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April 13, 2004.

ELEANOR COPPAGE, on behalf of MICHAEL C. OSBORNE, a minor, in the claim of MICHAEL E. OSBORNE, deceased, Plaintiff,

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


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. R. 71.

  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 controlled;
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 since 1968,

  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 ...

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