JOHN D. TINDER, Judge
Plaintiff requests judicial review of the Commissioner of Social Security's ("Commissioner") denial of her application for Disability Insurance Benefits ("DIB"). The court rules as follows.
I. Background Plaintiff, Robin S. Smith, claiming that she became disabled on September 5, 1996, applied for DIB on August 5, 1997. Her application was denied initially and on reconsideration. Administrative Law Judge ("ALJ"), Robert E. Hanson, held a hearing, and on January 22, 1999 issued a decision denying Smith DIB. The ALJ found that Smith's impairments did not meet a listing and that she could perform a significant number of jobs in the national economy. The Appeals Council denied Smith's request for review, making the ALJ's decision the final opinion of the Commissioner.
On September 5, 1996, Plaintiff was admitted to the hospital for evaluation of seizures. (R. at 192.) At that time she was diagnosed with a brain tumor, later identified as a oligodendroglioma. (R. at 38, 193.) On October 14, 1996, the tumor was excised, but some residual tumor matter remained. (R. at 189.)
The fact that Smith has a brain tumor that was operated on, but not entirely removed is not disputed by either of the parties. Although the record contains an abundance of evidence concerning the tumor, the court declines to discuss this evidence because the tumor's existence is not in doubt.
On December 20, 1996, Dr. Nicolaas de Wette reported that Smith had some memory loss but no other abnormal mental status changes. (R. at 201.) Dr. de Witte also reported that Smith's headaches were slight and only occasional, and that they responded to Tylenol with codeine. (Id.)
On September 16, 1997, Dr. Nancy Ingwell performed a psychological evaluation of Smith. (R. at 235.) The doctor determined that Smith had "Major Depression, Recurrent, Severe," and a Global Assessment Function Scale score ("GAF") of sixty. (R. at 240.) On September 30, 1997, Dr. Shaun Wood issued a report on Smith's psychiatric status. (Id. at 250.) Dr. Wood opined that Smith suffered from Major Depression, Recurrent. (R. at 250.) Dr. Wood determined that Smith's current GAF was fifty-two, and that her highest GAF in the past year had been seventy. (R. at 250.)
A GAF between sixty and fifty-one is defined as "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. Text Revision 2000) (emphasis in original) (hereinafter "DSM IV").
Dr. Wood also listed her illness as "296.32," (R. at 250,) which is "Major Depression, Recurrent, Moderate." DSM IV at 860.
A GAF between seventy and sixty-one is defined as "Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." DSM IV at 34.
Dr. Edward Dropcho treated Smith over an extended period of time. Several of his neuro-oncology reports have been submitted into evidence. As far as Smith's mental complaints are concerned, all of the reports say substantially the same thing: that Smith was alert, oriented, and cooperative. She had mild impairment of short-term memory and calculations. Finally, her speech was fluent with normal naming, repetition, and comprehension. (R. at 99-102, 226, 230.) On October 13, 1997, Dr. Dropcho opined that Smith's cognitive complaints were probably due to frontal lobe dysfunction and depression. (Id. at 275.)
On February 2, 1998, Dr. David Kareken performed a neuropsychology examination of Smith. (R. at 97.) Dr. Kareken noted that Smith complained of poor concentration, difficulty comprehending others, trouble spelling, being forgetful, difficulty exercising judgment while driving, being verbally aggressive, and impatient. (Id.) The examination revealed that Smith was awake, alert, and well-oriented, with logical, sequential, and goal-oriented thoughts. (Id.) Her auditory working memory was within low-normal to normal limits for digits. Mental arithmetic was low-normal to borderline. She suffered from no significant forgetting on a short-term recall test. She also showed no significant forgetting after thirty minutes. Long term-memory was intact. An attempt at novel problem solving revealed impaired abstraction and markedly perseverative responding. (Id. at 97-98.) Dr. Kareken opined that the "[d]ecline is sufficiently sever to support an application for disability. I believe it unlikely that her current cognitive faculties will allow her to continue to work as a transcriptionist, or any other job that requires divided attention or independent problem solving. (Id. at 98.)
II. Discussion When determining disability, the ALJ makes a five-step inquiry: (1) whether the claimant is currently employed, (2) whether the claimant has a severe impairment, (3) whether the claimant's impairment is one that the Commissioner considers conclusively disabling, (4) if the claimant does not have a conclusively disabling impairment, whether she can perform her past relevant work, and (5) whether the claimant is capable of performing any work in the national economy. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (summarizing the agency regulations set forth in 20 C.F.R. § 404.1520). In making his determination, the ALJ must clearly articulate his analysis of the evidence, building an accurate and logical bridge between the evidence and his conclusion. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). The ALJ does not need to address every separate document in the record, but he must not select only those documents for review that support his analysis. "His written decision should contain, and his ultimate determination must be based upon, all of the relevant evidence in the record." Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir. 1984).
This court must accept the ALJ's findings of fact as conclusive if they are supported by substantial evidence and there has been no error of law. Dixon, 270 F.3d at 1176.
Substantial evidence means such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). A reviewing court may not decide the facts anew, reweigh evidence, or substitute its judgment for that of the ALJ. Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001).
Smith presents two issues for review in this court. First, she claims that the ALJ's Step Three determination that her combined impairments did not meet or equal a listed impairment is incorrect. She also challenges the Step Five determination that she was not disabled because she could perform a significant number of jobs in the national economy.
A. Step Three Smith claims that her impairments meet or are medically-functionally equivalent to listings 11.05 and 12.02 or 12.04. See 20 C.F.R. Part 404 Subpart P App. 1 Parts A B.
She contends that the ALJ's conclusion that she did not meet a listing is incorrect because the ALJ ignored or misstated twenty-two pieces of evidence. Although it is true that the ALJ does not have to literally review every piece of evidence in the record, he cannot ignore an entire line of evidence. Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir. 1984). When the ALJ does ignore an entire line of evidence, it is impossible for the court to determine that his decision is supported by substantial evidence because the evidence is only substantial when looked at in a vacuum. Id. The evidence allegedly ignored or misstated by the ALJ, and the court's reasons for its rulings, are best understood if the evidence is examined in groups.
1.
The first ten pieces of evidence concern the existence and extent of Smith's brain tumor. Smith does not say why the ALJ needed to consider these particular pieces of evidence, and this court cannot evaluate the evidence and make a medical determination about what these reports might say about Smith's tumor that other pieces of evidence do not. This is especially true in light of the fact that the ALJ determined that Smith does have a tumor that meets listing 11.05B. The listing specifically includes Smith's tumor known as a oligodendroglioma. However, this listing requires further evaluation under other listings to determine a claimant's disability status at Step Three. Thus, the court will not say that the ALJ erred by not discussing some of the reports stating that the tumor existed. The ALJ determined that a tumor existed, but that Smith did not satisfy the other requirements to be found disabled. In order for this court to overrule the ALJ's finding, Smith must articulate a reason why this particular evidence enhances or differs from the other evidence in the record concerning how the tumor either meets or does not meet a listing.
This evidence consists of a September 5, 1997 hospital inpatient admission history (R. at 192-93); a September 5, 1996, MRI of Smith's brain (Id. at 197); a September 17, 1996, MRI of Smith's brain (Id. at 196); a September 17, 1996, biopsy report (Id. at 190-91); an October 14, 1996 surgery report (Id. at 189); a November 26, 1996, MRI of Smith's brain (Id. at 195); a November 27, 1996, surgery report (Id. at 183-84); a September 4, 1997, MRI of Smith's brain (Id. at 227); a January 8, 1998 X-ray of Smith's brain (Id. at 106-07); and a September 3, 1998 MRI of Smith's brain (Id. at 114-15.)
She has not done so.
2.
Three pieces of evidence that were allegedly ignored or misstated by the ALJ were originally submitted to the Appeals Council. Because these documents were first introduced to the Appeals Council and it declined to review the case, the documents were not before the ALJ, and this court cannot review them or factor them into its substantial evidence review. This issue was decided in Eads v. Secretary of the Department of Health and Human Services, 983 F.2d 815 (7th Cir. 1993). The court in Eads wrote "It [the idea that the district judge can review new evidence submitted to the Appeals Council] is wrong when the Council has refused to review the case. For then the decision reviewed in the courts is the decision of the administrative law judge. The correctness of that decision depends on the evidence that was before him. He cannot be faulted for having failed to weigh evidence never presented to him. . . ." Id. at 817 (internal citations omitted).
Smith discusses this supposed error in the same general discussion as the complaint that the ALJ erred in reviewing the other evidence. Accordingly, this court cannot determine whether Smith is claiming that the Appeals Council erred in not reviewing the case based on this evidence or whether Smith is still discussing the ALJ's alleged error.
It is possible for this court to remand the case under sentence six of 42 U.S.C. § 405(g). However, Smith has not stated that she is looking for a remand under that provision. In any event, sentence six requires that evidence be new and material before a remand is appropriate, and that Smith specifically tell the court why the evidence is new and material. Eads, 983 F.2d at 817-18.
"For sentence six purposes (as opposed to Appeals Council review, for example), `materiality' means that there is a `reasonable probability' that the Commissioner would have reached a different conclusion had the evidence been considered, and `new' means evidence `not in existence or available to the claimant at the time of the administrative proceeding.'"
Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997).
Smith must also show that there is good cause why this evidence was not submitted to the ALJ. Kaputsa v. Sullivan, 900 F.2d 94, 97 (7th Cir. 1989). Smith has not attempted to show good cause for her delay. Thus, since Smith has not attempted to show that this evidence is new, material, or that there was good cause for not submitting it earlier, this court will not remand her case under sentence six of 42 U.S.C. § 405(g).
The court does note that the medical reports in question were all created after the decision of the ALJ. However, that does not change the requirement that Smith must specifically plead good cause to this court. The fact that the evidence was created after the ALJ's decision also does not show a reasonable probability that the Commissioner's decision would have been different if the ALJ had been able to review this evidence.
3.
Smith further contends that the ALJ erred by ignoring reports of two interviews conducted by the Social Security Administration of her mother. Again, Smith gives the court no reason for thinking that these interviews with her mother conflict or add to the reports that were considered by the ALJ. All that Smith says is that these interviews were ignored and that her mother said some things that support her case. Weighing this evidence would be outside the scope of this review. However, even if this were not the case, the court does not see how a thorough discussion of the reports by the ALJ would have enhanced Smith's case. In the first report, Smith's mother acknowledges that Smith spends a lot of time doing her Bible studies. (R. at 164.) The report also goes into detail about the chores that Smith does including cooking, washing dishes, driving, and laundry.
Smith claimed that this report stated that she had stopped her Bible reading because of a lack of concentration. However, the court finds the report to say the exact opposite. Her mother did evidently state that Smith had stopped her hobbies because of problems concentrating, but the report does not go into detail about what those hobbies might have been and how much concentration they required.
Perhaps most importantly, the report says, "There are no real problems with depression except claimant is depressed all of this happened to her." (Id.) The second interview with Smith's mother appears substantially similar. Of particular relevance are her mother's statements that Smith stopped taking Prozac because she got enough emotional and spiritual support from friends at church, and her mother's belief that Smith was not depressed. (Id. at 171, 174.) Because these interviews with Smith's mother contain statements that support the decision of the ALJ, the court cannot conclude that leaving them out of his decision was error on the part of the ALJ such that it makes his determination unsupported by substantial evidence, especially in light of Smith's failure to give this court a clearly articulated reason for such a determination.
4.
Smith also contends that the ALJ misstated four of Dr. Dropcho's neuro-oncology evaluations. The alleged error is that the ALJ did not mention parts of the evaluation reports that are favorable to Smith. However, these parts of the reports are not objective medical findings, but are labeled "interval history." They are the symptoms Smith complained of on those particular visits. Again, Smith does not give the court any reason to believe that these subjective complaints enhance the subjective evidence that was reviewed by the ALJ, and the court does not see any significant difference between these interval histories and other subjective evidence in the record. Smith alleges misstatement of one of these reports because the ALJ does not mention that Dr. Dropcho discussed the latest X-ray of Smith's brain. As discussed earlier, however, the existence of a brain tumor is not in dispute, and Smith has given the court no reason to think that the ALJ evaluated the tumor inaccurately.
These reports are dated July 7, 1997 (R. at 230), September 4, 1997 (R. at 226), December 15, 1997 (R. at 102), and, January 8, 1998 (R. at 101.)
5.
Smith also contends that the ALJ misstated the findings of a December 20, 1996 "Progress Note" because the ALJ does not mention specifically that the note says Smith has "some memory loss and is occasionally forgetful of names, numbers, and dates." (R. at 201.) However, Smith does not tell this court why it should find a significant error in light of this omission when the ALJ stated, "Based on the claimant's testimony that she has poor concentration, problems understanding directions, and difficulty with her memory, I conclude that she often has deficiencies of concentration, persistence, or pace. . . ." (Id. at 40.) Thus, without any showing of why information in the progress note is inconsistent with the ALJ's findings, the court cannot conclude that any omission was erroneous, especially so erroneous that it casts into doubt that substantial evidence supports the ALJ's decision.
6.
Smith contends that the ALJ misstated the psychological evaluations conducted on September 16, 1997 and September 30, 1997. However, Smith's complaint is limited to the ALJ's omission of the exact diagnoses on these reports. These two reports conflict in the severity of Smith's diagnosis. However, neither diagnosis appears to satisfy a listing, nor does Plaintiff contend that they do. In any event, the ALJ found that Smith's depression was mild based on the Beck Depression Inventory. (R. at 42.) Because this determination was based upon an objective medical test and supported by the record, and Smith has not tried to refute it directly, the court cannot reweigh the evidence to make a medical determination on this point, despite the differences with the opinions of other doctors.
Smith further argues that the ALJ ignored other pertinent information found in Dr. Wood's September 30, 1997 psychological evaluation. The ALJ did not mention that the report says that Smith's illness caused her to stop working. However, it is unclear from the face of the report whether this is an objective medical finding or what Smith told the doctor.
This court cannot make the determination and Smith gives the court no reason to think that it is an objective medical finding made by the doctor as opposed to Smith's own contentions about her symptoms. In any event, the ALJ found for Smith at Step One concerning her present employment. Because Smith has the burden of proof at Step Three of the evaluation, the issue must be resolved in favor of the Commissioner.
The same analysis can be made for the finding that Smith got lost on the way to the doctor's office, which in and of itself is meaningless. The court is not told whether Smith knew the area, had been to the office before, or simply forgot to bring the directions with her. As to the claim that the ALJ arbitrarily rejected Wood's finding that Smith would not be able to attend to a simple, repetitive task continuously for a two-hour period because of her impaired concentration, the court does not find the rejection arbitrary but backed by other objective evidence in the record, which Smith has not attempted to refute.
Smith's memory and cognition were normal in some tests (R. at 232), and testing of her attention and concentration span were within the dull normal range. (Id. at 239-240.) The court also notes that whether Smith could perform a simple, repetitive task for a two-hour period is really a Step Four determination, which Smith has waived by not choosing to make it an issue in this appeal. Furthermore, it is an issue on which Smith bears the burden of proof.
7.
Smith also claims that the ALJ misstated the findings of Dr. Kareken's February 2, 1998 neuropsychological evaluation. It is true that the ALJ did not mention every single detail of this dense report. However, the court does not find, and Smith has not alleged, that the ALJ missed the essential point of the report which was that Smith's executive functioning was impaired. It is true that Dr. Kareken thought Smith's decline sufficiently severe to support an application for disability, but that does not mean that the ALJ must find Smith disabled. In fact, the ALJ agreed with the doctor that Smith's high-level, executive functioning was impaired. However, that conclusion does not mean that the ALJ's finding that Smith was not disabled is necessarily flawed.
8.
Finally, Smith complains that the ALJ failed to consider her impairments in combination. The ALJ found that Smith met 11.05(b), but not 12.02 or 12.04. The nature of these listings is to consider brain tumors in combination with mental disease. As for whether Smith's impairments, although not meeting a listing, were equivalent to one, Smith bears the burden of proof on that issue. She has not attempted to give this court any reasons why her impairments are equivalent to a listing beyond stating a slew of medical terms in the evidence supposedly ignored or misstated by the ALJ. This court cannot play doctor and determine that Smith's impairments are equivalent to a listing based upon nothing more than conjecture. Thus, the court finds that the ALJ's determination at Step Three that Smith's impairments did not meet or equal a listing is supported by substantial evidence in the record.
Smith also attempts to make a Due Process claim out of the ALJ's alleged errors. In reliance on this theory, Smith cites only one case: Small v. Sullivan, 820 F. Supp. 1098 (S.D.Ill. 1992). The Court notes that Small is a decision granting class certification in a case alleging bias by a particular ALJ. In the present case, Smith claims that the ALJ ignored and misstated evidence, but she does not claim that he was biased against her case. Accordingly, the court finds it more appropriate to decide this case under the traditional substantial evidence standard.
B. Step Five The basis of Smith's argument on this issue is that the ALJ never actually compared the specific requirements of the employment he found Smith capable of with her specific impairments as required by Social Security Ruling 82-62. Interestingly, Smith waives the only real grounds she has for challenging the ALJ's Step Five determination, by not challenging the ALJ's RFC determination at Step Four. Once the RFC has been established at Step Four, the only thing that the Commissioner must do at Step Five to meet her burden of proof is to elicit the testimony of a vocational expert that the claimant can perform a significant number of jobs, as was done in this case. Because Smith presents no contradictory evidence that based upon the RFC determination at Step Four, she cannot perform a significant number of jobs in the national economy, this court finds that the ALJ's Step Five decision is supported by substantial evidence in the record.
III. Conclusion IT IS THEREFORE ORDERED that the decision of the Commissioner in this case is AFFIRMED.