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May 5, 2004.

JO ANNE B. BARNHART Commissioner of Social Security, Defendant

The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge


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.

Procedural History

  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.

 Plaintiff's Testimony

  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. 77).

  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. (R. 96).

  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 ...

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