Pawloski

Filing 20

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 8/25/2011. (gmr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LEILANI PAWLOWSKI,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No: 09 C 6484
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiff, Leilani Pawlowski, seeks review of the final decision of the
Commissioner (“Commissioner”) of the Social Security Administration (“Agency”)
denying her application for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act (“Act”). 42 U.S.C. §§ 423(d)(2). Ms. Pawlowski asks the court to
reverse and remand the Commissioner’s decision, while the Commissioner seeks an
order affirming the decision.
I.
PROCEDURAL HISTORY
Ms. Pawlowski applied for DIB on September 29, 2006, alleging that she became
disabled on March 1, 2003, due to degenerative disc disease, herniated discs, arthritis of
the spine, depression, post traumatic stress disorder, panic attacks, and migraine
headaches. (Administrative Record (“R.”)100-102, 124). Her application was denied
initially and upon reconsideration. (R. 62-68, 72-75). Ms. Pawlowski filed a timely
request for a hearing. An ALJ held a hearing on May 19, 2009, at which Ms. Pawlowski,
represented by counsel, appeared and testified. (R. 27-61). In addition, Brian Paprocki

testified as a vocational expert. (R. 21-32). On June 29, 2009, the ALJ issued a decision
finding that Ms. Pawlowski was not disabled because she retained the capacity to
perform light work with no more than occasional contact with co-workers, supervisors,
and the public. (R. 9-26). This became the final decision of the Commissioner when the
Appeals Council denied Ms. Pawlowski’s request for review of the decision on August
18, 2009. (R. 1-3). See 20 C.F.R. §§ 404.955; 404.981. Ms. Pawlowski has appealed
that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have
consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
II.
EVIDENCE OF RECORD
A.
Vocational Evidence
Ms. Pawlowski was born on May 31, 1965, making her forty-four years old at the
time of the ALJ’s decision. (R. 100). She has a high school education and physical
rehabilitation training. (R. 132). She has work experience as a nursing assistant, from
1996 through 2002. (R. 125). That job required heavy lifting – she had to move patients
– and a good deal of walking. (R. 125). She stopped working because she “was having
personal problems with her boyfriend and was in the process of moving.” (R. 124). For
the purposes of receiving DIB, Ms. Pawlowski’s insured status expired March 31, 2006.
(R. 120). Accordingly, the question is whether Ms. Pawlowski was disabled prior to that
date. Califano v. Sanders, 430 U.S. 99, 101 (1977); Allord v. Astrue, 631 F.3d 411, 413
(7th Cir. 2011).

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B.
Medical Evidence
In her four-page brief supporting her request for a remand, Ms. Pawlowski bases
her claim that she is entitled to DIB exclusively on her back impairment. She cites only
two pieces of evidence to support her position: an MRI report from February 21, 2006,
and a report from a physician who treated her dated March 1, 2006. She contends that
this evidence shows that the ALJ erred when he failed to find that her impairment met or
equaled a listed impairment. Accordingly, any other arguments she could have made are
deemed waived. Carter v. Astrue, 413 Fed.Appx. 899, 905, 2011 WL 917000, *6 (7th
Cir. 2011); Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir.2 004); Schoenfeld v. Apfel,
237 F.3d 788, 793 (7th Cir. 2001); Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000).
The facts before the ALJ are these: In February of 2004, Ms. Pawlowski fell off a
snowmobile. A couple of days after the incident, she went to the emergency room of her
local hospital in Mendota, Illinois. (R. 323-24). Upon examination, she had “absolutely
no tenderness” over the midline vertebrae to palpation, full range of motion of all joints,
and no neurological deficits (R.323-24). On February 18, 2004, Ms. Pawlowski saw
Kwang Chung, M.D., her primary physician, and complained of pain in her neck, lower
back, and legs; she also had a headache. (R. 454). The next day, CT scans of Ms.
Pawlowski’s spine showed “mild degenerative changes” at C5-C6, “mild degenerative
changes” in her dorsal spine, and degenerative changes with a disc bulge at L4-L5, and a
“small central disc protrusion at L5-S1.” (R. 298). In March 2004, Ms. Pawlowski had
two weeks of physical therapy. (R. 294-95). On her last visit, she said she was feeling
“some better” and was discharged after she failed to return or contact the physical

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therapist. (R. 293). Five months later, in August 2004, x-rays of Ms. Pawlowski’s
lumbar spine showed diffuse degenerative disc disease involving spurring from L2 to L5,
but all vertebral body heights and alignment were maintained. (R. 292).
The next medical evidence pertinent to Ms. Pawlowski’s back problems is from
two-and-one-half years after that, in February 2006. She had MRIs of her thoracic and
lumbar spines. The thoracic study revealed mild diffuse disc bulging at T12-L1, with
mild central canal stenosis. The study was unremarkable otherwise. (R. 285). The
lumbar study is the focus of Ms. Pawlowski’s appeal – indeed, she cites to no other
medical evidence in her brief. The results of that examination were:
FINDINGS: The study will be dictated under the assumption that
there are five lumbar type vertebrae. There is desiccation of the L3-4, L45, and L5-S1 discs. Upper lumbar vertebrae are unremarkable in
appearance. There is mild diffuse bulging of the T11-12 disc. Conus
medullaris terminates at mid L1. At L3-4, there is a small broad-based left
lateral and paramedian disc protrusion (herniation) with mild narrowing of
the left half of the spinal canal. This narrows the origin of the left-sided
neural foramen, but does not significantly efface the exiting left L3 nerve
root. At L4-5, there is diffuse outward bulging of the disc that is slightly
eccentrically greater towards the left. There is mild central canal stenosis
when combined with the facet hypertrophic change. There is also mild
bilateral neural foraminal narrowing present.
At L5-S1, there is a central posterior disc protrusion (herniation)
with high T2-weighted signal intensity indicating an annular tear. Mild
central canal stenosis is seen. There is also left lateral recess narrowing.
However, there is convincing effacement of the Sl nerve roots or the
exiting L5 nerve roots.
IMPRESSION:
Plain films are not available for comparison at the time of interpretation.
Therefore, the study is dictated under the assumption that there are five
lumbar type vertebrae. Small central posterior disc protrusion (herniation)
at L5-S1 with evidence for an annular tear at the posterior margin of the
disc protrusion. There is mild central canal stenosis. No focal nerve root
effacement or significant neural foraminal narrowing is seen at this level.

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Diffuse disc bulging at L4-5 and small left paramedian and lateral
disc protrusion (herniation) at L3-4. There is mild central canal narrowing
at both of these levels and mild left L4-S neural foraminal narrowing
without definite effacement of the exiting nerve root. There is also slight
bilateral L4-5 neural foraminal stenosis without effacement of the nerve
roots. Otherwise unremarkable MRI of the lumbar spine. No fracture is
seen.
(R. 286).
The following month, on March 1, 2006, Ms. Pawlowski told pain management
physician Deofil Orteza, M.D., that she had constant low back pain at “8” to “10” on a
scale of 10, radiating to her hips and groin and, at times, toward her mid-back area. (R.
388). She said that walking, bending, and climbing stairs aggravated the pain. (R. 388).
Upon examination, she exhibited a normal gait, negative straight leg raise (“SLR”), intact
sensory and motor function, satisfactory heel/toe movement, and normal reflexes. (R.
389).
Dr. Orteza administered an epidural steroid injection on March 10, 2006. (R.
393). A couple of weeks later, Ms. Pawlowski reported “100% improvement” of her
pain initially after the injection, later reduced to 80% alleviation; she was still able to
ambulate without significant pain.

(R. 395).

Dr. Orteza reported that physical

examination was “essentially unchanged” with no new physical findings (R. 395).
On March 24, 2006, Ms. Pawlowski went to the emergency room, complaining
of a migraine headache. (R. 470). She was noted to be in no acute distress, “[s]itting
comfortably on cart,” and her examination showed 5/5 (normal) strength, normal gait,
and normal neurological findings. (R. 471). Ms. Pawlowski also reported that she was
presently taking care of her father and her mother, who was receiving chemotherapy for
breast cancer, and so she was getting “very little rest.” (R. 470).

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On October 24, 2006, while she was visiting her father in the hospital, she went to
the emergency room complaining of chest pains which she said she got from anxiety and
panic attacks. (R. 466). She had an essentially normal EKG and the pain was “very
unlikely to be cardiac,” although it could not be completely ruled out at the time. (R.
467). The attending physician felt it was probably radiating from her back, or that it was
a chest wall strain. (R. 467).
In January 2007, Dr. Virgilio Pilapil reviewed the record on behalf of the state
agency. (R. 502-09). Dr. Pilapil felt that Ms. Pawlowski could perform light work – she
could occasionally lift or carry up to 20 pounds, frequently lift or carry 10 pounds, and
stand, walk, or sit for six hours out of a work day. (R. 503). In March 2007, Dr. Calixto
Aquino performed a similar review and concurred. (R. 511).
C.
Administrative Hearing Testimony
1.
Ms. Pawlowski’s Testimony
At her hearing, Ms. Pawlowski testified she had two children, aged twenty-six
and eleven, and that the eleven-year-old lived with her and her boyfriend. They had a
two-story house. (R. 32). Her boyfriend’s daughter drove her to the hearing; they made
the fifty-minute trip without stopping. (R. 34).
She explained that her last job ended when her boyfriend “beat her up really bad,”
although he did not render her physically unable to continue with her work. (R. 35). Ms.
Pawlowski explained that when her boyfriend beat her up, it triggered memories of when
she was abused as a child. (R. 43). As a result, she has nightmares. (R. 43).

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Ms. Pawlowski cataloged the reasons why she felt she was unable to work:
I can’t stand for a long period of time, I can’t walk that far at a time, and a
lot of pain in my back. My memory is very bad. I lay down a lot. That
seems to – I try to ease the pain by laying down. I have panic attacks, I
have migraines. There’s not – I can’t even function at home like I should
be able to.
(R. 36). She estimated she could stand for 15 fifteen minutes at a time, and sit for 20. (R.
38). She could walk about half a block without having to stop. (R. 39). She used a cane
to walk. (R. 46). She had to lie down at the beginning of her hearing (R. 38). She also
alternated sitting and standing during the hearing. (R. 39). Ms. Pawlowski said she had
a hard time lifting a gallon of milk. (R. 40). She has a driver’s license and last drove
three weeks prior to the hearing for a doctor’s appointment. (R. 40). She also drives to
visit her mother every two months. It’s an hour trip, and she stops along the way and
stays overnight. (R. 41).
Ms. Pawlowski said she can prepare simple meals, like making her son a
sandwich. (R. 42). She starts to do the dishes, but can’t finish. (R. 42). She avoided
using stairs because she fell once on the stairs prior to getting her hip replaced. (R. 45).
She experiences no side effects from her various medications. (R. 36).
2.
Vocational Expert’s Testimony
Brian Paprocki then testified as a vocational expert (“VE”). The ALJ asked the
VE to assume a person could perform light work, with only limited contact with the
public, co-workers, and supervisors. (R. 55). The VE said that such a person could not
perform Ms. Pawlowski’s past work because the lifting requirements exceeded those of
light work. (R. 55). But, such a person – with Ms. Pawlowski’s work experience – could

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perform jobs like clerical reviewer, sorter, or checker – all sedentary jobs. (R. 56).
There were 5000 such jobs in the state, and 250,000 nationwide. (R. 57). A person
limited to sedentary work with a sit/stand option could also perform these jobs. (R. 56).
The VE added that she could also be a library page (3500 jobs statewide), which was
light work. (R. 57). This list was not exhaustive. (R. 57). If that person had to miss
four days of work per month, she would be unemployable. (R. 57). Similarly, the need
to lie down during the work day was inconsistent with competitive employment. (R. 58).
D.
ALJ’s Decision
The ALJ found that Ms. Pawlowski suffered from the following severe
impairments: “degenerative disc disease (“DDD”), arthritis, depression, post traumatic
stress disorder (“PTSD”), anxiety, migraines, and obesity.” (R. 15). Through the date
last insured, however, the ALJ determined that Ms. Pawlowski “did not have an
impairment or combination of impairments that met or medically equaled one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. 17). He specifically
determined that Ms. Pawlowski’s DDD did not meet the criteria of listing 1.04, covering
disorders of the spine, because there was no medical evidence establishing nerve root
compression or the inability to ambulate effectively. (R. 17). The ALJ also addressed
the requirements of listings 12.04 and 12.06, covering affective disorders and anxiety
disorders, finding that Ms. Pawlowski had, at most, moderate restrictions stemming from
her PTSD, anxiety, and depression. (R. 17).
The ALJ then reviewed Ms. Pawlowski’s testimony at length. He gauged it
against the medical evidence and found that record did not support the degree of

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limitations she claimed. (R. 18). He also noted that, although Ms. Pawlowski had hip
replacement surgery in August of 2008, this was well after the expiration of her insured
status in March 2006. (R. 21). Prior to that, Ms. Pawlowski had a normal gait and motor
function. (R. 21). The ALJ also noted that just prior to the hearing, Ms. Pawlowski
appeared to be in distress, with difficulty walking and standing normally. During the
hearing, she testified that she was getting worse.

But after the hearing, the ALJ

witnessed her standing and walking normally, exhibiting none of the signs of distress she
had claimed just moments earlier. He felt that this, too, detracted from the credibility of
her allegations. (R. 23). The ALJ also pointed to the fact that Ms. Pawlowski skipped a
fair number of medical appointments and was non-compliant with prescribed physical
therapy regimens. (R. 23).
The ALJ went on to consider the medical opinions in the record. He accorded
significant weight to the reports of the reviewing physicians. (R. 24). He noted that
there were no opinions from any physician who had treated Ms. Pawlowski suggesting
she was disabled. (R. 24). The ALJ determined that, prior to the expiration of her
insured status, Ms. Pawlowski had the capacity to perform light work that did not involve
more than occasional contact with the public, co-workers, or supervisors. (R. 18). He
then relied on the VE’s testimony to find that, although Ms. Pawlowski could not
perform her past work, she could perform other work that existed in significant numbers
in the economy. (R. 25-26). As a result, the ALJ found her not disabled and not entitled
to DIB. (R. 26).

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IV.
DISCUSSION
A.
Standard of Review
We review the ALJ's decision directly, but we play an “extremely limited” role.
Simila v. Astrue, 573 F.3d 503, 513 -514 (7th Cir. 2009); Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008). The court must affirm the decision if it is supported by substantial
evidence. 42 U.S.C. §§405(g). “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept to support a conclusion.’” Schaaf v. Astrue, 602 F.3d 869,
874 (7th Cir. 2010)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The court
may not reweigh the evidence or substitute its judgment for that of the ALJ. Terry v.
Astrue, 580 F.3d 471, 475 (7th Cir. 2009); Berger v. Astrue, 516 F.3d 539, 544 (7th Cir.
2008). Where conflicting evidence would allow reasonable minds to differ as to whether
the claimant is disabled, it is the ALJ’s responsibility to resolve those conflicts. Simila,
573 F.3d at 513 -514; Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). Since
conclusions of law are not entitled to such deference, where the Commissioner commits
an error of law, the court must reverse the decision regardless of the volume of evidence
supporting the factual findings. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007).
While the standard of review is deferential, the court cannot “rubber stamp” the
Commissioner’s decision.

Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002).

Although the ALJ need not address every piece of evidence, the ALJ cannot limit his
discussion to only that evidence that supports his ultimate conclusion. Herron v. Shalala,
19 F.3d 329, 333 (7th Cir. 1994). The ALJ’s decision must allow the court to assess the

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validity of his findings and afford the claimant a meaningful judicial review. Hopgood
ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009). The Seventh Circuit calls this
building a “logical bridge” between the evidence and the ALJ’s conclusion. Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996). “An ALJ must only ‘minimally articulate his or
her justification for rejecting or accepting specific evidence of a disability.’”Berger, 516
F.3d at 545; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). It is a “lax”
standard. Berger, 516 F.3d at 545.
B.
Five-Step Sequential Analysis
The Social Security Regulations provide a five-step sequential inquiry to
determine whether a Ms. Pawlowski is disabled:
1) is the Ms. Pawlowski currently unemployed;
2) does the Ms. Pawlowski have a severe impairment;
3) does the Ms. Pawlowski have an impairment that meets or equals one
of the impairments listed as disabling in the Commissioner’s regulations;
4) is the Ms. Pawlowski unable to perform his past relevant work; and
5) is the Ms. Pawlowski unable to perform any other work in the national
economy?

20 C.F.R. §§ 404.1520; Simila, 573 F.3d at 512-13; Briscoe ex rel. Taylor v. Barnhart,
425 F.3d 345, 351-52 (7th Cir. 2005). An affirmative answer leads either to the next step
or, on steps 3 and 5, to a finding that the claimant is disabled. 20 C.F.R. §416.920;
Briscoe, 425 F.3d at 352; Stein v. Sullivan, 892 F.2d 43, 44 (7th Cir. 1990). A negative
answer at any point, other than step 3, stops the inquiry and leads to a determination that
the claimant is not disabled. 20 C.F.R. §404.1520; Stein, 892 F.2d at 44. The claimant
bears the burden of proof through step four; if it is met, the burden shifts to the

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Commissioner at step five. Briscoe, 425 F.3d at 352, Brewer v. Chater, 103 F.3d 1384,
1391 (7th Cir. 1997).
C.
Analysis
As already explained, in arguing for a remand, Ms. Pawlowski wagers all on a
single facet of the ALJ’s opinion: his determination that she did not meet listing 1.04C.
She has thus waived any other arguments she might have made. Carter, 2011 WL
917000, *6; Skarbek, 390 F.3d at 500; Schoenfeld, 237 F.3d at 793; Shramek, 226 F.3d at
811.

Ms. Pawlowski contends that the ALJ ignored MRI evidence and failed to

adequately explain his conclusion that the spinal condition did not meet listing 1.04.
First of all, Ms. Pawlowski is somewhat mistaken as to the requirements of listing
1.04C. She submits that “Listing 1.04C, Disorders of the Spine, is met and directs a
finding of disabled, if three things are present: nerve root compression, spinal stenosis,
and pseudoclaudication.” (Brief, at 2). The listing provides as follows:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable imaging,
manifested by severe burning or painful dysesthesia, resulting in the need
for changes in position or posture more than once every 2 hours;
or

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C. Lumbar spinal stenosis1 resulting in pseudoclaudication2, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04. It may be a subtle difference, but listing
1.04C requires stenosis and pseudoclaudication, while listing 1.04A requires nerve root
compression. More important for present purposes, however, are the required
accompanying findings.
Ms. Pawlowski argues that the ALJ based his finding that her impairment did not
meet listing 1.04C on the February 21, 2006 MRI, which the ALJ said showed no nerve
root effacement. (Brief, at 2). Ms. Pawlowski submits that the report showed
“‘convincing effacement of the S1 nerve roots or the exiting L5 nerve root.’” (Brief, at 2,
citing R. 286). She interprets this as a statement that there was medical evidence of
nerve root effacement and that the ALJ’s contrary conclusion is mistaken. The difficulty
with this contention is two-fold. First, it ignores the semantic inconsistency in the
statement, itself. More importantly, it ignores another section of the report that is
inextricably linked to the section that has been excised from the report. When the
sentence is considered in context, the meaning accorded to it by Ms. Pawlowski is seen to
be mistaken, as the ALJ obviously concluded.
“‘All interpretation is contextual, and the body of knowledge that goes by the
name of ‘common sense’ is part of the context of interpreting most documents. . . .’”

1

Spinal stenosis is a narrowing of the spinal column that causes pressure on the spinal cord, or
narrowing of the openings (called neural foramina) where spinal nerves leave the spinal column.

2

Pseudoclaudication is a result of narrowing of the lumbar spinal canal (lumbar spinal stenosis). This
puts pressure on the spinal nerve roots, which control movement and sensation in the lower limbs.
http://www.mayoclinic.com/health/pseudoclaudication/HQ01278.

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Vendetti v. Compass Environmental, Inc., 559 F.3d 731, 733 (7th Cir. 2009)(Posner, J.).
It is also a canon of common sense applicable to all written documents that a literal
interpretation that produces absurd results is to be avoided. See Beanstalk Group, Inc. v.
AM General Corp., 283 F.3d 856 (7th Cir. 2002); In re Comdisco, 434 F.3d 963 (7th Cir.
2006).

Ms. Pawlowski’s interpretation of the single-sentence cited in her brief is

contrary to both these precepts, which have applicability beyond merely contracts and
statutes. No reason appears that should make them inapplicable in this context, and there
is every reason why these interpretative rules should be utilized here.
In the “FINDINGS” section of the report, Dr. Kim wrote:
At L5-S1, there is a central posterior disc protrusion (herniation) with high
T2-weighted signal intensity indicating an annular tear. Mild central canal
stenosis is seen. There is also left lateral recess narrowing. However, there
is convincing effacement of the Sl nerve roots or the exiting L5 nerve
roots.
(R. 286)(Emphasis supplied).
It is immediately apparent that the last sentence cannot be accorded the meaning
ascribed to it by Ms. Pawlowski. The use of the word “[h]owever” at the beginning of
the sentence and the use of the disjunctive “or” later in the sentence, is not merely odd
phrasing; the sentence, as written, makes no sense. The first two sentences note disc
protrusion, an annular tear, and left lateral recess narrowing. If the final sentence was
intended to mean that there was “convincing [nerve] effacement,” the sentence would not
have begun with the word, “[h]owever.”
“However” is defined by the Webster’s Encyclopedic Unabridged Dictionary of
the English Language, New Deluxe Edition, as “nevertheless; yet; on the other hand; in
spite of that.” The example given is “we have not yet won; however, we shall keep on

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trying.” Thus, the sentence in Dr. Kim’s report that begins with “[h]owever” must have
been intended to say something contrary to or in contrast with the findings expressed in
the preceding three sentences regarding nerve root effacement flowing from disc
protrusion, annular tearing, mild stenosis, and recess narrowing.
That this was Dr. Kim’s intent is further apparent from his use of the word “or”
later in that sentence. If there was “convincing” effacement, it would have made no
sense to have used the disjunctive phrasing that was in fact employed. There was either
effacement to S1 or L5 or both. But the sentence as written leaves it impossible to say
which. No clinician would leave the matter indeterminate, as the last sentence does when
read literally, and it is fatuous to say that Dr. Kim could not distinguish between the S1
nerve root and the exiting L5 nerve root.
The only interpretation of the FINDINGS section of the report that does not lead
to absurd results and that makes sense of Dr. Kim’s phrasing is that there is a word
missing from the sentence. And that word can only be “no.” Properly read, the sentence
was intended to say that there was no convincing effacement of the Sl nerve roots or the
exiting L5 nerve roots. The word “no” makes intelligible the use of the words, “however”
and “or.” That this is what Dr. Kim meant to say is confirmed by the “IMPRESSION”
section, which comes immediately after the “FINDINGS” section and which is clearly
intended as an explanation of the “FINDINGS” section . Here, Dr. Kim writes:
Small central posterior disc protrusion (herniation) at L5-S1 with evidence
for an annular tear at the posterior margin of the disc protrusion. There is
mild central canal stenosis. No focal nerve root effacement or significant
neural foraminal narrowing is seen at this level.
(R. 286)(Emphasis supplied).

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Unfortunately, the plaintiff has ignored Dr. Kim’s unequivocal statement in this
section of the report, although it could scarcely be more significant to the interpretive
question that her brief raises. The chief determinant of the meaning of all language is
context. Scalia, A Matter of Interpretation: Federal Courts and the Law, 135 (1997). Or
as Cardozo memorably put it, there is a “transforming power of association for phrases as
for men.” Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284, 299, 169 N.E. 386
(1929). Cf. Williams v. Taylor, 529 U.S. 420, 435 (2000).
While the ALJ did not go through this analysis, he did not have to. Dr. Kim’s
“IMPRESSIONS” were sufficient and the typographical mistake in the “FINDINGS”
section obvious. “‘Judges need not explain” or “belabor the obvious,” “even briefly.”
United States v. Moore, 641 F.3d 812, 823 (7th Cir. 2011); United States v. Gary, 613
F.3d 706, 709 (7th Cir.2010). Cf., Eastman Kodak Co. v. Photaz Imports Ltd., Inc. 853
F.Supp. 667, 674 (W.D.N.Y. 1993)(“‘[J]udges are competent to understand the
obvious....’”). The ALJ’s conclusion that “on February 21, 2006, . . . . [a]n MRI of her
lumbar spine showed: a "small" disc protrusion (herniation) at LS-S1 with evidence of an
annular tear and "mild” central canal stenosis, but no nerve root effacement or significant
neural foraminal narrowing,” (R. 20), comports with the explicit conclusion of Dr. Kim
and is the only sensible reading of the report, taken as a whole.3 Cf. United States v.
Herrera, 120 F.3d 269 (9th Cir. 1997)(“when read in its entirety the existence of a
typographical mistake is clear.”). In relying on the “IMPRESSION” section of Dr. Kim’s
report, the ALJ did not err and more than satisfied the “logical bridge” requirement.

3

All judges make mistakes. Fujisawa Pharmaceutical Co., Ltd. v. Kapoor, 115 F.3d 1332, 1339 (7th
Cir. 1997). This case shows that doctors do also.

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Judicial review of an ALJ’s decision is not a game of Gotcha, and “we give the
[ALJ's] opinion a commonsensical reading rather than nitpicking at it.” Shramek v. Apfel,
226 F.3d 809, 811 (7th Cir. 2000). “No principle of administrative law or common sense
requires [a court] to remand a case in quest of a perfect opinion unless there is reason to
believe that the remand might lead to a different result.” Fisher v. Bowen, 869 F.2d 1055,
1057 (7th Cir. 1989)(Posner, J.)(“So the administrative law judge's opinion is vulnerable.
But that is nothing new” and alone does not require remand); People of the State of
Illinois v. I.C.C., 722 F.2d 1341, 1348 (7th Cir.1983)(Posner, J.)(“But if we are sure that
the agency would if we remanded the case reinstate its decision-if in other words the
error in its decision was harmless-a reversal would be futile, and Chenery does not
require futile gestures”).4
As it turns out, however, even if the ALJ erred by not pedantically explaining the
obvious, the omission is not “critical” to his analysis. Listing 1.04C requires that a
claimant’s condition result “in inability to ambulate effectively, as defined in 1.00B2b.”
Under that section, the inability to ambulate means:
an extreme limitation of the ability to walk; i.e., an impairment(s) that
interferes very seriously with the individual’s ability to independently
initiate, sustain, or complete activities. Ineffective ambulation is defined
generally as having insufficient lower extremity functioning . . . to permit
4

Even where there are unexplained “tensions in [a doctor’s] report,” Fisher, 869 F.2d at 1057,
remand is not inevitable. In Fisher, the “administrative law judge did not remark on any of these
anomalies” or “explain why a psychiatrist's evaluation is to be preferred to that of a clinical
psychologist”. Nonetheless, the court of appeals affirmed the district court’s affirmance of the Social
Security Administration’s denial of benefits since the record itself was clear.
The situation here is unlike that in Craft v. Astrue, 539 F.3d 668 (7th Cir. 2008), where the ALJ
ignored a psychiatrist’s dire assessment of a claimant’s mental condition and, without any
explanation, focused exclusively on other seemingly contradictory findings. The court of appeals said
that it could not tell whether the ALJ considered and rejected this piece of evidence because she did
not mention it. 539 F.3d at 678. The instant case does not present the problem that concerned the
court in Craft, where there was contradictory evidence. Here, there is no contradictory evidence.

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independent ambulation without the use of a hand-held assistive device(s)
that limits the functioning of both upper extremities.

20 CFR Pt. 404, Subpt. P, App. 1, §1.00B(2)(b). The ALJ correctly stated that there was
no evidence that Ms. Pawlowski suffered an inability to ambulate effectively (R. 17), and
pointed to examination results showing “she exhibited a normal gait, negative straight leg
raise, intact sensory and motor function, satisfactory heel/toe movement, and normal
reflexes.” (R. 20). That was in March of 2006.
The ALJ also referred to two other medical visits. One was in May of 2006,
when Ms. Pawlowski was noted to have “walked without a limp, and exhibited no
sensory or motor deficits, no effusion and only very slight limitation at extreme of full
flexion, but otherwise full knee range of motion.” (R. 16). The other was in July of 2004,
when she was said to be “ambulatory, unassisted with a steady gait.” (R. 16). And,
finally, as the ALJ also pointed out, the first evidence in the record of Ms. Pawlowski
requiring a cane to walk came well after the expiration of her insured status. (R. 21).
Ms. Pawlowski counters that there is evidence that she lost the ability to ambulate
effectively. That evidence consists solely of her testimony and her complaints to Dr.
Orteza. But the ALJ clearly disbelieved the extent of her complaints, as he was entitled
to do, Sarchet, 78 F.3d at 307, especially in light of the contradictory medical evidence –
a point specifically noted by the ALJ. “[A] discrepancy between the degree of pain
claimed by the applicant and that suggested by medical records is probative of
exaggeration.” Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005); see also Jones
v. Astrue, 623 F.3d 1155, 1161 (7th Cir. 2010); Getch v. Astrue, 539 F.3d 473, 483 (7th
Cir. 2008).

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Similarly, Ms. Pawlowski’s complaints to her physician are not medical evidence,
but merely her own description of her symptoms. Subjective complaints to a treating
source are “the opposite of objective medical evidence and an ALJ is not compelled to
accept them.” Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). See also Rice v.
Barnhart, 384 F.3d 363, 371 (7th Cir. 2004)(“medical opinions upon which an ALJ
should rely need to be based on objective observations and not amount merely to a
recitation of a claimant's subjective complaints.”); Dixon v. Massanari, 270 F.3d 1171,
1178 (7th Cir.2001) (“An ALJ may properly reject a doctor's opinion if it appears to be
based on a claimant's exaggerated subjective allegations.”).
Dr. Orteza’s actual examination findings – which the ALJ clearly considered (R.
20) – were a normal gait, reflexes, and motor function. (R. 389). To the medical
evidence, the ALJ added his observations of how Ms. Pawlowski behaved when she
thought she was out of his view. As with discrepancies between medical evidence and
complaints, this too, is a valid reason to doubt a claimant’s testimony. See Powers v.
Apfel, 207 F.3d 431, 436 (7th Cir.2000)(“. . . we have repeatedly endorsed the role of
observation in determining credibility and refuse to make an exception in this
situation.”). The ALJ also pointed to the fact that Ms. Pawlowski was non-compliant
with her prescribed physical therapy regimen. This, too, is a valid factor, but might be
tempered by an inability to pay or, in the case of medication, bad side effects. Myles v.
Astrue, 582 F.3d 672, 677 (7th Cir. 2009).

While the ALJ did find out that Ms.

Pawlowski had medical insurance through public aid (R. 34), he didn’t specifically ask
why she failed to attend many physical therapy sessions and doctor’s appointments. But,

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even if that amounts to a flaw, it is not enough to overturn the ALJ’s credibility finding,
which is otherwise amply supported. Simila, 573 F.3d at 517; Berger, 516 F.3d at 546.
So, the central issue with regard to this evidence remains Ms. Pawlowski’s lack of
credibility. Ms. Pawlowski wisely does not claim that the ALJ’s credibility finding was
“patently wrong,” so it cannot be disturbed. Castile v. Astrue, 617 F.3d 923, 929 (7th Cir.
2010). In short, the ALJ was correct in stating there was no evidence of an inability to
ambulate. That, alone, would mean Ms. Pawlowski had failed to prove her condition met
the listings. The result would have been the same no matter how the ALJ interpreted Dr.
Kim’s statements regarding nerve effacement. So even if the ALJ’s treatment of the MRI
report was error, it was harmless. Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).
Given Ms. Pawlowski’s confusion about the requirements of the listings, it may
be that she meant to argue that her condition met listing 1.04A, rather than listing 1.04C.
Listing 1.04A, as already noted, does specifically require evidence of nerve root
compression. But, like listing 1.04C, the criteria do not end with the first thing
enumerated.

To meet listing 1.04A, Ms. Pawlowski would had to have presented

evidence of limitation of motion of the spine, motor loss accompanied by sensory or
reflex loss, and positive straight leg raising tests. 20 CFR Pt. 404, Subpt. P, App.1,
§1.04A. As the ALJ explained in his decision, examination revealed “negative straight
leg raise, intact sensory and motor function, satisfactory heel/toe movement, and normal
reflexes . . . .” (R. 20). So, again, if the ALJ erred in his interpretation of Dr. Kim’s MRI
report, Ms. Pawlowski still would not have met the listing, and any error would be
harmless.

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Finally, Ms. Pawlowski raises the argument that the ALJ failed to build an
accurate and logical bridge from the evidence to his conclusion – an argument that has
become de rigeur in these cases.

She says the ALJ simply made the conclusory

statement that her condition did not meet the listing and failed to explain why. (Brief, at
2).

As already discussed, however, the ALJ clearly cited evidence to explain his

findings. His decision allowed for a meaningful review, and that is all that is required.
Jones, 623 F.3d at 1160.
CONCLUSION
The plaintiff’s motion for summary judgment or remand is DENIED, and the
Commissioner’s motion for summary judgment is GRANTED.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 8/25/11

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