Opinion
Case No. 99 C 6880
January 10, 2001
MEMORANDUM OPINION AND ORDER
Robert Holdman appeals from a denial of Supplemental Security Income (SSI) benefits. Our review of the evidence and the analysis by the Administrative Law Judge leads us to conclude a remand is necessary for a more complete development of the record. parties' motions for summary judgment, vacate the ruling of the ALJ, and remand for further proceedings.
FACTS
Robert Holdman, like many other Americans suffering from addiction, lost his SSI benefits on January 1, 1997. Title 42 had provided such benefits to "aged, blind, or disabled individuals" regardless of their histories of substance abuse, but Congress decided in 1996 that "an individual shall not be considered to be disabled . . . if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 1382c(a)(3)(J).
Holdman had been receiving benefits based on a disability that was premised, to a material extent, on his addiction to alcohol and drugs. The Social Security Administration (SSA) held a hearing and, on November 25, 1996, found that Holdman was no longer disabled within the meaning of the amended statute. Consequently, the SSA ceased making 551 payments to Holdman on January 1, 1997.
Mr. Holdman is a recovering addict who has not taken drugs or alcohol since 1993.
Holdman applied for 551 benefits on other grounds. On May 6, 1998, Administrative Law Judge Michael J. Bernstein held a hearing on Holdman's claim for benefits. The ALJ noted that Holdman suffered from diabetes with neuropathy in his legs, feet, and hands. His diabetes had led to complications, including limping, ulceration in his right big toe, cramps in both legs, and glaucoma. Hypertension, an enlarged heart, chronic lower back pain were additional physical impairments. Mentally, Holdman had been diagnosed with severe, major depression, with anxious and psychotic features and borderline intellectual functioning.
Holdman testified that his lower back pain, when treated with medication, reached a five on a ten-point scale. Pain in his feet was constantly at a nine on the same scale. He testified that he no longer drank alcohol or took drugs and that his doctor had prescribed a diabetes-controlling diet that Holdman did not follow as well as he should. He testified that he could lift a ten-pound bag of potatoes but that it would be difficult for him to walk four blocks or climb more than eight stairs. He could stand for 20 to 30 minutes at a time and could sit for 30 minutes at a time before experiencing discomfort. Holdman still has a driver's license but does not drive because of vision impairments. He testified that he could manage to bathe and dress himself, with some difficulty, but that he could not accomplish much cooking or housework.
The evidence reflected that Holdman had been evaluated by a number of medical doctors. David Hillman, M.D., an ophthalmologist, examined Holdman in September, 1996. Dr. Hillman found that Holdman's eyes had "normal macula and periphery, and there was no evidence of diabetic retinopathy," leading him to diagnose "open angle glaucoma and increased pressure" in the eyes. On the same day, Dr. Sanjay Bharti, M.D., examined Holdman for 30 minutes and found that he had "full and painless range of motion in all joints with the exception of the lumbosacral spine, which had some limitation of motion." Further, Holdman's "strength, sensation, and reflexes were symmetric and normal, and there was no evidence of cervical or lumbar nerve root compression or peripheral neuropathy." Dr. Bharti diagnosed diabetes; a history of soreness of the feet; a history of low back pain with limitation of lumbosacral motion but a normal gait; gastritis; and glaucoma. In April, 1997, Holdman was treated at Cook County Hospital, where a doctor concluded that his diabetes was uncontrolled, perhaps because Holdman admitted to not following his prescribed diet. The doctor also found that Holdman's hypertension was controlled, and his glaucoma was stable.
Holdman' s physical condition apparently deteriorated, because one year later, in April 1998, Holdman's treating physician, Dr. Robert MacDonald, diagnosed diabetes, hypertension, hypertensive cardiovascular disease with an enlarged heart and intermittent limping; renal disease; blood in the urine; and glaucoma. Dr. MacDonald found that Holdman could neither stand nor sit continuously for six of eight hours, and he could only lift less than five pounds. Further, Holdman could not bend, squat, kneel, or turn any part of his body; could not climb, stoop, operate foot controls, or reach above shoulder level; and had environmental restrictions due to "chronic vertigo." Similarly, Dr. Antoinette Krakowski, a psychologist, evaluated Holdman on April 20, 1998, for approximately three and one-half hours. Holdman complained of depression stretching back ten years, suicidal tendencies, auditory and visual hallucinations, sleep disturbances, and low appetite. Dr. Krakowski' s testing revealed borderline intellectual functioning and severe depression with anxious and psychotic features, leading her to conclude that "it would be unlikely that he would function under the stress and demands of a regular employment situation" and that Holdman's OAF was 30. Dr. Krakowski opined that these mental impairments met Listing § 12.04 for Affective Disorders. 20 C.F.R. Part 404, Subpart F, Appendix 1, § 12.04.
A Global Assessment of Functioning (OAF) rating of 21-30 indicates that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home or friends).
The conflicts between Dr. Bharti's diagnosis in September 1996 and the April 1998 evaluations by Dr. MacDonald and Dr. Krakowski are at the core of this dispute. As described below, the ALJ chose to accept Dr. Bharti's opinion, while declining to give controlling weight to the other opinions. We find that this decision must be vacated and remanded for further proceedings.
THE ALJ'S DECISION
In order to be eligible for 581 benefits, Holdman must be unable to do "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 12 months." 20 C.F.R. § 416.905 (1998) In his 12-page opinion, the ALJ attempted to follow the five-step process mandated by 20 C.F.R. § 416.920 for analyzing claims of disability.
All citations are to the regulations revised as of April 1, 1998.
The five steps are as follows:
Step 1: The claimant must not be engaged in any substantial gainful activity.
Step 2: The impairment(s) affecting the claimant must be severe, defined as significantly limiting the claimants physical or mental ability to do basic work activities,
Step 3: The impairment(s) must meet or equal those listed in Appendix 1.
Step 4: The claimant must be prevented by his/her impairment(s) from doing past relevant work.
Step 5: The claimant's impairments must prevent him/her from doing other work.
If Holdman is not working, has a severe impairment, and that impairment meets or equals a listed impairment, then he is disabled and eligible for benefits. No further analysis is necessary. If his impairment does not meet or equal a listed impairment, but he is severe enough that he is prevented from doing his past relevant work, then the SSA has the burden of showing that there are jobs available for which Holdman is qualified. See Knight v. Chater, 55 F, 3d 309, 313 (7th Cir. 1995). If the SSA fails to meet this burden, Holdman is also qualified for benefits.
Holdman had not engaged in substantial gainful activity, and the ALJ found that his impairments were "severe." The disputed issues in this case all flow from the ALJ's determination at Step 3 that Holdman's impairments did not, alone or in combination, meet or equal a condition set forth in the Listing of Impairments. 20 C.F.R. Part 404, Subpart I, Appendix 1 (1998).
At Step 3, the ALJ's opinion is conclusory and devoid of any substantial attempt at analyzing whether Holdman's impairments meet or equal any Listing. However, the next section of his opinion is quite lengthy and appears to confront the relevant issues for this appeal. We therefore assume that the ALJ's decision as it relates to Step 4 was intended to address Step 3 as well.
The ALJ held that Holdman could not do his relevant past work (as a laundry aide), but that he had the residual functional capacity to perform simple, repetitive, sedentary work that allowed him to stand for three to five minutes at a time twice each hour; involved reduced interaction with others; and did not require visual acuity. The ALJ noted that a vocational expert had opined that Holdman retained the ability to perform a significant number of other jobs in the national economy and therefore was not disabled as that term is defined in the statute. In August, 1999, the SSA Appeals Council affirmed, making the ALJ determination the decision of the Commissioner. Clifford v. Apfel, 227 F.3d 863, 865 (7th Cir. 2000). In October, 1999, Holdman filed a complaint seeking judicial review of the SSA's determination. Both parties have moved for summary judgment.
We should note that in a separate, later proceeding, the SSA decided to provide SSI benefits to Holdman effective March, 1999. Accordingly, this appeal concerns 551 benefits covering a period of 26 months (from January 1997 through February 1999). The record and the parties' motions do not reflect what disability finding led to these current benefits being provided, and we assume for purposes of this appeal that any such finding is irrelevant to the period at issue in this case. The fact that benefits were later found to be warranted does not affect Holdman's eligibility during another, earlier time period. See, e.g., Reynolds v. Bowen, 844 F.2d 451, 454 (7th Cir. 1988) (noting that subsequent applications for benefits are "completely separate, distinct, and unrelated applications"); Rucker v. Chater, 92 F.3d 492, 495 (7th Cir. 1996).
HOLDMAN'S LEGAL ARGUMENTS
Holdman argues that the ALJ's decision is erroneous for three reasons. First, Holdman claims that the ALJ improperly dismissed Dr. Krakowski's finding that Holdman's personality disorders were sufficient to meet the listing for affective disorders. Second, Holdman argues that the ALJ improperly evaluated Holdman's pain. And third, Holdman claims that the rejection of his treating doctor's opinion by the ALJ constitutes an error of law. Holdman urges this Court to either reverse the ALJ and find him disabled, or vacate and remand for further proceedings.
We examine his three arguments in turn, using the standard of review dictated by case law. The ALJ's decision will not be reversed if it is supported by substantial evidence, meaning "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also 42 U.S.C. § 405 (g) ("The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing."). In this review, we examine the entire record, but do not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute our own judgment for that of the ALJ. See Powers v. Apfel, 207 F.3d 431, 434-35 (7th Cir. 2000); Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995). However, this deferential standard does not require that this Court simply rubber-stamp the ALJ's decision without a critical review. See Clifford, 227 F.3d at 869; Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 538 (7th Cir. 1992).
Rejecting Dr. Krakowski's Opinion
Dr. Krakowski examined Holdman' s mental health. As the only mental health professional to perform a consultative evaluation on Holdman, she diagnosed the mental disorders listed above (primarily severe depression) and concluded that they sufficed under 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.04 for affective disorders. In light of the fact that no other mental health expert contradicted this opinion, we find that the ALJ exceeded his authority by deciding the issue of mental health disability without benefit of medical expertise.
ALJs have wide discretion to accept or disregard medical testimony. See, e.g., Butera v. Apfel, 173 F.3d 1049, 1056-57 (7th Cir. 1999) (affirming an ALJ's decision to reject a treating physician's opinion as unsupported by the medical evidence). But medical opinions must be considered by the ALJ. See Knight, 55 F.3d at 313 ("The ALJ must give substantial weight to the medical evidence and opinions submitted, unless specific, legitimate reasons constituting good cause are shown for rejecting it."). The regulatory guidelines for weighing opinions by various medical sources direct an ALJ to consider the extent that opinions are consistent, supported by relevant evidence, and based on treating relationships that are sufficiently lengthy and in-depth. 20 C.F.R. § 416.927 (d). "Administrative law judges are not bound by any findings" made by psychological consultants, but they "must consider [such] findings . . . as opinion evidence, except for the ultimate determination about whether [claimants] are disabled." 20 C.F.R. § 416.927 (f)(2)(i).
On the other hand, opinions from medical sources on certain issues are not medical opinions. 20 C.F.R. § 416.927 (e). "A statement by a medical source that [a claimant is] "disabled' or "unable to work' does not mean that [the SSA] will determine that [claimants] are disabled." 20 C.F.R. § 416.927 (e)(1). The "final responsibility for deciding" whether a claimaint's "impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments" is reserved to the SSA, 20 C.F.R. § 416.927 (e)(2). See, e.g., Castellano v. Secretary of Health and Human Services, 26 F.3d 1027, 1029 (10th Cir. 1994) ("A treating physician may also proffer an opinion that a claimant is totally disabled. That opinion is not dispositive because final responsibility for determining the ultimate issue of disability is reserved to the Secretary."). The ALJ does not need to "give any special significance to the source of an opinion on such issues. 20 C.F.R. § 416.927 (e)(3). Accord, Diaz, 55 F.3d at 306 n. 2; Schmidt v. Callahan, 995 F. Supp. 869, 886 (N.D. Ill. 1998), aff'd, 201 F.3d 970 (7th Cir. 2000).
The relevant sections of Listing § 12.04 provide that an individual is disabled if he suffers from depression that results in at least two of the following: (1) marked restrictions of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) frequent failure to maintain concentration, persistence, or pace, (4) or repeated episodes of deterioration or decompensation in work or work-like settings. § 12.04B(1)-(4). "Marked" restrictions or difficulties are "more than moderate, but less than extreme." § 12.00C.
20 C.F.R. Part 404, Subpart P. Appendix 1, § 12.04 contains other possible foundations for an affective disorder finding (e.g. bipolar syndrome) that would support a disability. However, neither party asserts that they apply.
The ALJ appears to have assumed that Dr. Krakowski's diagnosis of depression was correct, as his analysis focuses exclusively on the practical impact of the depression. The ALJ basically found that Dr. Krakowski was correct m her mental health diagnosis but not her opinion that Holdman's disorder met the criteria of Listing § 12.04. He found that Holdman had only slight restrictions on the activities of his daily living, in that Holdman had reported to doctors in 1996 that he cared for his personal needs and did laundry; and that "evidence from 1998 reveals that the claimant was able to drive." The ALJ found only moderate limitations on Holdman's social functioning because he found that Dr. Krakowski's notes revealed that Holdman had a good relationship with his co-workers and supervisors during sporadic employment in 1997, had been able to interact with several people in obtaining directions, and "regularly interacts with family and friends." The ALJ relied on intelligence testing that showed moderate limitations in concentration, as well as the fact that Holdman watches television and can drive, to find that Holdman often (but not frequently) has deficiencies in maintaining concentration, persistence, or pace. The ALJ also found that there was no evidence of deterioration or decompensation in work or work-like settings. Thus, according to the ALJ, Holdman's impairments did not meet or equal § 12.04.
In response, Holdman points out that with regard to the daily activities factor, the ALJ relied on outdated information: Dr. Bharti's notes from a 30 minute examination in September 1996. At the time of the hearing, these notes were 20 months old and contained just one sentence mentioning that Holdman cleaned his house and attended to his personal needs. Holdman also argues that the ALJ relied on ambiguous evidence to conclude that Holdman could drive a car, despite Holdman's testimony to the contrary. According to Holdman, his psychologist's notes indicated that he had arrived late, explaining that "I got lost. I went north instead of south, and I had to ask a number of people for directions to get here." Holdman asserts that it is unclear from this statement whether he drove to his appointment, used public transportation or was assisted by someone else.
The ALJ's decision that Holdman's depression constituted only a slight restriction and not a marked restriction on his daily activities does not appear to us to be supported by substantial evidence. As the regulations make clear, marked restrictions "seriously interfere with the ability to function independently, appropriately, and effectively." 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00C. One example from the regulations seems particularly apt in this case: "a person who is able to cook and clean might still have marked restrictions of daily activities if the person were too fearful to leave the immediate environment of home and neighborhood, hampering the person's ability to obtain treatment or to travel away from the immediate living environment." § 12.00C(1). Holdman testified that his nephews and two sisters do most of the cleaning and he does not cook very much. He rarely leaves his house (he sees his relatives only when they visit him), even coming out onto the porch "only for a little while" if the weather is nice. The record does not evince substantial evidence to support the ALJ's finding of only slight restrictions of Holdman's daily activities. See, e.g., McCarthy v. Commissioner of Social Security, 1999 WL 325017 at *18, 95-4534, (D. N.J. 1999) (vacating an ALJ decision interpreting § 12.04 by noting that nothing in the record contradicted medical testimony that the claimant stayed at home, with few interests or hobbies, and interacted socially only with his family).
With regard to the social functioning factor, Holdman argues that the ALJ "improperly seized" on evidence that Holdman's relatives assisted him around the house to find that he "regularly interacts with family and friends." Furthermore, Holdman points out that despite the fact that he got along with co-workers, he was fired from both jobs and that his bosses gave him "a hard time." The regulations define social functioning as "an individual's capacity to interact appropriately and communicate effectively with other individuals." § 12.00C(2). A history of firings is expressly mentioned in the listing as evidence of impaired social functioning. Id.
The ALJ's decision that Holdman's depression constituted only a moderate limitation on his social functioning is not supported by substantial evidence. We are particularly troubled by the ALJ's selective citation to Dr. Krakowski's notes. Where her notes indicated that Holdman is disabled, the ALJ disregarded them and declined to give them controlling weight; but where highly ambiguous snippets of information could be construed against Holdman, the ALJ relied on those same notes for his conclusions. In particular, the ALJ erred when he cited Holdman's interaction with others in obtaining directions to Dr. Krakowski's office, see supra, as evidence that he had only moderate limitations on his social functioning. This off-hand remark cannot constitute evidence substantial enough to support a legal conclusion in view of the fact that the record is devoid of any specific information with regard to this interaction. Holdman could have had lengthy discussions with strangers about directions to Dr. Krakowski's office, or he could merely have obtained basic information in an effort to orient himself If anything, the fact that he got lost may be indicative of marked restrictions in his daily activities and/or a deficiency in maintaining concentration. The ALJ has a duty to develop a full and fair record, Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000) (citing Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991)), and the failure to fulfill this obligation is good cause to remand for the gathering of additional evidence. Id.
Similarly, the ALJ's decision that Holdman's ability to drive indicates that he often (as opposed to frequently) has deficiencies in maintaining concentration, persistence, and pace is undermined by the ambiguity noted above. Furthermore, the Seventh Circuit has in dicta expressed skepticism ""that the ability to watch television for several hours indicates a long attention span." Powers, 207 F.3d at 435. However, the ALJ's decision on this factor is supported by substantial evidence, in that intelligence testing showed that Holdman had only moderate limitations in concentration and "was able to do all but one serial seven correctly." Given that the concentration factor deals primarily with "the ability to sustain focused attention sufficiently long to permit the timely completion of tasks commonly found in work settings," § 12.00C(3), the ALJ's decision seems to have been supported by substantial evidence in this respect.
See, e.g., § 12.00C(3) ("On mental status examinations, concentration is assessed by tasks such as having the individual subtract serial sevens from 100.").
Although we are remanding based on a lack of substantial evidence, it should be made clear that we do not agree with Holdman's argument in his motion for summary judgment that the ALJ inappropriately discredited uncontradicted medical testimony by declining to grant Dr. Krakowski's opinion controlling weight. As the regulations make clear, Dr. Krakowski's testimony regarding whether Holdman met the criteria in § 12.04B was not a "medical opinion" that the ALJ was bound to accord considerable weight. 20 C.F.R. § 404.1527 (e). In fact, the regulations require the ALJ to decide whether a claimant's impairments meet the functional restrictions contained in the Listings, 20 C.F.R. § 416.927 (e)(2), and explicitly direct him or her to give Dr. Krakowski's opinion on such a subject "no special significance." 20 C.F.R. § 416.927 (e)(3). See also Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982).
For the reasons stated above, we find the ALJ's analysis of the daily activities and social functioning factors from Listing § 12.04B to be unsupported by substantial evidence. See Clifford, 227 F.3d at 872 (noting that "minimal daily activities, such as those in issue, do not establish that a person is capable of engaging in substantial physical activity"). This finding alone is sufficient for this Court to vacate and remand. However, we must also address Holdman's other arguments, as they are likely to be relevant in subsequent proceedings before the SSA.
Evaluating Holdman's Pain
Holdman asserts that the ALJ erred by finding that the "magnitude of claimant's alleged pain and functional limitation is not credible;" in that the ALJ failed to address the criteria for evaluating pain specified in the seven step analysis of 20 C.F.R. § 416.929 (c)(3).
The relevant factors are: (i) Your daily activities; (ii) The location, duration, frequency, and intensity of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; (v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.
An ALJ's credibility determination will not be disturbed unless it is "patently wrong." Luna v. Shalala, 22 F.3d 687, 690 (7th Cir. 1994); Herr v. Sullivan, 912 F.2d 178, 181-82 (7th Cir. 1990). This stringent standard is appropriate "because hearing officers are in the best position to see and hear the witnesses and assess their forthrightness." Powers, 207 F.3d at 435 (affirming the denial of benefits to a claimant whose testimony was deemed not credible). The determination of a claimant's credibility "involves intangible and unarticulable elements which impress the ALJ, that, unfortunately leave no trace that can be discerned in this or any other transcript." Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999) (citations omitted).
Respondent points out that the ALJ considered Holdman's activities, his complaints of pain, how his conditions responded to medication, and his claims that he needed a cane for ambulation. The ALJ followed the regulations that require symptoms of pain to be reasonably acceptable as consistent with objective medical evidence. 20 C.F.R. § 416.929 (a); Social Security Ruling 96-7p. The regulations require that "there must be medical signs and laboratory findings which show that [claimants] havemedical impairments which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all of the other evidence (including statements about the intensity and persistence of [claimants'] pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that [claimants] are disabled." 20 C.F.R. § 416.929 (a).
Holdman complained of lower back pain and foot pain due to callouses and ingrown toe nails. The ALJ found objective medical evidence — palpable pedal pulses — that could not be reconciled with Holdman's complaints of pain. Further, the ALJ found evidence from Dr. Bharti's consultative examination that indicated that Holdman's abilities and activities were not severely impaired by pain. Dr. Bharti's examination revealed "essentially no abnormalities, and though [Holdman] exhibited slight limitation of motion in his lumbar spine, [Holdman] was able to bend forward to put on his socks." Dr. Bharti also recorded that Holdman complained of a weak grip but upon examination proved to have full grip strength and no muscular atrophy. The ALJ found that "these findings, and the claimant's acknowledged abilities, certainly do not substantiate the degree of back and foot pain reported by the claimant." While we remain leery of Dr. Bharti's 30-minute examination performed 20 months before the ALJ's hearing, we cannot find that the ALJ's credibility determination was "patently wrong."
Assigning minimal weight to Dr. MacDonald's opinion as treating physician
The ALJ found that the opinion of Holdman's treating physician, Dr. MacDonald, did not warrant controlling weight. He then went even further and assigned minimal weight to Dr. MacDonald's opinion. The regulations allow ALJs to make such determinations, but the record does not reveal substantial evidence to support the ALJ's decision in this case.
The opinions of treating physicians are generally given more weight, "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [claimants'] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations or brief hospitalizations." 20 C.F.R. § 416.927 (d)(2). However, when the opinions of treating physicians are "inconsistent with the other substantial evidence" in the record, the ALJ has the discretion to decline to give controlling weight to such opinions. If an ALJ declines to give a treating doctor's opinion controlling weight, the regulations list several factors to consider in determining what weight to give the opinion, including the length of the treatment relationship, the nature and extent of the relationship, the level of evidentiary support in the record, and the level of consistency with the record as a whole. § 416.927(d).
The ALJ noted that Dr. MacDonald had listed chest pain, chronic headaches, limping, fatigue and shortness of breath as some of Holdman's impairments that would prevent him from lifting more than five pounds, walking more than one block, or sitting less than six hours. The ALJ then held that "review of the medical evidence indicates that the claimant has only sporadically complained of or required care for these impairments." Specifically, the ALJ cited Holdman's statement in August 1997 that his headaches were "on and off" the medical record evidence that Holdman's hypertension, glaucoma, and diabetes were controllable with medication; and the fact that range of motion testing did not reveal limitations sufficient to substantiate the physical restrictions suggested by Dr. MacDonald.
Dr. MacDonald's opinion was not inconsistent with other substantial evidence. The ALJ does not articulate any inconsistency except the fact that Dr. MacDonald noted that Holdman required a cane for ambulation. The ALJ noted that "prior thereto, there are no treatment records which indicate that a cane was prescribed for the claimant," but this is irrelevant. The ALJ fails to mention that Dr. Krakowski's notes contain the same information. The fact that Holdman "only sporadically" complained of his impairments, such as when he described his headaches as "on and off," does not render Dr. MacDonald's medical opinion inconsistent with the evidence or subject to being disregarded. Indeed, the fact that Holdman had made similar complaints in the past only bolsters Dr. MacDonald's findings.
Respondent argues that the ALJ relied on Dr. Bharti's 1996 evaluation, as well as Cook County Hospital notes from February 1996, to find that Dr. MacDonald's opinion was not consistent with the record, but the record does not reflect this. Not only is the ALJ's opinion devoid of any indication that he relied on Dr. Bharti's 30-minute exam of nearly two years prior to find that Dr. MacDonald's opinion did not deserve controlling weight, but Dr. Bharti's examination notes are not inconsistent with Dr. MacDonald's. The fact that Holdman exhibited greater range of motion in September 1996 (before he lost his benefits and before the period at issue here) is not automatically inconsistent with an exam from April 1998 that found severe impairments. It seems obvious from the record that Holdman's condition deteriorated from 1996 to 1998.
Given that the record does not show Dr. MacDonald's opinion to be inconsistent with other substantial evidence or unsupported by medically accepted techniques, it was error for the ALJ to decline to give Dr. MacDonald's opinion controlling weight as required by § 416.927 (d)(2). See Smith, 231 F.3d at 438 (reversing an ALJ who disregarded a treating physician's opinion and failed to develop an record of timely examinations); Micus, 979 F.2d at 607-08 (reversing an ALJ's denial of disability benefits that "blithely rejected a treating physician's opinion"). Given the nonadversarial nature of SSA proceedings, the ALJ should have ordered further consultative examinations. Smith, 231 F.3d at 437. Furthermore, even if there were sufficient inconsistencies to justify denying controlling weight to Dr. MacDonald's opinion, the ALJ should have afforded it more than "minimal weight." A determination that a treating physician's opinion is not deserving of controlling weight does not automatically render it meaningless. See § 416.927(d)(2). The record contains support for Dr. MacDonald's opinion, in the form of vascular flow studies for Holdman "s lower extremities as well as Cook County Hospital records dating back to 1989 reflecting complaints of diabetes, limping, and back pain. See § 416.927(d)(3). Furthermore, the ALJ failed to consider either the length and frequency of examinations, § 416.927(d)(2)(i), or the extent and nature of the treating relationship, as required by the regulations. § 416.927 (d)(2)(ii). Assigning minimal weight to Dr. MacDonald's opinion without considering the relevant factors was an error of law.
Holdman's Residual Functional Capacity
As a result of the unwarranted downgrading of the treating physician's opinion, as well as the ALJ's unsupported decision that Holdman's depression did not meet or equal Listing § 12.04B, the ALJ posed a hypothetical question to the vocational expert that may have overstated Holdman's residual functional capacity (RFC). It is not apparent from the REC articulated by the ALJ, for example, that Holdman is physically and mentally impaired to the extent suggested by Drs. Krakowski and MacDonald. However, an ALJ is not required to consult a vocational expert, Ehrhart, 969 F.2d at 540; 20 C.F.R. § 416.966 (e) ("we may use the services of a vocational expert"). Neither is the failure by an ALJ to pose a correct hypothetical question to a vocational expert reversible error, id.; see also Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir. 1987). Accordingly, we are not reversing on this basis. However, consideration of the opinions of Holdman's treating physician and psychologist would appear to this Court to suggest that a different hypothetical should be posed to avocational expert before deciding whether Holdman's residual functional capacity, age, education, and past work experience during the period at issue here prevented him from doing either his past relevant work or other work. 20 C, F.R. § 416.920(e) (f).
CONCLUSION
Both parties' motions for summary judgment [12-1, 20-1] are denied, and Holdman's motion in the alternative for remand is granted. The Clerk is directed to enter judgment remanding plaintiffs claim to the Social Security Administration. We strongly suggest that the SSA transfer this case to a different ALJ on remand, as the most impartial proceeding would be a "review by an ALJ who would not pose the risk of being affected (even subliminally) by the need to reconsider and possibly reverse [his] own original adverse opinion." Aidinovski v. Apfel, 27 F. Supp.2d 1097, 1104-05 (N.D. Ill. 1998). The ALJ upon reassignment of Holdman's case should examine the record anew to determine whether Dr. MacDonald's opinion as treating physician was entitled to controlling weight (or some measure of weight greater than minimal).