United States District Court, N.D. Illinois, Eastern Division
September 28, 2004.
JOHN YOUREK, Plaintiff,
JOANNE BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
On September 29, 2000, plaintiff John Yourek applied to the
Social Security Administration ("Administration") for a period of
disability and disability insurance benefits. His application was
initially denied and, at Mr. Yourek's request, a hearing was held
on September 18, 2002. Administrative Law Judge Helen Cropper
("ALJ") found that for the period from March 1998 to December
2000, Mr. Yourek was not disabled. The ALJ also found that Mr.
Yourek's insured status had expired in December 1997. Because Mr.
Yourek was not insured at the time of his application, he had to
show that he was continuously disabled from before the expiration
of his insured status until twelve months prior to his
application. As Mr. Yourek was unable to make this showing, the
ALJ denied his application on November 12, 2002. On May 21, 2003,
the Appeals Council denied Mr. Yourek's request for review. On
July 18, 2003, Mr. Yourek filed a complaint asking for judicial
review of the ALJ's decision. Both Mr. Yourek and the
Administration now move for summary judgment. I GRANT Mr. Yourek's motion and remand the
case for further proceedings. I DENY the Administration's motion.
A five-step process governs the determination of disability
status. 20 C.F.R. § 1520 (a-f). The Administration must find "(1)
whether the claimant is currently employed; (2) whether he has a
severe impairment; (3) whether his impairment meets or equals one
listed by the Secretary; (4) whether the claimant can perform his
past work; and (5) whether the claimant is capable of performing
any work in the national economy." Herron v. Shalala,
19 F.3d 329, 337 n. 8 (7th Cir. 1994). If the applicant reaches the
fifth step, the Administration bears the burden of proving the
existence of jobs in the national economy that the applicant can
Mr. Yourek argues that the ALJ's decision was deficient in four
ways: first, that medical expert testimony was required to
determine the onset of Mr. Yourek's disability and was not
obtained; second, that the ALJ's credibility determination is
insufficient as a matter of law; third, that the ALJ improperly
determined that Mr. Yourek is not illiterate without literacy
testing; and finally, that insufficient evidence exists as to the
number of jobs available matching Mr. Yourek's limitations and
Mr. Yourek first argues that the ALJ failed to fully develop
the record by consulting a medical expert regarding his medical
limitations and the onset date of his disability. For
non-traumatic disabilities, such as Mr. Yourek's asthma, the ALJ should
consider three factors: "the applicant's allegations, work
history, and medical and other evidence." Lichter v. Bowen,
814 F.2d 430, 434 (7th Cir. 1987). Medical evidence is considered
the primary consideration of the three. Id. Mr. Yourek argues
that the ALJ was required to summon a medical expert to determine
the onset of his disability. However, determination of an
applicant's Residual Functioning Capacity ("RFC") is within the
purview of the ALJ, not medical experts.*fn1 Diaz v.
Chater, 55 F.3d 300, 306 n. 2 (7th Cir. 1995).
The ALJ considered Mr. Yourek's medical history, his testimony,
and his work history, detailing that consideration in her
decision. The ALJ neither rejected medical conclusions contained
in Mr. Yourek's records without other evidence, nor drew her own
conclusions without relying on medical evidence. See, e.g.,
Armstrong v. Barnhart, 287 F.Supp.2d 881, 885-86 (N.D. Ill.
2003) (noting that Seventh Circuit reversed cases where ALJ
"played doctor" by failing to address relevant evidence). This
court will not re-weigh the evidence that was before the ALJ, so
long as her decision is supported by substantial evidence. Micus v. Bowen,
979 F.2d 602, 604 (7th Cir. 1992).
However, Mr. Yourek also claims that the ALJ's credibility
determination with respect to his testimony is insufficient as a
matter of law and patently wrong. While the credibility
determination of the ALJ is normally due deference, there must be
evidence that such a determination was actually made. Zblewski
v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984). For
meaningful appellate review, the ALJ must indicate the reasons
for rejecting certain lines of testimony. Id. at 79. The ALJ
does not specify her reasons for rejecting, at least in part, Mr.
Yourek's testimony. The ALJ states that she gave his testimony
some credit, but does not go on to explain which parts of his
testimony are not credible or why those parts are not credible.
Such a conclusory determination is not sufficient. Brindisi v.
Barnhart, 315 F.3d 783, 787 (7th Cir. 2003). This case must
therefore be remanded for a re-evaluation of Mr. Yourek's
credibility and a redetermination of his RFC.
Mr. Yourek argues that the ALJ failed to thoroughly explore his
literacy level. Mr. Yourek's literacy level is relevant to
determining what work he might be able to perform. The ALJ rested
her decision that Mr. Yourek is literate on the following facts:
Mr. Yourek's statement that he can read and write more than his
own name, his completion of the 11th grade in regular
classes,*fn2 the claims representative's observation that
Mr. Yourek had no difficulty completing his application, Mr.
Yourek's testimony that he was not a good reader but could read
small words slowly, Mr. Yourek's ability to obtain a driver's
license, and his testimony that he was able to write a note using
complete sentences. While this evidence is not inconsistent with
a finding of literacy, neither is it sufficient for such a
finding once Mr. Yourek had raised the possibility of illiteracy.
See, e.g., Cole v. Apfel, No. 98 C 6735, 2000 WL 290432, at *4
(N.D. Ill. Mar. 17, 2000) (Coar, J.) (applicant's 7th grade
education not sufficient to support a finding of literacy).
The ALJ had an obligation to develop a complete record once Mr.
Yourek had raised the issue of his potential illiteracy. See
Taylor v. Apfel, No. 00 C 3556, 2003 WL 21087955, at *6 (N.D.
Ill. May 13, 2003) (Anderson, J.). Neither the ALJ nor Mr.
Yourek's attorney made any attempt to ascertain Mr. Yourek's
literacy level by asking him to perform such tasks as reading a
brief article or writing a note. See Cole, 2000 WL 290432, at
*4. Further, the ALJ predicated her hypothetical to the
vocational expert, regarding work Mr. Yourek could be expected to
perform, on his reading at a fourth-grade level but provided no
explanation as to how or why she came to that determination. The ALJ's determination of Mr.
Yourek's literacy level was not supported by substantial
evidence. As the literacy issue is crucial to Mr. Yourek's
disability determination, I remand for a re-evaluation of Mr.
Yourek's literacy level.
Finally, Mr. Yourek argues that the hypothetical questions
asked of the vocational expert at Mr. Yourek's hearing were
insufficient as a matter of law. Without deciding this issue, I
note that the reconsideration of Mr. Yourek's credibility
determination, his RFC, and his literacy level will necessitate
reconsideration of the jobs in the national economy that he can
perform. Mr. Yourek's case is remanded to the Social Security
Administration for further proceedings consistent with this