United States District Court, N.D. Illinois
May 3, 2004.
JO ANNE BARNHART, Defendant
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
David Corder seeks judicial review of a final decision of the
Commissioner of Social Security ("the Commissioner") denying his
application for supplemental security income ("SSI") pursuant to Title II
of the Social Security Act ("the Act"), 42 U.S.C. § 405(g). The
parties move for summary judgment pursuant to Fed.R.Civ.P. 56.
Corder is 45 years old. R. 486. He has been unemployed since 1986 when
he first filed for disability. He filed applications for SSI and
Disability Insurance Benefits ("DIB") on June 1, 1993, amending his onset
date to October 1, 1992. R. 37-40, 41-44. The Commissioner denied his
claims and Corder requested a hearing before an administrative law judge
("ALJ"). Following a hearing, the ALJ denied Corder's claims. The Appeals
Council set this decision aside on April 2, 1997. On remand, the ALJ
issued a second decision finding that Corder was not disabled and was
capable of performing light work with certain non-exertional limitations.
R. 10-27. Once again, Corder sought review. After the Appeals Council
denied Corder's request for review, he filed a complaint in the Northern
District of illinois, This court reversed the Commissioner's final
decision and remanded the matter for further proceedings to make a finding regarding the
extent of Corder's impairments, the extent to which those impairments
impact his ability to work, and the work available given those
limitations. Corder v. Halter, No. 00 C 2714, 2001 WL 477210, at
*1 (N.D. Ill. May 4, 2001). On remand, Corder's claim was assigned to
another ALJ, The ALJ held two administrative hearings; she heard
testimony from Corder and a medical and vocational expert, R. 482-529,
530-48. The ALJ denied Corder's application for SSI, The Appeals Council
declined jurisdiction, leaving the ALJ's decision as the final decision
of the Commissioner,
1. Physical History
Corder has complained of lower back pain since he was 25 years old. He
completed 10th grade, which is classified as a limited education, R. 476.
His scores on achievement tests administrated during his treatment
suggest his aptitude is lower. Id. Corder has been unemployed
since 1986, but his past relevant employment included factory work and
serviceman. This work involved frequent walking, standing, bending and
lifting, Corder has a history of alcohol abuse. In 1993, he reported that
he drank up to 24 beers a day, R. 112. However, Corder has been sober
since April 1, 1995.
Corder's most significant injury and symptoms arise from lower back and
respiratory problems. At the May 7, 2003 hearing before the original ALJ,
Corder testified that he often has difficulty rising out of bed in the
morning and that it is painful for him to sustain any standing or sitting
activity for more than 15-30 minutes at a time. R. 497-500. He stated
that it is uncomfortable for him to drive or sit for long periods of time
and that he must frequently stand or lie down to relieve the strain on
his back. Id. He also lies down because his pain medication
makes him tired, Id. On a typical day, he would do light housework and
cook. Id. He washes out the tub. Id. He takes walks
outside to the store about three blocks away stopping
along the way due to back symptoms. Id. He can lift and carry 15
pounds. Id. About twice a week, he goes to the grocery store.
Id. During the summertime, he goes fishing approximately every
other day. Id.
Medical evidence supports Corder's complaints. In 1993, an examination
by Dr. Odland revealed a "tender sacroiliac, right greater than left,
straight leg raising at 30 degrees." R. 204. Odland prescribed Naprosyn
and Tylenol #3 for pain, Id. A month later, Odland diagnosed
multiple episodes of lumbosacral pain. An x-ray suggested degenerative
changes. R, 119, Odland opined that Corder's work could not include
lifting, carrying or bending, R. 120. In 1995, another x-ray revealed
"hypertrophic degenerative changes . . . at multiple levels . . .
degenerative changes . . . at multiple levels . . . degenerative disc
space narrowing at L4-L5 with sclerosis of the adjacent vertebral
body end-plates." R. 334.
In 1998, Dr. Irwin Feinberg conducted an orthopedic examination of
Corder at the ALJ's request. R. 380-383. Feinberg reported that Corder's
chief complaints involved asthma, painful lower left back, and a malunion
of a left rib fracture that causes pain on contact, R. 380. Feinberg
found that Corder suffered from symptomatic degenerative arthritis of the
lumbosacral spine, bronchial asthma and degenerative disc disease of the
cervical spine. R, 382. Feinberg noted that Corder's range of motion was
restricted, R. 380-81. In his medical assessment of ability to perform
work-related activities, Feinberg restricted Corder's ability to lift
and/or carry to 10-15 pounds frequently and 15-20 pounds occasionally,
due to lower back pain, R. 384, Feinberg found that Corder's ability to
stand, walk, and sit were unaffected by his impairment. Id. He
stated that Corder could climb, balance, kneel or crawl "occasionally" during an
8-hour day. R. 385. Feinberg noted Corder was capable of frequently
stooping or crouching. Id.
On December 27, 2002, Dr. Raman Popli examined Corder. Popli noted that
Corder's speech was slightly slurred, but that the slurring did not
interfere with the interview. R. 722. Popli found Corder's joints were
normal with a normal range of motion. R. 723. His examination of Corder's
cervical spine showed a slight reduction of the normal lumbar lordosis.
R. 723. Summarizing Corder's condition, Popli opined that Corder suffered
from some reduction in extension and sideward flexion at the lumbosacral
spine. R, 723. Popli found Corder's physical condition, combined with his
painful symptoms, limited his ability to work. He stated that "as per the
claimant," Corder could carry ten pounds occasionally and less than ten
pounds frequently. Popli also noted that according to Corder, his pain
limited his ability to stand and walk to less than two hours per day.
Id. However, Popli noted these restrictions were based on
Corder's "claims of having back pain if he exceeds the limits described
above, There are not any objective findings to back his claims other than
limitation of extension and sideward flexion at the LS spine." R. 725.
Corder's most recent treating physician, Dr. Bowser, noted in January
2003 that Corder's thoracic and lumbar muscles were markedly tender and
that the range of motion of his back was restricted in all directions. R.
731. Bowser reported that Corder complained of pain whenever he was
required to sit or stand for more than 30 minutes at a time, Id.
Bowser also noted that Corder complained of inability to stoop, bend, or
lift because of pain. Id. Based on his medical findings and
Corder's complaints, Bowser opined Corder was unable to sit or stand for
more than 30 minutes, bend, stoop, climb ladders, do overhead work, or
lift more than five pounds. Id. 2. Mental Health History
Corder contends his ability to work is limited by his limited mental
capacity, Corder has been examined by numerous mental health
professionals since filing his disability claim, In 1993, Dr. Diamond, a
psychologist, examined Corder, Diamond reported that Corder was
depressed, R, 159. Diamond administered a WAIS-R IQ test. Corder scored
71 verbal, 76 performance and 72 full scale. Id. His WRAT scores
were also low. Corder was found to possess below third grade reading and
spelling skills. R. 161. Corder had the math skills of a fifth grader.
Id. According to Diamond, Corder possessed poor reasoning skills
and a limited vocabulary, Id. On May 21, 1997, Dr. Mary Gardner
examined Corder and diagnosed him as possessing borderline intellectual
functioning. R. 248-52. Gardner administered the WAIS-R IQ and WRAT
tests. R. 250. The results were similar: 74 verbal; 74 performance; 73
full scale; fourth grade reading; fifth grade math. Id. Gardner
noted that Corder had memory problems. She stated that Corder's ability
to remember locations, work-like procedures and to concentrate was
limited. R. 263.
At the hearing be (ore the second ALJ, Dr. Daniel Schiff, a
psychiatrist, testified as a medical expert. He testified that prior to
1995, Corder was addicted to alcohol. R. 516. Schiff assessed Corder's
intellectual abilities as borderline with IQ scores in the 70's, R. 517.
He stated Corder was capable of one and two-step operations that did not
require intensive concentration or long term memory. Id. Schiff
noted Corder's testimony before the ALJ was precise and that he used
multisyllable words. R. 520.
3. Vocational Testimony
James Ranke testified as a vocational expert during the May 7 and July
17, 2003 hearings before the second ALJ. R. 521-28, The ALJ posed
familiar hypothetical to Ranke. The ALJ asked Ranke to consider the employment prospects for a 35-45 year-old man
with an eleventh grade education, but who could only read at the third
grade level and perform math at the fifth grade level, with Corder's
previous work experience, who could lift up to 20 pounds occasionally, 10
pounds frequently, and sit, stand, or walk as required with no more than
occasional bending to the floor, R. 522. She added the additional
caveat that the hypothetical employee could not perform detailed
or complex tasks that required more than simple operations, in a setting
with no pulmonary irritants. Id. Ranke responded that a person
with these limitations could perform food preparation jobs, library clerk
positions, mail clerk positions, packing positions, and some assembly
jobs. Id. As the ALJ refined the hypothetical, she limited the
hypothetical employee's ability to sit or stand without changing
positions. This narrowed the number of jobs available. R, 524-25.
Ranke was recalled to testify on July 7 to consider additional
limitations on the hypothetical employee's mental ability. R. 532-48.
Ranke was asked to consider sedentary jobs with a specific vocational
preparation of two. R. 536. Ranke testified that an employee with
physical restrictions and a vocational listing of two was capable of
employment as an order clerk, for which there were 650 jobs available in
the nine county Chicago area, Id. Ranke further noted that 6,000
sedentary assembler jobs were available to a worker with a GED of 3 to 4,
R, 539-40. Ranke explained that the Dictionary of Occupational Titles,
his resource, did not specifically enumerate the number of order clerk
positions available for an employee with a GED listing of two, but that
the number was based on his experience. Id.
The second ALJ found Corder retained the residual functional capacity
to perform a limited range of light work. Corder contends the
Commissioner's findings are faulty and are unsupported by substantial evidence. Specifically, he asserts that the
Commissioner did not properly consider his functional limitations as
required by this court's remand instructions.
1. Standard of Review
Judicial review of the Commissioner's final decision is limited. The
role of the reviewing court is to determine whether substantial evidence
in the record as a whole supports the Commissioner's decision to deny
benefits. 42 U.S.C. § 402(g); Jens v. Barnhart 347 F.3d 209,
212 (7th Cir. 2003). Substantial evidence means "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971). In reviewing
the record, the court may not reweigh evidence, resolve conflicts in the
record, decide questions of credibility, or substitute its judgment for
that of the Commissioner. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003). The substantive standards for evaluating an SSI claim
are identical to those for disability benefits. Donahue v.
Barnhart, 279 F.3d 441, 443 (7th Cir. 2002),
To qualify for benefits, Corder must establish the existence of a
medically determinate physical or mental impairment that can be expected
to last continuously for at least twelve months,
42 U.S.C. § 423(d)(1)(A). To demonstrate eligibility, Corder must show his
impairments were severe and that they rendered him unable to engage in
substantial gainful activity in the national economy.
20 C.F.R. § 404.1505, A physical or mental impairment is "an impairment
that results from anatomical, physiological abnormalities which are
demonstrable by medically acceptable clinical laboratory diagnostic
techniques." 42 U.S.C. § 423(d)(3).
The Commissioner follows a five-step process to determine whether
Corder is disabled: (1) whether Corder is currently employed; (2) whether
he has a severe impairment; (3) whether his impairment meets or equals
one listed by the Commissioner; (4) whether Corder could perform his past work; and (5) whether Corder is capable of performing any work
in the national economy, 20 C.F.R. § 404.1520. Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). The Commissioner must
evaluate the claim sequentially, and a conclusive finding at any step
that the claimant is or is not disabled is dispositive,
20 C.F.R. § 404.1520(a)(4). Corder's claim progressed to step 5, At that
time, the burden shifted from Corder to the Commissioner to demonstrate
that Corder can successfully perform a significant number of jobs in
the national economy, Young, 362 F.3d at 1000. The Commissioner's
written decision must minimally articulate the rationale behind the
decision to deny benefits. Clifford v. Apfel, 227 F.3d 863,
868 (7th Cir. 2000).
2. The ALJ Decision on Remand
On remand, the ALJ was charged with considering Corder's residual
functioning capacity with respect to sitting, standing and walking; the
impact of Corder's mental impairments on his residual functional
capacity; and how Corder's physical and mental impairments impact his
ability to perform light work. Corder, 2001 WL 477210 at *13.
The ALJ found Corder was currently unemployed, that his impairments
significantly limit his ability to perform basic work activities, that
his impairments do not meet or equal one of the impairments listed in the
SSA regulations, and that he was incapable of performing his past
relevant work. R, 478, At step 5, the ALJ found Corder's medically
determinable impairments preclude him from "lifting more than 20 pounds
occasionally or more than 10 pounds frequently; understanding,
remembering and/or carrying out more than simple instructions; and
performing jobs in environments containing any respiratory irritants in
concentrated levels," Id. The ALJ rejected further physical
limitations on Corder's residual functional capacity because they were
not justified by objective medical evidence. R, 475-76, She explained
that all medical reports suggesting Corder was incapable of walking or
sitting for long periods of time were based on Corder's personal claims of pain,
not medical findings. Id. She found Corder's claims of severe
pain incredible.*fn1 R. 473.
Corder argues that the ALJ failed to properly consider his functional
limitations as required by this court's remand instructions. The court's
previous decision is the law of the case, and governs further
proceedings. Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir 1998).
The court's previous decision vacated and remanded the Commissioner's
decision partly because the original ALJ failed to minimally articulate
his basis for finding Corder capable of light work. Corder, 2001
WL 477210 at * 13. The first ALJ's ruling did not demonstrate that
Corder's residual functional capacity had been given proper
"function-by-function" assessment, Corder, 2001 WL 477210 at *
10. The ALJ merely concluded Corder was capable of light work without
building an accurate and logical bridge from the evidence to support his
findings, Clifford, 221 F.3d at 872, Corder argues that the
second ALJ committed the same error on remand by failing to discuss in
detail his ability to sit, stand, or walk for long periods of time.
Corder, 2001 WL 477210 at *10; 61 Fed. Reg. 34474, 34475 (July
2, 1996) ("Social Security Ruling 96-8p").
The ALJ analysis on remand is detailed. The ALJ explains that many of
the limitations Corder believes are appropriate rely on Corder's
self-diagnosis of his pain, not on objective medical facts, R. 473. This
court's previous decision did not hold that the minimal articulation
requirement bound the Commissioner to make explicit findings as to
precisely how long Corder could stand or sit during an eight-hour period. Corder, 22001 WL 477210
at *10. The passage cited by Corder merely illustrated that the original
ALJ failed to consider or discuss evidence in the record suggesting
Corder's ability to stand or walk is limited. Id. On remand, the
ALJ assessed Corder's capacity to walk, sit, crouch and lift. R. 476. She
found there was no medical evidence suggesting Corder's ability to walk,
stand or sit on the job was limited in any way. Id. This
expression was coupled with the ALJ's finding Corder could lift up to 20
pounds occasionally and 10 pounds frequently. R. 478.
Neither Seventh Circuit authority nor the regulation Corder cites in
support of his proposition requires the Commissioner to specifically
enumerate the length of time Corder can sit, stand or walk. SSR 96-8p
requires the Commissioner to "consider," not articulate Corder's residual
functional capacity on a function-by-function basis. SSR 96-8p's
"Narrative Discussion Requirements" instructs the Commissioner to discuss
the "individual's ability to perform sustained work activities in an
ordinary work setting on a regular basis," Had the ALJ found Corder's
ability to sit, walk or stand was somehow compromised, exposition of
Corder's particular faculties would be in order. See Embry v.
Barnhart, No. 02 C 3821, 2003 WL 21704425, at * 8-9 (N.D. Ill, July
18, 2003). However, Corder's argument overlooks the obvious: the ALJ on
remand did discuss Corder's ability to sit, stand and walk. She
found Corder had no limitations, R, 473. This conclusion is substantially
supported by the record. See R, 380-83, 722-25.*fn2 Corder's
contention that the ALJ obdurately ignored this court's remand order
lacks merit. 3. Corder's Mental Capacity
On remand, the ALJ found Corder was capable of performing a limited
range of light work, provided that he was not required to understand,
remember or carry out more than simple instructions. R. 478. Corder
contends that the ALJ's finding he was able to carry out more than one
and two-step tasks lacks support, and that the ALJ's determination Corder
was able to perform all "simple tasks" including those requiring
more than two-step processes was impermissibly based on her own
An ALJ cannot substitute her judgment for that of a doctor by
independently evaluating medical evidence. Rohan v. Chater,
98 F.3d 966, 970 (7th Cir. 1996). The ALJ's finding Corder was capable of
simple tasks beyond GED level 1 principally relies on her assessment of
Corder's credibility. The ALJ noted Corder's first mental evaluation by
Dr. Beebe, which found Corder possessed average intelligence, considered
Corder's memory and communication skills, as well as his adequate
performance on serial 3's, R. 469. The ALJ further explains that
examinations conducted by Diamond and Gardner are unreliable because they
were requested by Corder's attorney and because she doubts Corder gave
his best efforts during the examinations. R. 469-71.
In attempting to resolve the issues identified for remand, the ALJ
criticizes the sincerity of Corder's efforts before Diamond and Gardner,
and gives a detailed synopsis of Corder's in-court behavior. R, 469-71.
The ALJ contends Corder's aptitude scores before Diamond and Gardner are
skewed lower because he intentionally performed poorly to bolster his
chance of receiving SSI. Id. Although the ALJ's credibility
assessments are entitled to deference, the ALJ's finding Corder was
capable of more than one or two-step processes is not supported by
sufficient evidence. The only medical examiner testifying at Corder's
hearing, Schiff, agreed with previous evaluations diagnosing Corder as possessing borderline intellectual ability, and flatly
stated that in his opinion, Corder "could probably do one-step operation,
two-step operation. They do not require intensive concentration or
long-term memory, and I draw the line at that point," R. 518. In
rejecting this statement, the ALJ concluded Schiff's opinion did not
address Corder's "maximum capacity." R. 474. Yet, if that is the case,
than no medical evidence cited in the ALJ's opinion addresses Corder's
Furthermore, despite her lengthy explanation of her in-court experience
with Corder, the ALJ points to no authority suggesting Corder is capable
of more than two-step operations See Bauzo v. Bowen,
803 F.2d 917, 926 (7th Cir. 1986) ("Neither the Appeals Council nor this
court is qualified to make [a] medical judgment about residual functional
capacity based solely on bare medical findings"). Nor does the ALJ's
cursory citation of Beebe's report stating that Corder had
average intellectual aptitude explain the reason Beebe's report
is more reliable than the conclusions of Dr.'s Schiff, Diamond and
Gardner. Corder, 2001 WL 477210 at *11-12. Indeed, only Beebe's
report supports the ALJ's conclusion. In his review of Beebe's report,
Schiff concluded Corder was capable of no more than two-step operations.
R. 517-18. The ALJ's reason for rejecting these conclusions is her belief
Corder sandbagged his examinations with Diamond and Gardner and that his
in-court testimony was precise; this reason is undermined by Diamond and
Gardner's reports. R. 469-71, Diamond and Gardner both noted that they
believed Corder tried his best during their evaluations. R, 161, R. 263.
Schiff found Diamond and Gardner's reports were consistent. R. 517, 520.
Moreover, despite the fact that he too found Corder's in-court testimony
precise, Schiff found Corder was limited to one and two-step operations.
R. 517-18. The ALJ's in-court experience with Corder is not a substitute for a
medical opinion. Green v. Apfel, 204 F.3d 780, 781 (7th Cir.
2000), Moreover, the ALJ's suggestion that Diamond and Gardner's
examinations are flawed because they were taken under questionable
circumstances was previously rejected. Corder, 22001 WL 477210
at *11-12, The ALJ fails to build a logical bridge between the record
evidence and her conclusion Corder is capable of performing simple tasks
requiring more than two steps. Corder, 2001 WL 477210 at *12;
Clifford, 227 F.3d at 872. Her review that Corder's testimony
was precise and used multi-syllabic words is not adequate justification
for rejecting specific medical authority and finding that Corder was
capable of more sophisticated employment than suggested by the medical
The record contains conflicting statements regarding Corder's
non-exertional residual functional capacity. There are unresolved factual
issues that preclude a reliable decision regarding Corder's eligibility
for benefits. Based on this record, a second remand is required.
Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993), On
remand, the ALJ must fully consider the evidence concerning Corder's
non-exertional limitations in an assessment of Corder's residual
The ALJ's residual functional capacity finding is not supported by
substantial evidence. Therefore, this case is remanded to the Social
Security Administration for further proceedings.