Brothers v. Barnhart

Filing 31

MEMORANDUM Opinion and Order. Signed by the Honorable Joan B. Gottschall on 6/13/2011.(ph, ) (Main Document 31 replaced on 6/15/2011) (ph, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL BROTHERS,
Plaintiff,
v.
MICHAEL J. ASTRUE
Commissioner of Social Security,
Defendant.

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Case No. 06 C 7088
Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER
Michael Brothers (“Brothers”) seeks judicial review of a decision by the
Commissioner of Social Security (“Commissioner”) in which the Commissioner granted
Brothers only partial relief on his claim for disability insurance benefits (“DIB”) and
Supplemental Social Security (“SSI”). Brothers applied for these benefits on December
11, 2001, claiming that he had been disabled since November 17, 2001. That application
was denied on March 7, 2002, as the Commissioner found Brothers capable of
performing light work. Brothers filed a subsequent application on January 30, 2003,
which was denied April 7, 2003 for the same reason. Brothers requested reconsideration,
which was denied, and then sought a hearing before an Administrative Law Judge
(“ALJ”). The ALJ held a hearing and, on June 21, 2005, found that Brothers was entitled
to disability benefits as of October 22, 2004. Brothers appealed the partially favorable
decision, but the Appeals Council denied his request for review on October 24, 2006.
Brothers filed a complaint in this court on December 22, 2006 and has moved for
summary judgment. For the reasons stated below, the case is remanded.

I. BACKGROUND
Brothers was born on December 15, 1951. He has a high school education, and
completed an associate’s degree in computer science in 1992. In 2003, he completed one
year of a ministry preparation program at the Chicagoland Christian Center. He has not,
however, worked in the computer science field nor has he completed his training to
become a fully ordained minister. His past employment history includes custodial work,
asbestos abatement work, and equipment distribution—all jobs that are classified as
unskilled occupations which require medium-to-heavy exertion. (R. 300.)
Brothers claims that he suffers from degenerative joint disease in his knees,
obesity, diabetes mellitus, acute lower back and neck pain, bilateral pain in his hands, and
impaired use of his hands.

He argues that his obesity (Brothers is 5′7″ and has

consistently weighed between 265-80 pounds) exacerbates these conditions, and that he
has suffered from these conditions to a degree that he has been incapable of work since
November 17, 2001. There appears to be no debate that Brothers’ last substantial gainful
activity occurred in 2001.

A.

Medical History
On February 7, 2000, Brothers was treated at the Cook County Hospital

Emergency Room for pain and edema in his left knee and lower back pain. (R. 197-98.)
The hospital prescribed ibuprofen and referred Brothers to the orthopedic department.
(R. 198.) On June 25, 2000, he returned with the same complaints. (R. 196.) On June 28,
2000, Brothers underwent evaluation for his knees; x–rays showed degenerative joint disease
(“DJD”) in the left knee and findings “suggestive of early DJD” for his right knee. (R. 192.)
He also complained at that time that his fingers “popped” out of joint in his left hand. (R.
190.) A doctor at the hospital provided Brothers with a letter stating that his evaluation was

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ongoing and that he was not to climb stairs at work until his evaluation was complete,
although he could return to work. (R. 193.)
Brothers was next treated following a car accident on October 21, 2001 for pain in his
left shoulder and in his neck. (R. 176.) He was diagnosed with neck pain and strain and
received a prescription for Motrin and Toradol. (R. 179-80.) Brothers refused to sign his
discharge papers, and his treatment notes indicate that he “refused to go home,” although he
was “laughing and ambulatory.” (R. 178-80.)

Following Brothers’ emergency treatment, he received follow-up care from Dr.
Earl Thornton. Dr. Thornton saw Brothers regularly from the end of October until midDecember of that year. (R. 211.) On October 29, 2001, Dr. Thornton wrote a letter
noting that Brothers was “incapacitated and unable to work on the dates of October 21,
2001 through October 28, 2001” due to acute lower lumbar strain, and that Brothers
would return to work on October 29th. (R. 200.) At that time, Dr. Thornton noted that
Brothers’ prognosis was “good.”

Dr. Thornton treated Brothers using therapeutic

exercises, diathermy, hot packs, and ibuprofen. (R. 211.) Dr. Thornton also issued a
medical report which listed Brothers’ prognosis as “guarded” and listed the total dates of
disability as lasting from October 21, 2001 until November 11, 2001. Id.
On January 29, 2002, Dr. M.S. Patil performed a consultative examination on
Brothers pursuant to a Disability Determination Services request. (R. 201.) At the time,
Brothers weighed 278 pounds; he complained of swelling in the knees; mild to moderate
pain in his neck, lower back, shoulders, and knees; and stiffness and popping in his joints.
Id. Brothers claimed that his car accident had exacerbated his back and neck pain. Id.
Dr. Patil found Brothers’ sight to be 20/30 in each eye without correction.

(R. 202.)

Brothers’ appearance, thinking, and judgment appeared normal; he also had reflexes that

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were “brisk and equal bilaterally throughout,” and his “co-ordination was intact.” Id. Dr.
Patil reported that Brothers had no swelling in his extremities or musculoskeletal system, nor
was there any swelling in Brothers’ joints. (R. 203.) The fine and gross manipulative
movements of Brothers’ hands and fingers were within normal limits, and he was able to
make good grips and oppose his thumbs. (R. 203.) Brothers’ flexion and extension were
somewhat limited in his knees (130 on a scale from 0-150 for each), but although Dr. Patil
noted that arthritis and obesity are co-morbid conditions, he did not make any finding relating
to arthritis. Id. He did note, however, that the results of a past workup were not available for
review.

A month later, on February 28, 2002, Dr. Harry Bergmann performed a Residual
Physical Functional Capacity Assessment. (R. 163.) Dr. Bergmann opined that Brothers
should be able to lift and carry twenty pounds occasionally and ten pounds frequently;
stand and walk for about six hours, and sit for about six hours in an eight-hour workday;
occasionally climb, kneel, crouch, and crawl; and frequently balance and stoop. (R. 16465.) The report also mentions that no manipulative limitations or visual limitations had
been established. (R. 166.)
On March 10, 2003, Brothers underwent another consultative examination with
internist Dr. Margaret Stronska. (R. 171.) At that time, Brothers weighed 274 pounds.
He again described pain in his knees, and while he did not use a cane, he did claim to use
ibuprofen to treat his pain. Id. Brothers also disclosed that he had been diagnosed with
diabetes six years prior, but that he had “run out” of insulin and had no insurance. Id.
Dr. Stronska found that Brothers had 20/20 uncorrected vision in both eyes, and had full
flexion and extension as well as full strength in his shoulders, elbows, wrists, hips, and
ankles. (R. 173.) Consistent with Dr. Patil’s report, Dr. Stronska noted that Brothers’

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had somewhat limited flexion and extension in his knees (130 on a scale from 0-150 for
each), and a “4” out of “5” in terms of knee strength. Id. During the examination, Dr.
Stronska observed that Brothers could undress, rise from his chair, climb on the
examination table, and walk fifty feet without any assistance. (R 172.)
On March 28, 2003, Dr. Vidya Madala completed a second Physical Residual
Functional Capacity Assessment. (R. 155-62.) This assessment was made from a review
of Dr. Stronska’s report. (R. 162.) Dr. Madala opined that Brothers could lift and carry
twenty pounds occasionally and ten pounds frequently; stand, walk, or sit for about six
hours in an eight-hour workday; and that Brothers had no limitations on his pushing and
pulling. (R. 156.) The doctor also found that Brothers could not climb ropes, scaffolds
or ladders and that he could not crouch, although he could occasionally climb ramps or
stairs and stoop, kneel, or crawl. (R. 157.) Dr. Madala further stated that Brothers should
avoid concentrated exposure to extremes of cold and heat, humidity, and hazards such as
heights. (R. 159.) On July 24, 2003, another state agency physician, Dr. Frank B.
Norbury, reviewed the record and affirmed this assessment. (R. 162.)
On August 14, 2003, Dr. Thornton filled out a Medical Source Statement regarding
Brothers’ ability to do physical work-related activities. (R. 152.) Dr. Thornton stated that
Brothers suffered from severe lumbar pain after standing, walking, or prolonged sitting, and
that Brothers could not push, pull, lift, or carry more than ten pounds due to his back pain.
(R. 153.) Dr. Thornton found that Brothers could only stand or walk for less than two hours,
and could sit for less than six hours, in each eight-hour workday. (R. 152-53.) Dr. Thornton
further opined that Brothers should never climb, balance, crouch, or crawl, and should only
occasionally kneel. (R. 153.) Consistent with Dr. Madala’s opinion, Dr. Thornton also found

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that Brothers should have only limited exposure to temperature extremes, vibration,
humidity, or hazards such as machinery or heights. (R. 154.)
No additional medical findings are in the record until more than a year later, in
November of 2004. On the third of that month, Brothers visited the Stroger Hospital ER with
intermittent chest pain. (R. 217.) Brothers was told to return for a follow-up visit, and to
take one aspirin daily. (R. 218.) He received a referral for an exercise treadmill test. Id.

After Brothers’ hearing before the ALJ, he received an additional evaluation by
Dr. James Elmes. (R. 222.) That examination took place on April 22, 2005, and those
records show that Brothers complained of bilateral knee pain since 1988; low back and
neck pain related to the car accident; and bilateral hand pain during the previous two or
three years. Id. Dr. Elmes found that Brothers did not have a noticeable limp, nor did
Brothers complain of pain while walking; he could also walk fifty feet inside the office
with ease. (R. 224-25.) Brothers had fairly normal fine motor coordination and could
write “okay,” but was tired after two to three lines. Id. Dr. Elmes measured Brothers’
grip strength between forty-five and sixty pounds on the right and between forty and fifty
pounds on the left; his upper extremity strength was measured to be five out of five,
while his lower extremity strength was four out of five due to bilateral knee pain. (R.
225.) Dr. Elmes found no measurable atrophy in his arms or legs. Id. Brothers had a
normal range of motion in his joints, save for his lumbo-sacral spine, cervical spine, and
knees. (R 229.) Dr. Elmes identified sixteen clinical problems, including early arthritis
in Brothers’ left knee; non-specific bilateral pain in Brothers’ knees, ankles, hands, and
wrists; diabetes mellitus; exogenous obesity; and decreased vision. (R. 226-27.)
Based on his findings, Dr. Elmes found that Brothers could lift or carry ten
pounds, push or pull a maximum of fifteen pounds, and stand or walk for at least two

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hours in an eight-hour work day. (R. 227.) Brothers could occasionally climb ramps and
stairs, but he could not climb ladders, ropes, or scaffolds; nor was he to kneel, crouch, or
crawl. Id. Dr. Elmes further noted that Brothers had limited fine manipulation abilities,
and that his vision was limited.

(R. 228.)

Finally, consistent with Dr. Thornton’s

findings, Dr. Elmes stated that Brothers should not be exposed to temperature extremes,
vibration, humidity, or hazards. (R. 233.)

B.

Brothers’ Testimony
At his March 17, 2005 hearing before the ALJ, Brothers testified that he had been

taking medication for his diabetes, and that he been out of medication for about six
months due to financial reasons. (R. 252-53.) In the past, he had obtained his diabetes
medications from the county hospital. Id. Brothers disclosed that he lived with his wife,
whom he married in December 2003. (R. 263-64.) He stated that based on his condition,
he was limited to occasional volunteer work involving his church. (R. 268.) At the time,
he was hoping to complete his schooling to become an ordained minister, but his studies
were on hold due to financial constraints. (R. 269.) He also stated that he had a valid
driver’s license without any restrictions, but had occasional trouble with blurry vision due
to his diabetes. (R. 270-71, 296.)
Brothers then reviewed his employment history with the ALJ, and stated that his
knee problems kept him from being able to work. (R. 278.) The ALJ asked Brothers
why he did not pursue help for his knee pain, and Brothers responded that he got
“frustrated and aggravated” trying to obtain help. (R. 279.) Brothers claimed to manage
his pain through taking five to six Tylenol a day. (R. 279, 297.) When asked if he had
any mental or emotional problems, Brothers stated that he was “extremely depressed”
although he did not indicate that he had spoken with a doctor about that issue. (R. 283.)
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In describing his typical day, Brothers noted that he could dress himself and
perform light housework including taking out the garbage, washing the dishes, sweeping,
and going to the store, although he did not do any repair work. (R. 285-86, 296-98.) He
also attended church on Sundays and bible classes twice a week. (R. 287.)
The ALJ asked Brothers to evaluate his strength and stamina. Brothers estimated
that he could lift about twenty-five to thirty pounds with both hands, and that he could
not stand still for any significant amount of time due to pain in his knees. (R. 288-89.)
Nor could he sit still for long periods, although he could walk “a couple of blocks” at a
time. (R. 289.) He testified that he presently weighed about 280 pounds and that weight
had been pretty stable. (R. 290.)
During examination by his counsel, Brothers disclosed that he had had hand
surgery after one of his fingers was slammed into a door; as a result, he stated that his
hands would shake when he had to lift heavy objects. (R. 293.) He reiterated that he has
stiff joints, and that to relieve himself of pain in his neck, back, and shoulders he would
lie on the floor or a hard surface. (R. 295.) Finally, Brothers testified that he was in the
process of being added to his wife’s insurance, although he was not certain whether he
had been added at the time of the hearing. (R. 299.)
C.

Vocational Expert Testimony
The ALJ had vocational expert Susan Entenberg testify as to Brothers’ work

prospects. Entenberg testified that Brothers’ past work constituted either medium or
heavy unskilled labor. (R. 300.) The ALJ then presented Entenberg with a hypothetical
person who was fifty-three years of age; had a high school education, an associate’s
degree, and a certificate for the ministry; previously had been employed performing

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medium to heavy unskilled labor; and could perform work requiring light exertion. (R.
301.) The ALJ also made it clear that this person should never do constant repetitive
pushing or pulling against resistance with his lower extremities; climb ladders, ropes, or
scaffolds; work on moving or unstable surfaces; kneel or crawl; or be exposed to
extremes of temperatures, unprotected heights, or unguarded hazardous equipment. Id.
Entenberg identified the “light, unskilled” category as one in which the
hypothetical person could be employed, and further testified that within the Chicago
metropolitan area, there were about 30,000 light housekeeping positions, 40,000 cashier
positions, and 25,000 assembly positions that would qualify. Id. It appears that the ALJ
then asked whether these types of occupations would require someone to be “100 percent
on task and productive” other than during sanctioned break periods.1

(R. 301-02.)

Entenberg responded that the most a person could be “off task” would be between five
and ten percent; anything more would preclude employment. (R. 302.)
Under questioning by Brothers’ counsel, Entenberg stated that “light work”
required the person to be able to stand or walk for six hours in an eight-hour day. (R.
303.) Entenberg agreed that a person who was unable to stand for more than five minutes
at a time would be limited to sedentary work. (R. 304.) When presented with the
hypothetical of a person who has to stand for five minutes after sitting for twenty
minutes, Entenberg stated that this type of position shifting “would be beyond what really
would be allowed.” (R. 304-05.) While Entenberg agreed that a person who could not
stand or walk more than five minutes out of an eight-hour workday would be
unemployable, she also stated that a person who could stand and walk less than two hours
1

The transcript reflects that this question was part of Entenberg’s answer, but it
seems that the transcript is incorrect. A number of responses denoted as “Answers” in the
transcript are, in fact, questions.
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in an eight-hour day would not be totally precluded from all sedentary employment. (R.
306.)
D.

ALJ Decision
After the hearing, Administrative Law Judge Helen Cropper held the record open

to obtain additional medical records from Dr. Thornton and to receive the results from
Dr. Elmes’ consultative orthopedic examination. (R. 14.) The ALJ issued her fourteenpage ruling on June 21, 2005. The ALJ found that although Brothers did not have an
impairment that was listed in 20 C.F.R. pt. 404, subpt. P, appx. 1, he nonetheless
qualified as “disabled.” In making this determination, the ALJ progressed through the
five-step process set forth in 20 C.F.R. § 404.1520(a)(4) as follows.
First, the ALJ evaluated whether Brothers had engaged in any substantial gainful
activity (“SGA”). Consistent with Brothers’ testimony, the ALJ found that his Social
Security records did not indicate that he had earned a wage after 2001. (R. 16.) Thus, the
ALJ concluded that Brothers had not engaged in any disqualifying SGA.
Second, the ALJ evaluated Brothers’ impairments, finding that Brothers’ obesity,
degenerative joint disease, and diabetes imposed at least a minimal restriction on his
ability to perform work-related activities. Id. The ALJ did not credit Brothers’ claim that
he was suffering from depression, because there was no objective medical evidence of
record to support such a claim.
Third, the ALJ evaluated Brothers’ impairments and found that they were not so
severe as to meet or equal a listed impairment. Brothers’ degenerative joint disease did
not satisfy the requirements for a “major dysfunction of a joint,” because Brothers did not
have a documented inability to ambulate effectively for twelve continuous months. And

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while Brothers suffered from Level III (or extreme) obesity, the obesity also had not
resulted in a documented inability to ambulate effectively. Finally, Brothers’ diabetes
was controlled with oral medication, and there had been no documented severe
complications. As a result, the ALJ concluded that Brothers did not suffer from a listinglevel impairment. (R. 18.)
The ALJ next evaluated Brothers’ Residual Functional Capacity (“RFC”). In
doing so, the ALJ undertook a detailed review of Brothers’ medical history.

She

concluded that she would not give controlling weight to the opinion of Dr. Thornton, both
because Dr. Thornton only treated Brothers for three months in 2001, and because Dr.
Thornton did not provide any progress notes or other clinical bases to support his August
2003 RFC opinion. (R. 21.) She did give “some” credit to the opinions of the Disability
Determination Services doctors, and gave “great” weight to the 2005 opinion of Dr.
Elmes. The ALJ also evaluated Brothers’ subjective complaints and his description of his
activities. Based upon her review, the ALJ concluded that Brothers had the ability to
perform and sustain a wide range of sedentary work. (R. 23.) However, as previously
noted, Brothers’ past work had all been classified as medium-to-heavy unskilled labor.
Consequently, the ALJ found that Brothers could not perform any of his past work.
Finally, the ALJ considered whether Brothers could perform any other type of
work. She found that although Brothers had more than just a high school education, he
had only an unskilled work background. Because his RFC permitted only sedentary
work, the ALJ determined that Brothers was disabled.
The ALJ then established the onset date of Brothers’ disability. Pursuant to SSR
83-20, 1983 WL 31249 (1983), the ALJ considered three factors: Brothers’ own

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allegations, his work history, and the medical evidence of record. (R. 25.) The ALJ
recognized that Brothers alleged disability since November of 2001, and that Brothers
had not worked since that time. Id. The ALJ also recognized that Brothers did not have
any routine outpatient care since December of that year.
In evaluating the medical evidence, the ALJ noted that the consulting physicians
who examined Brothers in 2002 and 2003 described his gait as normal and unassisted,
and found that he had good bilateral manual dexterity and strength. In fact, no medical
evidence supported decreased use of Brothers’ hands until early 2005. Thus, the ALJ
decided to set the onset date to October 22, 2004—six months prior to Dr. Elmes’
examination.

The ALJ found that Brothers could have sustained light work in the

regional economy prior to October 22, 2004 and that such work existed in significant
numbers.

Based on her reasoning, she declined to reopen any of Brothers’ prior

applications for benefits and only awarded him benefits based on the January 30, 2003
application. (R. 26.)
II. DISCUSSION
A.

Standard of Review
“Where, as here, the Appeals Council denies a claimant’s request for review, the

ALJ’s ruling becomes the final decision of the Commissioner.” Murphy v. Astrue, 496
F.3d 630, 633 (7th Cir. 2007). A district court’s review of an ALJ decision under 42
U.S.C. § 405(g) is very limited. The court may not engage in its own analysis as to
whether a plaintiff “is severely impaired as defined by the SSA regulations.” Young v.
Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor is the court permitted to reweigh
evidence, resolve conflicts in the record, decide questions of credibility, or substitute its
own judgment. Id. Instead, the court is to ensure that the ALJ applied the proper legal
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criteria and that the ALJ’s factual findings are supported by substantial evidence. Allord
v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). “Substantial evidence” requires “‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion’”—in other words, “more than a scintilla” but “less than a preponderance.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
This standard does not, however, require the ALJ to address all of the evidence
presented; instead, the ALJ is only required to “provide a ‘logical bridge’ between the
evidence and the conclusions.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010)
(quoting Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008)); see Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005) (“In addition to relying on substantial
evidence, the ALJ must also explain his analysis of the evidence with enough detail and
clarity to permit meaningful appellate review.”).

Moreover, an ALJ’s credibility

determinations are entitled to “special deference,” and are reversed only if “patently
wrong.” Jones, 623 F.3d at 1160.
B.

Analysis
Brothers points to four errors that he believes invalidate the ALJ’s disability

determination. First, he claims that the ALJ’s conclusion that he was capable of light
work was erroneous. Second, Brothers argues that the ALJ erred in refusing to reopen
his earlier claim for DIB and SSI. Third, Brothers states that the ALJ improperly
discounted his testimony. Finally, Brothers alleges that the ALJ provided the vocational
expert, Entenberg, with an incomplete hypothetical, rendering the ALJ’s conclusions
based upon the expert’s testimony erroneous. The court addresses each argument in turn.

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1.

Brothers’ Ability To Perform Light Work

Brothers argues that the ALJ’s determination that he was capable of performing
light work prior to October 22, 2004 is erroneous, because the ALJ (1) improperly
weighed the underlying medical evidence, (2) made unsupported medical conclusions in
determining Brothers’ onset date, and (3) failed to consider the combined effect of
Brothers’ obesity with his other impairments.
a)

Weighing Medical Evidence

Brothers first takes issue with the ALJ’s decision to give greater weight to the
opinions of other doctors in lieu of Dr. Thornton’s. While Brothers recognizes that Dr.
Thornton only treated him for three months in 2001, he seems to believe that as a treating
physician, Dr. Thornton’s opinion should be granted controlling weight over any other
non-treating, or non-examining, physician.
The ALJ did not err in giving little weight to Dr. Thornton’s opinion.

“In

assessing conflicting medical opinion evidence, ALJs must consider a variety of factors,
including whether a physician is a treating or examining physician; the length, nature,
and extent of the treatment relationship; the physician’s specialty; and the consistency
and supportability of the physician’s opinion. Books v. Chater, 91 F.3d 972, 979 (7th
Cir. 1996). In Books, the Seventh Circuit noted that while an ALJ must “take into
account the treating physician’s ability to observe the claimant over a longer period,” id.
(quoting Stephens v. Heckler, 766 F.2d 284 (7th Cir. 1985) (quotation marks omitted)), a
treating physician’s opinion “is not the final word on a claimant’s disability.”

Id.

(quoting Reynolds v. Bowen, 844 F.2d 451 (7th Cir. 1988) (quotation marks omitted)).
Here, the ALJ found that although Dr. Thornton had treated Brothers on an ongoing basis, that relationship—which stemmed from a minor car accident—lasted just
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three months. The ALJ noted that the RFC evaluation form Dr. Thornton completed in
August of 2003—some twenty months after Brothers’ last documented visit—had been
supplied by Brothers’ counsel. She also relied upon the fact that, as of 2001, Dr.
Thornton and his associates had expected Brothers to return to work in a few months.
Coupled with the lack of progress notes or any clinical basis for the 2003 RFC opinion,
the ALJ had a more than adequate basis to discount that opinion. In addition, she did not
state that she gave Dr. Thornton’s opinion no weight; instead, she merely said that she
did not give it controlling weight.
The Disability Determination Services opinions were given “some credit” by the
ALJ, as those opinions were consistent with and supported by the evidence of record.
The ALJ made it clear, however, that she relied in large part on the opinion of Dr. Elmes.
The decision to afford that opinion—rendered recently by an examining orthopedic
specialist who had the benefit of current x-rays—“great weight” is supported by the
record, and the court will not revisit that decision here. See Young, 362 F.3d at 1001
(“Weighing conflicting evidence from medical experts . . . is exactly what the ALJ is
required to do. . . . And we may not re-weigh the evidence.”).
Additionally, Brothers implies that the ALJ failed to make “every reasonable
effort” to obtain additional records from Dr. Thornton. To the contrary, the record
clearly reflects that the ALJ did just that. (R. 72-74.) The “every reasonable effort”
language Brothers cites comes from 20 C.F.R. § 404.1512(d), which states that the Social
Security Administration will “make every reasonable effort to help [a claimant] get
medical reports from [the claimant’s] own medical sources.” The regulation goes on to
define what is “reasonable”: it means the Administration will make an initial request

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from the medical source and, ten to twenty days thereafter, it will make one follow up
request. 20 C.F.R. § 404.1512(d)(1). Here, the ALJ issued a subpoena on April 7, 2005
and made a follow-up request on April 22, 2005. Despite making every reasonable effort
to obtain the documents from Dr. Thornton, the ALJ was unable to do so. Nothing more
was required.
Brothers next argues that the ALJ erred in not requesting a medical source
statement from each doctor who provided an evaluation pursuant to a Disability
Determination Services request. However, the relevant portion of the C.F.R. expressly
states that while these requests are ordinarily made, “the absence of such a statement in a
consultative examination report will not make the report incomplete.”

20 C.F.R.

§ 1519n(c)(6). Brothers does not cite any authority, nor is the court aware of any, that
mandates a different result in this case. Accordingly, this argument is rejected.
b)

Disability Onset Date

Having given great weight to Dr. Elmes’ opinion, the ALJ set Brothers’ disability
onset date as being “six months prior to the date of Dr. Elmes’ examination.” (R. 25.)
Brothers argues, and the court agrees, that this determination is not supported by
substantial evidence. The ALJ recognized that she was obliged to apply SSR 83-20,
which requires a decisionmaker to consider the applicant’s allegations, the applicant’s
work history, and the medical evidence in determining a disability onset date. SSR 83-20
goes on to state, however, that a disability onset date “must have a legitimate medical
basis. At the hearing, the [ALJ] should call on the services of a medical advisor when
onset must be inferred.” SSR 83-20.

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Thus, in general, when an ALJ must draw such an inference, the ALJ is obliged to
consult a medical advisor. See Henderson v. Apfel, 179 F.3d 507, 513 (7th Cir. 1999).
While the Seventh Circuit does not require a consultation if the medical evidence of
record is “complete,” see id., the exception is inapplicable here. Dr. Elmes evaluated
Brothers in April of 2005. Prior to that, Brothers’ last two examinations occurred in
November of 2004 (when he visited the ER for chest pain) and in March of 2003 (when
Dr. Stronska examined him pursuant to a DDS request). The court recognizes that
Brothers’ own lack of diligence in seeking medical care contributed to the sparse record,
but the fact remains that absent a complete record, the ALJ is not permitted to forego the
assistance of a medical advisor.
Moreover, even assuming arguendo that the ALJ did not need to consult a
medical advisor, there is no evidence to support the ALJ’s chosen onset date. Simply put,
nothing happened on October 22, 2004. The ALJ did not provide any explanation as to
why that was her best guess, nor does Dr. Elmes’ report provide a clue as to why October
22, 2004 was chosen—he did not, for instance, indicate the rate at which Brothers’
various ailments had progressed. Instead, that date appears to have been chosen because
the ALJ believed that Brothers had become disabled at some point in between Dr.
Stronska’s 2003 evaluation (which resulted in an RFC that supported the ALJ’s
conclusion that Brothers was capable of light work) and Dr. Elmes’ 2005 evaluation
(which supported the ALJ’s conclusion that Brothers was capable of sedentary work).
The court must conclude that the ALJ’s determination of an onset date is not supported
by substantial evidence.

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Accordingly, the court remands the case for the ALJ to obtain assistance from a
medical advisor in making a supported onset-of-disability determination. The court
notes, however, that “[i]n assessing the correctness of the onset date determined by the
ALJ, ‘the issue is whether there is substantial evidence in the record to support the date
chosen by [the ALJ], not whether an earlier date could have been supported.’”
Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999) (quoting Stein v.
Sullivan, 892 F.2d 43, 46 (7th Cir. 1989)). The court’s ruling should not be taken to
indicate that an earlier date necessarily would be appropriate; after all, “the established
onset date must be fixed based on the facts and can never be inconsistent with the
medical evidence of record.” SSR 83-20.
c)

Combined Effect of Impairments

Brothers claims that the ALJ “failed to sufficiently discuss the effect of
[Brothers’] obesity, in combination with his other impairments, on his ability to work.”
The court disagrees. The ALJ expressly mentioned Brothers’ obesity when she evaluated
the severity of his impairments; in fact, the ALJ specifically stated that she evaluated
Brothers’ impairments “separately and in combination,” and that they did not rise to the
level of a listed impairment. In that same paragraph, she discussed Brothers’ obesity,
noting that it “no doubt contributes to his joint pain and [diabetes].” The ALJ also made
repeated mention of Brothers’ weight in evaluating the medical evidence of record. The
court agrees with the Commissioner that when taken as a whole, the ALJ’s decision
indicates that she considered the effect of Brothers’ obesity in exacerbating his other
impairments. See Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004) (noting that it
is proper to read an ALJ’s decision “as a whole,” and refusing to engage in the “needless

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formality” of having the ALJ repeat the same analyses at various stages in the five-step
process).
d)

RFC Determination

Brothers takes issue with the ALJ’s conclusion that prior to October 22, 2004 he
was capable of performing light work. Because this conclusion rests in part upon the
ALJ’s determination of a disability onset date, for the reasons stated above it is not
supported by substantial evidence. However, the court briefly notes that the medical
evidence of record prior to Dr. Elmes’ April 22, 2005 examination appears to be
consistent with an RFC assessment that Brothers was capable of performing light work.
2.

Reopening Earlier Claims

In rendering her decision on Brothers’ January 30, 2003 application for benefits,
the ALJ noted that Brothers had filed a number of earlier applications. After stating that
her decision was only partially favorable based on the October 22, 2004 disability onset
date, the ALJ went on to state that Brothers was “not entitled to reopen the adverse
decision” on his earlier applications. Brothers claims that the ALJ erred in basing her
decision on Brothers’ disability onset date, instead of making the determination “initially,
based upon how much time has gone by.” He roots this argument in the text of 20 C.F.R.
§ 404.988(a), which states that “[a] determination may be reopened . . . [w]ithin 12
months of the date of the notice of the initial determination, for any reason.” According
to Brothers, because he filed his January 30, 2003 application within twelve months of
the date his earlier application was denied (on March 7, 2002), the ALJ should have
reopened the earlier application automatically.

19

The regulation states that an ALJ “may” reopen a decision for any reason; nothing
requires the ALJ to do so, and Brothers has not pointed to any precedent in support of his
theory that the ALJ should have done so in this case. Nor does he articulate any actual
prejudice that he suffered due to the ALJ’s decision.2 Thus, even assuming that the ALJ
mistakenly declined to reopen earlier applications, if Brothers suffered no harm, he would
not be entitled to remand. See Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (“The
doctrine of harmless error indeed is applicable to judicial review of administrative
decisions.”).
Based on the ALJ’s belief that Brothers was not disabled until October 22, 2004,
the ALJ’s decision not to reopen earlier applications was perfectly reasonable. However,
as established above, the ALJ’s determination as to Brothers’ onset date is not supported
by substantial evidence.

Consequently, if a different onset date is dictated by the

evidence, and that onset date renders the earlier applications relevant and nonduplicative, then the ALJ may need to revisit her decision as to the earlier applications.
The court takes no position as to whether the ALJ should actually reopen the earlier
applications, as that is a matter within the ALJ’s discretion.
3.

Credibility Determination

In making her RFC determination, the ALJ discussed Brothers’ testimony in
detail, and then concluded that she could not give “full credit” to Brothers testimony “that
he suffers from disabling musculoskeletal pain, severe or frequent chest pain, disabling
symptoms of hyperglycemia or extreme depression.” (R. 22.) The ALJ based this
2

Although Brothers states in his reply that “[t]he ALJ’s failure to reopen the prior
determination excludes consideration of any prior medical evidence and forms submitted
with the prior claim” (see Pl.’s Reply at 13), Brothers has not identified anything of the
kind that was actually excluded.
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decision on the fact that Brothers rarely obtained recommended follow-up medical care,
and did not take steps to be added to his wife’s health insurance plan. She noted that
Brothers participated actively in his church and had completed a lengthy program to
become a minister.

(R. 23.)

The ALJ mentioned that Brothers had no prescribed

medication for pain and relied upon over-the-counter strength medication to alleviate his
symptoms. In addition, although Brothers complained of difficulty in using his hands, he
had not mentioned that problem to any doctor until his 2005 evaluation with Dr. Elmes.
Earlier in her opinion, the ALJ also had addressed Brothers’ claims to depression, finding
that Brothers had never told any treating or examining physician about the alleged
depression, and no consulting doctor ever observed any clinical sign of mental illness or
abnormal mental status. (R. 16.)
Brothers argues that the ALJ made a number of errors in deciding not to give his
testimony full credit. For instance, Brothers attempts to challenge the ALJ’s statement
that he had no prescribed medication for pain by pointing to the fact that he received
prescription-strength painkillers when he sought medical treatment in the past. This in no
way contradicts the ALJ’s statement. Brothers was not taking prescription painkillers at
the time of the hearing, nor is there any evidence he had an unfilled prescription
outstanding; instead, he reported self-medicating with Tylenol. To the extent the ALJ
inferred from that fact that Brothers’ pain was not severe enough to cause him to seek out
prescription medications, this is a reasonable inference.
The same is true of Brothers’ claim that the ALJ erred in stating that Brothers had
not previously mentioned any difficulty with his hands. In support, Brothers points to a
June 2000 medical report in which Brothers reported his that his fingers would “pop” out

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of joint in his left hand. (R. 190.) But again, the ALJ’s statement is not inconsistent with
this medical record. Having a finger “pop” out of joint does not necessarily indicate any
pain, discomfort, or inability to use one’s hands. And other than Dr. Elmes’ post-hearing
evaluation, this is the only mention of any issue with Brothers’ hand. Further, every
evaluation prior to Dr. Elmes’ April 2005 evaluation indicated that Brothers had full use
of his hands.

Thus, the ALJ could reasonably conclude that Brothers’ testimony

regarding his hand problems was not entitled to full credit.
The ALJ also stated that Brothers had not taken steps to be added to his wife’s
insurance.

Brothers argues that this statement is “entirely contrary” to Brothers’

testimony. That is not the case. Brothers testified that his wife had taken steps to get
Brothers added to her insurance. (R. 298-99.) Brothers did not know whether those steps
had resulted in him being added, and merely stated that he was “in the process of finding
out.”

(R. 299.)

Based on this testimony, the ALJ could reasonably conclude that

Brothers had not taken an active role in seeking insurance coverage, thereby undermining
his testimony regarding the severity of his symptoms.
For the same reason, Brothers’ failure to follow up with routine medical care
supports an inference that some of his medical problems were not as severe as he
claimed. Brothers asserts that the ALJ violated SSR 96-7p by impermissibly holding
Brothers’ inability to afford or access medical care against him. But when the ALJ
probed as to why Brothers did not obtain follow-up medical care, Brothers responded in
part: “I’m not trying to come up with a lot of excuses why I don’t do things and I know I
should.” He mentioned that that he knew he was supposed to be taking medication for
his diabetes but was not doing so, and that his wife had purchased a blood sugar monitor

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for him a month or two prior to the hearing, but he had not yet set it up. (R. 282-83.)
The record also reflects that Brothers knew he could receive free medical treatment at the
county hospital, as he did so on a few occasions.3 Nothing in the ALJ’s opinion indicates
that she based her reasoning on Brothers’ lack of financial resources; instead, she
contrasted Brothers’ lack of follow up with his active participation in church activities,
and drew the inference that this lack of dedication to his health undermined some of
Brothers’ testimony.
On review of the record, the court cannot say that the ALJ’s credibility
determination was “patently wrong.” See Jones, 623 F.3d at 1160 (“Rather than nitpick
the ALJ’s opinion for inconsistencies or contradictions, we give it a commonsensical
reading. Accordingly, we reverse credibility determinations only if they are patently
wrong.”). As in Jones, here the ALJ properly relied upon discrepancies between the
objective evidence and Brothers’ self-reports. See id. at 1161. The ALJ adequately
articulated her reasons for not giving Brothers’ testimony full credit, and the record
supports her conclusion.
4.

Vocational Expert Testimony

Brothers’ last argument is that the Step 5 analysis was erroneous because: (1) the
ALJ gave the vocational expert, Ms. Entenberg, a hypothetical that did not contain all of
the limitations of Brothers’ condition, (2) Entenberg testified regarding the availability of
housekeeping jobs, and these jobs require bodily positions (such as kneeling/crouching)
that Brothers was incapable of maintaining, and (3) Entenberg testified regarding the

3

Indeed, Brothers’ counsel even remarked on this “odd” attitude at the hearing, and
stated that he frequently encountered this issue—that is, “where there is free medical
treatment to be had and yet it’s not had”—in various city locales. (R. 308.)
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availability of cashier positions, which are “semi-skilled,” even though the ALJ found
Brothers only qualified for unskilled work.
The first argument is based entirely upon Brothers’ earlier arguments regarding
his ability to perform light work. This issue has already been discussed in detail, and will
not be revisited here. Suffice it to say that to the extent this line of argument relies upon
credibility determinations and the weighing of medical evidence, the ALJ’s conclusions
will not be disturbed by this court. The remand on this topic is limited to requiring a
fresh examination of Brothers’ disability onset date.
Next, Brothers claims that the ALJ violated SSR 00-4p by failing to inquire
whether Entenberg’s testimony regarding Brothers’ ability to perform light work was
consistent with the Dictionary of Occupational Titles (“DOT”), or the DOT’s companion
publication, the Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles. SSR 00-4p states that when a vocational expert or
specialist (a “VE” or “VS”) “provides evidence about the requirements of a job or
occupation, the adjudicator has an affirmative responsibility to ask about any possible
conflict between that VE or VS evidence and information provided in the DOT.” SSR
00-4p, 2000 WL 1898704 (Dec. 4, 2000) (emphasis added); see Prochaska v. Barnhart,
454 F.3d 731, 735-36 (7th Cir. 2006). The ruling goes on: “In these situations, the
adjudicator will: Ask the VE or VS if the evidence he or she has provided conflicts with
information provided in the DOT; and If the VE’s or VS’s evidence appears to conflict
with the DOT, the adjudicator will obtain a reasonable explanation for the apparent
conflict.”

SSR 00-4p.

Neither the expert’s testimony nor the DOT’s definitions

automatically “trump”—instead, the purpose of the rule is to highlight the conflict so that

24

the ALJ can determine whether there is a “basis for relying on the VE or VS testimony
rather than on the DOT information.” Id.
Here, the ALJ expressly inquired as to whether Entenberg’s classification of
Brothers’ actual prior work comported with the DOT. (R. 300.) Entenberg testified that
there was no difference between the two. Thus, in that regard the ALJ satisfied her
obligation. However, the ALJ never asked Entenberg whether there was any conflict
between the DOT and the requirements for the “light, unskilled” occupations that
Entenberg testified were available in the economy. The Seventh Circuit has made it clear
that this inquiry is required before an ALJ can rely upon the expert’s testimony. See
Craft v. Astrue, 539 F.3d 668, 681 (7th Cir. 2008) (“When a VE provides evidence about
the requirements of a job or occupation, the ALJ has an affirmative duty to ask about
potential conflicts between that evidence and the DOT.”); Prochaska, 454 F.3d at 736;
see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citing cases to this
effect in the Third, Seventh, and Tenth Circuits).
The government asks the court to find that this failure was a harmless error. The
court cannot do so.

The government does not address Brothers’ point regarding

housekeeping duties and the limitations on Brothers’ movements; as to Entenberg’s
testimony regarding cashier positions, the DOT describes a number of positions with this
title, some of which are semi-skilled and some of which are unskilled. As a result, some
of these semi-skilled positions are irrelevant to the employment capabilities of the
hypothetical person the ALJ described. But because the ALJ did not inquire as to
whether there were any inconsistencies between the DOT and Entenberg’s testimony, the
ALJ was unable to tease out these issues. The court cannot say that the error was

25

harmless. Therefore, on remand the ALJ must comply with SSR 00-4p and inquire into
whether the expert’s testimony conflicts with the DOT; if so, the ALJ is obliged to set
forth and resolve that conflict.
III. CONCLUSION
Because the ALJ’s determination as to Brothers’ onset date is not supported by
substantial evidence, and because the ALJ did not comply with the requirements of SSR
00-4p, the court remands this case to the Social Security Administration for further
proceedings consistent with this opinion.

ENTER:

/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: June 13, 2011

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