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August 24, 1998

DARLENE BRIDER, SSN: 335-62-2886, Plaintiff,
KENNETH S. APFEL, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: SHADUR


 Darlene Brider ("Brider") appeals the final decision of Commissioner of Social Security Kenneth Apfel ("Commissioner") denying Brider's claims for supplemental security income disability insurance benefits pursuant to Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381(a), 1382c(a). *fn1" Brider and Commissioner have filed cross-motions for summary judgment under Fed.R.Civ.P. ("Rule") 56, with Brider alternatively requesting a remand for a new hearing. For the reasons stated in this memorandum opinion and order, both motions for summary judgment are denied, while Brider's alternative remand request is granted in part and denied in part.


 Brider, born on October 21, 1964, was 31 years old at the time of her administrative hearing ("Hearing"). She has something more than a high school education, and she last worked as a nurse's aide in 1990.

 On February 22, 1993 Brider filed her application for supplemental security income benefits (R. 74). She claimed disability since January 1, 1993 due to "trembling legs, chest pains" and shortness of breath (R. 74). That initial application was denied, first on May 5, 1993 (R. 79) and then upon reconsideration on August 27, 1993 (R. 84). Next Brider sought the Hearing, which took place on January 8, 1996 before Administrative Law Judge ("ALJ") Larry Miller. Brider appeared with counsel at the Hearing and testified before the ALJ.

 At the Hearing Brider complained of pain in her right knee and lower back (R. 54-55). She claimed that the pain had begun after the birth of her child in 1988 but became worse after she began gaining weight in the early 1990's (R. 52-54).

 Brider, who is between 5'1-3/4" and 5'2-1/2" tall (R. 141, 183), weighed 255 pounds in May 1992. (R. 334). Although she lost weight in 1993--going down to a low of 187 pounds in August of that year--as a result of a thyroid problem, after the successful treatment of that thyroid condition she then regained all that she had lost (R. 216). By July 1994 she weighed 244 pounds (R. 341), and her weight rose slowly until she was measured at 298 pounds in September 1995 (R. 351). At the Hearing she testified that she weighed 300 pounds (R. 53).

 Most of Brider's documented medical history relates to the diagnosis and treatment of her thyroid condition, but several medical tests were conducted on her legs and back. Cervical spine and bilateral knee x-rays taken in 1991 were normal (R. 280). On November 6, 1995 Brider underwent an electromyography ("EMG") of her lower back that indicated irritability "in the lumbar spinal region from L2 to S1" but revealed no evidence of radiculopathy or peripheral neuropathy (R. 359).

 Dr. Peter Perger also performed a magnetic resonance imaging ("MRI") scan of Brider's right knee on December 29, 1995. Dr. Berger's report contained the most significant medical findings relevant to Brider's social security claim. In his opinion the MRI revealed "considerable thinning in the patellar cartilage involving the lateral facet" and "mild prepatellar edema suggesting prepatellar bursitis" (R. 331-32). In addition he reported an "abnormal signal noted in the posterior horn of the lateral meniscus" that "may represent significant degenerative disease as opposed to a true tear" (R. 332).

 Brider testified at length about how her daily activities were limited by her back and leg pain. For example, she said that in the six months before the Hearing her legs had begun to give out whenever she walked more than six blocks and that she needed to hold onto something to walk more than a half block (R. 56-57). Brider also claimed that the pain in her back prevented her from doing almost any housework, interfered with her ability to sleep and meant that she spent much of her day in bed (R. 58-60).

 Despite that evidence, on March 29, 1996 ALJ Miller issued an opinion ("Opinion") that denied Brider's application (R. 27). Brider then filed a request for review with the Appeals Council. On January 8, 1997 the Appeals Council denied that request, causing the ALJ's ruling to become Commissioner's reviewable final decision (Reg. § 404.981). Brider then exercised her Section 405(g) right of appeal to this Court.

 ALJ Decision and Standard of Review

 Brider must suffer from a disability to be eligible for her claim for benefits. "Disability" is defined in pertinent part as the inability (Section 1382c(a)(3)(A)):

to engage in 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....

 Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995) (citations omitted) sets out the customary five-step inquiry prescribed by Reg. § 404.1520 to determine whether a claimant is disabled:

(1) whether the claimant is currently employed;
(2) whether the claimant has a severe impairment;
(3) whether the claimant's impairment meets or equals one of the impairments listed by [Commissioner], see 20 C.F.R. § 404, Subpt. P, App. 1;
(4) whether the claimant can perform her past work; and
(5) whether the claimant is capable of performing work in the national economy.
If a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four is satisfied, the burden shifts to [Commissioner] to establish that the claimant is capable of performing work in the national economy.

 ALJ Miller denied Brider's claim at the final step of the analysis. Although Brider did satisfy steps one, two and four, the ALJ held that Brider did not meet step three and that Commissioner had met his step five burden. On that inquiry as to whether Brider was capable of performing work in the national economy, ALJ Miller applied Brider's vocational background and residual functional capacity to the Medical-Vocational Guidelines (the "Grid") and found that she could perform a significant number of light jobs (R. 26). As a consequence the ALJ held that Brider was "not disabled" for Title XVI purposes.

 Estok v. Apfel, 152 F.3d 636, 1998 U.S. App. LEXIS 17858, 1998 WL 446211, at *2 (7th Cir.) has most recently reconfirmed that judicial review of the ALJ's factual determinations is limited to whether they were supported by substantial evidence in the record and that (quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)):

"Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

 By contrast, the ALJ's legal conclusions are reviewed de novo ( Dotson v. Shalala, 1 F.3d ...

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