MEMORANDUM OPINION AND ORDER
SHADUR, District Judge.
Fannie Banks ("Banks") seeks judicial review of a final decision by the Secretary of Health and Human Services ("Secretary") denying Banks' claim — one based on an asserted disability beginning in December 1978 — for disability insurance and supplemental security income ("SSI") benefits under Social Security Act ("Act") §§ 216(i), 223 and 1602, 42 U.S.C. §§ 416(i), 423 and 1381a.
As invariably occurs in these actions, which come to this Court on the administrative record and a decision by Secretary, the parties have filed cross-motions for summary judgment. For the reasons stated in this memorandum opinion and order, both parties' motions for summary judgment are denied, and this case is remanded to Secretary for further proceedings consistent with this opinion.
Banks, who was 57 years old at the time of the Hearing, has an eighth-grade education. She last worked as a drapery presser in 1978.
Banks left her job in 1978 because she was laid off (R. 52), and she has not worked since then. On April 19, 1985 she applied for SSI and disability insurance benefits, claiming she had been disabled since December 1978 because of "arthritis in all joints, ulcer, HBP, bladder infection" (R. 112). Her applications were denied because the medical evidence assertedly showed she was still able to do her former work of pressing drapes (R. 126-28, 137). After those denials, Banks requested a hearing before an ALJ.
I have too many aches and pains and swelling now.
When asked to be more specific, she claimed she had pain in her face, back, toes and shoulder as well as swollen knees. She takes medication to control her high blood pressure and water build-up, as well as for arthritis pain (R. 56-58). Sometimes she uses a walking stick (R. 59). She claimed she could sit or stand only for fifteen minutes at a time (R. 61), could walk only half a block (R. 62) and was able to lift only objects weighing less than 20 lbs. (R. 66).
In addition to Banks' testimony, ALJ Niersbach had before him the medical records from her several hospital stays and reports from her treating physician and consulting physicians. Given the nature of such cases as these, at least an outline of that medical evidence is necessary.
Banks was hospitalized for seven days in 1978 because of chest pains. At that time her EKG was normal (R. 202). She was admitted again in 1979 because of chest and back pain and in 1982 for back pain alone. On both occasions she was discharged the same day.
Dr. Chao Chen, Banks' treating physician from 1982 to the present, filled out a five-page form evaluating her medical condition (R. 168-72) and later completed a form for assessing an individual's ability to do work (R. 194-95). In addition Banks submitted another form prepared by Dr. Chen for the Illinois Department of Public Aid before her applications at issue here (R. 165-66).
In that earlier form Dr. Chen reported Banks was suffering from a urinary tract infection and arthritis. Because of those afflictions he believed Banks could not return to work, although he said she was still capable of performing "moderate physical activity" (R. 166).
Dr. Chen's later reports prepared for Secretary were similar. In one report he said Banks' only physical problem was arthritis in her back. That condition significantly reduced her range of motion. He reported no heart problems or chest pain and said she could walk without a cane. Her arthritis would make it hard for her to bend and could possibly affect sitting and standing (R. 172). Dr. Chen's second report to Secretary reflected Banks had arthritis in her "back, legs, knees, shoulder etc." (R. 194). That arthritis prevented her from standing or sitting more than one hour, walking more than two blocks and lifting more than 10 pounds. Dr. Chen opined that Banks was then disabled (R. 195).
Consulting physician Dr. N. Cay examined Banks May 21, 1985. Banks complained to him of pain in her knees, toes and back and blurred vision. Dr. Cay found a full range of motion in all Banks' joints, but x-rays showed signs of "slight to moderate degenerative arthritis of lumbosacral spine (R. 178).
Dr. John Wyness prepared a residual functional capacity assessment for Banks, based only on those reports. He found her physical capacity to do work was essentially unrestricted, except that her vision problem would prevent her from performing jobs requiring acute vision (R. 182).
Applying the Statutory Framework
To establish entitlement to disability and supplemental security income benefits, a claimant must show he or she is "disabled." Sections 416(i)(1) and 423(d) define "disability" as:
Secretary has promulgated extensive procedural regulations for determining whether an applicant is disabled. Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir.1984) summarizes Secretary's five-step test for determining "disability":
Once a claimant has demonstrated an impairment of sufficient severity to prevail at step 4, Smith v. Schweiker, 735 F.2d 267, 270 (7th Cir.1984) teaches:
At that fifth and final step Secretary must consider all the claimant's physical and mental impairments (Regs. §§ 404.1561, 416.961), the claimant's age (Regs. §§ 404.1563, 416.963), education (Regs. §§ 404.1564, 416.964) and work experience (Regs. §§ 404.1565 and .1568, 416.965 and .968).
In all events, Secretary's decision must be upheld unless (1) the findings are not supported by substantial evidence or (2) Secretary has applied incorrect legal standards (Sections 405(g) and 1383(c)(3)). Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938), has defined "substantial evidence" as:
After explaining the five-step disability test, ALJ Niersbach proceeded with a thorough summary of the evidence. His summary was accompanied by several short comments evaluating the evidence:
ALJ Niersbach concluded Banks suffers from mild hypertension, decreased vision and arthritis of the back and knees.
Banks now attacks several of the ALJ's findings. She argues:
Although several of Banks' arguments miss the mark, she hits the bull's eye at least twice. Her case must therefore be remanded to Secretary to correct those errors.
In substantial part Banks sought to support her claim by her own Hearing testimony that she was unable to work because of pain in her knees, back and shoulder. Section 423(d)(5)(A) requires that such claims be accompanied by objective evidence of a medical impairment that could reasonably be expected to produce the alleged pain (Reg. § 416.929).
ALJ Niersbach correctly found the objective medical evidence fully supported Banks' claims of arthritis in her back and knees. That satisfied the statutory requirement of objective evidence, but Banks was not yet home free. Section 423(d)(5)(A) also required the ALJ to determine whether Banks' level of pain prevented her from working (see Foster v. Heckler, 780 F.2d 1125, 1130 (4th Cir.1986)). When a claimant's own evaluation of her pain is the issue, that calls for a credibility determination. In this case the ALJ found (R. 15):
ALJ Niersbach's credibility determination is entitled to considerable weight (Bibbs v. Secretary of Health, Education and Welfare, 626 F.2d 526, 528 (7th Cir. 1980)(per curiam)). As this Court said in Cullotta v. Bowen, 662 F.Supp. 1161, 1171 (N.D. Ill. 1987):
Banks' own estimate of her physical abilities falls far short of her physician's evaluation. Her complaints increased significantly when she was under questioning by her attorney, and indeed her claims were contradicted by her conduct at the Hearing.
Banks assails ALJ Niersbach's evaluation of her credibility in two respects:
Both attacks must be rejected.
Banks brought her medication with her to the Hearing (as the ALJ had asked). ALJ Niersbach examined the bottles, including their instructions and dates. He observed there were far more pills in the bottles than should have been there if Banks had been taking her medication as directed. Banks contradicted herself when the ALJ asked her if she was in fact taking her medication as directed (R. 58). Then, in what appeared an effort to rehabilitate her answer, she later testified (in response to her lawyer's question) that any discrepancy in the number of pills used was caused by the fact she refilled her prescription before she used up the existing supply (R. 105). What the ALJ inferred from all the evidence was that Banks was not taking her medication as directed, and that undercut her claims as to the extent of her pain.
Banks' criticism of ALJ Niersbach's "sit and squirm" findings also draws blood — but it is not fatal. Such findings are explained and criticized in Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982)(per curiam):
True enough, some of the ALJ's questions and remarks at the Hearing were uncalled for and "smack of playing amateur doctor" (Lundquist v. Heckler, 670 F.Supp. 781, 785 (N.D. Ill.1985)). But much of what Banks objects to was quite proper: ALJ Niersbach's comparison of Banks' claims with what he observed at the Hearing (see Freeman, 681 F.2d at 731). It was Banks, after all, who claimed she had swollen knees, could sit for only 10 minutes at a time and had difficulty bending. Admittedly, the ALJ's observations alone would be insufficient to discredit her claims,
Banks' testimony was, as her attorney admitted (R. 107), often inconsistent. Perhaps most significantly, her limitations greatly exceeded those reported by her own doctor. All in all, the ALJ could properly discount her credibility (as he did).
Step 4 Determination
Banks' lack of credibility could not of itself defeat her claim, because there was also objective evidence in the record that supported her position. ALJ Niersbach could not ignore that evidence (see Halvorsen v. Heckler, 743 F.2d 1221, 1226-27 (7th Cir.1984)). He had to evaluate that evidence to determine what limitations her physical impairments put on her ability to work. Then he had to compare those limitations to the actual requirements of Banks' former work (Cheshier v. Bowen, 831 F.2d 687, 689 (7th Cir.1987), citing Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir.1984); see also Pearson v. Bowen, 648 F.Supp. 782, 791 (N.D. Ill.1986)). ALJ Niersbach failed on both counts.
1. Banks' Former Work
Initially the ALJ had to determine the specific physical requirements of Banks' former work as a drapery presser, a topic on which Banks herself was the only source of evidence. Her application included a description of her former job as requiring her to stand most of the day, to bend and reach constantly and to lift up to 30 pounds (R. 154). At the Hearing Banks contradicted that description somewhat, saying she was required to lift only 5-10 pounds at a time and adding that another
ALJ Niersbach noted the discrepancy and apparently accepted her lower estimate of the weight she had to lift — but that discrepancy was not a reason to ignore her claim that her former job required constant standing, bending and reaching.
2. Banks' Former Work v. Her Physical Limitations
Indeed, ALJ Niersbach's step 4 evaluation appears to have ignored most of the specific requirements of Banks' former work. After he summarized the evidence as to those requirements, he concluded her work as a drapery presser "would be defined as light." Then he appeared to conclude that because Banks could still perform light work, she could necessarily still do her past relevant work. General classifications such as "light work" have no place in a step 4 determination, which requires a comparison of specific job requirements to specific physical limitations (Pearson, 648 F.Supp. at 791-92).
It is impossible to tell whether the ALJ actually made such a comparison. His decision is extremely ambiguous. He does mention the lifting requirement of Banks' former job, but he is entirely silent as to the standing and bending requirements. Because her inability to perform those requirements was directly supported by objective evidence in the record, such silence cannot be ignored by this Court and requires a remand for the appropriate comparison (see Williams v. Bowen, 664 F.Supp. 1200, 1208-09 (N.D. Ill. 1987)).
3. Objective Medical Evidence: Banks' Treating Physician's Report
As this Court has already said, objective medical evidence in the record did support Banks' inability to stand and bend as required by her former job. True, there was other evidence pointing the other way, but the ALJ failed to explain why the favorable evidence was rejected and the unfavorable accepted. That error also requires a remand (Burnett v. Bowen, 830 F.2d 731, 736 (7th Cir.1987); Halvorsen, 743 F.2d at 1226-27)).
Only Drs. Chen and Wyness provided evidence as to the effect of Banks' impairments on her ability to work. Both Dr. Chen's reports said Banks was disabled, although the earlier one said she was still capable of moderate physical activity. His second report more specifically indicated Banks could stand for only one hour, lift no more than 10 pounds, and had only a limited ability to bend because of the arthritis in her back, knees and shoulder (R. 195). Dr. Wyness, who did not examine Banks, imposed no restrictions on her ability to lift, stand or bend.
ALJ Niersbach rejected Dr. Chen's earlier report because of its ambiguity and lack of objective findings (R. 12). He then adverted to the direct conflict between Dr. Chen's later assessment of Banks' ability to do work and that of Dr. Wyness, but he did not actually resolve that conflict.
What the ALJ did say was that Dr. Wyness' report would be given little weight because he did not actually examine Banks (R. 14). Yet it appears it was Dr. Chen's evaluation that was given little weight.
Accord, Burnett, 830 F.2d at 734-35, 736.
ALJ Niersbach did offer some explanation for his findings, but that explanation does not identify the substantial evidence necessary to support them. He said Dr. Chen's earlier statement (part of his report to the Illinois Department of Public Aid) that Banks was still capable of moderate physical activity contradicted his opinion that Banks was disabled.
Banks' challenge to ALJ Niersbach's treatment of Dr. Chen's reports concentrates on the fact Dr. Chen was Banks' treating physician and believed she was disabled. She argues (1) his opinions should have been given substantial weight (see Allen v. Weinberger, 552 F.2d 781, 785-86 (7th Cir.1977)) and (2) the ALJ could not rationally favor Dr. Wyness' report over that of Dr. Chen.
Secretary correctly counters there may be wholly legitimate reasons for discounting the findings of a treating physician (see Cullotta, 662 F.Supp. at 1169). Where Secretary errs is in insisting many of those reasons are present here. That argument ignores the need for the ALJ (not Secretary's lawyer) to state the reasons for rejecting Dr. Chen's findings (see Burnett, 830 F.2d at 736).
Banks' argument as to ALJ Niersbach's failure to consider the combined effect of her impairments is curious. She is of course right in saying the ALJ had to consider the effect of all her established impairments on her ability to do her former work. But she cites Johnson, 769 F.2d at 1213 for that proposition. Johnson addressed the necessity of considering the combined effect of impairments during a step 2 inquiry, and Banks' attorney admitted at the Hearing that her impairments, even in combination, did not equal any of Secretary's listings (R. 36). Although ALJ Niersbach did commit several errors, he plainly considered the effect of all Banks' established impairments when making his step 4 determination. Instead, his errors were caused by how he factored those impairments into the step 4 calculus and by his failure to explain his result adequately.
Failure To Order Further Examination
Banks specifically asked the ALJ to order another consultative examination to evaluate the impairment of her knees. Although there were no x-rays of Banks' knees in the record, both Drs. Chen and Cay believed she had arthritis in her knees. ALJ Niersbach accepted their findings on that score, but the real issue was the extent of the impairment caused by the arthritis in her knees, not its existence. X-rays or other objective evidence from an additional examination of her knees might well have been extremely helpful toward reaching the disability decision (see Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977)(per curiam)), and that would have furthered the ALJ's obligation to develop a complete record (see Cannon v. Harris, 651 F.2d 513, 519 (7th Cir.1981)(per curiam)).
In light of the remand required in any event, this Court need not now decide whether ALJ Niersbach's failure to order such an examination would of itself justify a remand. Remand is necessary because of other errors, and Secretary should order such an additional examination of Banks' knees before making a second disability determination.
ALJ Niersbach failed properly to determine whether Banks can perform her past relevant work and to give an adequate explanation of several of his conclusions in the course of that determination. Accordingly this case is remanded to Secretary for (1) another evaluation of Banks' ability to perform her past relevant work, using proper legal standards, and (2) the preparation of an adequately explained decision of that evaluation.