The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Richard Burnett ("Burnett" or "plaintiff"), has brought a
motion for summary judgment seeking judicial review of the final decision
of the Commissioner of the Social Security Administration ("Commissioner"
or "defendant"), who denied Burnett's claim for disability insurance
benefits ("DIB") and Supplemental Security Income ("SSI") under the
Social Security Act ("Act"), 42 U.S.C. § 416(i), 423(d), 1381a.
Defendant, Barnhart, filed a cross motion for summary judgment asking
that we uphold the decision of the Administrative Law Judge ("ALJ"), We
have jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g) and
1383(c)(3). For the following reasons, we grant plaintiff's motion and
deny defendant's motion, remanding this case to the ALJ for further
proceedings consistent with this opinion.
Burnett filed an application for DIB and SSI on August 20, 1999,
alleging disability since July 4, 1999, without regard to his substance
abuse. (R. 146-9). Prior to this application, plaintiff had been awarded
benefits based on his dependence on drugs. (R. 45). However, his benefit eligibility ceased in January, 1997
after the enactment of Public Law 104-121, the "Contract With America
Advancement Act of 1996." On March 1, 2001, ALJ Helen G. Copper conducted
a hearing on plaintiffs current petition. Mr. Burnett, Dr. Ellis
Johnson, a psychiatrist, and Mr. Edward Steffan, a vocational expert,
testified at the hearing. (R. 37). Afterwards, plaintiff supplemented the
ALJ's record with additional medical evidence. (R. 142) The ALJ closed
the record and issued an opinion denying plaintiff's claim. The Appeals
Council denied plaintiff's request for review and ALJ Copper's decision
became the final decision of the Commissioner. See Zurawski v. Halter,
245 F.3d 881 (7th Cir. 2001); Reg. § 416.1481.
Richard Burnett, now fifty-four years old, is an Air Force veteran with
a twelfth-grade education. (R. 47-8). Burnett was honorably discharged
from the Air Force under special conditions and his past work experience
includes employment as a security guard, food assembler, and telephone
installer/repairman. (R. 48, 95).
At the hearing, plaintiff testified that, physically, his main problem
was his back, and pain in his elbow and knee joints. (R. 50). He also
stated that lately he had been having bad cramps in his legs and that he
experienced daily pain in various locations. (R. 50, 71). He further
stated that his condition had progressively worsened. If he worked one
day, the next day, his body was too sore to go to work. (R. 50). He also
stated that his body was just too tired after a day's work and that he
had difficultly finishing tasks assigned at work. (R. 50-1). At the time
of the hearing, plaintiff was on a daily regimen of extra strength
Tylenol for pain, blood pressure medication, and Mirtazapine for depression. (R. 68-9, 73). Plaintiff also used an
inhaler for breathing problems. (R. 69).
Burnett testified that he had trouble remembering doctor's appointments
and remembering to take his medication. (R. 52). At times, he felt like
someone was watching him and trying to harm him. He also felt guilty
about his way of life and not being there for his son. (R. 52-3). He
watched TV for enjoyment, but sometimes had problems following the
programs. Id. He testified that he had trouble sleeping and had been
prescribed medication to help him sleep. (R. 54). He also stated that
sometimes he had thoughts of suicide and thought about harming his
girlfriend, but he never acted on those thoughts. (R. 55).
At the time of the hearing, plaintiff had also been in a Methadone
program for drug dependency for the prior two years. (R. 73-4). He stated
that he did not miss more than a day of his Methadone treatments because
if he did, he became depressed, sick, and weaker. Id. He also testified
that he still occasionally used drugs and had used them the previous
night. Id. His biggest problem was cocaine and marijuana. He obtained
drugs by making purchases for others who gave him some as payment. (R.
75). Plaintiff had positive urine drops throughout 2000, and he testified
that the longest time he had gone without using was "[a] few weeks
maybe." (R. 76).
Plaintiff supported himself with food stamps, occasional work through
Earnfair, a government job program, and financial help from his aunt and
Uncle. (R. 57). His most recent Earnfair job lasted about a month and
involved cleaning and letting cars in and out at a car glass replacement
shop. Id. Prior to that, plaintiff worked unloading trucks for a retailer
for approximately four months. Id. Plaintiff did not have any other
sources of income. (R. 60). At home, plaintiff did chores around his apartment,
including sweeping and making his bed, however, it hurt to sweep. (R.
At the hearing, plaintiff stated that he did not think he could
currently work. (R. 66). Plaintiff thought that he could comfortably lift
ten to twenty pounds, and could comfortably stand in place for about
twenty to thirty minutes before his back would start to hurt. (R. 78).
Plaintiff also stated that he could walk a block before having to rest.
(R. 78-9). He stated that he had trouble using his hands because his
fingers became cold very easily and he had less feeling in them than in
the rest of his body. (R. 79).
After Burnett, Dr. Ellis Johnson testified as a medical expert and
Edward Steffen testified as a vocational expert. Mr. Burnett's
representative stipulated that both witnesses were competent to testify
as experts in their respective fields. (R. 80). Before the ALJ asked the
witnesses for their opinions, she allowed them to question the
plaintiff. (R. 81). Thereafter, Dr. Johnson testified that, in his
opinion, Burnett suffers from the mental impairment of depression, but
that it does not meet or equal a listed impairment. (R. 89). As a basis
for his opinion, Dr. Johnson stated that Dr. Piszczor "listed about five
different eight different characterizations of depression under
affective order."*fn1 (R. 90). Then, Dr. Johnson testified that Dr.
Piszczor found that "under the degree of limitations of those problems,
. . . [plaintiffs] restrictions of activities of daily living was
slight, [and] difficulties in maintaining social functioning was slight."*fn2 Dr. Johnson further testified that "on the basis of
that report, and that is the only report that I saw, he caused me to feel
that he does not meet or equal a listed ." Id.
Thereafter, the ALJ informed Dr. Johnson that she thought he was
looking at Dr. Tomassetti's report and not Dr. Piszczor's report because
Dr. Piszczor did not complete a PRTF. Dr. Johnson then stated that he was
in fact looking at Dr. Tomassetti's PRTF. not Dr. Piszczor's report, and
that he agreed with Dr. Tomassetti. Dr. Johnson further opined that
plaintiffs functional capacity would improve if he were 100% sober for an
extended period of time. He based that opinion on the statements that
plaintiff used drugs and is in a Methadone program. (R. 91). He opined
that "[i]f [plaintiff] were not using at all, I think that he would be
able to function better, and be able to work at a more acceptable pace
than he has been." The ALJ did not ask Dr. Johnson any questions about
Dr. Piszczor's March, 2000 evaluation of plaintiff. However, Burnett's
representative asked Dr. Johnson whether he disagreed with Dr. Piszczor's
report. Dr. Johnson responded that he did "not disagree with Dr.
Pizszcor's report. If fact [he] was reading from his report ." That was
the end of Dr. Johnson's testimony.
Finally, Edward Steffen, a vocational expert, testified. Re stated that
plaintiff's past relevant jobs included security guard, food assembler
and telephone installer/repairman. (R. 95). The security guard position
was considered light, unskilled employment, and the food assembler and
phone installer/repairman positions were considered medium employment.
Id. Mr. Steffan responded to the ALJ's hypothetical about possible
employment for a person with the residual functional capacity ("RFC"),
"to perform the full range of work at the light exertional level, with
the following exceptions or limitations; that he should never climb
ladders, ropes or scaffolds, that he can occasionally climb ramps and
stairs, occasionally balance, stoop, kneel crouch and crawl, that he
should avoid exposure to extreme coldness, to concentrated respiratory
irritants, to unprotected heights, or unguarded hazardous equipment, and
that he is moderately limited in his ability to understand, remember and
carry out complex or detailed instructions or tasks," by stating that
such a person could perform work as a food assembler and security guard.
The ALJ also asked Mr. Steffan if it would affect his opinion if the
hypothetical person was moderately limited in his ability to sustain
concentration. Id. Mr. Steffan opined that it would not affect the food
assembler position, but could affect the security guard position because
being a security guard requires a higher degree of attention and
concentration. Id. The ALJ then asked Mr. Steffan to identify other
occupations, with sufficient positions in this economy, that the
hypothetical person could perform. Id. Mr. Steffan responded with
assembler, cashier and general office clerk. Id. Mr. Steffan was also
asked to identify positions for the hypothetical person if he was limited
to sedentary work. Id. Mr. Steffan stated sedentary assembler, file
clerk, and general office clerk. (R. 98).
Finally, Mr. Steffan said that if the hypothetical person was
distracted by feelings of pain, fatigue, depression or any other kind of
distraction for less than five percent of the work day outside of
ordinary breaks he could still perform the previously cited jobs. Id. Mr. Steffan also stated that people in these types of jobs are
generally off-task about 20 percent of the day and that is considered to
be within adequate production levels. However, being ...