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LATONYA DANIEL Plaintiff
vs.
SHIRLEY S. CHATER Commissioner of Social Security *fn1 Defendant; Donna E. Shalala ("Shalala") Secretary of Health and Human Services was originally named as defendant in this action. Subsequently the Social Security Independence and Program Improvements Act of 1994 transferred the function of the Secretary of Health and Human Services in Social Security cases to the Commissioner of Social Security. Pursuant to Fed.R.Civ.P. 25(d) Shirley S. Chater is therefore substituted for Shalala as the named defendant.
 
Case:
No. 94 C 6847
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
 
Date:
February 26 1996 DOCKETED
 
Attorneys:
For LATONYA DANIEL plaintiff: David N. Kornfeld [COR LD NTC A]
Attorney at Law Evanston IL.
For DONNA SHALALA Secretary of Health and Human Services defendant: James John Kubik [NTC] United States Attorney's Office Chicago IL.
 
Court:
JOAN B. GOTTSCHALL United States Magistrate Judge. Hon. Ann C. Williams
 
Author:
The Hon. Justice Joan B. Gottschall
 

Plaintiff Latonya Daniel brings this action seeking judicial review of the decision of the Social Security Administration ("SSA") denying her claims for Child's Insurance Benefits ("CIB") and Supplemental Security Income ("SSI"). 42 U.S.C. SEC.(s) 402(d) 416(i) 423 1382c. The parties' cross-motions for summary judgment are presently before the court. For the reasons set forth below this court recommends that both motions be denied and that the case be remanded to the SSA.

REVIEW OF THE RECORD

Plaintiff applied for CIB and SSI in June 1992 alleging disability on account of alcohol and substance abuse. Plaintiff alleged disability since December 1 1991 when she would have been 21 years old. (R. 15 29-35.) In the disability report describing her condition plaintiff stated that she was paranoid and could not go out by herself. Also she had no appetite and found it difficult to sleep. Plaintiff reported that she had completed the eleventh grade but had never worked. Although plaintiff stated that she had no hobbies and described only monthly social contacts with family she reported that she would shower get dressed and go places. (R. 87-94.)

Both of plaintiff's claims were denied as disability examiners found insufficient medical evidence to support a medical opinion as to disability. (R. 36-45. ) The SSA's notices of denial noted that there were no medical reports for use in deciding plaintiff's claim as well as the fact that plaintiff had missed two scheduled appointments for a consultative examination. (R. 47-53.)

Plaintiff requested reconsideration apparently coming in person to an SSA office to explain that at the time of one or both scheduled appointments she had been at jail with someone arrested for drug possession. An interviewer then described plaintiff as adequately dressed and groomed. The interviewer commented that plaintiff gave one-syllable answers and that it was difficult to get her to elaborate. Plaintiff stated that there had been no change in her condition since she first filed her claim. (R. 54-55 95-100.)

Daily Activities Telephone Report

During the course of reconsideration on January 21 1993 an SSA employee prepared a report of a telephone conversation with plaintiff. Responding to questions concerning her daily activities plaintiff stated that for the past 11/2 to 2 years she had problems with drugs and alcohol. She reported using cocaine on a daily basis and drinking about 6 cans of beer plus gin. According to plaintiff friends provided her with drugs but she also stole to support her habit. Plaintiff expressed a belief that she could not function well without drugs and that her thoughts were always on how to get more. Plaintiff said that she had tried a rehabilitation program several months earlier but did not finish it because she was afraid of the neighborhood or the environment.

When asked about hygiene and personal maintenance plaintiff responded that she took care of her hygiene and grooming trying to stay clean even when using drugs and alcohol. Her grandparents cooked for her but plaintiff ate little and had lost about 20 pounds since beginning to use drugs. Although plaintiff tried to help with some housekeeping she would get into arguments with her family and leave without finishing.

Plaintiff described her daily routine as comprised of waking up then going out to pass the day with drinking and drug buddies. She did not sleep well and her memory was sporadic. Plaintiff further reported that she experienced frightening hallucinations almost every day.

Plaintiff stated that she had never worked and she was not sure whether she had completed the tenth or eleventh grade. She had some basic reading writing and math skills but opined that she was not good at anything. She believed that she generally could follow directions. (R. 104-105.)

January 5 1993 Psychiatric Evaluation

On or about January 5 1993 plaintiff was evaluated by Allan D. Nelson M.D. ("Nelson"). *fn2 In his summary of a 35-minute interview with her Nelson describes plaintiff as well-developed well-nourished appropriately dressed and cooperative conducting herself appropriately throughout the interview. Nelson observed no abnormalities of gait or movement and he described plaintiff's speech as clear logical and goal-directed. While describing orientation as intact for time date place and person Nelson expressed some doubt as to whether plaintiff would have been able to find his office on her own.

Plaintiff told Nelson that she smoked crack heavily on a daily basis that she drank heavily about three times a week and that she stayed high or drunk as much of the time as possible. Her description of her daily activities was essentially the same as that which she had given SSA interviewers.

Plaintiff denied any history of DT's or seizures and that she had ever been in a substance abuse treatment program. Nelson reports that plaintiff stated that she had been chronically mildly to moderately depressed with chronic insomnia a poor appetite and sporadic suicidal ideation. She also told Nelson that she had once in 1991 attempted suicide through an overdose of drugs. On the other hand plaintiff denied any history of hallucinations paranoid ideation psychotic episodes or psychiatric hospitalizations and stated that she generally got along well with people.

Nelson observed no overt signs of anxiety depression or any other abnormalities of affect and he concluded that there were no signs of any formal thought disorder such as hallucinations delusions or paranoid ideation. He further noted that there were no signs of memory impairments or abstractive deficits. Despite the absence of gross deficits in reality testing he considered her judgment to be mildly impaired due to her compulsive need to use drugs and alcohol as much of the time as possible. Nelson's diagnosis was a chronic substance abuse disorder and he described plaintiff's overall prognosis as "guarded." Nelson opined that if granted disability plaintiff would be unable to manage her own funds. (R. 106-108.)

Psychiatric Review Technique and Mental Residual Functional Capacity Assessment Forms

Based on the information in Nelson's report Dr. Julius Villaflor ("Villaflor") a doctor of internal medicine (R. 113) completed SSA forms used in the evaluation of mental impairments. A signature found on each form also suggests that a psychologist reviewed the forms later. (R. 56 57 66 111.)

In the psychiatric review technique Villaflor addressed the question of whether plaintiff's substance abuse was of such severity as to be disabling under the SSA's Listing of Impairments. 20 C.F.R. Pt. 404 Subpt. P. App. 1. *fn3 (R. 57-65.) As directed in the instructions to Listing 12.09 relating to substance addiction disorders Villaflor selected the criteria under another listing--that for personality disorders at Listing 12.08--as a framework for analysis. (R. 63.) Addressing factors under Listing 12.08 Villaflor opined that oddities of thought perception speech or behavior were present and he found a pathological dependency on alcohol and drugs. (R. 62.) When rating the severity of the impairment however Villaflor found only moderate restriction of daily living activities and moderate difficulties in maintaining social functioning. He rated deficiencies of concentration persistence or pace as "infrequent but made no assessment as to the frequency of deterioration or decomposition in work-like settings. (R. 64.)

Under SSA regulations a personality disorder would be disabling only if three of the following four degrees of limitation were present: (1) marked restriction of daily living activities; (2) marked difficulties in maintaining social functioning; (3) frequent deficiencies of concentration persistence or pace; and (4) repeated episodes of deterioration or decomposition in work-like settings. 20 C.F.R. Pt. 404 Subpt. P App. 1 SEC.. 12.08. Villaflor having found none of the first three factors to impose the degree of limitation called for in Listing 12.08 the lack of evidence concerning the fourth element would arguably be immaterial to his opinion on equivalency to a listing since even assuming repeated or continual episodes of de compensation in work-like settings plaintiff would be significantly limited in only one of the four areas of activity essential to work.

Where as here it is found that a mental impairment neither meets nor equals the listings SSA regulations require the preparation of a mental residual functional capacity ("RFC") assessment. 20 C.F.R. SEC.(s) 404.1520a(c)(3); 416.920a(c)(3). "RFC complements the criteria in paragraphs B and C of the listings for mental disorders by requiring consideration of an expanded list of work-related capacities which may be impaired by mental disorder when the impairment is severe but does not meet or equal a listed mental disorder." 20 C.F.R. Pt. 404 Subpt. P App. 1 SEC. 12.00.A. Villaflor completed the SSA's mental RFC assessment form noting only moderate limitations in ability to understand and remember detailed instructions ability to carry out detailed instructions and ability to maintain attention and concentration for extended periods. All other categories were rated "not significantly limited." None were classified as "not ratable on available evidence." (R. 109-112.)

Vocational Assessment Specialist Opinion and Decision on Reconsideration

On February 17 1993 vocational assessment specialist Jim Anderson expressed an opinion that there were a sufficient number of unskilled jobs available within the national economy to provide plaintiff with a reasonable expectation of employment. In reaching that conclusion the specialist referred to Villaflor's mental capacities assessment which he interpreted as finding that chronic substance abuse resulted only in a restriction to unskilled work. The specialist observed that there were no reports of physical restriction associated with the condition and that plaintiff had completed 11 years of formal education. (R. 103.)

On reconsideration adjudicators determined that plaintiff was not disabled at those points in time relevant to her CIB and SSI claims. (R. 56 66.) In notices of denial the SSA stated that it had relied on Nelson's report and that medical reports showed that plaintiff was able to perform unskilled work. Although plaintiff had no work history it was determined that there were other types of non demanding work that plaintiff was able to perform. (R. 67-72.) Plaintiff requested a hearing before an administrative law judge ("ALJ"). (R. 73.)

Administrative Hearing

Plaintiff appeared at her administrative hearing accompanied by her representative a paralegal from the Uptown People's Law Center. (R. 24.) At the outset of the hearing the representative stated that he had no objection to admission of the exhibits thus far described in this report. (R. 152.) No witnesses were present at the hearing.

The ALJ commenced questioning verifying that plaintiff was then 23 years of age; that she had never worked or applied for work; that she lived with her grandparents her sister and her (plaintiff's) son; and that she had completed only 10 or 11 years of schooling. (R. 153-156.) Plaintiff stated that she knew how to ride public transportation but had not done so for a long time. (R. 156-157.)

In response to questioning by her representative plaintiff stated that she could not read big words and that her grandmother had to read documents for her. (R. 157.) Her grandfather would take her to appointments. (R. 158.) Plaintiff went on to explain that she began to use drugs and cocaine during high school and that she missed a lot of school eventually dropping out. For about two years she had used drugs or alcohol daily or as often as possible. (R. 158-159. ) As she would do at several other points when the ALJ asked how she supported her habit plaintiff denied that she had money with which to buy drugs. According to plaintiff friends usually gave her drugs. (R. 160-162 166-167 171.)

Plaintiff's representative asked about her problem with depression and whether she had suicidal thoughts or ever tried to kill herself. Plaintiff responded that in the last year she had tried to kill herself by taking an overdose of drugs and that she thought about suicide every day. (R. 162-163.) In particular thoughts about her dead mother depressed her and she thought about digging up the body to see what her mother looked like. Plaintiff did not remember her mother who had died twenty years ago. As a child she often asked about her mother. (R. 163-164.)

Upon questioning by her representative plaintiff stated that each day she arose and left the house to get high with friends. Unless her grandparents sent the police after her she might not return for the next three days. (R. 165.) Plaintiff told the ALJ that she never helped her grandparents with housekeeping or other tasks. (R. 166.) Nor did she see a doctor on a regular basis. Although she had a problem with her kidneys she did not take prescribed medicine because it made her sick. On the one occasion she entered a drug rehabilitation program she did not complete the program because it made her nervous. (R. 167-169.)

Lastly plaintiff testified that she had problems with memory and that she sometimes saw "spirit shadows even when not high on cocaine. She responded positively when asked if she ever became nervous, citing as an example her feelings when the baby moved inside her while she was pregnant. (R. 169-171. ) Her frequent arguments with her grandparents concerned her habits of taking drugs and staying out. (R. 171.)

Among the closing comments at plaintiff's hearing the following interchange took place:

ALJ: Ms. Daniel let me ask you something. If we pay you money in this program and you're going to use it for drugs why should we do that? Tell me why you think we should do that.

PLAINTIFF: Well you're not going to pay me nothing not as I can see.

  1. 172.) At the close of the hearing plaintiff's representative asked that the record be kept open apparently so he could get records from the treatment program in which plaintiff had participated. (R. 172.)
Evidence Submitted Subsequent to Hearing

Following plaintiff's hearing her representative submitted May 1993 records of outpatient treatment at St. Francis Hospital in Evanston. The records indicate treatment for a rash and one or more visits for prenatal care. (R. 114-121. ) Records from the drug rehabilitation program were not submitted.

Upon referral from her representative plaintiff underwent a psychological evaluation on February 9 1994. (R. 122-139.) The examination was conducted by a post-internship doctoral level examiner under the direct supervision of Allen Kaczala ("Kaczala") a clinical psychologist. The information in the report reflected Kaczala's clinical opinion and was submitted as the joint work of the examiner and Kaczala. (R. 127.)

According to the examiner plaintiff arrived on time accompanied by her cousin. She had taken public transportation and reported that she had experienced no difficulty in finding the office. Plaintiff was cooperative and took a conscientious approach to testing which lasted several hours. (R. 122.) The examiner observed that plaintiff had apparently complied with instructions not to drink or use drugs before coming for the testing. (R. 124.)

As she had at her hearing several weeks earlier plaintiff reported a problem with alcohol abuse commencing several years earlier with a current intake of about 6 drinks a day. In contrast to earlier statements however she reported significant withdrawal symptoms if she abstained from alcoholic beverages. She also reported heroin use for the first time indicating that any sobriety from heroin resulted in anxiety irritability runny eyes and nose chills and diarrhea. Plaintiff further indicated that she supported her substance abuse with shoplifting and that friends gave her drugs. In describing her personal history plaintiff stated that her mother was murdered in 1974 and that she completed only the eighth grade. Plaintiff indicated that she stopped at that point because she wanted to be with her grandparents and feared being left alone if something happened to them. Plaintiff added that she sought disability because of a kidney infection and headaches that occurred once a day. The headaches typically lasted for one to two hours. (R. 122-123.)

The examiner commented that plaintiff was adequately dressed alert and able to engage in conversation. Motor activity was well coordinated and at a slow speed and there was no disturbance in gait during the interview. The examiner described plaintiff's speech as fluent and her thoughts as goal-directed although she exhibited difficulty with recall. In his view there were some irregularities in the intensity of plaintiff's affect and mood and her judgment appeared poor. Most significantly plaintiff told the examiner of daily visions of her dead mother and plans of either shooting herself or overdosing. She reported a recent unsuccessful attempt to use her grandfather's gun commenting nonchalantly that: "I want something to happen to me before my grandparents . . . there's nothing for me to be afraid of I'll be with my mom." Despite those comments the examiner concluded that plaintiff did not behave in a markedly bizarre manner. (R. 123-124.)

Pursuant to permission granted in a release the examiner called plaintiff's cousin and grandparents to follow up on plaintiff's reports of recent suicidal attempts and chronic depression. The cousin and grandmother are said to have substantiated the reports and described a preoccupation with death and suicide lasting many years. According to the examiner out of concern that plaintiff would harm herself in the near future he then recommended that she seek emergency room evaluation of her mental status. Plaintiff is said to have agreed to such an evaluation and the examiner wrote a short summary of his mental status examination to be presented to emergency room personnel. Plaintiff's description of her daily activities did not differ significantly from those provided SSA personnel although she also told the examiner that she could not perform household tasks correctly and could not take public transportation unassisted. (R. 125.)

The narrative portion of the examiner's report concludes with a description of the results of two personality measures administered. Those measures indicated that plaintiff was preoccupied with her mother death and themes of loss and hopelessness. Further psychological testing was not attempted however in part because recent substance abuse would make intellectual and neuro psychological testing less valid. Given that family members had corroborated plaintiff's reports of thoughts of suicide and preoccupation with her dead mother the examiner thought that the need for further testing was diminished. Finally the examiner felt that the negative experience of testing would not be worth the benefits of added information. (R. 125.)

Overall the examiner found test results to suggest that plaintiff was experiencing a significant level of depression and a post-traumatic stress disorder as a result of her mother's murder. In the examiner's view there was a serious disturbance in emotional perceptual and social functioning with a prognosis for substantial improvement of guarded or poor. The examiner further opined that plaintiff could not complete any type of competitive employment and that she could not manage her funds due to substance abuse. (R. 126.) Psychiatric review technique and mental RFC assessments forms attached to the report note some marked limitations on work activities and conclude that plaintiff met the requirements of Listings 12.04 and 12.09. (R. 128-139.)

In a letter to the ALJ of February 28 1994 plaintiff's representative argued that the ALJ should accept Kaczala's conclusion that plaintiff was disabled. (R. 140-142.)

ALJ's Opinion

The ALJ issued an unfavorable decision on June 18 1994. (R. 11-23. ) Following a brief summary of evidence the ALJ proceeded to the five-step sequential evaluation of disability under SSA regulations at 20 C.F.R. SEC.(s) 404.1520 and 416.920. *fn4 (R. 15.) After comparing Nelson's and Kaczala's reports the ALJ ultimately determined that plaintiff did not suffer a "severe" impairment as required if the evaluation is to proceed beyond step two. In the ALJ's words:

Despite the findings in Dr. Kaczala's report a fair reading of the record as a whole warrants the conclusion that the claimant is not suffering from a "severe" impairment. Clearly based on the claimant's testimony and reports to the consultative examiners the claimant has a drug and alcohol abuse disorder. However the evidence falls short of establishing that she is unable to control her use of drugs and alcohol. Rather the evidence her testimony and her presentation at hearing suggested that she simply is not motivated to stop using drugs and alcohol. She has never completed a drug or alcohol rehabilitation program which would be one strong indication that she was motivated to control her use of drugs and alcohol.

Other relevant factors in reaching a conclusion in this case include the fact that the claimant has never sought competitive employment. This suggests a limited motivation to perform gainful work. Further despite substance abuse the claimant is bright alert and fully oriented.

The record also fails to support the conclusions reached by Dr. Kaczala regarding serious depression with psychotic features meeting the requirements under section 12.04. At the time the claimant filed her application she did not report depression. Although she indicated in her disability report that she is paranoid and has difficulty sleeping and eating this can certainly be attributed to use of drugs and alcohol. The mental status examination by Dr. Nelson showed no significant abnormalities which could be attributed to either deteriorated mental functioning due to alcohol and drug use or to depression. Dr. Kaczala also noted that the claimant's speech was fluent and her thoughts goal-directed. She was described as fully oriented. It is difficult to completely credit the claimant's allegations of hallucinations since she denied that symptom when seen by Dr. Nelson. In general the claimant has not been completely reliable in providing facts essential to her application. For instance she indicated in her disability report that she has an eleventh grade education with a graduate equivalency degree acquired later. However she told Dr. Nelson that she dropped out of school in 10th grade and she told Dr. Kaczala that she stopped school in eighth grade. It should be noted that the claimant has also admitted stealing to get money to pay for drugs. In view of this behavior it is not unreasonable to assume that she might also misrepresent her condition in order to enhance her chance of obtaining benefits which possibly could be used for the purchase of drugs and alcohol.

The report from Dr. Nelson was given more weight than that of Dr. Kaczala. Dr. Kaczala's extreme description regarding the claimant's depression does not correspond to the rest of the evidence in the record nor to the claimant's presentation at the hearing only approximately two weeks prior to Dr. Kaczala's examination. At the hearing the claimant appeared bright alert and oriented. It appears that Dr. Kaczala based his impressions on a complete acceptance of all the claimant's subjective complaints whereas review of the record as a whole suggests reason to question those complaints.

In general the record supports a finding that rather than being unable to control her drug and alcohol abuse the claimant appear [sic] not motivated to do so. Further the claimant may experience mild depression but such depression would not preclude the performance of simple unskilled work and therefore does not constitute a "severe" impairment. Accordingly the claimant is not suffering from a severe" impairment and therefore must be found not disabled" for purposes of Titles II and XVI of the Social Security Act.

  1. 18-19.) The ALJ completed a psychiatric review technique form in which he concluded that a substance addition disorder was present but not of such severity as to be disabling. (R. 21-23.)
Appeals Council Review

To support her petition for review by the Appeals Council plaintiff's representative submitted Kaczala's undated summary of his earlier report and a written argument. (R. 3 6 143-148.) The Appeals Council denied review (R. 4-5) making the ALJ's decision the final decision of the SSA. Herron v. Shalala 19 F.3d 329 332 (7th Cir.1994).

DISCUSSION

In this action for judicial review the court must determine whether the SSA's findings are supported by substantial evidence and whether proper legal standards were applied. Binion v. Shalala 13 F.3d 243 247 (7th Cir.1994); Wolfe v. Shalala 997 F.2d 321 322 (7th Cir.1993). If the findings are so supported and there is no error of law the SSA's decision must be affirmed. Wolfe id. "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Knight v. Chater 55 F.3d 309 313 (7th Cir.1995) (quoting Richardson v. Perales 402 U.S. 389 401 28 L. Ed. 2d 842 91 S. Ct.1420 (1971)). The SSA's decision may be set aside however where it has failed to follow its own rules and regulations for determining disability. See Prince v. Sullivan 933 F.2d 598 602-603 (7th Cir.1991); Lauer v. Bowen 818 F.2d 636 640-641 (7th Cir.1987).

Defendant's Motion for Summary Judgment

In moving for summary judgment the SSA argues that the ALJ reasonably concluded that plaintiff had not lost the ability to control her drug and alcohol use but was simply not motivated to do so. Although that decision rested in part on the ALJ's determination that plaintiff was not entirely credible an ALJ's credibility determinations are not usually upset on appeal if they find some support in the record and are not patently wrong. Herron v. Shalala 19 F.3d 329 335 (7th Cir.1994). The SSA correctly observes that there were inconsistencies in plaintiff's testimony and that there were indicia in the record of adequate social and mental functioning as well as evidence that plaintiff had some control over her use of substances. For instance plaintiff followed instructions that she not use substances before Kaczala's evaluation. The fact that plaintiff left the only drug rehabilitation program she attempted is some support for the ALJ's conclusion that she lacked motivation to control her substance abuse.

Turning to the ALJ's conclusion that depression would not limit plaintiff's ability to work the SSA notes that Nelson found no clinical signs of depression or gross psycho pathology. Characterizing Kaczala's report as based upon an unqualified acceptance of plaintiff's subjective complaints the SSA posits that in finding that plaintiff's depression was not severe the ALJ chose between conflicting medical evidence as he is required to do. Diaz v. Chater 55 F.3d 300 306 n.2 (7th Cir.1995); Fisher v. Bowen 869 F.2d 1055 (7th Cir.1989); Strunk v. Heckler 732 F.2d 1357 1364 (7th Cir.1984). The SSA goes on to argue that Kaczala's conclusions were extreme and inconsistent with the other evidence or record.

While the SSA's arguments are pertinent to the question raised on plaintiff's motion for summary judgment which is discussed below it is clear from the record that the SSA's own motion must be denied. The critical factor underlying that conclusion is the fact that the ALJ reached his result at step 2 of the disability evaluation process. This step is essentially an initial screening device which eliminates the need for further consideration only when the claimant's limitations are slight or do not significantly limit his or her ability to do basic work activities. Taylor v. Schweiker 739 F.2d 1240 1243 n.2 (7th Cir.1984). If a claimant's limitations are severe however the evaluation continues through three additional levels of analysis. Johnson v. Sullivan 922 F.2d 346 348 (7th Cir.1990).

Because the alleged basis for disability in this case is a mental impairment additional procedures apply at all steps of the claim evaluation process. See Stambaugh on Behalf of Stambaugh v. Sullivan 929 F.2d 292 295-296 (7th Cir.1991). As a starting point 42 U.S.C. SEC. 421(h) provides as follows:

An initial determination . . . that an individual is not under a disability in any case where there is evidence which indicates the existence of a mental impairment shall be made only if the Commissioner of Social Security has made every reasonable effort to insure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.

Regulations at SEC.(s) 404.1520a and 416.920a further explain procedures to be followed in evaluating the severity of the mental impairment. See Stambaugh 929 F.2d at 295-296. As already noted non examining consultants in this case completed required forms under those regulations and found that plaintiff had a severe impairment not meeting the listings. Having found the impairment to be "severe they also completed mental RFC assessments. 20 C.F.R. SEC.(s) 404.1520a(c)(3) and 416.920a(c)(3). The ultimate inquiry would be whether plaintiff could work--not whether she could feed herself, socialize and otherwise survive in a non institutional setting. See O'Connor v. Sullivan,938 F.2d 70, 74 (7th Cir.1991).

Since plaintiff had never held a job and no lay witnesses testified as to her experiences in work-like settings it is fair to say that there is little evidence on the vocational factors ordinarily taken into account in a decision on a disability claim. However the medical opinions of record concurred that plaintiff's impairment was severe such that there should have been further development of the case beyond step 2 of the disability evaluation process. *fn5 The ALJ disagreed and terminated the evaluation process at step 2 with the only apparent explanation being his belief that plaintiff was not motivated to control her substance abuse. An ALJ must give substantial weight to the medical evidence and opinions of record unless specific legitimate reasons constituting good cause are shown for rejecting them. Knight v. Chater 55 F.3d 309 313 (7th Cir.1995). See also Wilder v. Chater 64 F.3d 335 337 (7th Cir.1995) (considering with suspicion ALJ's decision to go against only medical evidence in case that of psychiatrist appointed by ALJ).

The transcript of the administrative hearing and the ALJ's opinion both indicate that his determination was in large part motivated by his subjective assessment that plaintiff was not motivated to complete a drug rehabilitation program. Because in this court's view that assessment does not provide good cause to reject medical experts' assessments that plaintiff's ability to function in a work setting was severe enough to merit additional development this court concludes that the ALJ erred in concluding the disability evaluation process at step 2. *fn6 Accordingly it recommends that the SSA's motion for summary judgment be denied.

Plaintiff's Motion for Summary Judgment

Plaintiff contends that the SSA's determination must be reversed as Kaczala's report establishes that she is disabled. As already noted in that report Kaczala opined that plaintiff's condition was sufficiently severe to meet or equal the criteria of Listings 12.04 and 12.09. Where a claimant's impairments meet or equal one of the SSA's listings an ALJ presumes that he or she is entitled to benefits without inquiring into the claimant's ability to perform some level of gainful employment. Pugh v. Bowen 870 F.2d 1271 1277 (7th Cir.1989).

An ALJ is not bound by a physician's opinion on equivalency however. Steward v. Bowen 858 F.2d 1295 1299 (7th Cir.1988). Also in cases where pursuant to normal procedure physicians designated by the SSA conclude that a claimant's condition is not equivalent to a listing that opinion is treated as an expert opinion on equivalency. Farrell v. Sullivan 878 F.2d 985 990 (7th Cir.1989). See also Pope v. Shalala 998 F.2d 473 481 (7th Cir.1993). Here on the basis of Nelson's report an internist designated by the SSA concluded that plaintiff's substance abuse disorder was not sufficiently severe as to be disabling under the Listings. A psychologist apparently reviewed that determination as well affixing a signature to the forms prepared by the internist.

In the previous section of this report the court observed that an ALJ has the authority and indeed a duty to choose between conflicting medical evidence. Given the inconsistencies between plaintiff's statements to Kaczala and her earlier descriptions of her condition the court further believes that the ALJ could properly reject Kaczala's conclusions. Without concluding that the internist's review of Nelson's report necessarily provided a sufficient basis for the SSA's opinion on equivalency the court is at least satisfied that plaintiff failed to satisfy her burden of proof at step 3 of the disability evaluation process. It therefore recommends that plaintiff's motion for summary judgment be denied.

CONCLUSION

For the reasons set forth below this court recommends that the parties' cross-motions for summary judgment be denied.

Counsel are given ten days from the date hereof to file objections to this Report and Recommendation with the Honorable Ann C. William's. Failure to object waives the right to appeal.

Respectfully submitted

JOAN B. GOTTSCHALL

United States Magistrate Judge

 
Notes:

*fn1 Defendant

*fn2 Although Nelson's curriculum vitae is not included in the administrative record both sides refer to him as a psychiatrist. This report therefore assumes that Nelson possessed that specialization.

*fn3 All references to SSA regulations are to 20 C.F.R. Parts 400 to 499 revised as of April 1 1994.

*fn4 Social Security regulations set forth a five-step process for determining whether a claimant is disabled. 20 C.F.R. SEC.(s) 404.1520 and 416.920. The SSA must determine in sequence: (1) whether the claimant is currently employed; (2) whether he or she has a severe impairment; (3) whether the impairment meets or equals one of the impairments listed by the SSA; (4) whether the claimant can perform his or her past relevant work; and (5) whether he or she is capable of performing work in the national economy. Knight v. Chater 55 F.3d 309 313 (7th Cir.1995) (citations omitted). Once the claimant satisfies steps one and two he or she will be found disabled if suffering from a listed impairment. Pope v. Shalala 998 F.2d 473 477 (7th Cir.1993). If the claimant does not have a listed impairment but establishes inability to perform his or her past relevant work the burden shifts to the SSA to show the claimant can perform some other job. Id.

*fn5 As discussed in the court's review of the record on reconsideration the SSA found that plaintiff could perform unskilled work. In a one-page report a vocational assessment specialist apparently made that determination on the basis of Villaflor's determination of mental RFC. The SSA has not argued that the combination of those two opinions would provide a sufficient determination on the vocational determination at step 5 of the disability evaluation process.

*fn6 Where a claim survives step 2 of the disability evaluation process a claim will not be denied solely on the basis that the claimant's medical condition is not severe enough to prevent gainful work activity. Instead a claim will be denied if the plaintiff fails to satisfy his or her burden of proof on the vocational issue at step 4 or because the SSA establishes at step 5 that the claimant can perform some other work. See supra note 4. This being so the SSA's burden of proof in this case was not met by its physicians' negative determination concerning equivalency at step 3.