Zurawski v. Halter, 00-2303

• Decision Date: 06 April 2001
• Docket Number: No. 00-2303,00-2303
• Citation: 245 F.3d 881
• Parties: (7th Cir. 2001) Joseph A. Zurawski, Plaintiff-Appellant, v. William A. Halter, Acting Commissioner of Social Security, <A HREF="#fr1-*" name="fn1-*">* . Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 881

245 F.3d 881 (7th Cir. 2001)

Joseph A. Zurawski, Plaintiff-Appellant, v. William A. Halter, Acting Commissioner of Social Security,^*. Defendant-Appellee.

No. 00-2303

In the United States Court of Appeals For the Seventh Circuit

Argued November 3, 2000

Decided April 6, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CV 2819--Arlander Keys, Magistrate Judge. [Copyrighted Material Omitted] Before Flaum, Chief Judge, Easterbrook and Williams, Circuit Judges.

Williams, Circuit Judge.

Plaintiff Joseph A. Zurawski applied for Disability Insurance Benefits and Supplemental Security Income, on the ground that he had become disabled due to a back disorder, neck pain, a loss of strength in his legs, arms and shoulder, and depression, at the age of thirty-five. The Social Security Administration initially, and upon reconsideration, denied his disability claim. Thereafter, Zurawski requested, and was granted, a hearing before an Administrative Law Judge (ALJ). The ALJ determined that Zurawski was not "disabled" as defined in the Social Security Act. The Appeals Council denied review, and the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner"). Zurawski sought judicial review and Magistrate Judge Arlander Keys granted summary judgment in favor of the Commissioner. Zurawski now appeals and, for the reasons set forth below, we reverse and remand.

I

Zurawski claims that he has been unable to work since December 3, 1993, when he injured his back while working as a foreman/laborer at his brother's construction company. His job¹. required him to lift heavy objects (from 50 to 100 pounds) and to walk, stand, and sit at three hour intervals, with constant bending. Married with four children, Zurawski has a high school education, but no post-secondary education. Since his on-the-job injury, Zurawski has sought treatment for back problems, neck pain, a loss of strength in his legs, arms and shoulder, and depression.

In November 1993, Zurawski saw Dr. Darren A. Deskin, a chiropractor, concerning his back condition. Dr. Deskin noted that Zurawski had a fifteen-year history of chronic lower back pain. He treated Zurawski with intersegmental traction, axial traction, and spinal manipulation. In March 1994, Dr. Deskin recorded some improvement in Zurawski's back condition and opined that Zurawski would be able to return to work. Based on a referral from Dr. Deskin, Dr. Robert Semba examined Zurawski, on March 16, 1994, and found evidence of degenerative disc disease. He prescribed Zurawski anti-inflammatory medication and opined that Zurawski would be able to perform limited duty work with periodic breaks to stretch his back. In April 1994, Zurawski returned to Dr. Deskin, who, upon further examination, concluded that Zurawski was able to resume normal duties. Zurawski did not return to work, however. Five months later, at the behest of his employer's insurance carrier, Zurawski saw Dr. David L. Spencer, who concluded that Zurawski was physically capable of returning to work as a "tile setter"². and that there was no evidence to substantiate Zurawski's complaints of pain. Zurawski remained unemployed. The following year, beginning in June 1995, Zurawski began treatment with Dr. Marwaha³. who then referred him to Dr. Vikram Gandhi for his back condition. Dr. Gandhi prescribed anti-inflammatory medications and physical therapy treatments for Zurawski.

In July 1995, Zurawski began physical therapy treatments for his back condition at Silver Cross Hospital. From July to November 1995, he regularly attended physical therapy sessions, three times a week, with some recorded improvements in his back condition. Around the same time, the Mental Health Division of Will County, Illinois diagnosed him as having an adjustment disorder with depressed mood and determined his Global Assessment of Functioning (GAF) to be seventy, indicating mild symptoms. Dr. Lozano, a psychiatrist, subsequently confirmed this diagnosis. In October 1995, a magnetic resonance imaging (MRI) of Zurawski's lumbar and cervical spine indicated that he had a bulging disc and degenerative disc disease. As a result, Dr. Gandhi recommended that Zurawski continue physical therapy, attend a pain clinic and a work rehabilitation program, and undergo a surgical assessment. In November 1995, a physical therapist reported that Zurawski could not tolerate sitting and standing for more than twenty minutes. Dr. Gandhi then referred Zurawski to Dr. Ramsis Ghaly, a neurosurgeon. Based on the MRI and Zurawski's complaints of pain in his lower back, neck, and legs, Dr. Ghaly recommended physical therapy and epidural steroid injections.

At the request of the Social Security Administration (SSA), Dr. Francis Vincent performed a residual functional capacity assessment on November 25, 1995. Dr. Vincent found that Zurawski had the capacity to lift and/or carry from ten to twenty pounds, stand and/or walk for about six hours in an eight-hour workday, and sit for six hours with unlimited ability to push and/or pull. Two days later, again at the request of the SSA, Dr. Kirk Boyenga completed a Psychiatric Review Technique form. Dr. Boyenga found that Zurawski suffered from a non-severe affective disorder and a slight restriction in his ability to perform activities of daily living.

In January 1996, Zurawski entered a pain clinic program stating that he suffered from pain in his lower back, neck, and legs. At that time, Zurawski was on a number of pain medications and had difficulty sleeping, eating, and socializing with others. He also had another MRI taken of his cervical spine, which revealed slight cervical straightening, with some apparent degenerative bony change at the C5-6 vertebra. Over the next several months, Zurawski received three epidural injections in an effort to alleviate his back pain. Yet, the pain persisted.

In February 1996, Dr. Ghaly noted, "putting all the x-rays together, there is no good explanation for [Zurawski's] subjective pain." As a consequence, he released Zurawski to perform light work. However, Zurawski did not return to work. Two months later, Zurawski had inpatient back treatment in combination with an aggressive course of physical therapy at an area hospital. Zurawski reported that his back condition was aggravated by bending and twisting of his lower back and prolonged sitting and standing. He also had diminished strength in his lower extremity and was prescribed pain and sleeping medications. On May 15, 1996, Zurawski was discharged from the physical therapy program.

The following month, Zurawski participated in a functional capacity assessment completed by ERGOS Work Recovery, Inc., at Dr. Ghaly's request, in order to determine his capacity to work. ERGOS found that Zurawski showed the potential for performing in the Medium/Heavy physical demand, in part, because he lifted a fifty pound box to shelf height and a seventy pound box to bench height. Although Zurawski registered various complaints of pain during the evaluation,⁴. ERGOS reported that Zurawski showed no difficulties sitting, standing, walking, or climbing. On October 9, 1996, Zurawski began treatment with Dr. Ronald J. Lotesto, a psychiatrist, for his pain symptoms. Dr. Lotesto characterized Zurawski's pain as "chronic" and "severe" resulting in his inability to function. He stated that Zurawski had disc herniations and prescribed various medications for pain and depression.

In November 1996, Dr. Ghaly advised Zurawski to return to work and to continue treatment with a psychiatrist. He also prescribed medications for Zurawski's pain and depression symptoms.

At the administrative hearing held before the ALJ, Zurawski, then 39-years-old, was the only witness to testify. He testified that Dr. Lotesto was treating him for pain, not depression, and that he considered Dr. Lotesto to be his treating physician. He reported that his daily activities included helping his four children prepare for school and driving two younger children to and from school, less than a mile each way. He stated that he washes dishes, does some laundry, prepares dinner, and helps his children with their homework. He indicated that he had difficulty finding work because of his back condition. He explained that he cannot sit, walk, stand, lift, carry, or bend on a prolonged basis due to pain. He testified that, at most, he can work from two to three hours a day while using Tegretol, which helps to alleviate his pain symptoms. However, he reported experiencing memory loss and concentration deficits from using Tegretol. And, while he once used his garage as a shop to maintain trucks and stain cabinets, Zurawski denied working in the shop since his injury on December 3, 1993.

In deciding whether Zurawski had met his burden of establishing disability, the ALJ applied the standard five-step inquiry, see 20 C.F.R. sec. 404.1520, which required her to evaluate, in sequence:

(1) whether the claimant is currently [un]employed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals one of the impairments listed by the [Commissioner], see 20 C.F.R. sec. 404, Subpt. P, App. 1; (4) whether the claimant can perform [his] past relevant work; and (5) whether the claimant is capable of performing work in the national economy.

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (quoting Knight v. Chater, 55 F.3d 309 313 (7th Cir. 1995)). Under the five-part sequential evaluation process, "[a]n affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985) (citation omitted). If a claimant reaches step 5, the burden shifts to...