The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff K. Long, the mother of John Long, who died on January
19, 2003, filed this suit on his behalf, seeking review of the
Social Security Administration's decision to deny his claim for
disability benefits. The Commissioner of Social Security has
moved for summary judgment affirming the SSA's decision; Long has
moved for summary judgment reversing the decision and awarding
benefits, or alternatively for a remand. For the reasons stated
below, the Court grants Long's motion, denies the Commissioner's
motion, and remands the case for further consideration.
John Long was born on May 6, 1960, was twenty-eight years old
at the alleged onset of his disability in 1988, and died in 2003
at age forty-two. Long had a high school education and worked as
a carpenter until 1988.
In December 1998, Long applied for Social Security disability
benefits. He alleged that he had become disabled as the result of
an injury to his back that he suffered in June 1988 while lifting
heavy objects at work. Long continued to work until he was
injured a second time, in August 1988, but he was unemployed after that date.
Long suffered two herniated lumbar discs. According to
treatment notes of Dr. Per Freitag, Long's primary treating
physician from 1988 until 1999, and Dr. Lori Portnoy, Long's
treating chiropractor, Long had persistent lower back pain and
sharp pain down his right leg, with associated numbness and
tingling in his right foot. R. 20, 360. Long underwent two back
surgeries, a percutaneous lumbar diskectomy and a microscopic
right hemilamenectomy, in November and December 1988. Following
surgery, Long entered physical therapy and attended monthly
appointments with Dr. Freitag. In the months after surgery, Long
suffered from spasms, numbness, and limited range of motion, and
Dr. Freitag opined that he had a "slow and far from satisfactory
progress." R. 268-69.
In September 1989, based on a recommendation from Dr. Freitag,
Long was given a functional capacity evaluation to determine if
he could perform any carpentry-related duties. The capacity
assessment found that in an eight hour workday, Long could sit
for five hours, but only one hour continuously; stand for four to
five hours, one hour continuously (however, Long reported
discomfort at fifteen minutes and light pain after twenty
minutes); walk for five hours, with frequent long distances; lift
ten pounds frequently and twenty pounds occasionally; bend,
squat, crouch and kneel occasionally and crawl, climb stairs, and
balance frequently. R. 327-36. Overall, Long's recommended safe
work capacity was "light," and he was switched from general
reconditioning therapy to a work hardening program, with four to
six hour sessions five days a week. R. 326. After about a month
of the work hardening program, however, Long's condition had
progressively deteriorated, and he was returned to a general
reconditioning program because of increased pain, soreness, and a
depressed right knee jerk. At that time (early November 1989),
Dr. Freitag opined that Long could not work, and he recommended
that "pain be the modifier as to what he can do" and noted "that he will stop
before he harms anything." R. 302.
In December 1989, Long was discharged from physical therapy;
this was attributed to his missing four out of seventeen
appointments, though Long attributed it to problems with his
health insurer. Without physical therapy, Long's condition
worsened. R. 302. In January 1990, Dr. Freitag described Long's
condition as "failed back syndrome." He prescribed Vicodin for
pain, and opined that Long was "unable to carry out the duties
normally required of a carpenter" and that "even sedentary work . . .
is difficult, since sitting is markedly painful for him." R.
In March 1990, Long had an epidural steroid injection, and he
began seeing Dr. Portnoy, a chiropractor, regularly until 1992.
In July and August of 1990, Long's symptoms ranged from having
some back spasms to feeling "pretty good." From March through
November 1991, Long saw Dr. Portnoy every three days, and her
records indicated that Long had taken during that period a trip
to Wisconsin, where he performed unspecified "light yard work."
After 1992, Long did not see Dr. Portnoy again until January
1995. However, by November 1994, Long's pain began to worsen; he
returned to physical therapy; and he was unable to perform any
household chores or tasks. R. 20, 22. In November 1994, Long was
also treated for dependence on Vicodin. R. 199.
In 1995, Long started seeing both Dr. Portnoy and Dr. Freitag
again. In May 1995, because of persistent back pain, Long
underwent additional back surgery and suffered an incisional
hernia. Following treatment for the incisional hernia, Long
complained of constant pain in his back, neck, abdomen, and groin
area. Long saw Dr. Sinclair at the University of Chicago Pain
Management Clinic from October 1997 until August 1998, when Dr.
Sinclair ended their relationship because Long was reportedly
obtaining pain medication from other sources. R. 480-82. In 1998,
an MRI revealed that Long also had a herniated disc in his neck. R. 361. In 1999, Dr. Freitag opined that Long was "incapacitated
from persistent pain" and that he was "permanently disabled from
any and all occupations." In October 2000, Long was diagnosed
with chronic obstructive lung disease and right heart failure,
with pulmonary artery hypertension. Following this diagnosis,
Long had to use an oxygen tank. R. 398.
At the 2001 hearing on Long's claim for benefits, he testified
that in the year following his 1988 surgeries he could perform
some household chores, including sweeping, mopping and some
shopping. See R. 20. Long also stated that during that period,
he could "probably" sit for about a half hour continuously, could
stand continuously for ten to fifteen minutes, and could probably
walk about one block. See id.; see also, R. 75-78.
To be eligible for disability benefits, Long was required to
prove that he was disabled within the meaning of the law on or
prior to the date he was last eligible for benefits his "date
last insured," or DLI December 31, 1989. See Hughes v.
Chater, 895 F. Supp. 985, 992 (N.D. Ill. 1995). "Disability"
under the Social Security Act means the "inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months."
20 C.F.R. § 416.905.
To determine whether Long suffered from a disability as defined
by the Social Security Act, the ALJ followed a five-step inquiry
mandated by 20 C.F.R. § 416.920. This required the ALJ to
evaluate in sequence whether, as of Long's DLI: (1) he was
employed; (2) he had a severe impairment; (3) his impairment met
or equaled one of the impairments listed in the applicable
regulations, see 20 C.F.R. § 404, Subpt. P., App. 1; (4) he
could perform his past work; and (5) ...