Harbers v. Astrue

Filing 43

MEMORANDUM Opinion and Order Signed by the Honorable P. Michael Mahoney on 5/20/2013:(pg, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
LYNNE A. HARBERS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 10 C 50138

Hon. P. Michael Mahoney
U.S. Magistrate Judge

MEMORANDUM OPINION AND ORDER
I.

Introduction
Lynn A. Harbers (“Claimant”) seeks judicial review of the Social Security

Administration Commissioner’s decision to deny her claim for Disability Insurance Benefits
(“DIB”), under Title II of the Social Security Act, and Supplemental Security Income (“SSI”)
benefits, under Title XVI of the Social Security Act. See 42 U.S.C. § 405(g). This matter is
before the Magistrate Judge pursuant to the consent of both parties, filed on October 20, 2010.
See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II.

Administrative Proceedings
On November 19, 2007, Claimant applied for DIB and SSI, alleging a disability onset

date of November 14, 2007. (Tr. 12.) Claimant’s application was initially denied on January 24,
2008 and again denied upon reconsideration on May 23, 2008. (Tr. 12.) Claimant then filed a
timely request for a hearing before an Administrative Law Judge (“ALJ”). (Tr. 12.) The hearing

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took place on February 18, 2009 via video teleconference between Evanston, Illinois and
Rockford, Illinois before ALJ Maren Dougherty. (Tr. 12, 22.) Claimant appeared in Rockford
and testified with her attorney present. (Tr. 12, 22.). Vocational expert (“VE”) William Newman
was present and testified in Evanston, as did Dr. Ronald A. Semerdijian, a medical expert. (Tr.
12.)
On July 1, 2009, the ALJ found Claimant was not disabled and denied her claims for DIB
and SSI. (Tr. 20.) Afterwards, Claimant filed a Request for Review with the Social Security
Administration’s Office of Hearing and Appeals. (Tr. 1.) The Appeals Council denied that
Request for Review on April 23, 2010. (Tr 1.) As a result of this denial, the ALJ’s decision is
considered to be the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 404.981,
416.1455, 416.1481. Claimant now files a complaint in Federal District Court, seeking judicial
review under 42 U.S.C. §§ 405(g), 1383(c)(3).

III.

Background
Claimant was born on May 6, 1971. (Tr. 153.) She was thirty-eight years old when she

appeared before the ALJ. (Tr. 153.) She stood five feet and five inches tall and weighed
approximately 140 pounds at the time of the hearing. (Tr. 153, 199.) Claimant lived in Freeport,
Illinois in a mobile home with her eleven year-old daughter. (Tr. 29.) During the hearing,
Claimant testified that she did not complete high school, but earned her G.E.D. in 1995. (Tr. 29.)
Prior to her provided onset date, Claimant was employed as a CNA, a day-care assistant,

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a fast food cook, a factory worker, and a warehouse worker. (Tr. 208.) Claimant had most
recently been employed by Wal-Mart as a part-time cashier for approximately seven months
until she was let go on June 30, 2008 for missing work. (Tr. 30.) Allegedly, she was fired due to
“excessive absence due to hospitalization.” (Tr. 31.) While she was employed she would
normally work anywhere form eighteen to thirty-two hours every week. (Tr. 32.)
On an average day, she will wake up at 7:30 to check on her daughter as she gets ready
for school. (Tr. 46.) Her daughter wakes up earlier and gets ready for the day on her own. (Tr.
46.) After her daughter leaves for school, Claimant will lie back down and fall asleep. (Tr. 46.)
She will re-awaken when her mother calls to check on her around 10:00am. (Tr. 46.) Claimant
habitually checks her blood sugar levels every time she wakes up. (Tr. 46.) After 10:00, she will
have something to eat and, sometimes, she will do a little laundry. (Tr. 46.)
Claimant testified that her daughter’s help is necessary to keep up with the housekeeping.
(Tr. 47.) Chores are usually split among them. (Tr. 47.) “Usually I can do the sweeping. [My
daughter] takes the mop . . . . When it comes to dishes . . . I might wash a few, go sit back down,
get up a little bit later and go wash a few more,” Claimant stated. (Tr. 47.)
At the hearing, the ALJ asked Claimant to list the limitations that affect her ability to
work from the most significant problem to the least significant. (Tr. 32.) Claimant answered,
“diabetes, carpal tunnel, migraine headaches, . . . asthma, and then epilepsy.” (Tr. 32.) Claimant
did not list her knee or ankle pain, nor did she mention her alleged anxiety or depression. (Tr.
32.) The ALJ proceeded to question Claimant about each symptom. (Tr. 32.)

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Claimant testified that her diabetes gives her difficulty because her blood sugar levels
fluctuate. (Tr. 36.) “I get very exhausted, very tired. I can’t manage to do some things during the
day. I get really, really tired,” she said. (Tr. 36-37.)
As to the second most significant problem, the alleged carpel tunnel disorder affects both
of Claimant”s hands, she testified. “My hands swell. I had the shots . . . in my wrists, and it
worked for a couple of years[.] [B]ut now, it . . . started coming back. . . . I have to wake up in
the morning from the numbness, shaking them, trying to get them to wake up. I have to run cold
water over them,” she said. (Tr. 39.) Claimant asserted that she had suffered her carpal tunnel for
approximately four years. (Tr. 40.)
When asked about her migraines, Claimant said that they occur every day and will often
last anywhere from four to thirteen hours. (Tr. 40.) Claimant stated that she takes five doses of
Percocet everyday day to treat the pain. (Tr. 40.) She described her headaches: “It hurts right
above my eyes. Sometimes [I] don’t even go outside. I keep my blinds shut sometimes, because I
don’t like the sun. My eyes are very sensitive to it.” (Tr. 40.) Claimant admitted that Percocet
helps relieve the pain. (Tr. 41.)
As for her asthma, Claimant can often go a “whole day” without using her inhaler. (Tr.
42.) She said that she had an asthma attack in June 2008 that required medical attention. (Tr. 42.)
Other than that instance, she had not had a serious attack for approximately a year and a half.
(Tr. 42.) She regularly uses her inhaler if she can feel herself starting to wheeze; about two or

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three times a week. (Tr. 42.) “Just on certain days,” she claimed. (Tr. 42.)
Despite her alleged asthma complications, Claimant testified that she smokes regularly.
(Tr. 50.) In the past, she often would smoke up to a half of a pack of cigarettes every day. (Tr.
51.) However, she stated that she recently had been trying to reduce her habit. (Tr. 51.) She
claimed that she had cut her use down to three cigarettes every day for the two weeks prior to her
hearing. (Tr. 51.) Curiously, throughout the record, even as far back as June 2006, she claims
that she only smokes three-to-four cigarettes when she was asked about her smoking habits. (Tr.
315, 316.)
Next, the ALJ questioned Claimant concerning her epilepsy. (Tr. 42.) Claimant said that
she suffers from both grand mal and petit mal seizures. (Tr. 43.) She last experienced a grand
mal seizure in late December of 2008. (Tr. 43.) She does not experience them often. (Tr. 43.) Her
petit mal seizures are another story altogether. Claimant testified that she may have petit mal
seizures five times a week, on average. (Tr. 45.) While experiencing the petit mal seizures,
Claimant said that she will “start to space out,” but she is usually aware of her surroundings. (Tr.
44.) Often her daughter is able to “talk” her out of them, and they usually last no more than
three minutes. (Tr. 44.)

Later in the hearing, Claimant also complained of pain in her right ankle and left
kneecap, stemming from a hit and run accident in September of 2006. (Tr. 45, 49, 644.) Claimant
testified: “they wanted to put screws in my ankle, because it was broke[n] completely in half.

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They couldn’t because of my diabetes. . . . [I]t hurts. It swells. You have to prop it up. I can’t get
up and do as much. I can’t walk as far. I can’t be able to sit.” (Tr. 49.) According to Claimant,
the pain in her knee and ankle have gotten worse in the past several months. (Tr. 49.) However,
Claimant did not attribute her knee or ankle pain to her diabetes. (Tr. 45-49.)

IV.

Medical Background
A.

Left Knee and Right Ankle Pain

Claimant reported being struck and injured by an automobile while she was walking to
work in the late evening on September 5, 2009. (Tr. 316, 318.) This hit-and-run accident was the
genesis of her knee and ankle pain. (Tr. 49.) Unfortunately, the record does not include
documentation from her emergency room visit. (Tr. 316.) Dr. John S. Debush, M..D., reported
that Claimant was taken to the emergency room by a private vehicle, and that she was given
Vicodin for pain. (Tr. 318.) She was only given splints to support her legs. (Tr. 319.)
She described the pain as a dull tooth-ache type pain. (Tr. 319.) The sensations would
sometimes become sharp when she moved her legs. (Tr. 319.) She told Dr. Debush that the
prescribed Vicodin did not help the pain. (Tr. 320.) Yet, Claimant said that her leg pain was

relieved when resting her leg on a pillow. (Tr. 319.) The court presumes that this implies
Claimant’s pain was alleviated when she elevated her legs. (Tr. 319.)
When reviewing Claimant’s x-rays, Dr. Debush described a “non[-]displaced fracture of

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the lower pole patellar with minimal gap on one end about [two millimeters in length]” under her
left knee. (Tr. 321) X-rays of the right ankle showed a “vertical fracture of the medial malleolus,
which [was] essentially very minimally displaced.” (Tr. 321.) “This [ankle] fracture was
sustained by direct contusion and not by twisting injury.” (Tr. 321.) “I do not think that she is
going to need surgery. She should heal the fracture relatively well and I do not think she will
have much [of a] problem,” he stated. (Tr. 321.)
Dr. Debush later noted that surgery could theoretically be performed, but referred
Claimant to Dr. James Faremouth for another opinion. (Tr. 331.) During Dr. Faremoth’s
examination on September 26, 2006, Claimant opted to pursue a non-surgical treatment course.
(Tr. 334.) Dr. Faremouth encouraged Claimant to continue using a brace boot on her ankle and
the immobilizer for her knee. (Tr. 344.)
On October 3, 2006, x-rays “demonstrate[d] excellent healing of the pole of the patella[,]
and excellent healing and position of the medial malleolus.” (Tr. 336.) Claimant requested a
renewal of her Percocet prescription. (Tr. 336.)

Two months later, on December 5, 2006, Claimant saw Dr. Debush for a final follow-up
appointment. (Tr. 341.) Dr. Debush stated “X-ray of the right ankle is showing [a] satisfactorily
healed fracture and I am amazed how much of the fracture healed so fast. . . . X-ray of the left
knee . . . [is] healing quite well without any significant problem and no step off.” (Tr. 341.) He
continued, “[a]t this time, she is actually asking to go back to her job.” Dr. Debush planned to

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release her for work on December 18, 2006, but “for one week we would like her to avoid
[working for] eight hours a day.” He opined that she could may walk or stand five-to-six hours
every day until December 31. (Tr. 341.) She could then resume regular work activity. (Tr. 341.)
Little more than a year later, on December 28, 2007, Claimant saw general practitioner
Dr. Michael J. Muise at the Monroe Clinic after she fell at home. (Tr. 423.) On a scale from one
through ten (ten being the most extreme pain), Claimant assessed her pain to be at a level of six.
(Tr. 423.) Dr. Muise stated that the pain improved slightly with Darvocet. (Tr. 423.) X-rays
showed “[o]steoarthritis and spurring is present at the anterior tibia. There is a prominent
posterior process of the talus. [There is] [n]o evidence [of] acute fracture or dislocation.” (Tr.
430.)
Claimant returned complaining of bilateral ankle swelling on June 12, 2008. (Tr. 544.)
Dr. Muise wrote that the “overall course for this is to get worse over time. The injuries
developed when she was wearing athletic shoes. She notes the pain is [nine out of ten]” (Tr.
544.) Dr. Muise found the pain was generated by muscle and tendon strain and refilled
Claimant’s Darvocet prescription. (Tr. 546.) “Medication compliance is stressed,” he added. (Tr.
546.). Dr. Muise did not write any instruction as to Claimant’s ability to return to work. (Tr. 546547.)

B.

Diabetes

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Claimant has a long history of complications relating to her uncontrolled diabetes. (Tr.
353, 410, 422, 426, 532, 538, 541, 544, 547, 549.) On February 8, 2007, she was admitted to
Freeport Memorial Hospital due to complaints of severe chest pains after Claimant suffered a
fall. (Tr. 353.) Upon evaluation, Claimant was found to have “a very elevated blood sugar of
over 500.” (Tr. 353.) She complained of severe pain and was given Morphine and Toradol. (Tr.
353.) She improved and was discharged on February 10. (Tr. 353.) Attending physician Dr.
Diann Bennett indicated Claimant had a medical history of type-one diabetes, but “has not been
taking her regular medications and has not been eating well.” (Tr. 366.) “She complains of some
nausea and vomiting. . . . Otherwise, [Claimant] is doing well,” Dr. Bennett added. (Tr. 366.)
On November 18, 2007, Claimant reported to the Monroe Clinic, complaining of “feeling
ill.” (Tr. 410.) Dr. Muise wrote that “for the past . . . month, [Claimant’s] blood sugars have been
uncontrolled. Her machine has been running high.” (Tr. 410.) During another visit on December
5, 2007, Dr. Muise noted “diabetes mellitus type 2, uncontrolled[.] [C]ompliance urged. Meds

per orders.” (Tr. 422.) Five days later, Claimant returned, complaining of “multiple medical
problems.” (Tr. 426.) Dr. Muise’s record states: “[t]he patient continues to not take her insulin
on a frequent basis due to medical noncompliance.” (Tr. 426.)
Dr. Muise continuously noted Claimant’s poor habits throughout the following year:
$

March 27, 2008: “She is chronically noncompliant with her insulin.” (Tr.

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549.)
$
$

June 12, 2008: “The patient has diabetes mellitus type 2. It has been
uncontrolled for months.” (Tr. 544.) Dr. Muise notes that Claimant works
at Wal-Mart as a cashier. (Tr. 544.) In his assessment he urges medical
compliance. (Tr. 546.)

$

September 30, 2008: “She has diabetes mellitus type 1. She has tried to be
better with her diet. . . . She does not take her sugars regularly . . . . She
has a [history] of noncompliance with her diet and insulin.” (Tr. 541.)

$

October 26, 2008: “Chronic medical noncompliance is a problem for
[Claimant].” (Tr. 538.)

$

C.

May 5, 2008: “She has brittle control, frequently not taking insulin in the
past.” (Tr. 547.)

December 4, 2008: “She is compliant with her insulin, not compliant with
her diet.” (Tr. 532.)

Asthma

On November 18, 2007, Claimant saw Dr. Muise because she was “feeling ill.” (Tr.
410.) Dr. Muise’s notes reveal that Claimant had moderate “persistent asthma.” (Tr. 410.) “She
takes [A]dvair twice daily. She takes [X]openex on a regular basis. She has been coughing and
wheezing daily, with daily nocturnal symptoms.” (Tr. 410.) Dr. Muise urged Claimant to quit
smoking. (Tr. 412.) “She understands that this is bad for her health,” he wrote. (Tr. 410.)
Dr. Muise saw Claimant on February 22, 2008 when she complained of cough, shortness
of breath, and wheezing. (Tr. 418.) He instructed Claimant to return the following week to
recheck her breathing. (Tr. 420.) Claimant’s smoking was again a topic of discussion. (Tr. 418.)

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Claimant returned on Feburary 27, 2008, following the earlier exacerbation of her asthma
symptoms. (Tr. 415.) Dr. Muise stated that Claimant showed improvement, but she still
experienced some coughing and wheezing. (Tr. 415.)
Claimant saw Dr. Muise again on March 27, 2008, complaining of asthma complications
. (Tr. 549.) Dr. Muise wrote that her asthma has improved since she had been prescribed
Prednisone. (Tr. 549.) Claimant agreed that “her breathing [has] markedly improved.” (Tr. 549.)
The report states that she was “negative for” cough, shortness of breath, and wheezing. (Tr. 551.)
She was ordered to return in approximately three months “for revisit [of] medical problems.”
(Tr. 551.)
During office visits in May and September of 2008, Claimant complained of “multiple
medical problems.” (Tr. 541, 547.) Dr. Muise’s notes again mention Claimant’s asthma: “She
has been on Advair, Singulair, and Xopenex. The overall course for her breathing is to be stable
over time.” (Tr. 541, 547.) Medical compliance was urged. (Tr. 543, 549.)

D.

Epilepsy:

The medical record does mention that Claimant suffers from epilepsy. (Tr. 547, 367.)
During her visit to Dr. Muise on May 5, 2008, the epilepsy is mentioned only in passing:
“[Claimant] takes [T]egretol for her epilepsy. . . . She denies recent seizures.” (Tr. 547.)
However, the record is sparse concerning any specific complications from Claimant’s condition.
E.

Migraine / Headache:

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When Claimant saw Dr. Muise on September 30, 2008, she complained of “multiple
medical problems.” (Tr. 541.) Dr. Muise writes that Claimant has a history of migraine
headaches. (Tr. 541.) “She gets them almost daily. They are associated with photophobia. She
has been taking . . . [V]icodin for her headaches and left ankle pain.” (Tr. 541.) Her history of
migraines has been documented sparingly throughout the record, but any complications relating
to the condition are not thoroughly discussed; often described as “stable.” (Tr. 411, 415.)
F.

Carpel-Tunnel Syndrome:

As to her carpel-tunnel pain, the medical records do not seem to make mention of any
symptoms. It is noted in many medical reports, under the “medical history” sections, that
Claimant had suffered a carpal fracture of the left wrist in June of 2005. (Tr. 419, 422, 424.) It
does not appear that any medical records are available where Claimant has been specifically
diagnosed with or experienced carpal-tunnel pain.

G.

Anxiety and Other Mental Health Issues:
On December 10, 2007, Dr. Muise notes that the Claimant has a history of anxiety

issues. (Tr. 426.) “For this, she has been taking [A]lprazolam three times per day, as needed. She
does, on average, take this twice per day.” (Tr. 426.) Later the next year, on September 30, 2008,

Dr. Muise writes that Claimant has a history of depression and anxiety. (Tr. 541.) “She has been

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using [X]anax PM. . . . Has been using this up to three times a day. . . . She requests a refill of
this today.” (Tr. 541.)
Claimant underwent a consultation on January 1, 2008, at the request of Freeport
Memorial Hospital’s Emergency Department. (Tr. 445.) Apparently, the request was made
because Claimant has a “history of suicidal attempts, history of substance abuse, [hopeless]
feelings, mood not consistent with illness, and a possible psychiatric problem in need of a mental
health referral.” (Tr. 445.) An attending emergency room nurse reported that Claimant, at some
point during her visit, stated “just call me dead.” (Tr. 445.) During the consultation Claimant
listed her stresses as “bills” and “working at Wal[-]Mart and stocking shelves.” (Tr. 445.) Her
history includes “attempted suicide by overdose at age [thirteen] about a boy[;] Stupid!” she
commented. (Tr. 445.) “She also indicates that she is a childhood victim of sexual abuse. She
does not meet the criteria for psychiatric hospitalization on this date. She refuses further
services.” (Tr. 445.)

In a report written by Gerald K. Hoffman, M.D., F.A.P.A. and dated April 21, 2008, he
states that Claimant is a thirty-seven year-old “nervous mother of three children. . . . never been
married – with the same man for 21 years.” (Tr. 473.) “We just separated,” Claimant said. “I left
him because of too much verbal abuse. . . . I have had to ask for economic help since we broke
up.” (Tr. 473.) The report continues, “She is a worry wart, feels restless most of this time, easily
fatigued, can’t concentrate and mind goes blank, is irritable, muscles always tensed up, cannot

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sleep.” (Tr. 473.)
Dr. Hoffman’s impression was that Claimant suffers from chronic General Anxiety
Disorder with Depression. (Tr. 474.) “Anxiety due to economic stress has increased due to
separation from common law husband.” (Tr. 474.)
A mental RFC assessment was completed by State Agency Doctor Jerrold Heinrich,
Ph.D. on May 12, 2012. (Tr. 492.) Dr. Heinrich found that Claimant was moderately limited in
the ability to maintain attention and concentration for extended periods and in the ability to
respond appropriately to changes in the work setting. (Tr. 490-491.) Every other category in the
assessment was either marked “Not Significantly Limited” or “No Evidence of Limitation.” (Tr.
490.)

Dr. Heinrich noted the following:


Claimant is “behaviorally limited by an adjustment disorder with mixed anxiety
and depression.”

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Basic reality testing for day to day functioning is “adequate.”

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Cognitive functioning is “essentially unremarkable.”

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Claimant is able to “complete most essential activities.”

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Claimant is able to understand, remember, and execute detailed instructions.

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

Although Claimant can concentrate and persist adequately, she “needs a lowstress job where there are not tight time deadlines or high production quotas.”



Claimant can adjust to routine changes in her environment, “as long as they are
not too frequent.”



Claimant “retains the mental capacity and sufficient emotional stamina to do
simple tasks within the limitations noted.”
(Tr. 492.)

H.

Residual Functional Capacity Findings:

Non-treating physician Dr. Ernst Bone completed a physical residual functional capacity
(“RFC”) on January 18, 2008. (Tr. 449.) Dr. Bone found that Claimant had no exertional
limitations, no manipulative limitations, no visual limitations, and no communicative
limitations. (Tr. 450, 452, 453.) He concluded that Claimant had some postural limitation, as she
should avoid ladders, ropes, and scaffolds due to her epilepsy. (Tr.541.) Claimant could only
occasionally climb ramps and stairs, as well. (Tr. 451.) Because of Claimant’s asthma and
epilepsy, Dr. Bone noted a few environmental limitations such as the need to avoid dangerous
hazards, odors, dusts, gases, and areas with poor ventilation. (Tr. 453.)
Less than a month later, Dr. Muise submitted a “Diabetes Mellitus Residual Functional
Capacity Questionnaire” on February 12, 2009. (Tr. 631.) According to the form, he diagnoses
Claimant with “[Diabetes] [t]ype 2, HTN, [g]astroparesis, [n]europathy, asthma, epilepsy . . .
osteoarthritis of the [left] ankle.” (Tr. 631.) “POOR PROGNOSIS,” he notes afterwards. (Tr.
631.) Further, he lists Claimant’s symptoms as follows: fatigue; extremity pain; muscle

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weakness; frequent urination; psychological problem; excessive thirst; headaches; hyper/hypo
glycemic attacks; general malaise; difficulty walking; episodic vision blurriness;
infections/fevers; difficulty thinking/concentrating; dizziness/loss of balance; and
nausea/vomiting. (Tr. 632.)
Throughout and eight-hour workday, Dr. Muise indicates that Claimant must
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only occasionally lift ten pounds;
never lift greater than twenty pounds;
rarely twist, stoop, bend, or climb stairs;
never crouch, squat, or climb ladders;
avoid constant exposure to “wetness;”
avoid even moderate exposure to high humidity;
avoid all exposure to extreme temperatures, cigarette smoke, perfume, soldering
fluxes, solvents and cleaners, fumes, odors, gases, dust, and chemicals;
shift positions from sitting to standing at will;
limit her sitting and standing to thirty minutes at a time, not to exceed two hours
total;
walk every thirty minutes for five minutes;
elevate her legs fifteen inches for four hours;
frequently lift less than ten pounds;
never lift more than 20 pounds;
only rarely twist, bend, and climb stairs; and
never crouch, squat, or climb ladders
(Tr. 631-634.)

In addition, Dr. Muise notes that Claimant

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


is only able to use her hands ten-percent of the day to grasp, turn, or twist
objects.
is only able to use her fingers five-percent of the day for fine manipulations.
can only reach with her arms for five-percent of the day.
can only walk a single block without severe pain

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


is incapable of even “low-stress” jobs.
experiences pain and other symptoms that would constantly interfere with her
attention and concentration as needed to perform even simple work tasks
suffers from anxiety that affects her physical condition.
is not a malingerer.




(Tr. 631-634.)
Dr. Muise also provided a supplementary letter, dated February 26, 2009, where he seeks
to clarify his stance for the ALJ: Claimant “does have neuropathy and chronic nerve symptoms.
She is so complex that [these] problems haven’t been documented as well as possible.” (Tr. 639.)
He continues, “The patient does indeed complain of all the problems that are noted . . . . She is
not a malingerer. She is one of the patients that I see that actually needs to be on disability.” (Tr.
640.)
Lastly, the medical record contains an additional RFC questionnaire completed by Dr.
Paul Bekx from Monroe Clinic. (Tr. 723.) However, it appears as though this material was not
submitted to the ALJ, but to the Appeals Counsel on August 10, 2009. (Tr. 722.) Generally, the
court “may not reverse an [ALJ]’s decision on the basis of evidence first submitted to the
Appeals Council.” Eads v. Sec'y of Dept. of Health & Human Services, 983 F.2d 815, 818 (7th
Cir. 1993). However, under 42 U.S.C. § 405(g), the court may consider such evidence “only
upon a showing that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” That burden has not
been met. Therefore, the court will not consider the “Bekx questionnaire” in its analysis of the
ALJ’s decision.

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V.

Standard of Review:

The court may affirm, modify or reverse the ALJ’s decision outright, or remand the proceeding
for rehearing or hearing of additional evidence. 42 U.S.C. § 405(g). The ALJ’s legal conclusions
are reviewed de novo. Binion v. Charter, 108 F.3d 780, 782 (7th Cir. 1997). However, the court
“may not decide the facts anew, re-weigh the evidence or substitute its own judgment for that of
the [ALJ].” Id. The duties to weigh the evidence, resolve material conflicts, make independent
findings of fact, and decide the case are entrusted to the Commissioner. Schoenfeld v. Apfel, 237
F.3d 788, 793 (7th Cir. 2001) (“Where conflicting evidence allows reasonable minds to differ as
to whether a claimant is entitled to benefits, the responsibility for that decision falls on the
Commissioner.”)
If the Commissioner’s decision is supported by substantial evidence, it is conclusive and
this court must affirm. 42 U.S.C . § 405(g); see also Scott v. Barnhart, 297 F.3d 589, 593 (7th
Cir. 2002). “Substantial evidence” is “evidence which a reasonable mind would accept as
adequate to support a conclusion.” Binion, 108 F.3d at 782. If the ALJ identifies supporting
evidence in the record and builds a “logical bridge” from that evidence to the conclusion, the
ALJ’s findings are supported by substantial evidence. Haynes v. Barnhart, 416 F.3d 621, 626 (7th
Cir. 2005). However, if the ALJ’s decision “lacks evidentiary support or is so poorly articulated
as to prevent meaningful review, the case must be remanded.” Steele v. Barnhart, 290 F.3d 936,
940 (7th Cir. 2002).

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VI.

Framework of Decision
“Disabled” is defined as the inability “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than twelve months.” 42 U.S.C. §423(d)(1)(A). A physical or mental impairment is one “that
results from anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C §423(d)(3).
The Commissioner proceeds through as many as five steps in determining whether a
claimant is disabled. See 20 C.F.R. §404.1520. The Commissioner sequentially determines the
following: (1) whether the claimant is currently engaged in substantial gainful activity, (2)
whether the claimant suffers from a severe impairment, (3) whether the impairment meets or is
medically equivalent to an impairment in the Commissioner’s Listing of Impairments, (4)
whether the claimant is capable of performing work which the claimant performed in the past,
and (5) whether any other work exists in significant numbers in the national economy which
accommodates the claimant’s residual functional capacity (“RFC”) and vocational factors. See
20 C.F.R. §404.1520.

VII.

Analysis
A.

Step One: Claimant is not currently engaged in substantial gainful

19

activity.
In the Step One analysis, the Commissioner determines whether the claimant is currently
engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Substantial gainful activity is
work that involves doing significant and productive physical or mental duties and is done, or
intended to be done, for pay or profit. 20 C.F.R. § 404.1510. If Claimant is engaged in
substantial gainful activity, he or she is found “not disabled” regardless of medical condition,
age, education, or work experience, and the inquiry ends. If Claimant is not engaged in
substantial gainful activity, the inquiry proceeds to Step Two.
Here, the ALJ found that Claimant has not engaged in substantial gainful activity since
November 14, 2007. (Tr. 14.) Neither party disputes this decision. As such, this court affirms the
ALJ’s Step One determination.

B.

Step Two: Claimant Suffers From Severe Impairments.

Step Two requires a determination whether the claimant is suffering from a severe
impairment. A severe impairment is one which significantly limits the claimant’s physical or
mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). The claimant’s age,
education, and work experience are not considered in making a Step Two severity determination.
20 C.F.R. § 404.1520(c). If the claimant suffers a severe impairment, then the inquiry moves on
to Step Three. If the claimant does not suffer a severe impairment, then the claimant is found
“not disabled,” and the inquiry ends.

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In performing the Step Two analysis in this case, the ALJ found that Claimant had the
following severe impairments: diabetes mellitus (“as it is in poor control due to
noncompliance”), neuropathy, asthma, seizure disorder, post traumatic arthritis in the right ankle,
and an anxiety disorder. (Tr. 14.) The substantial evidence in the record supports the conclusion
that Claimant suffered severe impairments. Neither party disputes this decision. As such, this
court affirms the ALJ’s Step Two determination.

C.

Step Three: Claimant’s impairment does not meet or medically equal
an impairment in the Commissioner’s listing of impairments.

At Step Three, Claimant’s impairment is compared to those listed in 20 C.F.R. pt. 404,
subpt. P, app. 1. (the “Listings”). The Listings describe, for each of the body’s major systems,
impairments which are considered severe enough per se to prevent a person from adequately
performing any significant gainful activity. 20 C.F.R. §§ 404.1525(a); 416.925(a). The listings
streamline the decision process by identifying certain disabled claimants without need to
continue the inquiry. Bowen v. New York, 476 U.S. 467 (1986). Accordingly, if the claimant’s
impairment meets or is medically equivalent to a listed impairment, then the claimant is found to
be disabled, and the inquiry ends. If not, the inquiry moves on to Step Four.
In performing the Step Three analysis in this case, the ALJ determined that none of
Claimant’s impairments met or medically equaled the level of severity contemplated for any
impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. (Tr. 14-15.) Neither party disputes this
finding. As such, this court affirms the ALJ’s Step Three determination.
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D.

Step Four: Claimant is not capable of performing work which
Claimant has performed in the past.

At Step Four, the Commissioner determines whether the claimant’s RFC allows the
claimant to return to past relevant work. RFC is a measure of the abilities which the claimant
retains despite his or her impairment. 20 C.F.R. § 404.1545(a), 416.945(a). The RFC assessment
is based upon all of the relevant evidence, including objective medical evidence, treatment,
physicians’ opinions and observations, and the claimant’s own statements about his or her
limitations. Id. Although medical opinions bear strongly upon the determination of the RFC, they
are not conclusive. The determination is left to the Commissioner, who must resolve any
discrepancies in the evidence and base a decision upon the record as a whole. 20 C.F.R. §§
404.1527(e)(2), 416.927(e)(2); see Diaz v. Chater, 55 F.3d 300, 306 n.2 (7th Cir. 1995).
Past relevant work is such work previously performed by the claimant that constituted
substantial gainful activity and satisfied certain durational and recency requirements. 20 C.F.R. §
404.1565(a), 416.965(a); Social Security Ruling 82-62. If the claimant’s RFC allows the
claimant to return to past relevant work, the claimant will not be found disabled; if the claimant
is not able to return to past relevant work, the inquiry proceeds to Step Five.
Before considering the Step Four analysis, the ALJ determined Claimant’s RFC:


Claimant has the RFC to perform sedentary work;



She is unable to stand or walk for more than a total of one
hour in an eight-hour workday;

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

unable to tolerate exposure to concentrates pulmonary
irritants or temperature extremes;



unable to work around hazards such as unprotected heights
or moving equipment.



In addition, Claimant “can perform simple work tasks
within limits with the need for a low stress job where there
no high production standards or strict time deadlines; and
able to adjust to changes in her work environments as long
as they are not too frequent.”
(Tr. 17.)

The record shows the ALJ found that the “testifying medical expert, Dr. Semardijan’s
opinion as to the [Claimant’s RFC was] well supported by the evidence and adopted” in her
decision. (Tr. 17, 19.) The ALJ relied almost exclusively on Dr. Semardijan’s testimony when
determining the Claimant’s RFC. (Tr. 15-19.) Dr. Semardijan’s opinion differs greatly from Dr.
Muise’s findings. Dr. Semardijan testified that, in his opinion, Dr. Muise’s findings were not
supported by the record. (Tr. 66.) Dr. Semardijan found several parts of the record which would
indicate that Claimant was in better condition at the time the records were made than the
disability RFC report of the treating physician.
After analyzing the medical record, Dr. Semardijan believed Claimant


is capable of sedentary work1;

1

The Dictionary of Occupational Titles defines sedentary work as “[e]xerting up to 10 pounds of force
occasionally . . . and/or a negligible amount of force frequently . . . to lift, carry, push, pull, or otherwise move
objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or
standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all
other sedentary criteria are met.” Dictionary of Occupational Titles, Appendix C, available at

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







would not have difficulty sitting for eight hours a day;
could stand and walk for less than two hours;
needs to avoid pulmonary irritants because of her asthma;
should limit her lifting to fifteen pounds or less;
suffers from nausea related to her uncontrolled blood sugar levels;
su
had history of seizures in the past;
and experienced anxiety and depression.

(Tr. 57, 58, 62, 64.)
The ALJ found Claimant has past relevant work as a factory worker, a teacher’s assistant,
and a certified nurse’s assistant; concluding all of Claimant’s past relevant work was beyond her
RFC because it was either semi-skilled, light in exertion, or both. (Tr. 19.) Consequently, the
ALJ determined that Claimant was unable to perform any past relevant work. (Tr. 18.)
i.

Claimant asserts that the ALJ improperly rejected the RFC interpretations
of Dr. Muise as she did not act in accordance with S.S.R. 96-2p or 20 C.F.R.
404.1527.

The Guidelines list those factors that the ALJ must consider when determining what
weight to give to a treating physician. See 20 C.F.R. § 404.1527 (c)(2). Specifically, the ALJ is
to contemplate the nature and extent of the treatment relationship, supportability and consistency
within the record, and any of the treating physician’s specializations. Id. In S.S.R. 96-2p, the
regulations set fourth that even if the treating physician’s opinion is not entitled to controlling
weight, it is “still entitled to deference and must be weighed using all of the factors provided in
20 CFR 404.1527 and 416.927.” S.S.R. 96-2p. (emphasis added).

http://www.occupationalinfo.org/appendxc_1.html#STRENGTH; see also C.F.R. § 404.1567 (a).

24

The ALJ specifically rejects Dr. Muise’s opinion in her report: “the treating source
opinion from Dr. Muise is rejected . . . as it is unsupported by the treatment notes. It even has
limitations that are unrelated to any impairment.” (Tr. 19.) There is little further discussion of
Dr. Muise’s opinion. The ALJ does not mention the nature and extent of the treatment
relationship between Dr. Muise and Claimant, nor Dr. Muise’s specializations or lack thereof.
Although “supportability and consistency within the record” may be the most important factors
to consider when determining the weight to give a treating physician’s opinion, the regulations
require that it must be weighed using all of the factors provided in 20 C.F.R. 404.1527 and
416.927. S.S.R. 96-2p. It is unclear that the ALJ did that. The court points out the main
substantive evidence that supports the RFC that was determined by the ALJ is really the opinions
of Dr. Semardijan. Additionally, there are some excerpts from the medical record which were
pointed out by the ALJ and also Dr. Semardijan and his testimony. Claimant’s testimony, the
opinions of the treating physician, and the number of ailments would not support this RFC.
Claimant has a complicated medical history. She has artho-arthritis with spurring in her anterior
tibia. She has a history of bi-lateral ankle swelling which is associated with muscle and tendon
strain. She has a long history of diabetes with complications, asthma, and it is unclear from the
record what her situation is in regard to epilepsy. She has testified to having migraine
headaches, and she clearly has anxiety and other mental health issues.

E.

Step Five: Claimant is capable of performing work existing in
substantial numbers in the national economy.
25

At Step Five, the Commissioner must establish that Claimant’s RFC allows Claimant to
engage in work found in significant numbers in the national economy. 20 C.F.R. § 404.1520(f),
404.1566. The Commissioner may carry this burden by relying upon the VE’s testimony, or by
showing that Claimant’s RFC, age, education, and work experience coincide exactly with a rule
in the Medical-Vocational Guidelines (the “Grids”). See 20 C.F.R. Ch. III, Part 404 Subpart P,
Appendix 2; Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987); Social Security Law and

Practice, Volume 3, § 43:1. If the Commissioner establishes that sufficient work exists in the
national economy that Claimant is qualified and able to perform, then Claimant will be found
“not disabled.” If no such work exists, Claimant will be found to be disabled.
After the hearing, the ALJ relied on the testimony of a VE to determine if Claimant could
perform any substantial gainful work that exists in significant numbers within the national
economy. (Tr. 19). (See 20 C.F.R. Pt. 404, subpt. P, App. 2, Table No. 2, Rule 201.21, 201.28).
The VE testified that a person of Claimant’s age, education, work experience, and RFC is able to
perform the requirements of such representative occupations as: order clerk (12,250 jobs in
Illinois, 8,500 jobs in the Chicago metro area); bench assembly (14,862 jobs in Illinois, 9,958
jobs in the Chicago metro area); sorter (22,920 jobs in Illinois, 12,840 jobs in the Chicago metro
area). (Tr. 20.) In consideration of this testimony, the ALJ found that there are jobs that exist in

26

significant numbers in the national economy that Claimant can perform. (Tr. 18.) (See 20 C.F.R.
404.1560(c), 404.1566, 416.960(c), and 416.966).

i.

The ALJ may not have properly evaluated the VE’s testimony.

Claimant argues that the VE did not clearly testify that Claimant would be capable of
performing the jobs of sorter and bench assembler. This court agrees.

During the hearing, the ALJ presented the VE with a hypothetical claimant who could
“do simple tasks within limits, but . . . needs a low-stress job where there are no tight time
deadlines or high production standards.” (Tr. 77.) (emphasis added). When discussing the
sorting and bench assembly jobs in the region, the VE hesitated:
The -- what I am trying to think in my head in terms of the, the part
that I am trying to deal with is the, the low stress, tight time
deadlines? . . . The reason I am hesitating is because, in fact,
typically, what I look at is like a [hand assembler, bench
assembler, or sorter] – There are production standards. They’re not
necessarily, you know, -- I mean, . . . it’s how it’s perceived. I
mean, . . . it’s a very regulated -- you know, you work eight hours;
you have to produce [‘x’] amount of work within that eight hours.
So, . . . it’s that really tight timeline specific for an eight-hour
period work has to be done. So, I don’t know if it exactly fits
within that --.
(Tr. 78-79.)

27

The ALJ stopped the testimony and pressed on: “let me back up a little bit. As . . . I
understand it, there are two

. . . kinds of production jobs[:] those on the line and those off the

line . . . . [and] I would assume the bottom line is more stressful, because you have to keep up
with a machine,” she said. (Tr. 79.) The VE agreed, and then, as if the previous labyrinthine
monolog never took place, he began to list the numbers in which the hand assembly position
exists in the region without addressing the issue further. (Tr. 79.)

Both the ALJ and the Claimant failed to have the VE clarify his impressions concerning
Claimant’s ability to abide strict production standards. At this stage in the analysis, the
Commissioner bears the step-five burden of establishing that the claimant can perform other
work that "exists in significant numbers in the national economy." 20 C.F.R. § 404.1560(c)(2);
see also Britton v. Astrue,521 F.3d 799, 803 (7th Cir. 2008); Briscoe ex rel. Taylor v.
Barnhart,425 F.3d 345, 352 (7th Cir. 2005). A VE's testimony can satisfy this burden only if that
testimony is reliable. Britton, 521 F.3d at 803; McKinnie v. Barnhart,368 F.3d 907, 910 (7th Cir.
2004).
Assuming that the production-standard requirement would eliminate the jobs of sorter
and bench assembly, the VE did provide a third option: order clerk. (Tr. 81.) The existence of the
order clerk position, not being affected by production standards and existing in significant
numbers (12,250 jobs in Illinois, 8,500 jobs in the Chicago metro area) (Tr. 20), would reduce

28

the ALJ’s failure to address the VE’s inconsistency concerning “low-stress work” to harmless
error.

ii. The VE’s designation of sedentary work was a proper response to the ALJ’s
hypothetical.
Claimant also argues that the ALJ and VE misapplied the definition of sedentary work at
the hearing. The ALJ’s hypothetical involved a claimant who could stand and walk for no more
than one hour. (Tr. 77.) The jobs that the VE provided are classified as “sedentary” and S.S.R.
83-10 sets the parameters of sedentary work: “since being on one's feet is required ‘occasionally’
at the sedentary level of exertion, periods of standing or walking should generally total no more
than about [two] hours of an [eight]-hour workday . . . . Work processes in specific jobs will
dictate how often and how long a person will need to be on his or her feet to obtain or return
small articles.” S.S.R. 83-10.
Claimant takes issue with the VE’s provided jobs, asserting that the sedentary
designation would require her to stand or walk for two hours; twice as long as the “one-hour
limitation” supplied by the ALJ’s RFC. The regulations state: “periods of standing or walking
should generally total no more than about [two] hours. . . .” Id. The “one-hour limitation” set by
the ALJ’s RFC could fit into that definition. “One hour” is “no more than two hours.” The court
believes the VE understood the hypothetical and responded with the one hour limitation in mind.

iii. ALJ failed to address Claimant’s need to elevate her legs in her decision.

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Finally, Claimant testified that she needed to elevate her legs to alleviate her pain. (Tr.
319.) In his RFC, Dr. Muise also stated that Claimant should elevate her legs fifteen inches off of
the ground for four hours a day if employed in a sedentary job. (Tr. 632.) The medical expert
does not take this limitation into consideration during his testimony, and the ALJ’s decision is
silent concerning Claimant’s supposed need to elevate her legs.

The medical expert and the ALJ did briefly mention the restriction during the hearing,
but only in passing. (Tr. 63.) It was noted that Dr. Muise had checked the box that indicated that
Claimant did not need to elevate her legs in his RFC form, but then directly indicated that she
would need to elevate her legs fifty-percent of the time2. (Tr. 63, 632.) Otherwise, the alleged
restriction does not appear in the ALJ’s determination, as though the leg-elevation requirement
was somehow lost among Claimant’s other conditions and forgotten.
Importantly, during his cross-examination, Claimant’s attorney had the providence to ask
the VE: “Now, if the hypothetical person . . . had to raise, . . . one leg [fifteen] inches half the
time during a day, what would that do to those jobs?” The VE responded, “That would eliminate
those jobs.” (Tr. 84.)
Even if the ALJ intentionally declined to add the restriction to her RFC, without any
discussion as to why she rejected the Claimant’s testimony and her physician’s claims

2

After the hearing, Dr. Muise wrote a letter to the ALJ, admitting that he had mistakenly checked the “no
elevation” box, and that he intended to communicate that Claimant would need to elevate her legs. (Tr. 639.)

30

concerning the elevated leg requirement, this court cannot rule that the ALJ based her decision
on substantial evidence. The Commissioner argues that this possible oversight is harmless error.
In light of the VE’s testimony that this restriction would preclude the listed positions, the court
does not agree. The ALJ simply ignored the elevated-leg restriction.
While in some respects the ALJ did an admirable job piecing together a difficult record,
the ALJ failed to build a sufficient bridge between Claimant’s many ailments and the opinions of
the long-treating physician. There are many ailments, direct limitations imposed by the treating
physician, an extensive medical treatment record, many medications taken, overlapping
emotional problems, and the RFCs that were determined. The court believes the case should be
remanded for the ALJ to again look at this extensive record in more depth to better build a
sufficient bridge between the evidence and her findings.
E N T E R:

_________________________________
P. Michael Mahoney, Magistrate Judge
DATED:

5/20/2013

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