Opinion
IP 00-1075-C-T/G
July 18, 2001
Entry Reviewing Commissioner's Decision
Though this entry is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, it is presumed that the ruling or rulings in this entry will govern throughout the litigation before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000). It should be noted, however, that this district judge's decision has no precedential authority and, therefore, is not binding on other courts, other judges in this district, or even other cases before this district judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value").
Plaintiff, Jerry Luna, Sr., seeks judicial review of the Social Security Administration's final decision denying him Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). He argues that the Commissioner erred by concluding that he was not disabled. Having reviewed the Commissioner's decision, the record, and the parties' briefs, the court decides as follows.
I. Factual and procedural background
Mr. Luna was born December 28, 1954. He has completed the eleventh grade and has a general equivalency diploma (GED). He worked as a sewing machine operator and materials handler in a mattress factory from 1973 to June 1994. (R. at 86.)
Plaintiff alleges disability starting June 3, 1994, (R. at 65) due to injuries relating to a car accident, the resulting surgery, depression and his medications. On June 3, 1994, Mr. Luna was involved in a motor vehicle accident in which he struck a bridge traveling at 60 m.p.h. (R. at 156.) Shortly after the injury, he was diagnosed with a traumatic brain injury and an intraventricular hemorrhage. (R. at 156.) He has been prescribed medication to prevent seizures. (R. at 269-70, 287.) He has not worked since the accident. (R. at 342.)
On July 12, 1994, Mr. Luna filed an application for a period of disability and DIB alleging disability since the accident. (R. at 65-67.) This application was denied on September 13, 1994, and again upon reconsideration. (R. at 68-69.) Mr. Luna petitioned for and received a hearing before an administrative law judge (ALJ) who found him not disabled. (R. at 247-52.) On Mr. Luna's request, the Appeals Council reviewed the decision and remanded. (R. at 261-64.) On remand, the ALJ found that Mr. Luna was not disabled. (R. at 16-29.) Mr. Luna's request for review by the Appeals Council of the ALJ decision was denied on March, 3, 2000. (R. at 7-8.) Thus, the ALJ's decision became the Commissioner's final decision from which Mr. Luna now appeals.
Mr. Luna is able to perform a number of day-to-day activities. On August 18, 1994, while reporting on Mr. Luna's recovery of motor functions after the car accident, Michael Berkowitz, M.D., noted that Mr. Luna was "doing a home exercise program involving stationary bike as well as lifting light hand and lower extremity weights." (R. at 204.) Dr. Berkowitz concluded his evaluation by recommending that Mr. Luna continue the home exercise program. (R. at 205.) At the ALJ hearing on July 21, 1998, Mr. Luna testified that he performed numerous activities, including exercising on a rowing machine for ten minutes daily (R. at 358), performing some cooking with a microwave for himself (R. at 356), doing the laundry, (id.), washing the dishes, (id.), very rarely mowing the lawn (R. at 356-57), going to church three times a week (R. at 357-58), attending family counseling every two weeks (R. at 362), and seeing his girlfriend about four times a week (R. at 357.) He also testified that for six months in late 1995 and early 1996 he attended GED classes for two hours a night, two nights a week. (R. at 342, 362.)
Mr. Luna has been prescribed medication for his depression since at least August 18, 1994. (R. at 204.) The record reflects that he has been chronically depressed since before the accident (see, e.g., R. at 278-79, 281-82), although perhaps at differing levels of severity (see, e.g., R. at 190, 193).
The medical records indicate that Mr. Luna has consistently complained of fatigue since the automobile accident. (See, e.g., at R. 202, 293, 297.) During the ALJ hearing, Mr. Luna testified that he has to sleep for two to three hours every three or four hours during the day despite getting a normal night's sleep. (R. at 361.) At the hearing, Mr. Luna showed the ALJ a sleep log which Mr. Luna alleged he had used to document his sleep patterns. Id.
Mr. Luna's various medical reports give various causes for the fatigue. His treating physicians have suggested that the fatigue is caused by or made worse by Mr. Luna's depression (see, e.g., R. at 196) or medication (see, e.g., R. at 321-24.) Both the psychiatric and the anti-seizure medication prescriptions have been altered repeatedly in an attempt to mitigate their effect on Mr. Luna's fatigue. (See, e.g., R. at 277-78, 297, 321-24.)
On July 12 and 13, 1998, Marvin Vollmer, M.D., conducted an overnight polysomnogram on Mr. Luna. (R. at 329-32.) This test took place eight days before the July 21, 1998, ALJ hearing. (R. at 329, 337.) The polysomnogram monitored Mr. Luna's overnight sleep through several devices including an electroencephalogram (EEG), electromyogram (EMG), and electrocardiogram (EKG). (R. at 329.) The test indicated that Mr. Luna exhibited "borderline sleepiness despite normal sleep." (R. at 331.) Dr. Vollmer concluded that there was a "possibility of an underlying primary central nervous system cause" for the fatigue. (R. at 331.)
II. The ALJ's decision
The ALJ decided that Mr. Luna was not disabled. (R. at 29.) Among the ALJ's finding were:
3. The medical evidence establishes that the claimant has severe seizure disorder and residuals from a closed head injury, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P.
4. The claimant's testimony and statements concerning his impairments and the symptoms and limitations they produce were credible only to the extent consistent with this decision. 5. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for an inability to lift more than 20 pounds occasionally and 10 pounds frequently (with commensurate push/pull capacity), and the nonexertional limitations of being limited to unskilled work consisting of simple, repetitive tasks not requiring attention for more than two hours at a time, and environmental restrictions from working at unprotected heights, climbing ropes or ladders, operating automotive equipment, working on scaffolds, in water, or around dangerous machinery or power tools.
(R. at 27) (internal citations omitted). In his findings, the ALJ did not specifically discuss Mr. Luna's depression or fatigue.
III. Legal Standard
Judicial review of the Commissioner's decision is quite limited. See Cass v. Shalala, 8 F.3d 552, 554-55 (7th Cir. 1993). The standard of review for any finding of fact is whether the finding is supported by substantial evidence. 42 U.S.C. § 405(g) ("The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive. . ."); see also Books v. Chater, 91 F.3d 972, 977 (7th Cir. 1996). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). When reviewing an ALJ's decision, "[a] federal court may not decide facts anew, reweigh the evidence, or substitute its judgment for that of the [Commissioner]." Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). However, "if the [ALJ] commit[ed] an error of law, reversal is required without regard to the volume of evidence in support of the factual findings." Id.
Furthermore, "[a]lthough a written evaluation of each piece of evidence or testimony is not required, neither may the ALJ select and discuss only that evidence that favors his ultimate conclusion." Herron V. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) (internal citations omitted); see also Binion, 108 F.3d at 788.
IV. Analysis
Mr. Luna alleges four points of error in the ALJ's decision. However, the court will only need to address one of the claims because Mr. Luna is correct on this claim of error and is entitled to a new hearing. Specifically, he alleges that the ALJ erred by not finding that his fatigue impaired his ability to work. Because this appeal may be decided on this issue alone, it will not be necessary to address the other issues that Mr. Luna raises. The court will also discuss whether the ALJ should have taken steps to expand the record.
Perhaps he is actually raising five points if the passing reference to the necessity of a medical opinion on equivalency on page 5 of his brief is another ground. Nonetheless, the court will not need to address this concern.
The question before the court is whether the ALJ erred in considering the effect of Mr. Luna's fatigue on his ability to perform work. During the hearing, the claimant characterized the fatigue as requiring him to lie down every three to four hours to sleep for two or three hours. Mr. Luna submitted medical evidence that established the existence of fatigue, but the only evidence that supported his characterization of the fatigue was his own testimony and a sleep log that he allegedly maintained that he brought to the hearing. None of the medical evidence refuted Mr. Luna's characterization of the fatigue. Instead, the medical evidence was silent as to the extent to which Mr. Luna's fatigue would affect his ability to work, if at all.
Apparently, the ALJ found that Mr. Luna's ability to perform numerous day-to-day activities indicated that Mr. Luna's subjective characterization of the fatigue was not credible. (R. at 24.) The Court infers that the ALJ rationale was that since Mr. Luna could perform these daily activities, he could not have been so fatigued that his ability to perform work was substantially affected. An ALJ must articulate his reasoning in his decision such that a reviewing court may evaluate his decision. See Books, 91 F.3d at 980 (the Seventh Circuit requires "that the ALJ sufficiently articulate his assessment of the evidence to assure [the court] that the ALJ considered the important evidence . . . [and to enable the court] to trace the path of the ALJ's reasoning.") (internal quotations and citations omitted); Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988) ("We have repeatedly emphasized that the [ALJ's] decision must be based on consideration of all relevant evidence and the reasons for his conclusion must be stated in a manner sufficient to permit an informed review.") In the instant case, the ALJ articulated nothing in his decision that a reviewing court could reasonably construe as a rationale for his rejection of Mr. Luna's characterization of his fatigue except Mr. Luna's ability to perform day-to-day activities. Accordingly, this court will presume that Mr. Luna's ability to perform day-to-day activities was the ALJ's sole basis upon which he discredited Mr. Luna's testimony.
Consistent with the above analysis, this court will ask two questions in reviewing Mr. Luna's argument regarding the effects of his fatigue. First, whether substantial evidence supported the ALJ's determination that Mr. Luna's fatigue would not impair his ability to work and, second, whether the ALJ fulfilled his duty to develop the record.
A. Substantial Evidence
As best this court can discern, when the ALJ found that Mr. Luna's fatigue did not impair his ability to work, he relied entirely on a credibility determination that weighed Mr. Luna's ability to perform day-to-day activities against Mr. Luna's subjective testimony. (R. at 24.) "[S]ince the ALJ is in the best position to observe witnesses, [courts] usually do not upset credibility determinations on appeal so long as they find some support in the record." Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994). But this deference is not without limits. In Herron, the court reviewed an ALJ's decision that a claimant was not disabled. Id. at 331. The court found that the ALJ erred by discrediting the claimant's subjective characterization of her impairment. Id. at 335-36. The court reasoned that "when [credibility] determinations rest on objective factors or fundamental implausibilities, rather than subjective considerations, appellate courts have greater freedom to review the ALJ's decision." Id. at 335 (citing Anderson v. Bessemer City, 470 U.S. 564, 574 (1985); Dray v. R.R. Ret. Bd., 10 F.3d 1306, 1314 (7th Cir. 1993)). The court determined that the objective evidence that the ALJ had cited in discrediting the claimant's characterization of the impairment was not inconsistent with the claimant's characterization and, therefore, could not support the conclusion that the claimant was not credible. Id. at 336. Because the ALJ gave no other reason for discrediting the claimant's testimony, the court could not uphold the ALJ's credibility determination. Id.
In the instant case, the evidence that the ALJ used in his credibility determination falls within the category of "objective factors or fundamental implausibilities rather than subjective considerations." Whether Mr. Luna's ability to work could be significantly affected by his fatigue despite his ability to perform day-to-day activities is an objective consideration which this court is in an equal position to answer as was the ALJ. Also, the ALJ expressed no subjective considerations in his analysis, such as the claimant's court room demeanor. Therefore, the credibility determination falls under the greater freedom of review discussed in Herron.
Where an ALJ only expresses the claimant's ability to perform day-to-day activities in support of his finding that the claimant is not credible, courts have been hesitant to find that substantial evidence supported the ALJ's decision. See Eback v. Chater, 94 F.3d 410, 413 (8th Cir. 1996) (the ALJ committed reversible error by finding that claimant's activities of "taking care of personal needs," frequently driving to visit family members, attending bingo fairly consistently, taking part in the care of a 19-month old, sharing cooking and house cleaning responsibilities with her husband were inconsistent with her testimony that she is unable to work where no other evidence supported the ALJ's conclusion); Jones v. Apfel, 997 F. Supp. 1085, 1092 (N.D.Ind. 1997) (the ALJ committed reversible error by finding that claimant was not disabled by depression based only on the claimant's ability to perform daily physical activities without conveying other analysis in his decision when medical evidence confirmed that the claimant had depression); Scott v. Shalala, 879 F. Supp. 109, 113 (D.D.C. 1995) ("The Secretary should not penalize Plaintiff for attempting to sustain a minimal lifestyle, despite her physical impairments."); c.f. Holloway v. Sullivan, No. 92 C 3176, 1992 WL 245615, at *3 (N.D.Ill. Sept. 24, 1992) (court properly determined that claimant's ability to perform daily activities was inconsistent with claimed inability to perform light work when the ALJ also based that determination on the medical evidence, the nature and effect of the claimant's medication and the claimant's courtroom demeanor).
Not only are courts hesitant to permit the ability to perform day-to-day activities as the only basis for rejecting a claimant's subjective characterization of an impairment, see Jones, 997 F. Supp. at 1092, Mr. Luna's ability to perform day-to-day activities fails to rebut his subjective characterization of his fatigue. To do so, Mr. Luna's ability to perform daily activities would have to indicate that he was able to work for longer than three or four hours without having to lie down. The day-to-day activities that the ALJ cited are such things as doing the laundry, attending GED classes and exercising. There is nothing to suggest that, in the course of performing these activities, Mr. Luna was not able to stop performing them after three or four hours to lie down. Attending the GED classes, for instance, proves only that he was able to work for two hours without lying down. These activities certainly evidence that Mr. Luna is not completely without energy, but fail to demonstrate that he can work for longer than three or four hours without lying down. See Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996) ("To establish disability, Baumgarten need not prove that her pain precludes all productive activity and confines her to a life in front of the television."). Because the ALJ failed to express appropriate or effective support for his rejection of Mr. Luna's characterization of the effects of his fatigue, his determination regarding Mr. Luna's fatigue was not supported by substantial evidence.
As a final matter, the Defendant claims that the outcome in Books v. Chater would suggest that this court should affirm the ALJ's decision. See Books v. Chater, 91 F.3d 972 (7th Cir. 1996). That claim is not convincing. In Books, the claimant contended that the ALJ improperly dismissed his subjective characterization of an impairment as requiring him to lie down for two or three hours during the day. Books, 91 F.3d at 981. The ALJ discredited the claimant's characterization of the effects of his impairment because that characterization was contradicted by medical evidence. Id. at 981. In contrast, the ALJ in Mr. Luna's case had no informative medical evidence with which to discredit Mr. Luna's characterization. Moreover, Dr. Vollmer's report gives some collaboration for a medical basis to Mr. Luna's reports of fatigue. In fact, the ALJ did not even have effective non-medical evidence with which to discredit Mr. Luna's characterization. For these reasons, Books is not analogous to Mr. Luna's case. In conclusion, the ALJ's determination regarding Mr. Luna's fatigue was not supported by substantial evidence.
B. The ALJ's Duty to Develop the Record
This case also presents a concern about the extent to which the record was developed by the ALJ. A social security case should be remanded if the ALJ has failed to discharge his duty to fully develop the record. See Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994). Remand for a failure to discharge the duty to develop the record is more common where the claimant appears pro se, since the general duty to develop the record is heightened under those circumstances. See, e.g., Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997) ("The ALJ in a social security hearing has a basic obligation to develop a full and fair record" which is heightened when the claimant appears pro se); Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994) (remand was necessary because the ALJ failed to fully develop the record where claimant appeared pro se); Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991) ("A well-settled proposition regarding social security disability hearings is that it is a basic obligation of the ALJ to develop a full and fair record. [Where the claimant appears pro se], the ALJ has a duty [sic] scrupulously and conscientiously to probe into, inquire of, and explore for all the relevant facts. . . .") (internal quotations and citation omitted).
However, the ALJ has a general duty to develop the record whether the claimant appears pro se or not. See Luna, 22 F.3d at 692. When a claimant is represented by counsel, the court will generally respect the ALJ's "reasoned judgement" as to "how much evidence to gather." Id. Mr. Luna was represented by an attorney at the SSA hearing, and, therefore, the ALJ did not have a heightened duty to develop the record. The ALJ, nevertheless, had a duty to develop the record.
The court is troubled by the ALJ's lack of development of the record in relation to a report from Mr. Luna's neurologist, Dr. Levine, regarding the nature and effects of Mr. Luna's fatigue. During the hearing, Mr. Luna testified that Dr. Levine was preparing a report that would be finished within a week of the hearing date which would describe the source and implications of Mr. Luna's fatigue in light of the polysomnogram performed by Dr. Vollmer. (R. at 351.) The ALJ indicated that he was "very interested" in seeing this report (R. at 368) and that he would "certainly consider it very carefully." (R. at 369.) He also stated that he would keep the record open in order to obtain that report. (R. at 351.)
However, Mr. Luna, by his attorney, notified the court that he had failed to obtain the report because of alleged indigence. (R. at 36.) The record does not indicate that the ALJ made any attempt to acquire the report or that he ever acquired the report. Furthermore, the ALJ never stated in his decision that he believed that the report was unnecessary. After Mr. Luna failed to acquire Dr. Levine's report, the ALJ could have purchased a consultative medical exam to fill the gap. See 20 C.F.R. § 416.919a(b). However, courts are hesitant to find that an ALJ failed in his duty to develop the record in the mere fact that an ALJ failed to receive "one last report." See, e.g., Luna, 22 F.3d at 692; Binion, 13 F.3d at 246. Much of the reason why the ALJ's development of the record is afforded such high deference when a claimant is represented is because "the difficulty of having a `complete' record . . . [is that] . . .`one may always obtain another medical examination, seek the views of one more consultant, wait six months to see whether the claimant's condition changes, and so on.'" Luna, 22 F.3d at 692 (quoting Kendrick v. Shalala, 998 F.2d 455, 456-57 (7th Cir. 1993)). If ALJs were required to delay a case every time a claimant requested a new examination to supplement or contradict the current evidence, the social security judicial system would be burdened with substantial, and more often than not, fruitless delays.
In Lawson v. Apfel, the court stated that a judge's option to obtain an additional consultative examination is discretionary if the case already has sufficient evidence. No. IP 99-1112-C H/G, 2000 WL 683256, at *7-8 (S.D.Ind. May 25, 2000) (Hamilton, J.). The Lawson court reviewed an ALJ finding that a claimant was not disabled. The claimant argued that the ALJ had failed in his duty to develop the record regarding his psychological impairments and that the ALJ should have ordered another consultive medical exam. Id. at *6. The ALJ based his determination on two medical reports assessing the claimant's psychological impairments. One report was from a state agency psychological consultant that had determined that the claimant's mental impairments were not severe. Id. at *7. The court noted that the claimant had failed to even specify what additional facts could be discovered by ordering a new exam. Id. at *8. Accordingly, the court held that "[b]ecause there was sufficient evidence presented to permit the ALJ to make a reasoned determination regarding the severity of [the claimant's] mental impairment, the ALJ was not required to request an additional psychological examination." Id. To hold otherwise would subject the Social Security Administration to undue costs in purchasing medical exams every time a claimant would like one more piece of cumulative evidence, but cannot afford it.
However, in Mr. Luna's case the ALJ's failure to obtain Dr. Levine's report, or order a different consultative exam, was not based on reasoned judgement. Unlike in Lawson, the ALJ did not make his decision where adequate evidence already reasonably supported his conclusion and where the claimant's motive was to find cumulative evidence to contradict the existing evidence. Instead, the ALJ in Mr. Luna's case lacked sufficient evidence to make a reasoned determination regarding Mr. Luna's allegation of disability because there was a gap in the evidence as to the effect of Mr. Luna's fatigue on his ability to work. Dr. Levine's report would have potentially filled this gap, thereby establishing evidence on which a reasonable determination of disability could be made. Moreover, the report would have had the potential to have been the only evidence of its kind, and therefore, non-cumulative. The court in Lawson remarked that "if there is insufficient evidence from which the Commissioner can make a disability determination, the Commissioner should try to obtain additional evidence." Id. at *8 (citing 20 C.F.R. § 404.1527(c)(3)). In Mr. Luna's case, there was insufficient evidence. Therefore, the ALJ failed to discharge his duty to develop the record.
V. Conclusion
Substantial evidence does not support the ALJ's rejection of Mr. Luna's subjective characterization of the effects of his fatigue on his ability to work. And, the ALJ failed to fully develop the record. Therefore, the case will be REVERSED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further development of the record regarding the severity or extent of Mr. Luna's fatigue and its effect on his ability to perform substantial gainful activity.