McGrath v. Astrue

Filing 30

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 4/10/2012.Mailed notice(smm)

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

TIMOTHY JAMES McGRATH,
Plaintiff,

Case NO. 11 C 2125

v.
Hon. Harry D. Leinenweber
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Timothy McGrath asks this Court to reverse or remand
the Commissioner of Social Security’s conclusion that he is not
disabled.

For the reasons stated herein, the Motion to Remand for

Reconsideration is granted.
I.

STATEMENT OF FACTS

Prior to his foot surgery in 1999, Timothy McGrath (“McGrath”)
worked in the U.S. Army and at various times as a welder and fitter,
and a manager.

Following complications from this surgery, he has

been diagnosed and/or treated for:

Complex Regional Pain Syndrome

(“CRPS”) Type II and cellulitis.

Many years prior to his foot

surgery, he was also diagnosed with photophobia.

The last date on

which he was insured for disability (his “DLI”) was December 31,

2006.

The question here is whether he was legally disabled on or

before that date.
The Court summarizes McGrath’s treatment history at some depth.
He had corrective foot surgery on October 4, 1999.

After a reaction

to a metallic wire implant resulted in complications from this
surgery,

he

was

(“CRPS”) Type

II

diagnosed
and

with

Complex

cellulitis.

Regional

McGrath’s

wife

Pain

Syndrome

testified

he

returned to work and worked short years in both 2000 and 2001, last
working in February or March 2001.

She testified that he stopped

working because of severe foot pain and large, painful tumors on his
right

leg.

His

wife

further

testified

that

he

underwent

unsuccessful procedures to attempt to remove these tumors.

two
Mrs.

McGrath testified that Dr. Morris instructed Mr. McGrath not to
undergo any more surgeries on his foot or leg due to his sensitivity
to metal.
Mr. McGrath began seeing Dr. Morales at the pain clinic from
June 2000 to April 2005.

Dr. Morales’ treatment notes in all

consultations from June 2000 until April 2005 reveal that McGrath’s
pain symptoms from CRPS Type II were well controlled through the
prescription of the narcotic painkiller Vicodin.

In his June 2000

consultation, Dr. Morales noted that McGrath denied side effects and
was happy with his treatment of one Vicodin ES tablet three times per

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day.

In his January 2001 and December 2001 consultations, Dr.

Morales noted that McGrath was working.

In December 2001, Dr.

Morales noted that McGrath could walk without problems.

In May 2003

and November 2004 Dr. Morales noted that McGrath’s medication regimen
allowed him to work.

In the November 2004 consultation, Dr. Morales

further noted that McGrath was able to do his work without any
problems.
McGrath suffered a stroke in mid to late 2007, and he has been
disabled since that time. However, because the claimant was last
insured for Title II benefits only through December 21, 2006, McGrath
must establish disability on or prior to that date in order to be
entitled to a period of disability and disability insurance benefits.
McGrath filed for Social Security Title II disability and
disability insurance benefits on March 15, 2008 claiming an onset
date of November 1, 2000.

McGrath’s claim for disability benefits

was denied on May 20, 2008, and upon reconsideration on June 25,
2008.

The State agency medical consultants who reviewed the record

concluded

that

there

was

insufficient

evidence

impairment prior to McGrath’s last date insured.

of

any

severe

He requested an

administrative hearing on July 21, 2008 and received one on June 4,
2009.

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On

September

15,

2009,

Administrative

Law

Judge

Shirley

Michaelson (the “ALJ”) ruled that McGrath was not disabled because
McGrath had the residual functional capacity for the full range of
light work to have performed jobs that existed in significant numbers
in the national economy.
physicians:

The ALJ discussed evidence from three

Dr. Easley, Dr. Morales, and Dr. Ezike (the impartial

medical expert present at the hearing).
The ALJ did not discuss the records of Dr. Walters (the foot
surgeon), which were not available at the hearing, as noted by the
ALJ and Mrs. McGrath in the hearing testimony and questioning.

The

ALJ did not examine the records of Dr. Jiotis, Dr. Martini, Dr. Kao,
and Dr. Harris, and prescription records for 2006.

These records

were not provided to the ALJ by the claimant in time for her
consideration.
On February 8, 2011 the Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final word of the
Social Security Commissioner.

McKinzey v. Astrue, 641 F.3d 884, 889

(7th Cir. 2011).
II.

LEGAL STANDARD

The ALJ had to determine whether one or more determinable mental
or physical impairments (that can be expected to last for 12 or more
months) prevented Plaintiff from engaging in substantial gainful

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activity. To do so, she followed the five-step analysis in 20 C.F.R.
§404.1520(a)(4).

If a claimant is found “not disabled” at any step,

the inquiry ends and the claim is denied.
•

At step one, a claimant is not disabled if he is
currently
performing
substantial
gainful
activity.

•

At step two, a claimant is not disabled unless
he has a “severe” medical impairment.

•

At step three, a claimant is disabled if his
impairments meet or equal the listings at 20
C.F.R. Part 404, Subpart P, App. 1. If they do
not, the analysis continues.

•

Before
step
four, the
ALJ
determines
a
claimant’s Residual Functional Capacity (“RFC”);
that is, what work he can do despite his limits.
20 C.F.R. §404.1545(a). At this stage, the ALJ
considers all record evidence and all of the
claimant’s impairments, severe or not. Id.

•

At step four, a claimant is not disabled if he
has the RFC to perform his past work.

•

At step five, a claimant is not disabled if he
can do any work in the national economy based on
his RFC, age, education, and work experience.
See 20 C.F.R. § 404.1512(g).

An ALJ must consider all relevant evidence and may not “cherrypick” only facts that indicate non-disability; however, she need not
discuss every piece of evidence. Goble v. Astrue, 385 Fed.Appx. 588,
593 (7th Cir. 2010).

That is, the ALJ must “build an accurate and

logical bridge from the evidence to [her] conclusion.” McKinzey, 641
F.3d at 889.
- 5 -

A treating physician’s opinion is entitled to controlling weight
“if

it

is

well-supported

by

medically

acceptable

clinical

and

laboratory diagnostic techniques and is not inconsistent with other
substantial evidence.”
Cir. 2010).

Campbell v. Astrue, 627 F.3d 299, 306 (7th

If an ALJ discounts a treating physician’s opinion, she

must offer good reasons why and specify how much weight she gives it
in light of certain factors.

Id. at 306, 308. Those factors include

“the length, nature, and extent of the treatment relationship;
frequency of examination; the physician’s specialty; the types of
tests performed; and the consistency and support for the physician’s
opinion.”

Id. at 308.

See also, 20 C.F.R. § 404.1527(d)(2).

On review, an ALJ’s decision controls if it applies the correct
legal standard and is supported by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Campbell,

627

F.3d

at

306.

The

Court

critically

reviews

the

evidence, but does not reweigh it, resolve conflicts, or substitute
its own judgment for the Commissioner’s. McKinzey, 641 F.3d at 889.
Because the Court reviews only a cold record, an ALJ’s credibility
findings receive special deference. Castile v. Astrue, 617 F.3d 923,
929 (7th Cir. 2011).
stated rationale.

Finally, review is limited to the ALJ opinion’s

Campbell, 627 F.3d at 306.

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Remand for consideration of additional evidence is appropriate
only upon a showing that the evidence is new and material to the
claimant's condition during the relevant time period encompassed by
the disability application under review, and there is good cause for
not introducing the evidence during the administrative proceedings.
Sears v. Bowen, 840 F.2d 394 (7th Cir. 1988) (citing 42 U.S.C. §
405(g)).
Additional evidence is new when it was not in existence at the
time of the administrative proceedings and it is neither cumulative
nor irrelevant.

Id. (citing Evangelista v. Secretary of Health and

Human Services, 826 F.2d 136 (1st. Cir. 1987)).

Additional evidence

is material if there is a reasonable possibility that it would have
changed the outcome of the Secretary’s determination.
Bowen, 840 F.2d 394, 1380 (7th Cir. 1988).
additional

evidence

is

not

considered

Sears v.

The materiality of

where

claimant

has

not

demonstrated good cause for not having offered the evidence in a
prior proceeding.

Waite v. Bowen, 819 F.2d 1356, 1361 (7th Cir.

1987).
In determining whether there is good cause for the failure to
incorporate

additional

evidence

into

the

record

proceeding, the court looks to several factors:

at

a

prior

at what time the

additional evidence was available; whether the record shows that the

- 7 -

additional evidence derives from an expert retained solely for the
purpose

of

uninformed

establishing
in

a

procedural

disability;
matters;

whether

whether

the

the

claimant
claimant

is
was

represented by lay advocates in combination with a medical history
that causes claimant to rely upon others to read and explain letters
and notices; whether the Appeals Council found good cause pursuant to
its regulations to grant claimant an extension of time to file his
appeal.

Where the reasons for pursuing additional evidence are

apparent while the case is still subject to administrative review,
and there is no impediment to obtaining the evidence, no good cause
has been demonstrated for failing to bring the evidence to the
Secretary's attention.

Anderson v. Bowen, 868 F.2d 921 (7th Cir.

1989).
III.

ANALYSIS

At step one of her decision, the ALJ concluded that McGrath did
not engage in substantial gainful activity between November 1, 2000
and December 31, 2006.
impairment.

At step two, she found foot pain, a severe

She noted that the condition caused “more than minimal

functional limitations in the claimant’s ability to perform basic
work activity.”
Chronic

In doing so, she found McGrath’s other impairments,

Obstructive

Pulmonary

Disease

(“COPD”),

hypertension,

migraine headaches and photophobia not to be severe impairments.

- 8 -

At

step three, the ALJ concluded that McGrath’s impairments did not meet
or equal a listed impairment, noting that no treating or examining
physician identified findings equivalent in severity to the criteria
of any listed impairment, including Listing 1.02 (major dysfunction
of a joint).
The ALJ adopted Dr. Ezike’s RFC, which she found took into
consideration Plaintiff’s symptoms insofar as they could “reasonably
be accepted as consistent with the objective medical evidence and
other evidence.”

Dr. Ezike found McGrath capable of lifting 20

pounds occasionally and 10 pounds frequently and standing/walking for
six hours in an eight-hour workday.

Thus, the ALJ determined that

the assessed RFC adequately accounted for McGrath’s foot pain and
related limitations by limiting McGrath to light work.
To

reach

process:

this

first

determination,

considering

the

whether

ALJ
the

followed

a

impairments

two-step
shown

by

medically acceptable evidence could reasonably produce plaintiff’s
reported symptoms, and then determining the symptoms’ persistence,
intensity, and limiting effects. That second inquiry required her to
evaluate

the

Plaintiff’s

credibility.

The

ALJ

concluded

that

“medically determinable impairments could reasonably be expected to
cause

the

alleged

symptoms;

however,

the

claimant’s

statements

concerning the intensity, persistence, and limiting effects of the

- 9 -

symptoms are not credible to the extent that they are inconsistent
with the assessed residual functional capacity assessment.” In doing
so, the ALJ explicitly relied on the testimony of Dr. Morales.

She

also gave some weight to the assessments of the State agency medical
consultants’ assessments, but found Dr. Ezike’s medical opinion to be
more consistent with the record as a whole. Dr. Ezike opinion was
based on Morales’ treatment records, and did not discount them.
While McGrath’s representative and Mrs. McGrath disputed the
contents of Dr. Morales’ treatment records, claiming that the doctor
failed to note claimant’s continued foot pain in his records, there
was no evidence to corroborate such claims, nor were they able to
provide additional evidence to the ALJ.

Mrs. McGrath testified that

she believed Dr. Morales continued to report that McGrath was doing
well because Morales was over-prescribing Vicodin, which obscured the
pain.

However, since pain relief is the very reason the claimant

took Vicodin, her testimony may demonstrate the accuracy of Dr.
Morales’ treatment notes.
Plaintiff attacks the ruling on five points:

first, that the

ALJ inappropriately relied on the testimony of the medical expert Dr.
Ezike; second, that she failed to explain why he did not satisfy
Listing 1.02 (major dysfunction of a joint); third that she failed to
review Mr. McGrath under Listings 1.03 (reconstructive surgery of a

- 10 -

major weight-bearing joint with inability to ambulate effectively)
and 11.14 (peripheral neuropathies with disorganization of motor
function); fourth, that the RFC is inconsistent with the medical
record, claiming the only medical doctor whose record discussed work
was Dr. Easley; and fifth, that the ALJ should have asked the
vocational expert whether McGrath could have performed other jobs.
Finally, McGrath argues that additional evidence submitted to
the Appeals Council, after the decision of the ALJ, is basis for
remand under sentence six of 42 U.S.C. § 405(g).
The Court considers each issue in turn.
A.

No Inappropriate Reliance Upon Medical Expert

Plaintiff challenges the ALJ’s reliance upon the opinion of
medical expert Dr. Ezike because he allegedly misunderstood McGrath’s
diagnosis of CRPS Type II.
When the basis for an expert’s opinion is not challenged at the
hearing, the ALJ is entitled to rely on the opinion.

Barrett v.

Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004) (citing Donahue v.
Barnhart, 279 F.3d 441, 446 (7th Cir. 2002)).
The ALJ’s account of why she heavily credited the opinion of
non-examining medical expert Dr. Ezike was not brief.

Instead, she

explained that his medical opinion was consistent with the record as
a

whole,

specifically,

the

treatment

- 11 -

notes

of

Plaintiff’s

own

physician, Dr. Morales.
conclusions

or

Dr. Ezike did not dispute any of the

observations

of

Dr.

Morales.

Indeed,

although

Plaintiff and his wife testified that Plaintiff’s pain was much
greater

than

that

reflected

in

Dr.

Morales’

reports,

no

one

challenged Dr. Ezike’s reasoning or expertise at the hearing or in
the post-hearing brief.
Plaintiff challenges Dr. Ezike’s understanding now, based on the
fact that he referred to CRPS Type II as Reflex Sympathetic Pain
Syndrome

(“RSPS”).

Although

Defendant

has

presented

credible

arguments for why the two are essentially the same, we need not
consider this challenge since it was not made at the hearing or in
the follow-up brief.
The ALJ appropriately relied on the testimony of medical expert
Dr. Ezike.
B.

Explanation of Why Claimant did not Satisfy Listing 1.02
and Review of Claimant under Listings 1.03 and 11.14

Plaintiff claims the ALJ failed to explain why McGrath did not
satisfy Listing 1.02, major dysfunction of a joint.

Plaintiff also

claims

Listings

the

ALJ

(Reconstructive

failed

to

Surgery

of

review
a

McGrath

Major

under

Weight-Bearing

Joint

1.03
with

Inability to Ambulate Effectively) and 11.14 (Peripheral Neuropathies
with Disorganization).

- 12 -

When evaluating the listings, the ALJ need not consider every
piece of evidence, but must “build an accurate and logical bridge
from the evidence to the conclusion.”
424, 429 (7th Cir. 2002).

Sims v. Barnhart, 309 F.3d

When an ALJ finds that a claimant fails to

satisfy a listing, the ALJ is not required to explain why the
claimant did not functionally equal the requirements of the listing.
There is no duty to analyze equivalence when the claimant presents no
substantial evidence of it.

Eskew v. Astrue, 2011 U.S. App. LEXIS

24035 (7th Cir. Ill. Dec. 2, 2011).

See, Schneck v. Barnhart, 357

F.3d 697 (7th Cir. 2004); Clifford v. Apfel, 227 F.3d 863, 868 (7th
Cir. 2000).
The ALJ explained McGrath failed to satisfy any of the listings
because “[n]o treating or examining physician has identified findings
equivalent in severity to the criteria of any listed impairment, or
in particular Listing 1.02 (major dysfunction of a joint).”

While

Mrs. McGrath’s testimony describes large tumors upon McGrath’s right
leg, this testimony is not corroborated in the medical record before
the ALJ, nor did she indicate these tumors caused major joint
dysfunction.

McGrath’s own records and testimony only note severe

foot pain, without establishing an inability to ambulate effectively.
The mere existence of foot pain does not automatically satisfy
Listing 1.02 because, without evidence proving claimant’s extremely

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limited ability to walk during the period in question, it provides no
insight to McGrath’s joint functioning.

The ALJ is not required to

analyze equivalence because McGrath failed to provide substantial
evidence proving his condition equals any of the listings.
When there is no evidence that would support the position that
claimant meets or equals a listing, the ALJ need not specifically
articulate reasons in reference to the listing.
357 F.3d 697 (7th Cir. 2004).

Scheck v. Barnhart,

Here, there is no evidence in the

medical records before the ALJ that would support finding a listing
under either

Listings

1.02

or

1.03,

which

requires

showing

an

inability to ambulate effectively, or 11.14, which requires showing
sensor

or

motor

aphasia

resulting

in

ineffective

speech

or

communication or significant and persistent disorganization of motor
function in two extremities.
When claimant fails to raise an argument about meeting a listing
or equivalence before the ALJ, they waive this argument. Fleming v.
Astrue, 2011 U.S. App. LEXIS 23861.

See Skarbek v. Barnhart, 390

F.3d 500, 505 (7th Cir. 2004); Shramek v. Patel, 226 F.3d 809, 811
(7th Cir. 2000).
to

argue

that

Here, at the hearing before the ALJ, McGrath failed
they

satisfied

Listings

1.03

or

11.14,

despite

opportunity to do so. In fact, McGrath’s attorney agreed that unless
McGrath was able to enter new medical evidence into the record,

- 14 -

McGrath would

be

unable

to

prove

he

was

disabled,

effectively

conceding comparison with other listings.
The ALJ’s examination of the listings was appropriate.
C.

The RFC is Consistent with the Medical Record

McGrath argues the ALJ’s residual functional capacity evaluation
is inconsistent with the medical record.

In reviewing such a claim,

the district court “is not allowed to substitute its judgment for the
ALJ’s

by

reconsidering

facts,

reweighing

evidence,

resolving

conflicts in evidence, or deciding questions of credibility.”
v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).

Jens

Moreover, while the

ALJ need not consider each piece of evidence, she must “build an
accurate and logical bridge from the evidence to [her] conclusion.”
McKinzey, 641 F.3d at 889.

The ALJ’s omission of a minor aspect of

a medical report, in one of many medical assessments, does not
indicate a rejection of medical evidence, which would require the ALJ
to articulate an explicit reason for not considering this aspect of
the report, when the ALJ’s RFC reflects the omitted aspect of the
medical record.

Dixon v. Barnhart, 2004 WL 603492 (N.D. Ill. 2004).

Dr. Ezike testified that McGrath was capable of lifting 20
pounds occasionally and 10 pounds frequently and standing/walking for
six hours in an eight-hour workday.

Dr. Ezike’s testimony was based

almost entirely off of his evaluation of the medical records of Dr.

- 15 -

Morales.

Here, Plaintiff cannot even argue that the ALJ gave

insufficient weight to the treating physician’s opinion since the RFC
adopted by the ALJ was largely derived from the medical records of
Plaintiff’s own treating physician.

Dr. Ezike’s testimony, along

with Dr. Morales’ medical notes, provided the evidentiary foundation
for the ALJ’s residual functional capacity evaluation. Thus it seems
the ALJ built a logical bridge between Dr. Morales’ records and the
residual

functional

capacity

evaluation,

which

accounted

for

McGrath’s foot pain and related limitations by limiting McGrath to
light work.
There appears to be an inconsistency in the ALJ’s ruling.

She

cites Dr. Morales’ May 2003 report, where he notes McGrath’s pain
medicine “allowed him to work.”

(R. 43).

Similarly, the ALJ cites

Dr. Morales in November 2004, who noted that McGrath’s pain medicine
“allowed him to work and do his work without any problems.” (R. 44).
However, the ALJ acknowledges at the hearing that Morales’ reports
were incorrect to the extent that they claimed McGrath was working in
2004.

(R. 64).

in 2001.

The ALJ also acknowledges that McGrath quit working

(R. 68).

Thus one of the grounds the ALJ cited in favor of

her RFC was inconsistent with the evidence.

It is not clear that the

ALJ’s failure to note this flaw in the record destroys the logical
bridge between the Morales’ medical records and her RFC.

- 16 -

In Dixon, the ALJ’s omission of a minor notation of pain in
connection with a grip test in one of many medical records was
insignificant.

It did not indicate a rejection of the medical

evidence, and did not require the ALJ to articulate an explicit
reason for not considering the notation.

The Dixon ALJ’s decision

made explicit reference to claimant’s pain in both the right hand and
wrist. The Dixon ALJ also set numerous limitations on the claimant’s
RFC determination which reflected claimant’s limited use of her right
hand, demonstrating that ALJ did not ignore medical evidence of
claimant’s hand pain.
Here, the ALJ’s inclusion of one erroneous aspect of the medical
records of Dr. Morales’ is similarly insignificant. As in Dixon, the
ALJ’s decision made explicit reference to the fact that claimant
returned to work in only 2000 and 2001. (R. 45).

Similarly, the ALJ

included numerous limitations on McGrath’s RFC determination, which
reflected McGrath’s limited ability to use his foot by limiting
McGrath to light work, “lift ten pounds frequently and twenty pounds
occasionally, and sit and stand/walk at least six hours each day.”
Because the ALJ’s RFC rests on alternate grounds that account for
McGrath’s

limited

ability

to

perform

insignificant.

- 17 -

work,

the

omission

was

The

ALJ

is

to

consider

limiting

effects

impairments, severe or otherwise, in combination.
596 F.3d 419, 423 (7th Cir. 2010).

of

claimant’s

Denton v. Astrue,

However, there is no need to

consider, in the RFC, speculative limitations derived from conditions
the record does not suggest are limiting.

Hoy v. Astrue, 390

Fed.Appx. 587, 591-593 (7th Cir. Ill. 2010); Schmidt v. Barnhart, 395
F.3d 737, 745-46 (7th Cir. 2005).
The ALJ’s discussion of McGrath’s post-surgery foot pain is
dominant in her RFC.

She does not consider, in the RFC, limitations

that might derive from McGrath’s history of chronic obstructive
pulmonary

disease,

photophobia.

There

limitations,

because

hypertension

or

insurance.

hypertension,
is

no

the

pulmonary

need

or
to

medical
disease

migraine

consider

record
until

headaches

these

did
after

not

and

speculative
reflect

the

period

the
of

No medical records reflect the migraine headaches, and

the only mention of photophobia is from the 1970s, with no mention of
any limiting effects thereafter.
The ALJ’s RFC is consistent with the medical record.
D. Failure to Ask the Vocational Expert Whether
McGrath Could Perform Other Jobs and/or Reliance on the Grid
McGrath argues that at step five, the ALJ should have asked the
vocational expert whether McGrath could perform other jobs within the
national economy.

If the ALJ determines the claimant cannot perform
- 18 -

past work, but fails to satisfy a listing, the Secretary has the
burden of showing claimant can perform some other job in the national
economy.

The ALJ may satisfy this burden by applying the Medical-

Vocational Guidelines, commonly called the grid.
834 F.2d 635, 641 (7th Cir. 1987).

Walker v. Bowen,

The presence of non-exertional

limitations, not factored into the grids, may preclude an ALJ from
relying on the grids and require a consultation with a vocation
expert, but only when the non-exertional limitations “substantially
reduce the range of work an individual can perform.”
Shalala, 22 F.3d 687, 691-92 (7th Cir. 1994).

Luna v.

The burden on showing

that a non-exertional limitation is not substantial rests on the ALJ.
Lawrence v. Astrue, 337 Fed.Appx. 579, 584 (7th Cir. 2009).
The ALJ concluded that McGrath was unable to perform any past
relevant work, based on his residual functional capacity. After this
conclusion, the ALJ had to satisfy the burden of showing McGrath
could perform other jobs in the national economy.

McGrath’s vision

problems relating to migraines and photophobia are a non-exertional
limitation.
2011);

SSR

McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. Ill.
85-15.

Because

of

the

presence

of

McGrath’s

non-

exertional limitations, the ALJ could only rely on the grids if
McGrath’s vision problems did not substantially reduce the range of
work he could perform.

As discussed in the RFC context, it is quite

- 19 -

likely that the vision problems were not substantial in relation to
this analysis.

However, the burden of showing that McGrath’s non-

exertional vision limitations were not substantial rested on the ALJ,
and the ALJ laid out no discussion of the effect of McGrath’s nonexertional limitations in step five.
In McKinzey, the ALJ found that McKinzey required frequent
accommodation for her vision problems, but subsequently asserted that
this frequent accommodation (the need for extra time to shift focus
from near to far sighted vision) would have little or no effect on
the light unskilled jobs available, and resorted to the grids.

The

court noted that McKinzey’s visual impairments were hardly of the
type

or

severity

contemplated

in

the

relevant

Social

Security

rulings, which suggested that only impairments severe enough to cause
safety concerns would significantly impact the occupational base of
light unskilled work.

The court found that no ALJ would reasonably

find McKinzey’s need for time to shift focus from near to far would
“significantly impact” the occupational base for light unskilled
work.
Unlike the ALJ in McKinzey, McGrath’s ALJ failed to provide any
justification for her assumption that McGrath’s visual non-exertional
impairments need not be considered when discerning the presence of
available jobs in the national economy.

- 20 -

There is no language

satisfying

the

burden

of

showing

why

this

limitation

was

not

substantial.
The ALJ may well have been persuaded that the visual impairment
was not substantial, and reliance on the grid was appropriate.

Or,

alternatively, had the ALJ discarded the grid, the vocational expert
may well have demonstrated that sufficient jobs exist that would
accommodate both the foot pain and the visual impairment.

But the

law is clear that whatever determination is reached, it must be
demonstrated and supported in the ALJ’s opinion.
Instead,

as

in

Lawrence,

the

ALJ

pointed

to

no

evidence

establishing that McGrath’s visual non-exertional limitation was not
substantial and rested on assumption.

Therefore, the ALJ’s reliance

on the grids at step five is not supported by substantial evidence.
E.

Additional Evidence is Basis for Remand

McGrath claims that additional evidence submitted to the Appeals
Council, after the decision of the ALJ, is basis for remand.

Under

sentence six of 42 U.S.C. § 405(g), a reviewing court may remand the
case to the Secretary when there is new evidence which is material
and there is good cause for the failure to incorporate such evidence
into the record in the prior proceeding.
1.

Good Cause

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Before the Court considers whether the evidence is new and
material, it must decide whether there was good cause for failure to
present such evidence earlier.

Anderson v. Bowen, 868 F.2d 921, 928

(7th Cir. 1989).

There is good cause for applicant’s failure to

introduce

records

medical

when

applicant’s

counsel

provides

an

affidavit reflecting that the unavailability of existing evidence was
attributable to forces beyond applicant’s control.

Blackburn v.

Heckler, 615 F.Supp. 908 (N.D. Ill. 1985).
McGrath’s

counsel

attempted,

but

failed,

to

obtain

additional records prior to the hearing before the ALJ.

the

At the

hearing, the ALJ kept the record open for the applicant to obtain
McGrath’s medical records dating from April 2005 until October 2007.
A medical record request was made to Provena St. Joseph Medical
Center, where McGrath received his pain management.

In July 2010,

St. Joseph Medical Center notified applicant that they had no medical
records for McGrath from April 2005 through October 2007.
notification

arrived

long

after

the

deadline

for

entering

This
new

evidence before the ALJ and applicant was unable to supplement the
record before the ALJ.

Tim McGrath could not obtain these medical

records because of the effects of his stroke.
Joseph Medical

Center’s

notification,

In response to St.

applicant’s

wife,

Cynthia

McGrath went in person the very next month to St. Joseph and located

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the medical records from this period at Pain Centers of Chicago, LLC.
This pain management facility was located within Provena St. Joseph
Medical Center as a distinct facility.
All pain clinic records on file at the time of the hearing bear
the “Provena Saint Joseph Medical Center” heading, while all latearriving

records

bear

the

heading

“Pain

Clinic

of

Chicago.”

Nevertheless, both sets of records still list Dr. Morales as a
treating physician and the same address, 333 N. Madison Avenue,
Joliet, Illinois.

This lends credence to applicant’s claim that

while the pain clinic maintained its address, the hospital stopped
serving as the clinic’s record keeper without clearly communicating
this to McGrath.
As

in

Blackburn,

McGrath’s

attorney

provided

an

affidavit

averring that these circumstances, beyond his control, prevented him
from

obtaining

these

records.

The

good

cause

requirement

is

satisfied.
2.

New and Material Evidence

For purposes of remanding to the Secretary, evidence is new and
material when it provides information unavailable at the hearing,
when it is not repetitive or cumulative.
F.Supp. 890 (N.D. Ind. 1983).

Czubala v. Heckler, 574

Evidence is material when it is

reasonably possible that Secretary’s original determination could

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change as the result of the new evidence.

Sears v. Bowen, F.2d 394

(7th Cir. 1988).
McGrath’s proffered evidence consists of medical records from
Pain Centers of Chicago dating from April 2005 through to 2007.

As

noted above, because insurance ran out as of December 31, 2006, only
those records dated 2006 are relevant.

These 2006 records included

the reports of Dr. Jiotis, who noted McGrath had left foot pain and
throbbing which rated as an 8 out of 10 and was worsened by prolonged
walking; Dr. Martini, who noted McGrath had constant left foot pain
with throbbing which rated as a 7 out of 10 and was worsened by
prolonged standing; Dr. Kao, who noted McGrath had constant left foot
pain with throbbing which rated 8 out of 10 and was worsened by
prolonged standing; and Dr. Harris, who noted McGrath had constant
left foot pain which rated at “10+” out of 10 and was worsened by
prolonged standing.
This is new information that was unavailable at the hearing. It
is neither repetitive nor cumulative because it provided evidence of
new medical records to the ALJ. This information is material because
there

is

a

reasonable

possibility

the

Secretary’s

original

determination that applicant was not disabled would change in light
of the new evidence, which reports McGrath has constant, intense foot
pain which is worsened by prolonged walking or standing.

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While the

evidence is capable of interpretation, at least some of it is
inconsistent with the rosy picture painted by Dr. Morales, and it
reflects that the Plaintiff stopped seeing Dr. Morales and changed
doctors and medication.

This may corroborate the testimony of

Plaintiff

given

and

his

wife

at

the

hearing

and

is

worth

consideration.
The records from the Pain Centers of Chicago dating from April
2005 to December 31, 2006 provide new and material evidence not
submitted before the ALJ for good cause.

This case is remanded to

the

and

Secretary

so

that

he

may

receive

consider

additional

evidence.
IV.

CONCLUSION

For the reasons stated herein, the Court finds the Motion to
Reverse is not warranted, but that remand is appropriate so that the
ALJ may reconsider the RFC in light of the new evidence.

If

Plaintiff requests one, a new hearing for the specific, limited
purpose

of

hearing

arguments

unavailable records is ordered.

and

witnesses

on

the

previously

This may include testimony from the

treating doctors listed in the new records, but does not include
doctors listed in records that were already available at the prior
hearing.

The ALJ is to reconsider, in light of the new evidence,

whether any listings at 20 C.F.R. Part 404, Subpart P, App. 1 are

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met, whether the RFC is still applicable, and whether an adequate
number of jobs exist in the economy in light of the new evidence.
The decision is also remanded so that, taking the non-exertional
limitations into account, the ALJ can determine and bear her burden
of demonstrating that reliance on the grids is warranted, or whether
testimony from a vocational expert is needed.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:4/10/2012

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