worked as a drug
counselor in a veteran's hospital for 15 years. (R. 347). He stopped
working as a drug counselor after he had a drug relapse which involved
the use of cocaine, heroine and marijuana. (R. 348). Jones has not
engaged in substantial gainful activity since his departure from his
occupation as a drug counselor. Id. At the time of the hearing, Jones was
attending the New Age Drug Treatment Program where he receives methadone
and participates in individual and group counseling. (R. 348-349).
A. CLAIMANT'S PHYSICAL AND MENTAL IMPAIRMENTS
Originally, Jones claimed his disability was due to various physical
impairments and a mental impairment of depression. (R. 31-36). The ALJ
determined none of Jones' physical or mental impairments are so severe as
to medically meet or equal a listed impairment under the Code of Federal
Regulations, and he had the ability to return to work. (R. 30, 42). The
Claimant and the defendant have not disputed the ALJ's finding with
regard to Jones' physical impairment. However, there is a dispute
concerning the ALJ's decision on Jones' mental impairment.
1. Claimant's history of physical impairments
In June 1996, after being exposed to tuberculosis, Jones was referred
to the Board of Health, in which he received treatment for six months,
tolerated treatment well, and all his sputum tests were negative. (R.
36). At this time, he was treated for his hypertension. Id. On September
26, 1996, due to chest pains, Jones received a cardiac catheterization at
the University of Chicago. Id. The results showed Jones had no
significant coronary artery disease and had a normal left ventricular
systolic function, with elevated left ventricular and end-diastolic
pressure. (R. 36). Jones maintained his prescriptions for
anti-hypertensive medication and asthma inhalers throughout the period in
question. Id. Most of his examinations indicated that his lungs were
On September 10, 1996, Jones received an internal medicine examination
by Dr. George Bridgeforth. Id. Dr. Bridgeforth administered a chest and
lung examination showing a moderately prolonged expiratory phase, with
occasional and expiratory wheezing. Id. Dr. Bridgeforth diagnosed Jones
as having a history of asthma; chest wall pain of undetermined etiology,
with a differential diagnosis including angina versus asthma; a history
of polydrug dependence; and exposure to tuberculosis. (R. 37).
On November 14, 1996, as a follow-up to Dr. Bridgeforth's exam, Jones
received pulmonary function testing at Lake Shore Medical Clinic. While
receiving the tests, Jones was cooperative and had good comprehension and
effort. Id. Jones' cardiac stress test was inconclusive because he did
not exercise long enough to reach the target heart rates. Id.
2. Claimant's history of mental impairments
In June 1996, after reporting to the hearing officer he was depressed,
Jones received a psychiatric consultative examination performed by Dr.
Ana Gil on September 10, 1996. (R. 108-111, 32). Dr. Gil's report
indicated Jones had a normal mental status examination and found no
evidence of psychosis or of a thought process disorder. (R. 111). Dr. Gil
administered standard memory tests establishing Jones' responses were
perfect. She noted Jones was attentive and cooperative throughout the
examination. (R. 110). During the examination, Jones never reported
difficulty in sleeping, but did state he was still depressed about the
1988 death of a girlfriend. (R. 109). Dr. Gil
described Jones' mood as
generally positive and only diagnosed Jones with substance related
impairments which were all in remission since 1992. (R. 111). On February
26, 1996, based on Dr. Gil's report, non-examining psychologist D.G.
Hudspeth, prepared a Psychiatric Review Technique form. (R. 33,
116-124). In Dr. Hudspeth' s opinion, Jones has a normal mental status
exam and his only mental impairment was substance dependence which was in
remission. (R. 114).
On February 24, 1998, Jones first sought treatment for his alleged
depression at his local community mental health clinic in which Dr. Joyce
Miller treated him. (R. 309-312). Jones continued to see Dr. Miller
monthly between February and July. (R. 34). At the first visit, Dr.
Miller reported Jones was feeling "hopeless and helpless since 1988, "but
the depression worsened during the preceding six months. (R. 33).
Although Dr. Miller reported Jones' memory and attention were poor, she
described Jones as coherent and goal directed, he had logical thought
processes, was alert and orientated times three, was of average
intelligence, had some insight into his problems, had no perceptual
problems and his main concern was his poor financial situation. Id. Dr.
Miller's Axis I diagnosis were major depression, single episode, moderate
in severity, a history of heroin dependence and a GAF score of 60. (R.
34). Dr. Miller prescribed Jones Paxil and noted his goals were to
abstain from substances and to return to work. Id.
On March 12, 1998, Dr. Miller completed an Illinois Department of
Public Aid Report of Incapacity, indicating Jones suffered from major
depression, with marked social limitations, marked decrease in
concentration and attention, and his response to the antidepressant
medication was "minimal." (R. 34, 161-163).
In June 1998, Dr. Miller described Jones' mood as more hopeful. (R.
34). In September 1998, Dr. Miller reiterated her February diagnosis.
(R. 329-332). She noted he has minimal limits in performing daily
activities, but is markedly impaired in social functioning, has frequent
lapses of concentration, persistence and pace, and frequent episodes of
decompensation in work-like settings. Id.
3. The ALJ did not adopt all of the medical opinions with regard to
Claimant's mental impairment
The ALJ did not adopt Dr. Miller's opinions explaining the doctor's
opinion of Jones' functional limitations is not clear from her initial
assessment or from her progress notes. (R. 34). Moreover, no explanation
is given in the progress notes for the reasons of Jones' social
functioning being markedly limited. Id. Although Dr. Miller indicated no
further tests were needed in September 1998, her progress notes are
devoid of performing any objective medical tests on Jones' concentration
or memory. Id. Also, the ALJ explained Dr. Millers' assessment of Jones'
social limitations and frequent decompensation is materially inconsistent
with Jones' uncontradicted testimony about his attendance at the New Age
program. (R. 35). Further, Dr. Miller's September 1998 opinion that Jones
responded poorly to medication is inconsistent with her prior notes which
stated he reported feeling better. Id. The ALJ instead adopted Dr. Gil's
and Dr. Hudspeth's opinions which were based on objective medical
evidence. (R. 33).
4. The testimony during the hearing regarding the Claimant's physical and
During the hearing, Jones testified he has been abstinent from drugs
since sometime in 1996 (R. 383), he performs household chores such as
sweeping, mopping and cleaning dishes, he also watches television,
and reads the newspaper. (R. 383, 351, 354). He testified he has trouble
concentrating while watching television and reading the newspaper. (R.
351-352). He complained of having chest pains while performing household
chores or while he was sitting down; being forgetful; sleeplessness;
trouble breathing due to his asthma, and depression. (R.355-356, 359,
Dr. Abramson, a medical expert ("ME") testified the abnormality in
Jones' ECG exam is mild, and the ECG's in the record in combination with
other medical evidence do not establish a listing level cardiac
impairment, or a cardiac basis for the reported chest pains. (R.
407-409). The ME explained Jones' chest pains could be caused or
exacerbated by cardiac spasm related to cocain or heroine use. (R. 413).
The ME testified he agreed with Dr. Patey's November 21, 1996 residual
functional capacity ("RFC") assessment in which Dr. Patey stated Jones
had the physical RFC to perform close to the full range of light work,
including the ability to lift, carry, push and pull up to 20 pounds
occasionally and up to ten pounds frequently, could stand and or walk for
six hours and could sit for about six hours with normal breaks. (R.
410-411). The ME concluded Jones should avoid work which requires
prolonged or concentrated exposure to extremes of temperature, humidity,
or respiratory irritants. (R. 410).
Susan Entenberg, a vocational expert ("VE"), testified Jones' past
relevant work as a rehabilitation technician is sedentary and
semi-skilled. (R. 432). She explained his skills as a drug counselor are
transferable to other para-professional counseling positions with some
additional, short term, training adjustments. Id. She also testified she
was unaware of any licensing regulations or requirements for drug
counselors which would preclude Jones from being a drug counselor due to
his taking of methadone. Id.
B. THE ALJ DETERMINED THE CLAIMANT WAS NOT DISABLED
Based on the evidence in the record and the testimony given at the
hearing, the ALJ found Jones satisfied Step One of the disability
assessment because he has not engaged in substantial gainful activity
since 1988, when he last was employed by the Veteran's Administration as
a drug counselor. (R. 30). At Step Two, the ALJ determined Jones had
severe respiratory impairments because they imposed at least minimal
restrictions on his ability to perform work related activities. Id.
At Step Three, the ALJ decided none of Jones' physical or mental
impairments, considered separately and in combination, are so severe as
to medically meet or equal a listed impairment under the Code of Federal
Regulations. Id. As for the physical impairments, the ALJ explained she
adopted the ME's opinion that Jones' physical impairments do not meet or
equal a listed impairment. Id.
As for the mental impairments, the ALJ found Jones did not have a
listing level mental impairment. (R. 36). She questioned whether Jones'
depression is to the degree he testified and has reported to Dr. Miller,
since his alleged depression is not supported by the objective medical
evidence. (R. 41). The ALJ did not adopt Dr. Miller's opinion that Jones
currently suffers from depression. (R. 34). Instead, the ALJ adopted Dr.
Gil's and Dr. Hudspeth's assessments because these opinions were based on
objective medical evidence which diagnosed Jones' only severe mental
impairment as substance abuse which was in remission. (R. 33, 36).
The ALJ found Jones' memory and concentration are not markedly
impaired, reasoning Jones was a reliable historian both
at the hearing
and to his consulting doctors. (R. 35). Moreover, the record did not
establish a basis to conclude the Claimant had a dramatic memory loss
since Dr. Gil's examination. (R. 35).
At Step Four, the ALJ adopted Dr. Patey's and the ME's opinion and
found Jones had "the physical RFC to perform close to the full range of
sedentary work. He can lift, carry, push and pull up to 10 pounds
frequently. He can stand and walk for a total of two hours in a work
day, with uninterrupted periods of up to 15 minutes. He can sit for six
hours in a work day, and can occasionally climb ramps and stairs, stoop,
kneel, crouch and crawl. He should not climb ladders, ropes or
scaffolds, or be exposed to extremes of temperature, humidity,
respiratory irritants or unprotected heights." (R. 42). Adopting Dr.
Hudspeth's and Dr. Gil's opinion, the ALJ found Jones "has a good mental
RFC. While his occasional feelings of depression and other subjective
problems might interfere with claimant's concentration, persistence or
pace for a combined total of 10% of the work day, claimant has the mental
RFC to perform at least semi-skilled para-professional work of the type
he has performed in the past." Id. The ALJ explained Jones can
understand, remember and carry out simple and some more complex job
instructions as long as he remains abstinent. Id. The ALJ concluded Jones
has the physical and mental RFC to return to his past relevant work as a
drug counselor. Id. Thus, the ALJ ruled that Jones' claims failed at Step
Four, meaning, his impairments did not preclude performance of his past
relevant work activity. Jones was not disabled within the meaning of the
SSA. (R. 42).
Although the ALJ found Jones was not disabled at Step Four, she made an
alternative decision at Step 5. Basing her decision on the
Medical-Vocational Guidelines, the ALJ found in the alternative, even if
Jones could not perform as a drug counselor due to his current use of
methadone, Jones had acquired the skills as a drug counselor which are
transferable to a significant number of other para-professional
counseling positions in the national economy. (R. 43). Referencing Rule
201.03 of Table No. 1, Appendix 2, Subpart P, Regulations No. 4 and the
VE's testimony about the transferability of his skills and considering
Jones' physical and mental RFC, age, education, and work experience, the
ALJ concluded Jones had transferable skills to other para-professional
jobs. (R. 42-43).
V. THE ALJ'S DECISION WAS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE AT STEP FOUR AND STEP FIVE
The ALJ concluded Jones was not disabled because he was capable of
performing his past relevant work. Claimant raises several issues on
appeal. First, Claimant contends the ALJ erred by not accepting Dr.
Miller's diagnosis and by not incorporating all of Claimant's limitations
in the hypothetical which she posed to the VE. Second, Claimant asserts
the ALJ erred in her assessment of Claimant's residual functional
capacity for work from the standpoint of his mental impairments, claiming
the ALJ is required and failed to further assess Claimant's mental
residual functional capacity to work. Third, Claimant argues the ALJ made
many errors at Step 5.
A. THE ALJ'S DETERMINATION AS TO THE LISTING LEVEL OF IMPAIRMENT WAS
SUPPORTED BY SUBSTANTIAL EVIDENCE
The Claimant argues the ALJ erred in concluding his mental impairments
did not satisfy the Listing of Impairments
under Listing 12.04 and
substance abuse 12.09. Claimant asserts the ALJ erred by not citing Dr.
Hudspeth's whole opinion, by discounting any significant change in
Claimant's life between Dr. Gil's examination and Dr. Miller's
examination, by finding the Claimant's mental impairment is not severe,
and posing a hypothetical to the VE which did not incorporate all of
The ALJ articulated a legitimate reason for not finding the Claimant
had a listing level of impairment. Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000) (holding, the ALJ is not required to address every piece
of evidence but he must articulate some legitimate reason for his
decision). The ALJ reasoned the Claimant did not have a listing level of
impairment under 12.09, which relates to substance abuse because the
Claimant maintained his abstinence from drugs since 1996 and no evidence
to the contrary was found within the record. (R. 32).
The ALJ found the Claimant did not have a listing level of depression,
his memory and concentration were not markedly impaired, and there was no
evidence of a dramatic loss of memory. (R.34-35). The ALJ found almost no
evidence of depression existed prior to February 1998, which was two
months before the hearing. (It. 32). In 1996, Dr. Gil performed
examinations showing Claimant had a normal mental status and there was no
evidence of psychosis or a thought process disorder. (It. 108-111). Also
in 1996, Dr. Bridgeforth did not comment on any abnormal mental status
during his examination. (It. 102-107).
The ALJ articulated reasons for not adopting Dr. Miller's opinions.
(It. 34-35). Unlike Dr. Gil's assessment of the Claimant, Dr. Miller did
not perform any objective tests on the Claimant's concentration and
memory. Id. The ALJ also explained the internal inconsistencies within
Dr. Miller's own opinions and the lack of support for her conclusions.
In 1996, Dr. Hudspeth prepared a mental RFC assessment of Claimant
showing he had no limitations in understanding, memory, and in all areas
of concentration and persistence. (R. 112-115). In comparing Dr.
Hudspeth's assessment with Dr. Miller's assessment, the ALJ discussed the
possible reasons for the differences in the opinions, concluding the only
significant change in Claimant's life was his cessation of 551 benefits.
(R. 38). The Claimant argues the ALJ did not address every part of Dr.
Hudspeth's opinion; however, it is not this Court's duty to reweigh the
evidence. Powers, 207 F.3d at 434-35. The ALJ explained her reasons for
giving weight to Dr. Hudspeth's opinion; the ALJ is not required to
address every piece of evidence as long as she articulates her reasons
for her decisions, as she did here. Clifford, 227 F.3d at 872.
The Claimant argues the ALJ in fact found he had a severe disorder
because she rated his mental disorder in the category of the frequency of
his ability to concentrate, persist, and work at a pace in a timely
manner as being "often" deficient (R. 48), citing 20 C.F.R. § 416.920
(c) and 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.00(C)(3).
In order to determine whether an impairment is severe, an ALJ must
determine whether the impairment significantly limits a person's ability
to perform basic work activities. 20 C.F.R. § 404.1520 (c).
Moreover, in assessing severity, the ALJ must examine not only
concentration, persistence, and pace, but also daily living, social
functioning, and episodes of decompensation. 20 C.F.R. Part 404, Subpart
P, Appendix 1, Listing 12.00(C). The ALJ examined these areas and listed
Claimant's restrictions of daily living as "slight," difficulties in
maintaining social functioning as "slight," and episodes of
decompensation as "never." (R. 48). The ALJ articulated her reasons for
these findings by explaining the Claimant was able to function on a daily
basis at home; he can perform daily activities such as cooking, household
chores, reading, walking and watching television. (R. 39-40). Further,
the ALJ reasoned the Claimant has good social, interactive and adaptive
skills due to his commitment of attending the New Age program three times
a week. (R. 41). No evidence of decompensation at work or work like
settings was present since Claimant has not worked since 1988 and the
Claimant regularly attended the New Age program. (34-35).
The Claimant contends the ALJ erred by not questioning the VE on
Claimant's ability to concentrate, persist, and work at an acceptable
pace, citing Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996). Newton is
distinguishable. In Newton, the court held the ALJ was in error because
he did not include the claimant's deficiencies in concentration in his
hypothetical to the VE. Newton, 92 F.3d at 695. The court reasoned the VE
could not have been expected to remember the claimant's deficiencies in
these areas from the record alone. Id. Here, the ALJ did pose
hypotheticals to the VE incorporating into the questions, a person who
has a ten percent decrease in concentration and a person who has
interference with concentration from a third to a half of the time. (R.
434-35). Also, Newton, is an Eighth Circuit case; The Seventh Circuit has
held a hypothetical need not take into consideration every detail of the
claimant's impairment especially if the VE has reviewed all the evidence
prior to his decision. Herron v. Shalala, 19 F.3d 329, 336 (7th Cir.
1994). Here, although the ALJ did not incorporate the word "often" in her
questions regarding concentration to the VE, she did pose questions to
the VE regarding Claimant's ability to concentrate, satisfying the
Seventh Circuit's holding in Herron. Id.
B. THE ALJ's DETERMINATION THAT CLAIMANT COULD RETURN TO HIS PAST WORK
WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Claimant asserts the ALJ did not adequately assess his ability to work
because she erred in finding he could work at a semi-skilled employment,
the VE testified Claimant's mental impairments would be incompatible with
his past employment and the Claimant does not have transferable skills.
1. IT IS UNCLEAR WHETHER THE CLAIMANT CAN RETURN TO HIS PAST RELEVANT
The ALJ erred by concluding the Claimant could return to his past
relevant work because the VE testified the Claimant's mental impairments
would be incompatible with his past employment. This Court finds there is
no substantial evidence in the record to support the ALJ's decision
finding the Claimant could return to his past relevant work. Scivally,
966 F.2d at 1075. Therefore, this case must be remanded to clarify this
issue. The ALJ found the Claimant has occasional feelings of depression
and other subjective problems which might interfere with claimants
concentration, persistence and pace for a combined total of up to 10% of
the work day. (R. 44). The ALJ never explained how she calculated this
percentage, but she did use it in her hypotheticals to the VE.