United States District Court, N.D. Illinois
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
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
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
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
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
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.
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
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
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
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
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
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.
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.
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 Insured Status
Although Plaintiff's SSI file was not available at either
administrative hearing, the record does contain some medical evidence
covering the period prior to the expiration of Plaintiff's insured
status. Plaintiff was treated at the Chicago Hamlin Medical Center
("Hamlin") between 1985 and the expiration of his insured status on March
31, 1991. R. 136-44.
On December 1, 1986, Plaintiff complained of being nauseated and dizzy,
and he was referred to Belmont Hospital to rule out an intra-abdominal
tumor. R. 141. The December 15, 1986, treatment note from Hamlin is
mostly illegible, but it does indicate that Plaintiff was to be released
to return to work on January 5, 1987. R. 140. The January 14, 1987
medical note reveals that Plaintiff complained of a cough and a cold,
which he had experienced for one week. R. 142. There are no medical notes
in the record for 1988. The January 9, 1989 medical notes indicate that
Plaintiff complained of weight loss and dizziness. R. 137.
The January 7, 1990 medical note indicates that Plaintiff complained of
cramping in his leg. R. 137-38. Plaintiff's leg cramped in the back when
he walked a block or so. R. 138. Additionally, Plaintiff did not obtain
the "GI" x-rays ordered the previous year because he could not afford
it. R. 137. Furthermore, Plaintiff was assessed as being unable to walk
more than a block and was given a prescription for Trental. R. 138.
Finally, the assessment ruled out peripheral vascular insufficiency. Id.
The February 5, 1991 medical notes indicate that Plaintiff again
complained of pain in his left leg. R. 136. The notes indicate that
Plaintiff should continue treatment at home. Id.
2. Medical Records After Expiration of Insured Status
Plaintiff did not return to Hamlin Hospital until May 28, 1993, after
the expiration of his insured status. R. 135. At that time, he claimed
that he could not walk for more than one block without resting, was short
of breath, walked with a cane, and had pain in his left leg. Id.
One year later, Plaintiff was hospitalized at St. Elizabeth's Hospital
from June 14, 1994 through July 1, 1994, due to abdominal aorta
occlusion, ulcer of lower limbs, obstructive chronic bronchitis,
cellulitis of the leg, and abscesses of the leg. R. 174. Plaintiff
was diagnosed with a non-healing ulcer of the left leg, severe vascular
occlusive arterial disease, chronic bronchitis, and emphysema. R. 176.
A June 17, 1994 Consultation Report for vascular surgery at St.
Elizabeth's indicates a long-standing history of claudication pain in the
lower extremities, with severe hip pain lasting six to seven months, and
a non-healing ulcer in the left lower leg that started over two months
earlier and has increased in size. R. 192. On June 24, 1994, Plaintiff
underwent an aorta-iliac femoral bypass and repair of the blood vessels.
On August 9, 1994, Plaintiff had a CT scan of the abdomen at St.
Elizabeth's Hospital. R. 150. The CT Scan Report indicates that findings
were compatible with small bowel obstruction. R. 167. On August 13, 1994,
Plaintiff returned to St. Elizabeth's Hospital for a lysis of peritoneal
adhesions, dilation of the colon, and lysis of perineal or periureteral
adhesions. R, 149.
D. THE OPINION BY MAGISTRATE JUDGE KEYS
On September 6, 2001, Magistrate Judge Keys vacated the unfavorable
1998 ALJ decision and remanded Plaintiff's claim to the Commissioner for
supplemental proceedings. Taylor, 2001 WL 1035286, at *9. Judge Keys
found that the ALJ (1) failed to apply SSR 83-20; (2) improperly insisted
on documented medical diagnosis of Plaintiff's condition prior to March
31, 1991; and (3) failed to fully develop the record. Id
The ALJ had improperly applied the consistency standard set out in SSR
83-20 by rejecting Plaintiff's alleged onset date without determining
whether it was consistent with
the medical evidence. R. 285-86. Contrary to SSR 83-20, the ALJ rejected
Plaintiff's testimony because there was no objective proof of his alleged
onset date. R. 288-89. However, SSR 83-20 does not require the Plaintiff
to produce conclusive results from specific medical tests in order to
establish an onset date. R. 289. SSR 83-20 directs the ALJ to consult
with Plaintiff's previous employers, physicians, family members, and/or
friends when the medical evidence is insufficient. Id. Because the ALJ
and Dr. Abramson repeatedly slated that they believed the medical
evidence was insufficient, the ALJ should have sought additional
testimony to assist in determining an onset date. Id.
The ALJ also failed in his obligation to fully develop the record. R.
290-91. The record was not fully developed because (1) the ALJ failed to
ascertain why Plaintiff did not seek more frequent medical treatment for
his pain, and (2) the ALJ failed to acquire or to consult the missing
1993 SSI file deemed "critical" by Plaintiff, the ALJ, and the medical
expert at the first administrative hearing, or alternatively, to explain
why he proceeded without the file. R. 290-93. Judge Keys ordered
supplemental proceedings not inconsistent with his opinion. R. 294.
E. 2003 ALJ DECISION
On January 29, 2003, ALJ Bailey issued a second unfavorable decision,
finding that Plaintiff was not disabled prior to the expiration of his
insured status on March 31, 1991. F.2 51 61. In his second opinion, the
ALJ did not mention SSR 83-20. The ALJ also did not consider the 1993 SSI
file, and his decision did not explain why he proceeded without it.
Finally, the ALJ heard testimony from Plaintiff's long time partner, Lola
Taylor, but found her "not totally credible." R. 260.
The ALJ's decision that Plaintiff was not disabled prior to the
expiration of his insured status was based on two determinations. First,
the ALJ determined that the available medical evidence did not support a
finding that his disability was "severe." R. 257. Second, the ALJ
determined that Plaintiff was able to perform a significant number of
jobs in the economy involving "light work." R. 260.
In making his first determination, the ALJ emphasized the sparsity of
the medical evidence. R. 259. First, ALJ Bailey noted that there was not
sufficient information to support an onset date prior to the date last
insured. Id. Additionally, he noted that although Plaintiff's extremities
were reportedly normal, or not mentioned, at doctor's visits on December
1, 1986, January 14, 1987, December 20, 1988, January 6, 1989, and
January 7, 1990, there were no objective findings made about the
extremities on February 5, 1991, the day Plaintiff first complained of
pain in his legs. R. 256-57. The ALJ emphasized Dr. Jilhewar's statements
that he could not make the inference from the record that the condition
existed prior to January 7, 1994, although it was possible Plaintiff had
intermittent claudication in 1987. Id. The ALJ stated that he "had the
same difficulty as the medical expert in fixing an onset date," and that
"an inference must be based on sufficient information to enable one to
make an educated guess." R. 259. Finally, the ALJ noted that
the information provided was too scattered and contradictory to enable
him to make more than a plain unvarnished guess, which was not
The ALJ doubted the sufficiency of the testimony of Plaintiff's
longtime partner, Lola Taylor. R. 258. Her memory was remarkably detailed
and unwavering, yet there was no testimony that she had a photographic or
even a remarkable memory. Id.
Because the ALJ had determined that Plaintiff's disability was not
severe prior to the expiration of his insured status, he went on to
determine whether Plaintiff's residual functional capacity allowed him to
perform either his past relevant work or a significant number of existing
jobs in the economy. R. 257. Plaintiff had not engaged in substantial
gainful activity since the alleged onset date of his disability on March
1, 1987, and Plaintiff was unable to perform his past relevant work. R.
258, 260. However, Plaintiff's residual functional capacity at the time
allowed him to perform a significant range of light work. R. 259, 261.
Plaintiff could not perform the full range of light work, given his
exertional limitations; however, there were a significant number of jobs
in the national economy that he could perform, including jobs as an
assembler (8,000 jobs), hand packager (7,000 jobs), and inspector (6,500)
III. LEGAL STANDARDS
A. STANDARD OF REVIEW
A reviewing court in a disability case is limited to determining
whether the ALJ's final decision is supported by substantial evidence and
based on the proper legal criteria. Ehrhart v. Sec'y of Health &
Human Servs., 969 F.2d 534, 538 (7th Cir. 1992). Determinations of
fact must be affirmed by the reviewing court if they are supported by
substantial evidence, 42 U.S.C. § 405(g); Herron v. Shalala, 19 F.3d 329,
333 (7th Cir. 1994). Substantial evidence is "more than a mere
scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971). "It means
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Id.
The reviewing court reviews the entire record, but it may not decide
the facts anew, reweigh the evidence, or substitute its own judgment for
that of the ALJ. Herron, 19 F.3d at 333. If conflicting evidence allows
reasonable minds to differ, the responsibility for that decision falls on
the Commissioner or her designee, the ALJ. Herr v. Sullivan, 912 F.2d 178,
181 (7th Cir. 1990).
However, the ALJ is not entitled to unlimited judicial deference.
Ehrhart, 969 F.2d at 538. First, the ALJ must consider all relevant
evidence. Herron, 19 F.3d at 333. Although it is not necessary that he
evaluate in writing every piece of evidence in the record, the ALJ can
not pick and choose which evidence he will weigh. Id. Additionally, the
ALJ must articulate his analysis of the evidence at some minimal level.
Id. In order to permit meaningful appellate review, the ALJ must state
his reasons for accepting or rejecting entire lines of evidence. Id. at
333-34. Most importantly, the ALJ "must build an accurate and logical
bridge from the evidence to his conclusions." Clifford v. Apfel,
227 F.3d 863, 872
(7th Cir. 2000). Lastly, although the claimant bears the burden of
demonstrating his disability, the ALJ must build a full and fair record.
Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991).
An ALJ's failure to fulfill his obligation to build a full and fair
record is good cause to remand for gathering additional evidence. Id. at
586. Additionally, when the ALJ's decision is not supported by
substantial evidence, generally a remand for further proceedings is
appropriate. Campbell v. Shalala, 98 F.2d 741, 744 (7th Cir. 1993).
However, even if the ALJ's decision is not supported by substantial
evidence, and there is not one supportable conclusion in favor of a
plaintiff, a court may still remand the case for an award of benefits if
the ALJ was obdurant in complying with the law of the case. See Wilder
v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998).
B. DISABILITY STANDARD
The ALJ uses a five-step sequential analysis in order to determine if
an individual is disabled. 20 C.F.R, § 404.1520. The sequential
evaluation ends if the ALJ, at any step of the process, determines that
the claimant is not disabled. Id. The ALJ must inquire: (1) whether the
claimant is working and whether the work is a substantial gainful
activity; (2) whether the claimant's impairment is severe; (3) whether the
impairments meet or equal a listed impairment in 20 C.F.R. Pt. 404,
Subpt. P, App. 1; (4) whether the claimant is able to perform his past
relevant work; and (5) whether the claimant's age, education, and past
relevant work experience in reference to his residual functional capacity
("RFC") enable him
to do other work. Id. A person's RFC is what he can do despite any
physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). The burden of
proof is on a claimant through step four of the analysis, and the burden
then shifts to the Commissioner at step five. Clifford, 227 F.3d at 868.
C. DETERMINING AN ONSET DATE
Another rule applies when determining the onset date of a claimant's
disability. To be entitled to disability benefits under the Act, one must
be insured at the same time that the evidence establishes the presence of
a disabling condition. 20 C.F.R. § 404.130-32; Stevenson v, Chater,
105 F.3d 1151, 1154 (7th Cir. 1997). SSR 83-20 controls the determination
of the onset date of a disability. Lichter v. Bowen, 814 F.2d 430, 434
(7th Cir. 1987) (citing SSR 83-20, 1983 WL 31249, at *1). If the
disability is of a nontraumatic origin, the ALJ should consider three
factors in determining the onset date: (1) the claimant's alleged onset
date, (2) the claimant's work history, and (3) any medical evidence or
all other relevant evidence. Id. (citing SSR 83-20, 1983 WL 31249, at
The date alleged by a claimant is the starting point of the analysis.
Id. If the onset date alleged by the claimant is consistent with the
medical and other evidence available, SSR 83-20 requires the ALJ to adopt
that date. SSR 83-20, 1983 WL 31249, at *3. However, the date a claimant
stops working is of great significance when selecting an onset date. Id.
at *2. Moreover, the medical evidence is described as the primary element
in the onset determination. Id. Where the medical evidence lacks an
indication of the precise onset date, and the disabling condition appears
to have begun prior to the date of the first recorded
medical examination, the ALJ should seek the assistance of a medical
advisor to help infer the onset date. Id. Where it is not possible to
make a reasonable inference from the available evidence, it may be
necessary to explore other sources, such as information from family,
friends, and former employers, to determine why the medical evidence is
not available and to obtain additional evidence regarding the history of
the claimant's condition. Id.
Vocational evidence in some cases may be relevant to the determination
of an onset date. Id. at*2. Social Security Ruling 83-20 describes this
form of evidence as particularly relevant with slowly progressive
impairments. Id. The Ruling notes: "[I]t is not necessary for an
impairment to have reached listing severity . . . before onset can be
established. In such cases, consideration of vocational factors can
contribute to the determination of when the disability began." Id.
Objective medical evidence is a "useful indicator" in determining
whether a claimant was disabled. 20 C.F.R. § 404.1529(c)(2). However,
when determining whether a disabling condition exists, lack of objective
medical evidence substantiating claims of pain can not be the sole basis
for rejecting the claimant's allegations. Id. According to Social
Security Ruling 96-7p ("SSR 96-7p"), when a finding of a disabling
condition can not be made solely on objective medical evidence, the ALJ
must carefully consider the claimant's alleged symptoms along with all
the other relevant evidence in the record in assessing the credibility of
the claimant's statements. SSR 96-7p, 1996 WL 374186, at *1 (S.S.A.
1996). Specifically, if Plaintiff claims that symptoms of pain affected
his ability to work, this
evidence can not be disregarded solely because it is not substantiated by
objective medical evidence. Id.
Plaintiff argues that the ALJ's decision should be reversed for six
reasons. In particular, Plaintiff contends that the ALJ (1) did not
properly apply SSR 83-20 as mandated by Judge Keys; (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; (4) did not properly determine whether the VE relied on sound
principles and methods; (5) did not resolve a discrepancy between the VE's
testimony and the DOT; and (6) did not make a literacy determination. Each
of the aforementioned issues will be discussed in turn.
A. THE ALJ DID NOT PROPERLY APPLY SOCIAL SECURITY RULING 83-20 AS
MANDATED BY JUDGE KEYS.
The law of the case doctrine requires the ALJ to conform further
proceedings on remand to the principles set forth in Judge Keys' opinion
unless there is a compelling reason to depart. Wilder v. Apfel,
153 F.3d 799, 803(7th Cir. 1998). Judge Keys indicated that SSR 83-20 set
the standard for determining the onset date. Once again, the ALJ did not
properly apply SSR 83-20 because the ALJ (1) did not determine whether the
alleged onset date was inconsistent with the medical evidence, (2) did
not obtain the SSI file, or alternatively, explain why he proceeded
without it, and (3) did not properly consider Plaintiff's testimony.
1. The ALJ did not determine whether the alleged onset date was
inconsistent with the medical evidence.
The ALJ analyzed this case inconsistently with Judge Keys' opinion and
SSR 83-20. The ALJ did not ascertain whether the alleged date was
inconsistent with the medical evidence. The ALJ did not even mention SSR
83-20. Although this omission by itself is not reversible error, see Pugh
v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1989), the ALJ's reasoning
indicates that he did not apply the consistency standard from SSR 83-20.
Instead, the ALJ incorrectly relied on the lack of corroborating medical
evidence. This approach was in direct contradiction to the opinion of
Judge Keys. Judge Keys noted that at the first administrative hearing the
ALJ was mistaken in believing that Plaintiff was required to produce
conclusive medical evidence in order to establish an onset date. Taylor,
2001 WL 1035286, at *7. SSR 83-20 provides that "in the case of slowly
progressive impairments, it is not necessary for an impairment to have
reached listing severity (i.e., be decided on medical grounds alone)
before onset can be established." SSR 83-20, 1983 WL 31249, at *2.
In his second opinion, the ALJ stated that he adopted the opinion of
Dr. Jilhewar. R. 257. However, neither Dr. Jilhewar nor Dr. Abramson
opined that Plaintiff's alleged onset date of March 1987 was inconsistent
with the medical evidence. On the other hand, the ALJ acknowledged that
Dr. Jilhewar's opinion was based on a lack of objective medical
evidence. Id. However, Judge Keys specifically stated that SSR 83-20
contemplates the possibility of
determining an onset date absent corroborating medical documentation.
Taylor, 2001 WL 1035286, at *7. In tact, under SSR 83-20, the ALJ may not
rely on the first date of diagnosis simply because an earlier diagnosis
date is unavailable. Lichter, 814 F.2d at 435. The first date of
diagnosis does not control the determination of the onset date. Id.
The ALJ erroneously continued to require objective medical evidence
when he stated that "an inference must be based on sufficient information
to enable one to make an educated guess." R. 259. However, according to
Judge Keys, the issue is not whether mere is sufficient information to
make an educated guess, but rather whether the date alleged by Plaintiff
is consistent with the medical evidence. Taylor, 2001 WL 1035286, at *5.
The ALJ did not follow Judge Keys' directive and improperly applied SSR
2. The ALJ improperly dismissed the testimony or Plaintiff from
the March 1998 administrative hearing.
Plaintiff argues that the ALJ erred in not considering his testimony
from the 1998 administrative hearing. Because the only articulation of
Plaintiff's testimony is in the ALJ's first opinion, wherein the ALJ
erroneously dismisses it for lack of corroborating medical evidence, the
ALJ improperly failed to reconsider Plaintiff's allegations of pain and
In the 2003 opinion, the only mention of Plaintiff's testimony was that
"even if [the ALJ] accepted [Plaintiff's] allegations and sufficient
medical evidence supported them . . . it is doubtful that any benefits
could be paid." R. 259-60. This indicates that the ALJ
considered Plaintiff's testimony, rejected it, and found that it was not
corroborated by the medical evidence. Id. Although subjective credibility
determinations will not be disturbed on appeal unless patently wrong,
Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003), the ALJ may not
reject a claimant's testimony solely because there is not substantiating
objective medical evidence, see 20 C.F.R. § 404.1529(c)(2).
The Commissioner argues that the ALJ was not required to address
Plaintiff's statements. The Commissioner erroneously reasons that the ALJ
did not have to consider Plaintiff's testimony because the ALJ found Ms.
Taylor's testimony not credible and Ms. Taylor's statements essentially
corroborated Plaintiff's testimony. The Commissioner's reliance upon
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993), is misplaced. In
Carlson, the Seventh Circuit determined that the ALJ did not have to
consider the testimony of the claimant's wife because it was repetitive
of the claimant's testimony, but the Court noted that such a scenario is
distinguishable from a situation in which the ALJ failed to discuss
uncontradicted testimony by the claimant himself. Carlson, 999 F.2d at
Moreover, SSR 83-20 requires the ALJ to consider lay testimony when the
medical evidence is insufficient to allow for a proper inference as to
the onset date. SSR 83-20, 1983 WL 31249, at *3. SSR 83-20 also indicates
that Plaintiff's allegations should be the starting point of the
analysis. Id. at *2. Thus the ALJ's failure to consider Plaintiff's
testimony was contrary to SSR 83-20.
3. The ALJ failed to obtain the SSI file, or alternatively, to explain
why he proceeded without it.
Plaintiff maintains that the ALJ failed to obtain the SSI file, or
alternatively, to explain why he proceeded without it, in direct
contravention of Judge Key's order. Dr. Abramson, Plaintiff, and the ALJ
considered the SSI file to be critical in determining the progression of
Plaintiff's disability and, therefore, whether Plaintiff was disabled on
or before March 31, 1991. R. 214, 216, 218, 292. Consequently, Judge Keys
determined that the ALJ should have at least explained why he proceeded
without the file, even though he did not have an absolute duty to obtain
it. R. 292-93. This obligation to explain himself is pursuant to the
ALJ's duty to build a full and fair record. See Thompson, 933 F.2d at
The ALJ indicated at the 2002 hearing that he would again attempt to
obtain the file or explain his reasoning for proceeding without it. R.
322. However, there is no indication in the record that the ALJ obtained
this file, and there is no explanation in his opinion regarding why he
rendered a decision without it. This is inconsistent with Judge Keys'
opinion. See R. 293. Additionally, this failure is contrary to the
requirement of SSR 83-20 that the ALJ secure any additional medical
evidence in the file concerning the onset date. SSR 83-20, 1983 WL
31249, at *3 ("If there is information in the file indicating that
additional medical evidence concerning onset is available, such evidence
should be secured before inferences are made.").
B. THE ALJ'S CREDIBILITY DETERMINATION OF LOLA TAYLOR WAS PATENTLY
Plaintiff argues that the ALJ's credibility determination of Lola
Taylor is based on an unreasonable inference and an incorrect factual
finding. Specifically, Plaintiff argues that the ALJ incorrectly based
his credibility determination on a lack of testimony that Ms. Taylor has
a remarkable or photographic memory. Plaintiff also argues that the
credibility determination was based erroneously upon her inability to
identify individuals who could corroborate that she lived with Mr. Taylor
for seventeen years.
An ALJ's credibility determinations will not be overturned unless they
are patently wrong. Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003).
An ALJ's credibility determination deserves special deference because the
ALJ is in the best position to observe a witness. Shramek v. Apfel, 226
F.3d 809, 811 (7th Cir. 2000). However, when credibility determinations
are based on objective factors or fundamental implausibilities, appellate
courts have greater freedom in reviewing the ALJ's finding. Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ stated in his opinion that Ms. Taylor had a remarkably detailed
memory of Plaintiff's daily activities, sleeping habits, and the ability
to ambulate from 1987 to 1991. R. 258. The ALJ contrasted this testimony
with his finding that Ms. Taylor was unable to name at the hearing any
other person, such as ministers, siblings, or friends, who could
corroborate her testimony that she had been living with Plaintiff for
seventeen years. R. 258.
Accordingly, the ALJ did not find her testimony to be credible. However,
this rationale is fundamentally flawed because Ms. Taylor was never
questioned on this matter. Instead, the ALJ asked her who would be able
to testify concerning Plaintiff's ability to work in 1987. R. 325-27.
Ms. Taylor responded that half of Plaintiff's former co-workers were
deceased and she didn't know many of them. R. 326. It is not unreasonable
that she could not name Plaintiff's former co-workers from more than
fifteen years ago. The rationale for the ALJ's credibility determination
is based on an incorrect factual finding. Given this error, the ALJ has
failed to build a logical bridge between the evidence and his credibility
conclusion. See Clifford, 227 F.3d at 872. Because the ALJ's credibility
finding of Ms. Taylor is premised on an erroneous factual finding, it is
C. THE ALJ WAS JUSTIFIED IN NOT ARTICULATING A CONSIDERATION OF DR.
Plaintiff argues that the ALJ erred by neither discussing the testimony
of Dr. Abramson nor articulating an explanation for its rejection.
Plaintiff maintains that failure to consider Dr. Abramson's testimony
affected the determination of Plaintiff's RFC. In particular, Plaintiff
points to Dr. Abramson's testimony, which states that pain from
intermittent claudication can be brought on by standing still. Plaintiff
argues that this testimony contrasts with Dr. Jilhewar's testimony that
patients only experience claudication while walking. Plaintiff maintains
that an RFC based on Dr. Abramson's testimony would not have included the
ability to perform light work since light work involves lifting weight
while standing. The ALJ is not required to evaluate in writing every
piece of testimony presented, but the ALJ may not ignore an entire line of
evidence. Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir. 1984).
However, in this case, Dr. Abramson's testimony does not constitute an
entire line of evidence mandating separate consideration because Dr.
Abramson's testimony does not materially contrast with Dr. Jilhewar's
testimony. See Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993).
Dr. Abramson qualified his statement that the pain can arise while
standing by noting that there must be continuous movement of the legs
thereby requiring circulation to those muscles. R. 237. More
importantly, Dr. Abramson stated that there would not be a problem with
standing because it is a minor activity that does not put on enough of a
load such that it significantly decreases circulation. R. 243.
Therefore, Dr. Abramson's testimony does not materially supplement or
contradict Dr. Jilhewar's statements that the symptoms of insufficient
claudication arise when walking or using the leg muscles. R. 357. Dr.
Abramson's testimony is repetitive of the findings of Dr. Jilhewar
regarding Plaintiff's RFC, and thus the redundancy rationale from
Similarly, the other relevant portions of Dr. Abramson's testimony are
essentially corroborated by Dr. Jihlewar. Both experts indicated that the
lack of objective medical tests prior to the expiration of Plaintiff's
insured status was the basis for their inability to establish an onset
date during this time. R. 232, 354. Moreover, both Dr. Abramson and Dr.
Jilhewar were unable to dismiss the possibility that Plaintiff's
disabling condition existed prior to the
expiration of his insured status. R. 236, 352-53. Finally, both doctors
indicated that they were unable to infer an earlier onset date based on
the sparsity of the medical evidence provided, R. 232, 236, 354. Because
Dr. Jilhewar corroborated the important parts of Dr. Abramson's
testimony, the ALJ was justified in not articulating his consideration of
Dr. Abramson's testimony in his second opinion.
D. THE VOCATIONAL EXPERT'S TESTIMONY IS IRRELEVANT TO THE ONSET DATE
The ALJ utilized the expertise of VE Richard Hamersma in order to
ascertain whether there were a significant number of jobs in the national
economy that Plaintiff could have performed. SSR 83-20 indicates that
consideration of vocational factors can contribute to the determination
of an onset date particularly in the case of slowly progressive
impairments that have not reached listing severity based on medical
evidence. SSR 83-20, 1983 WL 31249, at *2. However, the vocational
evidence referred to in SSR 83-20 refers to a plaintiff's work history,
not the testimony of a vocational expert. Id. The Plaintiff in this case
was out of work since 1987. Therefore, the VE's testimony is irrelevant
to the onset date issue.
F. THE ALJ'S LITERACY DETERMINATION IS SUPPORTED BY SUBSTANTIAL
Finally, Plaintiff argues in his reply brief that the ALJ failed to
make a literacy determination. If Plaintiff was found to be illiterate,
then he is disabled given his age and the fact that he was found to have
no transferable skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.09; R
260. Illiteracy is a level of education created by the SSA in order to
one's ability to meet vocational requirements. Id. § 404.1564(b)(3).
Education is assessed by considering Plaintiff's schooling and any other
training. The importance placed on formal schooling may vary depending
upon how much time has lapsed between the completion of the schooling and
the beginning of the impairment and also upon what Plaintiff did with his
education in a work or other setting. Thus the last completed numerical
grade level may not be representative of Plaintiff's educational
abilities. However, if there is no other evidence to contradict it, then
Plaintiff's numerical grade level is used to determine his educational
There are four categories of education: illiteracy, marginal
education, limited education, and high school education and above. Id. §
404.1564(b)(1)-(3). Illiteracy is defined as an inability to read or
write, and generally an illiterate person has little or no formal
schooling. Id. § 404.1564(b)(1). Plaintiff is considered illiterate if he
cannot read or write a simple message such as instructions or inventory
lists, even though he can sign his name. Id. If a plaintiff has a
marginal educational level, then he has an ability in reasoning,
arithmetic, and language skills, which are needed to do simple, unskilled
types of jobs. Id. § 404.1564(b)(2). Generally, formal schooling at a
sixth grade level or lower is a marginal educational level. Id. If
Plaintiff has a limited education, then he has an ability in reasoning,
arithmetic, and language skills, but not enough to allow him to do most
of the more complex job duties needed in semi-skilled or skilled jobs.
Id. § 404.1564(b)(3). Generally, a formal education of at least seventh
grade and up to the eleventh grade is a limited education. Id.
The ALJ found that Plaintiff had a limited education. R. 260. Thus, the
ALJ made a finding regarding Plaintiff's educational level. Id. However,
Plaintiff's testimony contradicts the finding of a limited education
because Plaintiff testified that he had a fifth grade education, R. 240,
thereby initially placing him in the marginal education category. In
contrast, Plaintiff's Disability Report indicates that he had an eighth
grade education, R. 115, thereby initially qualifying his educational
level as limited. Regardless of this discrepancy, there is substantial
evidence in the record that Plaintiff was not illiterate. Although he
testified that he could not read or write well, and that he could not
understand a lot of words when attempting to read a newspaper, R. 240,
246, these facts do not sufficiently contradict the ALJ's determination
such that Plaintiff's formal education is not indicative of a higher
level of education. An inability to read or write well, or an inability
to understand words in a newspaper, does not necessitate a finding that
Plaintiff was unable to perform minimal literary endeavors similar to
writing simple messages such as instructions or inventory lists. See
20 C.F.R. § 404.1564. Furthermore, Plaintiff testified that he can read
and write a little bit, and when he does read, he likes to read the
newspaper. R. 240. There is substantial evidence in the record indicating
that Plaintiff was not illiterate, and thus the ALJ was not required to
find him disabled under 20 C.F.R. § 404, Subpt. P, App. 2, 202.09.
G. THE ALJ'S DECISION SHOULD BE REVERSED FOR AN AWARD OF BENEFITS
AS OF JANUARY 1990.
Generally, when an ALJ's decision is not supported by substantial
evidence, a remand for further proceedings is the appropriate remedy.
Campbell v. Shalala, 98 F.2d 741, 744 (7th Cir. 1993). An award of
benefits is appropriate only if all factual issues have been resolved and
the "record can yield but one supportable conclusion." Id. In such
cases, further administrative proceedings would serve no useful purpose
but would only delay the receipt of benefits. Parks v. Sullivan,
766 F. Supp. 627, 638 (N.D. Ill, 1991). Therefore, the proper remedy for
errors is not an automatic award of benefits but rather a remand for
further proceedings. Gotz v. Barnhart, 207 F. Supp.2d 886, 903 (E.D.
However, the Commissioner is not entitled to "endless opportunities to
get it right." Seavey v. Barnhart, 276 F.3d 1, 13 (1st Cir. 2001); Miller
v. Chater, 99 F.3d 972, 978 (10th Cir. 1996). A court may step in and
award DIB when the agency has displayed "obduracy" in complying with the
law of the case. Wilder v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998). In
this case, the obduracy doctrine permits the Court to award Plaintiff DIB
when the Commissioner fails to follow the reviewing court's clear
direction, even though there is not substantial evidence to support a
finding of not disabled, and thus more than one supportable conclusion.
For example, the court in Wilder v. Apfel, automatically awarded DIB to
the claimant because of the "obduracy" evidenced by the Social Security
Administration. 153 F.3d at 804.
In Wilder, the Court of Appeals, which had previously remanded the case,
reviewed the district court's decision to affirm the Commissioner's
denial of benefits, found no reasoned basis for the denial, and reversed
the district court's ruling. Id. The court did not find that the record
yielded one supportable conclusion, but rather found that the new
evidence "left the case exactly where it was the last time." Id.
Nonetheless, the court refused to remand the case to the Commissioner for
further proceedings. Id. at 801, in reaching its decision, the court
pointed to the actions of the agency. Id. at 804. The ALJ's opinion, the
court stated, was no more reasoned than the one that resulted in the
remand, contained misstatements of evidence, ignored the instructions
from the court's previous remand order, and relied on evidence not in the
record. Id. at 802-04. In order "to bring the charade to an end," the
court ordered the Commissioner to award the claimant the benefits for
which she had applied. Id. at 801; see also Rohan v. Barnhart, No. 03 C
3029, 2004 WL 383294, at *14 (N, D. III. Feb 24, 2004) (awarding benefits
rather than remanding for a third time because of the Commissioner's
Likewise, this case warrants an automatic award of DIB due to obduracy
by the ALJ. Not following the remand order of a district court evidences
obduracy. See Wilder, 153 F.3d at 803. Additionally, under the law of the
case doctrine, the law articulated by Judge Keys was binding upon the ALJ
on remand. See id. Nevertheless, the ALJ ignored Judge Keys' opinion by
failing to obtain the SSI file, or alternatively, to explain why he
proceeded without it, and by applying an analysis inconsistent with the
standard articulated by Judge Keys.
The SSI file was deemed critical by the ALJ, Dr. Abramson, and the
Plaintiff. R. 214, 216, 218, 292. It contained information that led the
SSA to find Plaintiff eligible for SSI disability benefits in 1993. Judge
Keys noted its importance and mandated that the ALJ obtain the file, or
alternatively, explain why he proceeded without it. Taylor, 2001
WL 1035286, *9. Yet, the ALJ issued a second decision without mentioning
the 1993 SSJ file.
Moreover, Judge Keys' explanation of the applicable legal standard was
also ignored. Judge Keys stated that SSR 83-20 controlled the
determination of onset date and that Plaintiff's alleged onset date must
be accepted unless it is inconsistent with the medical evidence. Taylor,
2001 WL 1035286, at *7. Judge Keys also stated that it was erroneous for
the ALJ to insist on medical documentation diagnosing Plaintiff's
condition. Id. at *9. Nonetheless, as stated above, the ALJ again did not
apply SSR 83-20 and instead, for a second time, erroneously relied on a
lack of objective medical evidence. See R. 257, 259. These obdurate acts
by the ALJ warrant reversal for an award of benefits.
Plaintiff stated in his reply brief and during oral argument that
January 1990 is the most reasonable onset date. See Pl. Reply Br., at 9.
Moreover, an onset date of January 7, 1990 is consistent with the medical
evidence for the following reasons. First, Plaintiff testified that he
stopped working in 1987 due to pain in his legs. R. 238. Additionally, a
medical note dated January 7, 1990 indicates that Plaintiff complained of
leg cramping to his treating physician. R. 137-38, 343. The note further
indicates that the doctor prescribed 400 mg of Trental, which Dr.
Jilhewar indicated was "strong evidence that the doctor was
thinking of peripheral vascular disease." R. 137-38, 351, 354. Finally,
both medical experts testified that an onset date prior to the expiration
of Mr. Taylor's insured status was possible. R. 236, 347, 352-53.
Specifically, Dr. Jilhewar stated that a diagnosis of peripheral vascular
disease back to 1987 or 1991 was not inconsistent with the medical
records. R. 352-53.
This Court refuses to grant the ALJ a third chance to "get it right."
This case is remanded for an award of benefits as of January 7, 1990,
given the obduracy demonstrated by the ALJ in failing to follow Judge
Keys' opinion, and the consistency between the alleged onset date of
January 7, 1990 and the medical evidence, as evaluated pursuant to SSR
For the reasons set forth in this opinion, Plaintiff's motion for
summary judgment is granted and the Commissioner's motion for summary
judgment is denied. This case is reversed and remanded to the
Commissioner for an award of benefits based on an onset date of January