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.
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.
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.
1. Medical Records Before Expiration of ...