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BRISCOE v. BARNHART

March 11, 2004.

KATHERINE BRISCOE, on behalf of NELSON TAYLOR, deceased, Plaintiff, -v- JO ANNE B. BARNHART, Commissioner of Social Security, Defendant


The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

  Plaintiff, Katherine Briscoe, on behalf of Nelson Taylor, deceased, ("Plaintiff), seeks judicial review of the decision of Jo Anne B. Barnhart, the Commissioner of Social Security ("Commissioner"), which determined that Plaintiff's disability onset date is not prior to the expiration of Plaintiff's insured status, and denied Plaintiff Social Security Disability Insurance Benefits ("DIB") under 42 U.S.C. § 416(i), 423. This case is before the Court on cross motions for summary judgment. The ultimate issue to be resolved is the onset date of Plaintiff's disability because Plaintiff already is in Supplemental Security Income ("SSI") pay status and his insured status for Title II benefits expired on March 31, 1991.

  Plaintiff contends that the onset date of his disability is March 1, 1987. Plaintiff further contends that the Commissioner's decision should be reversed and remanded for an Page 2 award of benefits because the Administrative Law Judge ("ALJ") (1) did not properly apply Social Security Ruling 83-20 ("SSR 83-20") as mandated by Magistrate Judge Arlander Keys' prior decision; (2) based his credibility determination of Lola Taylor on an unreasonable inference and an incorrect factual finding; (3) did not consider the testimony of Dr. Abramson, the Commissioner's medical expert ("ME"); (4) did not properly determine whether the vocational expert ("VE") relied on sound principles and methods; (5) did not resolve a discrepancy between the VE's testimony and the Dictionary of Occupational Titles ("DOT"); and (6) did not make a literacy determination. Alternatively, Plaintiff requests that this matter be reversed and remanded for additional proceedings. For the following reasons, Plaintiff's motion for summary judgment is granted and the Commissioner's motion for summary judgment is denied. The case is remanded to the Commissioner to award benefits based on an onset date of January 7, 1990.

  II. BACKGROUND FACTS

 A. PROCEDURAL HISTORY

  On May 1, 1993, Plaintiff applied for SSI. R. 254. The Social Security Administration ("SSA") granted the application, and Plaintiff was put into SSI pay status as of the date of his application. R. 119.

  On December 11, 1996, Plaintiff filed an application for DIB under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 416, 423, claiming disability as a result of poor circulation in the legs and alleging an onset date of March 1, 1987, the last date Plaintiff was Page 3 employed. R. 56-58, 98. The application was denied initially and upon reconsideration. R. 23, 28, On June 27, 1997, Plaintiff requested a hearing before Administrative Law Judge ("ALJ") B. Carlton Bailey, Jr., which was held on March 18, 1998. R. 35, 208-47. ALJ Bailey determined that Plaintiff was not disabled prior to the expiration of his insured status on March 31, 1991, because his impairments were not "severe" during that time.*fn1 R. 11-20. On July 28, 2000, the Appeals Council denied Plaintiff's request for review. R. 5-7. The ALJ's determination consequently became the final decision of the Commissioner.

  Plaintiff then filed a complaint in district court. On September 6, 2001, Magistrate Judge Arlander Keys reversed the decision of the ALJ and remanded Plaintiff's claim to the Commissioner for supplemental proceedings. Taylor v. Massanari, No. 00 C 5643, 2001 WL 1035286, at *9 (N.D. Ill. Sept. 7, 2001). In particular, Judge Keys found that the ALJ (1) failed to apply Social Security Ruling 83-20, which pertains to determining the onset date of a claimant's disability; (2) improperly relied upon gaps in Plaintiff's treatment in assessing the severity of his condition; and (3) failed to obtain Plaintiff's 1993 SSI application file, or alternatively, to explain why he proceeded without it. Id. at *6-9.

  On November 1, 2002, ALJ Bailey held a supplemental hearing. R. 315-65. Plaintiff was deceased at the time of the second administrative hearing; he passed away on June 7, 2002. R. 309. On January 29, 2003, the ALJ issued a decision finding that Plaintiff was not disabled prior to January 7, 1994, and thus was not disabled prior to the expiration of his Page 4 insured status on March 31, 1991. R. 251-64. Plaintiff again seeks judicial review of the ALJ's decision. Katherine Briscoe, Plaintiff's sister, was substituted as party in interest and continues to pursue Mr. Taylor's claim for disability benefits.

 B. HEARING TESTIMONY

  The evidence presented at the March 18, 1998 hearing ("1998 hearing") included the testimony of Plaintiff, the testimony of the Commissioner's ME, Dr. Richard Abramson, and medical records. R. 209-47. The evidence presented at the November 1, 2002 hearing ("2002 hearing") included the testimony of Plaintiff's long-time partner, Lola Taylor, a different medical expert, Dr. Ashok Jilhewar, and a VE, Richard Hamersma. R. 315-65.

  1. Plaintiff's Testimony — 1998 Hearing

  Plaintiff was born January 27, 1941. R. 219. He had a fifth grade education, he did not read or write well, and he could not understand a lot of words when attempting to read a newspaper. R. 240, 246. Plaintiff worked at a steel mill as a forklift and machine operator for ten years until 1986. R. 238-39. He then worked as a forklift operator for the Leaf Brand Company. R. 237-38. On March 1, 1987, Plaintiff quit because his legs bothered him; driving a forklift requires constant foot movement, which caused him significant leg pain. R. 238.

  By early 1987, Plaintiff experienced difficulty when walking. R. 221-22. The pain would start after he walked approximately one-half block, forcing him to stop, sit-down, and Page 5 massage his left leg. R. 222-23. After Plaintiff stopped working, his life changed "a lot." R. 245. His pain prevented him from helping with chores around the house, visiting with friends, and taking part in favorite pastimes. Id.

  In late 1993 or early 1994, Plaintiff developed a leg ulcer that would not heal. R. 225. By 1994, he could walk only ten or twelve steps without stopping or sitting down. R. 223-24. In 1994, Plaintiff had an operation because there was a block in a main artery. R. 224. After that surgery, Plaintiff could walk about two blocks. R. 227. Shortly thereafter, Plaintiff had corrective surgery to alleviate stomach pain. R. 229. Following his surgery, his doctor instructed him not to lift anything heavier than twenty pounds. R, 245.

  2. Lola Taylor — Domestic Partner — 2002 Hearing

  Lola Taylor testified for Plaintiff at the 2002 hearing. R. 329-41. She and Plaintiff lived together for seventeen years, although they never married and had no children. R. 329. Ms. Taylor states that Plaintiff stopped working in 1987 because he could no longer perform his job duties. R. 330. He would come home and complain about his leg giving him problems. Id. Plaintiff developed a sore on his left leg a couple months after he stopped working. R. 331. Prior to that time, Plaintiff had cramps in his leg about every half hour both day and night. R. 332-33. The left leg bothered him first, with pain in the middle of his calf. R, 331. Plaintiff woke up frequently during the night because of the pain, and the pain was worse during the night than during the day. R. 332. Ms. Taylor had to rub the cramps out of his legs. R. 335. The cramps grew worse in August of 1991. Id. As a result, Plaintiff Page 6 ceased driving, and he and Ms. Taylor began walking their destinations. R. 338. Furthermore, when Plaintiff would remove the snow off the porch or take out the garbage, he had trouble breathing. R. 338, 339.

  3. David Abramson, M.D. — Medical Expert — 1998 Hearing

  Dr. David Abramson testified as the ME at the 1998 hearing. R. 220-37. He is board certified in internal medicine with a sub-speciality in cardiovascular diseases. R. 45. Dr. Abramson was reluctant to give an opinion regarding the onset of Plaintiff's disability because he could not study the period from 1987 through 1991 to determine Plaintiff's actual impairment. R. 232. Dr. Abramson stated that the only way to determine the onset date of Plaintiff's disability would be to obtain the treatment records, or any circulation tests, from that time period in order to see whether there was any reference to absence or reduction of pulses in the groin or whether arteriosclerosis obliterans were present in Plaintiff's lower extremities. Id.

  Plaintiff had disabling conditions in 1994, but Dr. Abramson was unsure how long the conditions existed. R, 236. It was clear that by 1994 Plaintiff suffered from very severe arteriosclerosis obliterans and a block in the abdominal aorta. R. 232-34. These conditions did not develop suddenly but rather progressed slowly, allowing sufficient time for new vessels to grow. Id. Plaintiff also suffered from intermittent claudication, which causes pain when the muscles are being exercised. Id. Additionally, Plaintiff had a leg ulcer in 1994 that had been present for approximately six months. R. 234. The fact that the ulcer was Page 7 present for six months and did not heal indicated to Dr. Abramson that its cause was impaired arterial circulation. R. 234-35. Plaintiff's condition was probably disabling one year prior to Plaintiff's 1994 surgery, but Dr. Abramson could not say whether the condition went back to 1987 without some objective proof. Id. Dr. Abramson had no way of knowing how long it took the condition to develop because in some cases it takes three years to develop, but in other cases it may take longer or shorter depending on the person's metabolism. R. 236. He was certain, however, that it didn't happen in six months because a complete occlusion of the aortic vifercation is a slow process. Id. With regard to specific work-related limitations, Plaintiff had no limitations on his ability to lift, carry, sit, or stand, but he would have some problems with walking. R. 243.

  4. Ashok Jilhewar, M.D. — Medical Expert — 2002 Hearing

  Dr. Ashok Jilhewar testified as a medical expert at the 2002 hearing. R. 341-58. From Dr. Jilhewar's analysis of the medical records, Plaintiff's extremities were reportedly normal on December 1, 1986, January 14, 1987, December 20, 1988, January 6, 1989, and January 7, 1990. R, 342-43. January 7, 1990 is the date of the first medical note in which a doctor referenced a complaint by Plaintiff of leg cramping. R, 350-51. The doctor also prescribed 400 mg of Trental for the claudication on that day, which "is strong evidence that the doctor was thinking of a peripheral vascular disease." R. 351, 354. However, Dr. Jilhewar does not know if the doctor took peripheral pulses at that time or if he did anything else to come to his conclusions. R. 351-52. Consequently, one can not make a judgment Page 8 about the severity of the peripheral vascular disease to establish whether it was severe under the Act. R. 354,

  The medical notes dated February 5, 1991, also mention pain in Plaintiff's left leg. R. 343. During the February 5, 1991 visit, there were no objective findings in Plaintiff's extremities; the medical note indicates that the findings from the examination were merely subjective: "extremities pain, left leg." Id The note does not say "positive," "negative," or "pulses," so Dr. Jilhewar could not interpret with any certainty what the note means. R. 343-44. The note orders Plaintiff to continue treatment at home, but Dr. Jilhewar did not know what that treatment was, R, 344.

  It is possible that Plaintiff was having symptoms from peripheral vascular disease as early as 1987, or in 1991. R.352. However, the cramping in Plaintiff's legs or calves would not be consistent with intermittent claudication. Id In Dr. Jilhewar's practice, cramping is much more common than claudication, and he often does not find any cause for the cramping, or a cause related to vascular disease. R. 352-53. Given the sparsity of the documentation, Plaintiff may have had claudication, but Dr. Jilhewar is uncertain. R. 353.

  With regard to Plaintiff's residual functional capacity, prior to January 7, 1990, "there was no establishment of any restrictions, or any affect on the residual functional capacity." R. 354. After January 7, 1990, Dr. Jilhewar did not know how much of a physical limitation Plaintiff had, and Dr. Jilhewar could not make any inference except that Plaintiff was affected. R. 354. Dr. Jilhewar's patients with this condition can usually do "light work with Page 9 a sit and stand option." R. 356. "Light work" means that they can lift twenty pounds occasionally and ten pounds frequently. Id. However, Dr. Jilhewar does not know if Plaintiff could have performed this level of work. Id. Plaintiff would have had to avoid markedly cold weather because it could cause the precipitation of gangrene. Id. Plaintiff also would have to avoid commercial driving and exposure to dust, fumes and gases because an x-ray in 1994 indicated that he had the beginning of emphysema requiring the avoidance of all concentrated pulmonary irritants. R. 356-57.

  5. Richard Hamersma — Vocational Expert — 2002 Hearing

  Richard Hamersma, the VE, testified at the 2002 hearing. R. 358-64. He was informed that Plaintiff could perform work at the light level of exertion but could not be exposed to marked temperature changes or humidity, and could not drive automotive equipment or be exposed to concentrated dust, fumes, or gases. R. 360, The VE determined that none of Plaintiff's past relevant work could have been performed at the light level of exertion. R. 359. However, an individual with Plaintiff's vocational profile could perform 8,000 jobs as an assembler, 7,000 jobs as a hand packager, and 6,500 jobs as an inspector. R. 360-61. Although these jobs are classified as light jobs due to the weight involved, they are performed primarily in the seated position. R. 361-63. The VE obtained these figures from the County Business Patterns put out by the Illinois Department of Security.*fn2 R. 363. Page 10 These sources do not discuss the availability of light jobs that allow the individual to sit while performing the work. Id The VE determined that the identified jobs allow for a sit/stand option from his personal observations, talking to employers, doing job analysis, and surveys. Id The identified jobs were consistent with the information in the Dictionary of Occupational Titles.*fn3 Id.

 C. MEDICAL RECORDS

  1. Medical Records Before Expiration of ...


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