medical Vocational Rule alone is proper, or whether vocational testimony is necessary.
The plaintiff finally asserted that even if the ALJ's findings are untouched, this Court should award benefits based on plaintiff's fiftieth birthday, together with the application of Grid Rule 201.14, which require a finding of disability. But, generally, the role of this Court is not to consider new facts (i.e., the plaintiff is now age 50), but rather to review the ALJ's decision based on the record as it stood before her, and determine whether that decision was based on substantial evidence. Young, 957 F.2d at 388.
IT IS THEREFORE RECOMMENDED that the case be remanded to fully and fairly develop the record consistent with this recommendation. The Clerk of Court is directed to transfer this case to Judge Adelman for consideration of this recommendation.
Any objections to this recommendation shall be made in writing, in accordance with General L.R. 72.3, and filed with the Clerk of Court within 10 days of receipt of this recommendation. Failure to file an objection constitutes a waiver of a party's right to appeal.