Gudgel v. Barnhart, 03-1439.

• Decision Date: 26 September 2003
• Docket Number: No. 03-1439.,03-1439.
• Parties: Curtis D. Gudgel, Plaintiff-Appellant, v. Jo Anne B. Barnhart, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

345 F.3d 467

Curtis D. Gudgel, Plaintiff-Appellant, v. Jo Anne B. Barnhart, Commissioner of Social Security, Defendant-Appellee.

No. 03-1439.

United States Court of Appeals, Seventh Circuit.

Submitted July 8, 2003.

Decided September 26, 2003.

William E. Jenner, Jenner & Auxier, Madison, IN, for Plaintiff-Appellant.

Danielle A. Pedderson, Social Security Administration, Office of the General Counsel, Chicago, IL, for Defendant-Appellee.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

PER CURIAM.

Curtis D. Gudgel applied for Social Security Disability Insurance Benefits ("DIB") in January 2000, claiming that he was disabled because of bone deterioration in his knees, arthritis throughout his body, a pinched nerve in his left hand, and chronic bronchitis. Gudgel's claim was denied initially, upon reconsideration, and after a hearing before an administrative law judge. The Appeals Council declined review, making the ALJ's decision the final decision of the Commissioner of Social Security. The district court affirmed, and Gudgel now appeals. Because the ALJ's decision is not supported by substantial evidence, we vacate the judgment of the district court and remand.

Gudgel, who was 56 years old at the time of the ALJ's decision, has a GED and served in the military. He worked as a service manager mechanic from 1977 until 1989. From 1989 until 1995, he was self-employed and did contract work for Pepsi-Cola maintaining their trucks. After 1995 Gudgel performed intermittent yard work for friends and neighbors as his only source of income. Gudgel did not work after June 1998.

Gudgel testified at the administrative hearing that in 1989 he began experiencing generalized weakness and fatigue that progressively worsened until he could no longer work on a regular basis. Gudgel's complaints included pain from aching joints, muscle ache, and overall weakness. Throughout the mid- and late-1990s, the doctors at the Veteran's Administration hospital ran numerous diagnostic tests on Gudgel's knees, hips, back and shoulders, but could not determine the cause of his symptoms. Gudgel's family physician, Dr. Koopman, also attempted to determine the cause of Gudgel's pain. While examining him from 1999 through 2001, Dr. Koopman considered several different conditions including arthritis, fibromyalgia, and depression, but rejected each because he could not support any diagnosis with medical evidence.

Ultimately, in mid-2001, Dr. Koopman diagnosed Gudgel with post-polio syndrome. The symptoms of this condition, which can develop anywhere from 10 to 40 years after recovery from polio, include muscle and joint pain, muscle weakness and muscle atrophy. Attorneys' Dictionary of Medicine and Word Finder 393 (J.E. Schmidt ed., 2002). Dr. Koopman had not considered post-polio syndrome previously because Gudgel did not inform him until April 2001 that he had suffered from polio as a child.

Dr. Koopman referred Gudgel to a neurologist for further testing. The neurologist, Dr. Baker, performed several tests to determine the strength of Gudgel's muscles and possible sources of weakness. In a motor exam, Dr. Baker found that Gudgel had "diffuse weakness" in his "hip and shoulder" area and reported that "[i]t does appear to be true weakness." Dr. Baker found the test results to be consistent with post-polio syndrome, but stated that "[t]he only way to diagnose this is with an EMG."

On May 10, Dr. Baker conducted an EMG to test Gudgel's nerve responses and confirm whether he suffered from post-polio syndrome. Based on the test results, Dr. Baker concluded that "[t]here are diffuse scattered chronic neurogenic changes consistent with the diagnosis of post-polio syndrome or other anterior horn cell disease." Dr. Baker listed post-polio syndrome as his diagnosis, to which Dr. Koopman—upon receiving Dr. Baker's report—concurred. Dr. Baker examined Gudgel once more the following month and reaffirmed his assessment: Gudgel's "EMG was consistent with some neurogenic changes consistent with post-polio syndrome."

During the administrative hearing in November 2001, the ALJ questioned the state's medical expert, Dr. Hutson, about the post-polio syndrome diagnosis. The ALJ's line of questioning reflected concern that Dr. Baker's report did not support the diagnosis:

Q: [Dr. Baker] didn't actually say it was Post Polio, but he said that the findings were, you know, I think, I think the words that he used were consistent with Post Polio.

A: Yes.

Q: So, which means it could be, but, but is that, is that, does that pass in medical circles as a diagnosis, a formal diagnosis in findings?

A: Not to my knowledge, Your Honor.

Q: Okay.

Dr. Hutson testified that the records provided by Dr. Baker were insufficient to support a diagnosis. Dr. Hutson acknowledged that Dr. Baker's physical examination report showed "diffuse weakness, especially of the proximal muscles of the hip and shoulder girdles," and that those findings supported Gudgel's claims of weakness. But Dr. Hutson also pointed out that the EMG results did not show muscle atrophy that, in his view, would typically accompany post-polio syndrome: "[Dr. Baker] doesn't come up with any specific findings here as far as atrophy or something that polio may have invaded." Dr. Hutson was less conclusive about the ultimate diagnosis: "we may be dealing with something secondary to polio here, but we may not. This may not have nothing [sic] to do with polio at all, since...