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January 10, 2005.

JO ANNE B. BARNHART, Acting Commissioner of Social Security Defendant.

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


Plaintiff, Yvonne Lofton ("Lofton" or "plaintiff") has brought a motion for summary judgment seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied Lofton's claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSI") under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i) and 423(d). The Commissioner 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). For the following reasons, we deny Lofton's motion and grant the Commissioner's motion, affirming the decision of the ALJ.

Procedural History

  Lofton filed an application for period of disability and disability insurance benefits on April 22, 1998. (R. 54). In her application, she alleged an onset date of June 15, 1997. Id. Lofton's claim was denied initially on August 10, 1998 and upon reconsideration on September 30, 1998. On October 6, 1998, Lofton filed a timely Request for Hearing. (R. 41). After due notice, ALJ Helen Cropper held a hearing on July 20, 1999. (R. 171). Lofton appeared and testified at the hearing. Id. On July 27, 1999, ALJ Cropper denied plaintiff's claim. (R. 16-27). The ALJ found that Lofton did not become disabled prior to the expiration of her date last insured ("DLI"), June 30, 1998.*fn1 Id. Furthermore, ALJ Cropper found that plaintiff had the residual functional capacity ("RFC") to perform a wide range of light work during that time and could have performed both her past relevant work and other jobs prior to June 30, 1998. (R. 26). The Social Security Administration's Appeals Council denied review of the ALJ's decision on June 30, 2000. (R. 6-7).

  Lofton subsequently filed an action in the district court. The parties filed cross-motions for summary judgment and Magistrate Judge Morton Denlow heard oral argument on the motions. The parties then entered into a joint stipulation to remand the claim for a supplemental hearing and decision. (R. 231). The stipulation provided as follows:
The ALJ will be directed to evaluate the evidence from Cook County Hospital which contains the diagnoses of degenerative joint disease of the left hip and knee. Evidence from a board-certified orthopedist will be obtained to assist in determining the claimant's residual functional capacity. The ALJ will also be directed to reassess the claimant's subjective complaints of pain and limitations in accordance with SSR 96-7p. Additional evidence from a vocational expert will be obtained to assist in determining whether the claimant can return to her past relevant work or perform other work. The claimant will be given the opportunity to submit additional evidence for the relevant period and appear at a hearing.
(R. 231). The Appeals Council remanded the case to ALJ Cropper and issued the following remand order:
After a careful review of the record of evidence, [the ALJ's opinion] fails to sufficiently state the basis for finding that the claimant would be off task for less than five percent of the work day. In addition, the record does not show that the consultative examiner, Dr. Shermer, was aware of the x-ray findings which showed that the claimant has degenerative joint disease in her left hip and knee.
The Appeals Council believes that the file would benefit from a reevaluation and consideration of the two above factors.
(R. 335).

  On April 25, 2002, ALJ Cropper held the remand hearing. (R. 250). However, plaintiff's counsel objected to the competency of the medical expert present at the hearing and opted to reschedule the remand hearing. (R. 271). The ALJ held another remand hearing ("the second remand hearing") on June 19, 2002. (R. 290-333). At that hearing, plaintiff's nephew, Mr. Eddie Drake, testified on her behalf. (R. 301). Dr. Daniel Girzadas, an orthopedic medical expert, and vocational expert Dr. Chrisann Schiro-Geist also testified. (R. 311, 320). At the second remand hearing, plaintiff's counsel informed the ALJ that he could not obtain the November 1997 x-ray reports that were referenced in the Appeals Council's remand order because Cook County Hospital had purged the records. (R.300). On September 26, 2003, ALJ Cropper issued a second decision denying Lofton's claim. (R. 230-249). Plaintiff waived the right to file exceptions with the Appeals Council in order to file directly with this court pursuant to 20 C.F.R. § 404.984. Lofton filed a civil action in the district court on January 22, 2004.

  Plaintiff's Testimony

  Yvonne Lofton was born on February 24, 1944. (R. 54). Her highest level of education is the tenth grade and she has no formal vocational training. (R. 192). However, Lofton can read and write and perform basic arithmetic. Id. She claims that she was disabled and unable to work prior to her DLI of June 30, 1998 and since that time due to severe pain in her knee, back and hip areas and also due to diabetes-related symptoms. (R. 178, 187).

  Lofton testified that she has daily, severe pain in her knees, hip and back areas to the extent that she has trouble walking more than two blocks without rest. (R. 178). She testified that she has been experiencing these symptoms since October 1997. (R. 180). Lofton claimed that she was diagnosed with diabetes in October 1997. Id. Plaintiff also testified that, when she wakes up in the morning, she experiences severe stiffness and soreness such that she does not want to get out of bed. (R. 183). She testified that she does a minimal amount of housework, that she is unable to cook and that she must have someone accompany her to go grocery shopping. (R. 185). Lofton said that her daily activities were, for the most part, reduced to watching television. Id.

  Lofton testified that she takes Tylenol for her pain but that it does not fully relieve her symptoms. (R. 178-179). In addition, plaintiff takes medication to control her glucose level, but testified that she still has symptoms of feeling off-balance. (R. 182).

  Mr. Drake's Testimony

  At the second remand hearing, plaintiff's nephew, Eddie Drake, testified on her behalf. Mr. Drake was 29 years old at the time of his testimony. (R. 301). He testified that he saw Lofton nearly every day during the relevant time period. Id. He also testified that Lofton was having trouble walking at that time because of problems she was having with her leg. (R. 302). He testified that she would stumble a lot and often needed help walking. Id. Mr. Drake testified that Lofton would often want to sit and rest. Id. Finally, he testified that, in the end of 1997, he helped with certain household work that Lofton was unable to do. (R. 305).

  Medical Evidence

  Lofton visited Cook County Hospital and several Fantus clinics on a frequent basis beginning in October 1997. Lofton visited a Fantus gynecology clinic in October 1997 for menopause-related symptoms. (R. 109). At that visit, Lofton indicated that her only other current medical problem was "borderline" diabetes, for which she was taking oral medication. Id. Lofton visited Cook County Hospital's emergency room on November 18, 1997 because she had missed a general medicine clinic appointment and needed a new appointment. (R. 122-123). Plaintiff reported to the ER doctor that she had been having left hip pain which seemed to originate in the low back and also affected her left knee. Id. She reported experiencing the pain, which was getting worse, for the preceding month. Id. The ER doctor noted that Lofton had a left-sided limp and decreased left hip range of motion. Id. Plaintiff was prescribed Motrin and referred for x-rays, which were apparently taken but not read. Id. These November 1997 x-rays were purged by Cook County Hospital sometime in 2002. (R. 233). The ER doctor diagnosed plaintiff with "degenerative joint disease, left knee and hip." (R. 123). Lofton was instructed to return if her pain or weakness worsened or if she felt any new symptoms. (R. 123).

  On November 21, 1997, Lofton's medical records indicate that she complained of left knee pain and was given a prescription for extended relief Tylenol. (R. 107). Plaintiff was referred to physical therapy at that time but apparently did not follow up on the referral. (R. 107, R. 242).

  Lofton had an initial visit in the Fantus diabetes clinic on May 22, 1998. (R. 103). She followed up at the general medicine clinic on May 29, 1998. (R. 101). No medical complaints were reported at either of these visits. (R. 101, 103). On May 29, 1998, Lofton's blood sugar was not well controlled and her dose of Glipizide was increased. (R. 101). A week later, in the diabetes clinic, plaintiff's medication was changed. (R. 98, 100). Lofton visited the diabetes clinic twice in August 1998. (R. 149-150). On both occasions, there were no reported complaints about her condition. Id.

  Lofton had two consultative exams in connection with her disability claim. On July 24, 1998, she was examined by Dr. Alvaro Rios, an internist. (R. 124). Lofton reported that her medical problems included diabetes, hypertension and arthritis. Id. Lofton complained of back pain radiating to the left leg. Id. She indicated that the pain had been going on for five years but that it was relieved by over the counter medication. Id. Dr. Rios noted that Lofton had high blood pressure and tenderness and decreased range of motion of the lumbar spine. (R. 126). Her gait, ambulation and neurological examination were within normal limits. Id. Dr. Rios offered the following clinical impressions: 1) plaintiff suffered from diabetes with no evidence of end organ damage; 2) plaintiff suffered from hypertension with no evidence of end organ damage; and 3) plaintiff most likely suffered ...

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