Golembiewski v. Barnhart, Jo Anne B. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1286
MICHAEL E. GOLEMBIEWSKI,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:01-CV-104—William C. Lee, Chief Judge.
____________
ARGUED DECEMBER 17, 2002—DECIDED FEBRUARY 3, 2003
OPINION PUBLISHED MARCH 12, 2003*
____________
Before BAUER, CUDAHY, and COFFEY, Circuit Judges.
PER CURIAM. Michael Golembiewski, a former auto-
mobile radiator repairman, applied for disability insur-
ance benefits at the age of 39 asserting that he could not
work because of back problems and epileptic seizures. An
administrative law judge denied benefits after finding that
* Pursuant to Circuit Rule 53, this decision was originally is-
sued as an unpublished order. The court, upon request, issues the
decision as a published opinion.
2 No. 02-1286
Golembiewski was not disabled when his eligibility for
insurance expired, and the Social Security Administra-
tion’s appellate council declined review. Golembiewski
then brought this action in the district court, which up-
held the agency’s decision, and Golembiewski appeals.
Because the ALJ insufficiently explained why he discred-
ited Golembiewski’s testimony, mischaracterized the med-
ical evidence, and ignored evidence of Golembiewski’s
disability, we remand the case to the agency for further
proceedings.
Golembiewski’s medical records document a history
of ailments stretching back to his childhood. As a child,
Golembiewski had to have his right leg partially ampu-
tated because of a birth defect, and during early adult-
hood he began to have epileptic seizures on account of
head injuries sustained during an accident. Because of
his seizures, Golembiewski in 1992 was referred to the
Mayo Clinic, where Dr. Elson So, a neurologist, prescribed
the anticonvulsant Tegretol. The medication successfully
controlled Golembiewski’s epilepsy until 1994, when he
returned to the clinic suffering frequent spells. In response,
Dr. So instructed Golembiewski to increase his Tegretol
dosage (and to abstain from alcohol), and by the end of
1994, Dr. So later reported, the seizures again were under
control.
The event that led to Golembiewski’s alleged disability
occurred in November 1995. Golembiewski crashed his
pickup truck into another truck, hit his head, injured his
back, and again began having daily seizures. Upon ex-
amination at the Mayo Clinic, Dr. So suggested that
Golembiewski’s new seizures were related to the trauma
(though he did not identify a precise cause). Dr. So also
reported that following the accident Golembiewski com-
plained of bowel and bladder urgency. And an MRI taken
at the clinic revealed additional problems with Golembiew-
ski’s back, including a small area of myelomlacia (soften-
No. 02-1286 3
ing of the spinal cord) in his middle back, degenerative
disk disease in his lower back, and two disk extrusions—
one between two cervical vertebrae and the other between
two thoracic vertebrae. Although the thoracic extrusion
did not affect the spinal cord, the cervical extrusion did,
and Dr. So thought that this deformity could explain the
neck discomfort felt by Golembiewski after his car accident.
To combat the new seizures, Dr. So prescribed another
anticonvulsant, Depakote, and within a few weeks the
spells had stopped. With respect to the bowel and bladder
problems, urologists at the clinic did not identify a neuro-
logical cause—though after finding two kidney stones,
they instructed Golembiewski to drink more water.
Golembiewski’s back and neck pain, however, persisted
for the next two years, and in August 1997 he went
to Parkview Memorial Hospital in Fort Wayne, Indiana,
complaining of “severe pain.” There an emergency care
center physician delivered Demoral intramuscularly, pre-
scribed other painkillers, and scheduled Golembiewski to
see Dr. Stephen Schroeder, a neurosurgeon. Dr. Schroeder
found that Golembiewski had crepitance (crinkling) in his
neck, limited flexion when performing low back motions,
pain when performing straight leg raises from a supine
position, and patchy hypesthesia (diminished sensitivity)
on his left arm and chest. Reviewing an MRI taken earlier
in February 1996, Dr. Schroeder also observed signifi-
cant spondylosis (stiffening of the vertebrae) and a poten-
tial disk rupture between Golembiewski’s diseased cervical
vertebrae. After looking at another MRI from March 1996,
Dr. Schroeder further saw disk degeneration in the lower
back with probable “lumbosacral herniation.”
In light of Golembiewski’s significant soft tissue pain,
Dr. Schroeder approved a course of physical therapy at
Adams County Memorial Hospital in Decatur, Indiana.
Unfortunately, physical therapy provided no relief, and in
both February and April 1998, Golembiewski returned to
4 No. 02-1286
Adams County reporting back strain. That May Golembiew-
ski also had another car accident after suffering a seizure.
During this period Golembiewski reported that he was
having seizures daily, and an electroencephalogram (EEG)
performed in October 1998 showed abnormal electrical
activity in Golembiewski’s brain that was consistent
with partial seizure disorder.
In January 1999 Golembiewski reported additional
problems to his family practitioner, Dr. Michael Person.
Golembiewski complained that he had developed numb-
ness, weakness, and tingling in his upper extremities,
making him unable to use his hands to hold onto objects.
In addition, the following month Dr. Person noted that
Golembiewski’s right leg was draining fluid from a red
lesion above his prosthesis. And in April 1999 Dr. Person
again reported that Golembiewski was suffering from
severe neck pain. That month Golembiewski also had
another accident; he burned his left foot with a high-
power pressure washer at his radiator shop, and his left
leg became infected.
After burning his foot, Golembiewski applied for disability
benefits. Dr. Sam Davis, a physician employed by the
State of Indiana, then assessed Golembiewski’s functional
capacity to work and concluded that Golembiewski could
perform several work-related tasks. Specifically, Dr. Davis
determined that Golembiewski occasionally could lift up
to twenty pounds, that he could stand and walk for
two hours and sit for six hours (with breaks) during an
eight-hour workday, and that he could use hand and foot
controls without limitation. Dr. Davis also found that
Golembiewski occasionally could balance, stoop, and crouch,
but could never kneel, crawl, or climb stairs or ladders.
According to Dr. Davis, Golembiewski needed to avoid
machinery, heights, and slick or uneven surfaces because
of his seizures.
No. 02-1286 5
The ALJ held a hearing in June 2000 at which
Golembiewski testified and presented his medical records
(many of which we have not discussed because they are
redundant or irrelevant). At the hearing Golembiewski
explained that he had problems walking because his
prosthesis fit poorly, that he suffered a seizure once or
twice a week lasting between four and five minutes, and
that until as recently as December 1998 he had suffered
seizures every four days. Golembiewski also testified
that he had pain in his middle and lower back, that he
could sit comfortably only for five minutes at a time, and
that he periodically dropped items from his right hand.
The ALJ also solicited testimony from a vocational ex-
pert. The vocational expert explained that someone of
Golembiewski’s age, education, and work experience—who
could not work around machinery because of seizures—
would be able to work as an assembler, inspector, packager,
or cashier. But when asked about the number of jobs for
someone with Golembiewski’s impairments, who could
not sit or stand for more than five minutes, the vocational
expert did not suggest any available jobs. He instead
responded that a “selective job placement” would be re-
quired.
The ALJ denied Golembiewski’s application for bene-
fits. In his decision the ALJ first noted that Golembiewski
was insured for disability benefits only through December
31, 1998, and that he needed to demonstrate a disability
while he remained insured. During that time period, the
ALJ concluded, Golembiewski’s seizures were controlled
by medication, he suffered neck and back pain, and his
MRIs showed some disk degeneration and mild bulging,
but no herniations. The ALJ also determined that de-
spite Golembiewski’s seizures, disk degeneration, and
chronic pain, he retained the capacity for light work.
After finding Golembiewski’s own testimony not credible
“for the reasons set forth in the body of the decision,” the
6 No. 02-1286
ALJ determined from the vocational expert’s testimony
that Golembiewski could hold jobs as an assembler,
packager, inspector, and cashier. Engaging in the familiar
five-step analysis used to evaluate disability claims, 20
C.F.R. § 404.1572, the ALJ concluded that Golembiewski
(1) did not have a job, (2) had a severe impairment, (3) did
not have an impairment or combination of impairments
listed in the agency’s regulations, (4) could not return to
his job repairing radiators, (5) but could work a signifi-
cant number of jobs in the national economy. Golembiewski
then appealed to the agency’s appeals council, but his
request for review was denied, making the ALJ’s decision
the final decision of the Commissioner. 20 C.F.R. § 404.981.
We will uphold the Commissioner’s decision if it is
supported by substantial evidence and is free of legal error.
42 U.S.C. § 405(g). This is a deferential but not en-
tirely uncritical standard, Scott v. Barnhart, 297 F.3d 589,
593 (7th Cir. 2002), for the Commissioner’s decision can-
not stand if it lacks evidentiary support or an adequate
discussion of the issues, Brindisi v. Barnhart, 315 F.3d 783,
785 (7th Cir. 2003). On appeal Golembiewski argues
that the decision lacks the detail needed to permit mean-
ingful review for three independent reasons: (1) the ALJ
insufficiently explained why he discredited Golembiew-
ski’s testimony; (2) the ALJ mischaracterized the medical
evidence discussed in his decision; and (3) the ALJ ignored
significant other evidence that supported Golembiewski’s
claim. We consider these arguments in turn.
Golembiewski’s first contention relies on the principle
that ALJs must explain why they find an applicant’s
testimony unbelievable. Social Security Ruling 96-7p
provides that ALJs must supply “specific reasons” for a
credibility finding; the ALJ cannot state simply that “the
individual’s allegations have been considered” or that “the
allegations are (or are not) credible.” SSR 96-7p. Here the
No. 02-1286 7
ALJ found Golembiewski’s testimony—including his
complaint that in 1998 he suffered weekly seizures and pain
so severe that he could not sit or stand comfortably for
more than five minutes—less than credible “for the rea-
sons set forth in the body of the decision.” Yet the body
of the decision contains no reasons why the ALJ found
Golembiewski’s testimony unbelievable. The ALJ also
failed to apply the factors for evaluating symptoms set
forth in Social Security Ruling 96-7p, such as the degree
to which Golembiewski’s asserted limitations were con-
sistent with the medical evidence or the ALJ’s own ob-
servations. See Steele v. Barnhart, 290 F.3d 936, 942 (7th
Cir. 2002); Zurawski v. Halter, 245 F.3d 881, 887-88 (7th
Cir. 2001); Schaudeck v. Commissioner, 181 F.3d 429, 433
(3d Cir. 1999).
The ALJ’s inadequate credibility determination matters
here because crediting Golembiewski’s testimony would
establish that he was disabled before December 31,
1998—the date on which his eligibility for benefits ex-
pired. With respect to his epilepsy, for example, Golembiew-
ski testified that in December 1998 he suffered seizures
every four days, and an EEG taken just two months
earlier showed abnormal electrical activity in Golembiew-
ski’s brain consistent with partial seizure disorder. If the
ALJ had credited Golembiewski’s testimony about the
frequency of his spells, then that evidence—in conjunction
with the contemporaneous EEG—would suggest that
Golembiewski was disabled under Social Security List-
ing 11.03. The listing provides for an automatic disabil-
ity finding upon a showing of documented seizures “occur-
ring more frequently than once weekly in spite of at least
3 months of prescribed treatment.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 11.03; see Steele, 290 F.3d at 940 (col-
lecting cases).
Similarly, Golembiewski testified that when his insurance
expired he could not comfortably sit or stand for more
8 No. 02-1286
than five minutes. According to the vocational expert,
inability to sit or stand for such a short period—coupled
with Golembiewski’s partially amputated leg, chronic
back pain, and inability to drive or operate machinery
because of seizures—would have required a “selective job
placement.” The vocational expert neither explained
what he meant by a “selective job placement,” nor identified
any jobs that Golembiewski could work if his testimony
were fully believed. To establish that Golembiewski was
not disabled, the Commissioner needed to offer evidence
of jobs that he could work. See 20 C.F.R. § 404.1520(f).
The Commissioner defends the ALJ’s credibility deter-
mination on the theory that the body of the ALJ’s decision
implicitly supplies reasons for rejecting the testimony. With
respect to the frequency of Golembiewski’s seizures, the
Commissioner says that the ALJ “clearly rejected” any
suggestion that the seizures occurred every four days
in 1998 because he found Golembiewski’s seizures to be
“well controlled.” The Commissioner also speculates that
even if Golembiewski had suffered seizures every four
days in 1998, the spells occurred because he refused to
follow prescribed treatment. Similarly, with respect to
Golembiewski’s testimony about his ability to sit and
stand comfortably, the Commissioner says that the ALJ
found that evidence to be incredible because he observed
Golembiewski sitting for 40 minutes at the hearing.
The Commissioner’s response is problematic for two
reasons. First, nothing in Social Security Ruling 96-7p
suggests that the reasons for a credibility finding may
be implied. Indeed, the cases make clear that the ALJ
must specify the reasons for his finding so that the appli-
cant and subsequent reviewers will have a fair sense of
the weight given to the applicant’s testimony. Steele, 290
F.3d at 942; Briggs v. Massanari, 248 F.3d 1235, 1239 (10th
Cir. 2001); Schaudeck, 181 F.3d at 433-34. Second, regard-
less of the requirements of Social Security Ruling 96-7p,
No. 02-1286 9
general principles of administrative law preclude the
Commissioner’s lawyers from advancing grounds in sup-
port of the agency’s decision that were not given by the
ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943);
Steele, 290 F.3d at 941; Pinto v. Massanari, 249 F.3d
840, 847-48 (9th Cir. 2001); Fargnoli v. Massanari, 247 F.3d
34, 44 n.7 (3d Cir. 2001). So the Commissioner’s effort to
pinpoint parts of the ALJ’s decision that support the
credibility finding is unhelpful.
In addition to containing an insufficient credibility
determination, the ALJ’s decision is further compromised
by a mischaracterization of the medical evidence. Specifi-
cally, the ALJ discounted the significance of Golembiew-
ski’s MRIs taken before 1999 by remarking that they
showed only “some disc degenerations” with “no hernia-
tions.” But as Golembiewski correctly notes, the ALJ cited
no evidence for his view that the MRIs showed no
herniations. And according to Dr. Schroeder, an MRI from
March 1996 actually showed disk degeneration with
probable “lumbosacral herniation.” The Commissioner
does not explain how Dr. Schroeder’s diagnosis of prob-
able herniation can be squared with a finding of “no
herniations,” so we see no basis to sustain the ALJ’s
assessment of Golembiewski’s MRIs.
What is more (not that more is needed), we also agree
with Golembiewski that the ALJ ignored significant
evidence supporting his claim. The ALJ must evaluate
the record fairly. Thus, although the ALJ need not dis-
cuss every piece of evidence in the record, Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001), the ALJ
may not ignore an entire line of evidence that is contrary
to the ruling, Zurawski, 245 F.3d at 888. Otherwise it
is impossible for a reviewing court to tell whether the
ALJ’s decision rests upon substantial evidence. Smith v.
Apfel, 231 F.3d 433, 438 (7th Cir. 2000). A remand is
10 No. 02-1286
required here because the ALJ improperly ignored three
lines of evidence.
First, the ALJ entirely failed to discuss Golembiewski’s
bowel and bladder dysfunction. After his car accident in
1995, Golembiewski reported bowel and bladder urgency
to Dr. So, who described the problem as “quite disabling.”
And in January 2000 Golembiewski told Dr. So that since
1997 he had suffered urinary incontinence two to three
times a month—a problem that one doctor at the Mayo
Clinic thought was possibly consistent with a “neurogenic
bladder” (bladder dysfunction caused by malfunction-
ing nerves). The Commissioner says that discussion of
this line of evidence was not required because Golembiew-
ski was still working in 1997 and, in any event, his incon-
tinence was too infrequent to significantly impact his abil-
ity to work. But that argument misunderstands the
issue. Incontinence constitutes an impairment under the
Social Security Act that must be considered to deter-
mine whether an applicant is disabled. See Crowley v. Apfel,
197 F.3d 194, 198-99 & n.17 (5th Cir. 1999) (collecting
cases). Evidence that Golembiewski’s bladder impair-
ment did not interfere with his work therefore would be
a reason for the ALJ to discount the disabling nature of
the problem, but it would not justify ignoring the problem
entirely as the ALJ did here.
Second, the ALJ’s decision contains no discussion of
Golembiewski’s limited ability to bend on account of his
bad back. After an examination in August 1997, Dr.
Schroeder reported that Golembiewski could rotate his
neck only 60 degrees and that motion in his lower back
was reduced to 40 degrees of flexion, 15 degrees of ex-
tension, and 10 degrees of tilting. In contrast, Dr. Davis
opined in his July 1999 report for the State of Indiana
that Golembiewski could “stoop occasionally,” meaning
that he could bend at the waist for up to a third of an eight-
hour day. See SSR 83-14. The reports of Dr. Schroeder
No. 02-1286 11
and Dr. Davis thus establish potentially conflicting as-
sessments of Golembiewski’s bending ability. Yet despite
his obligation to resolve such conflicts, e.g., Scott, 297
F.3d at 596; see also Godbey v. Apfel, 238 F.3d 803, 808
(7th Cir. 2000), the ALJ did not address either doctor’s
assessment—a significant omission since Golembiewski
would have to bend at the waist occasionally in order
to perform light work, SSR 83-10; see Lauer v. Apfel, 169
F.3d 489, 492 (7th Cir. 1999).
The third line of evidence ignored by the ALJ concerns
Golembiewski’s propensity to drop objects because of
tingling in his hands. Problems manipulating objects
by hand reduces the number of jobs available to a disabil-
ity applicant. Sanders v. Sullivan, 983 F.2d 822, 824
(8th Cir. 1992). The ALJ therefore needed to discuss
Golembiewski’s grasping impairment. True, the record
contains no evidence of the impairment before December
31, 1998, when his eligibility for benefits expired, and
Golembiewski needed to show that he was disabled be-
fore that date. Callaghan v. Shalala, 992 F.2d 692, 695
(7th Cir. 1993); Armstrong v. Commissioner, 160 F.3d
587, 589 (9th Cir. 1998). But Dr. Person reported that
Golembiewski had begun to drop objects in January
1999—just two weeks after his insurance expired. Although
Dr. Person’s report does not specify whether the condi-
tion developed days or months earlier, the ALJ needed
to develop a full and fair record. Smith, 231 F.3d at 437;
Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991).
So instead of ignoring the issue, the ALJ should have
elicited more information to determine when Golembiew-
ski began to have grasping problems.
We close with an additional observation. Golembiewski
has a host of significant medical conditions, including the
partially amputated leg, epilepsy, back pain, bowel and
bladder dysfunction, and grasping problems that we have
discussed. Having found that one or more of Golembiew-
12 No. 02-1286
ski’s impairments was “severe,” the ALJ needed to consider
the aggregate effect of this entire constellation of ailments—
including those impairments that in isolation are not
severe. 20 C.F.R. § 404.1523; see also Sims v. Barnhart, 309
F.3d 424, 432 (7th Cir. 2002); Green v. Apfel, 204 F.3d
780, 782 (7th Cir. 2000); Cunningham v. Apfel, 222 F.3d
496, 501 (8th Cir. 2000). On remand the agency must
remember that a competent evaluation of Golembiewski’s
application depends on the total effect of all his medical
problems.
The judgment of the district court is vacated, and the
case is remanded with instructions to remand the case to
the agency. We urge the Commissioner, when taking a
fresh look at the matter, to assign a new ALJ to handle
any additional proceedings deemed necessary. See Sarchet
v. Chater, 78 F.3d 305, 309 (7th Cir. 1996).
VACATED and REMANDED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-12-03