The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Eleanor Coppage ("Plaintiff' or "Coppage"), bringing suit
on behalf of the minor child of Michael E, Osborne ("Osborne" or
"Claimant"), seeks judicial review of the decision of Jo Anne B.
Barnhart, the Commissioner of Social Security ("Commissioner"), who found
Claimant not disabled and denied him Social Security Benefits under
42 U.S.C. § 416(i), 423. This case is before this Court on cross-motions
for summary judgment. Plaintiff argues that the Appeals Council erred in
applying the wrong listing in reviewing Claimant's claim, that the
Administrative Law Judge ("ALJ") erred in failing to adopt the opinion of
Claimant's examining physician, that the ALJ's step five determination
was not supported by substantial evidence, and that the ALJ ignored
evidence favorable to Claimant. At oral arguments Plaintiff's counsel
waived his objection to the Appeals Council's reliance on listing 1.04. For the reasons stated below, Claimant's motion
for summary judgment is granted and the Commissioner's motion for summary
judgment is denied. The case is remanded to the Commissioner for an award
of benefits based on an onset date of March 23, 2000.
Claimant filed an application for Supplemental Security Income ("SSI")
and Disability Insurance Benefits ("DIB") on May 13, 1999, alleging a
disability effective as of June 2, 1998 due to sciatic nerve confusion
from a gunshot wound, R. 115-17, 125, 254-56, The application was denied
initially and upon reconsideration. R. 102-11. On January 26, 2000,
Claimant filed a request for a hearing before an ALJ, which was granted
on February 1, 2000.
On July 20, 2000, and March 27, 2001, after two postponements due to
Claimant's inability to secure legal counsel, Claimant had a hearing
before ALJ Lovert Basset, at which Claimant was represented by counsel.
R. 44-101, At the hearing, Claimant and vocational expert ("VE") Meyer
Klein testified. The ALJ denied Claimant's request for SSI and DIB on
July 27, 2000. R, 16-31. Claimant's request for review was denied by the
Appeals Council on March 10, 2003. R. 7-10. Consequently, the ALJ's
decision became the final decision of the Commissioner, Claimant passed
away in the interim. Coppage, the mother of Claimant's minor child,
Michael C, Osborne, filed a timely complaint with this Court, on the
child's behalf, for review of the ALJ's decision. B. HEARING TESTIMONY
1. Claimant's Hearing Testimony
Claimant was born on April 3, 1950 and was fifty years old at the time
of the hearing. R, 115, Claimant worked for Brunswick Corporation for
sixteen years in the mailroom and as an accounting analyst until June 2,
1998, R. 57, when he was laid off due to a corporate reorganization. R.
46, Claimant never returned to work. R. 57. Prior to his termination,
Claimant had taken excessive breaks on the job, had missed work two to
three times a month for doctor appointments, and had not been able to sit
at his desk for long periods of time. R, 58. After Claimant was laid off,
he decided not to look for another job because his health was getting
worse. R, 46.
Claimant's first significant injury was in 1968 due to a gunshot wound
in his right leg during the Vietnam War, R. 59. The injury resulted in
sciatic nerve confusion. Id. As a result, Claimant could not stand for
more than three or four minutes at a time. R. 60. Claimant also had a
vascular surgery problem in his left leg, which prevented him from
walking more than three-quarters of a block, R, 59. Claimant's right leg
bothered him when he stood for too long, and his left leg troubled him
when he walked, R. 60-61. Claimant could sit for about an hour before he
had to stand, stretch his back, and walk because otherwise his leg would
stiffen up. R. 61. He believed that he could lift about ten or twenty
pounds but would get fatigued after lifting something heavy. Id. In March 2000, Claimant went on a train trip to California. R. 63.
While in California, Claimant drove from Los Angeles to Las Vegas in
order to attend a family reunion with a friend, who did most of the
driving, R, 64, 66. During the trip, Claimant injured his back, causing a
disc herniation. R. 64-66. He did not know how he had injured himself,
but he felt "tremendous back pains." R. 65.
Claimant was diagnosed with Hepatitis C in 1991. R. 67, 358. As a
result, he suffered stomach problems and fatigue. Id. Additionally,
Claimant took several strong medications for pain and high blood
pressure, R. 324.
A normal day for Claimant consisted of waking up, taking pills for
blood pressure and pain, eating breakfast, and laying down to sleep for
several hours. R. 62. However, Claimant drove about ten miles a week and
was able to feed and to bathe himself. R. 63, He also visited his mother
daily for about fifteen to thirty minutes, and some friends would come to
visit him occasionally. R. 70-71. Otherwise, Claimant had no social life.
2. Vocational Expert's Testimony
Meyer Klein testified as the VE. R. 76-100. He classified Claimant's
past mailroom and accounting clerk work as light and sedentary
semi-skilled work. R. 80. The ALJ posed to the VE the following
hypothetical: A worker who is forty-nine years of age has an eleventh
grade education, has semi-skilled past relevant work, and has no
transferable skills to other jobs. Further, he can lift twenty pounds
occasionally and ten pounds frequently. The individual can stand and walk
for one hour during an eight-hour shift but should not be exposed to vibrations and must not climb stairs, ramps, ladders,
ropes, or scaffolds. He should not be placed in a job situation that
requires balancing, and he can crouch and crawl occasionally. R. 81-82.
The VE stated that such an individual is confined to sedentary work. R.
82, Such work would be assembly work or cashier work, R. 32-84. In order
to determine the jobs available to Claimant, the VE utilized the
Dictionary of Occupational Titles ("DOT") numbers. R. 82. There were
1,500 jobs for assembly work and 2, 000 jobs for cashier work in the
Chicago metropolitan area. R. 83. The VE also stated that, based on the
hypothetical posed, and including the bookkeeping skills that Claimant
had attained during his career, such a person would be able to perform
some bookkeeping or billing clerk position s. R. 85-89. There were 2,500
such positions available in the Chicago metropolitan area. The VE did not
have the DOT number for a billing clerk available at the hearing, but it
was made available to Plaintiffs counsel and the ALJ before the ALJ' s
decision was rendered. R. 151.
On cross examination, The VE stated he used his judgment in order to
make an estimation as to the 2,500 billing clerk jobs. R. 93. He stated
that the number would actually be larger, but he limited it based on his
understanding of Claimant and the use of his judgment R. 93. Some
sedentary jobs require no standing throughout the day, R. 94. However, if
a worker could only stand for three or four minutes at a time that would
compromise his ability to work at billing clerk or assembler jobs, R. 95.
Also, spending over two hours per day laying down because of fatigue and
pain would eliminate all substantial gainful activity. R.96. Being able to sit for less than six hours
per day also would eliminate the sedentary work activity that generally
exists. R. 98. The VE agreed that if the Claimant was required to take a
five minute break every thirty to forty-five minutes in order to
alleviate pain, then Claimant would be taking excessive breaks that an
employer would not tolerate. R. 98-99.
1. Nalini Ahluwalia, M.D. Examining Physician
Dr. Nalini Ahluwalia performed a consultative examination of Claimant
in September 2000. R. 355-58. Claimant's chief complaints were:
1) Hypertension for ten years that was medically
2) Lower back pain due to a herniated disc, which
was diagnosed in March 2000;
3) A history of Hepatitis C, which was diagnosed
in 1991; and
4) Pain in the left hip and both lower extremities
An examination of the lower extremities revealed decreased sensation
throughout the right posterior thigh. R, 357, This decreased sensation
"extend[ed] from the right posterior thigh up to the bottom of the foot."
Id. The left lower extremity was "minimally colder to touch" compared to
the right. Id. There was also a "loss of tibialis posterior in the left
foot," however the dorsalis pedis was ...