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Llewellyn Griffo v. Michael J. Astrue

February 10, 2011


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Claimant Llewellyn Griffo ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for supplemental security income ("SSI"). In response, the Commissioner moves for summary judgment. Claimant raises the following issues in support of his motion: (1) whether administrative law judge Percival Harmon (the "ALJ") properly weighed the medical opinions when determining Claimant's exertional residual functional capacity ("RFC"); (2) whether the ALJ relied on jobs with requirements beyond Claimant's mental RFC; (3) whether the ALJ erred in denying Claimant's request for a consultative psychological evaluation to assess a potential learning disability; and (4) whether the ALJ erred in finding Claimant's testimony less than credible. For the following reasons, the Court grants Claimant's motion for summary reversal or remand, denies the Commissioner's cross-motion for summary judgment, and remands the case to the Commissioner for further proceedings consistent with this opinion.


A. Procedural History

Claimant initially filed for SSI on January 31, 2006, alleging a disability onset date of May 13, 2005. R. 191, 199. The claim was denied on June 7, 2006. R. 117. Claimant then filed a request for reconsideration, which the SSA denied on September 19, 2006. R. 123. On November 14, 2006, Claimant requested a hearing before an ALJ. R. 127.

On February 18, 2009, in Chicago, Illinois, a hearing was held before ALJ Percival Harmon. R. 41--114. Claimant appeared with his attorney, Deborah Specter. Several witnesses testified: Claimant; his mother, Debra Griffo; medical expert ("ME") Hugh Savage, M.D.; and vocational expert ("VE") Glee Ann Kehr. The ALJ issued an unfavorable decision on June 30, 2009, finding that Claimant was not disabled under the Social Security Act. R. 9--21. The ALJ found that Claimant has the RFC necessary to perform a significant number of jobs in the national economy. Id.

Claimant subsequently requested review by the Appeals Council. R. 5. On March 11, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1--4. Claimant then filed this action for review pursuant to 42 U.S.C. § 405(g).


B. Hearing Testimony-February 18, 2009

1. Llewellyn Griffo-Claimant

At the time of the hearing, Claimant was thirty-six years old, single, and living with his mother. R. 48--49. Claimant was five feet seven inches tall and weighed 265 pounds. R. 50. He completed education through the eighth grade. R. 49. Claimant testified that he cannot read, write, or count change. R. 50. When later asked by counsel to clarify his reading ability, Claimant affirmed his lawyer's statement that he could read "a little bit" and "recognize certain words." R. 79. He said that he had a driver's license, but that his aunt had taken the written portion of the test for him. R. 67. Claimant's past work experience included working as a picker and packer, and as a fast food worker. R. 51--55. He had been incarcerated for possession of a controlled substance in 2005 and 1992. R. 56. He stated that he had not used drugs or alcohol for the last three or four years. R. 57--58.

Claimant testified that he had been shot several times while selling drugs in late 2004. R. 57. He claimed to still have pain in his legs, ribs, and hands stemming from the gunshot wound. R. 68--69. He reported that his right leg swells whenever he stands for more than an hour straight, so that he must elevate his leg three or four times per day. R.

71. Claimant takes naproxen, Tylenol, and aspirin for pain. R. 16, 86. Claimant testified that he uses a cane to walk and can only go about twenty feet without stopping. R. 73. He said that his right wrist is numb. R. 72. Claimant stated that he could not carry 3 anything heavy because of back pain. R. 74. He had not yet started physical therapy or an exercise program, but was scheduled to start soon. R. 84. Claimant also stated that he was born with asthma, which has worsened over time. R. 69.

Claimant does not help with any chores around the house, and spends all day watching TV. R. 59. He needs help to put on his pants and shoes. R. 72--73. He does not currently drive because of problems with his leg, but he can take the bus and train. R. 58. He attends church twice a week: Thursday night from six o'clock to eight-thirty for bible study, and Sunday from nine in the morning to three in the afternoon. R. 61. At church, he sits on a bench and switches positions frequently. R. 81.

2. Debra Griffo-Claimant's Mother

Ms. Griffo testified that Claimant has lived with her on and off for his entire life. R. 87. Ms. Griffo's sister takes care of Claimant during the day, because Ms. Griffo has a job. R. 87. Ms. Griffo was told that Claimant was a slow learner when he was in grade school, but she could not remember if he had been given any tests to determine a specific disability. R. 87--88. She did recall Claimant attending special education classes in eighth grade. R. 108. Ms. Griffo said she had seen Claimant read the newspaper and bible. R. 88--89. She thought Claimant could count small amounts of money, but was unsure if he could count more. R. 92--93.

3. Dr. Hugh Savage-Medical Expert ("ME")

Dr. Savage examined Claimant's medical file and he determined that the file was adequately detailed to formulate a medical opinion about Claimant's condition. R. 94. He remarked that a notation in Claimant's treatment notes showed Claimant had used alcohol and cocaine just a few days before a doctor's appointment in August of 2007. R. 95, 631. The ME testified that Claimant appeared to have healed well from his gunshot surgery. R. 96. He thought that Claimant's recent complaints of persistent pain were inconsistent with Claimant's lack of previous complaints, the lack of any edema in his medical record, and his use of over-the-counter pain medications. Id.

The ME disagreed with the RFC evaluation of Claimant's treating physician, Dr. Akuche. R. 97. Dr. Akuche had indicated that Claimant needed to elevate his leg periodically and would have trouble standing or sitting for long periods of time. R. 97--98. The ME testified that no objective medical evidence in Claimant's record supported such conclusions. R. 98--99. For instance, the ME noted a physical exam, dated only a few weeks before Dr. Akuche's form, that specifically stated Claimant had no edema; this evidence undercut Dr. Akuche's opinion that Claimant needed to frequently elevate his leg. R. 99, 563. The same exam also found that Claimant had a normal range of motion in his upper extremities, calling into question Dr. Akuche's assertion that Claimant was limited in the use of his hands. Id.

The ME believed Claimant's RFC to be somewhere between sedentary and light.

R. 99. Based on the consultative exam and treatment notes, he believed that Claimant could lift up to ten pounds frequently and ten to twenty pounds occasionally. Id. Based on Claimant's testimony about sitting in church, he thought Claimant would require sit/stand options every hour or two, simply to switch position for a minute or two. Id. He thought Claimant could stand for fifteen minutes at a stretch, and more than two hours total in an eight-hour work day. R. 103. He stated that Claimant's history of asthma would restrict Claimant from performing jobs involving extremes of temperature or pollution. R. 100. He testified that nothing in Claimant's medical history suggested limitations on hand use. R. 100. Concerning Claimant's mental capacity, he stated that it was "incompletely assessed" whether or not a learning disability played a role in Claimant's poor academic performance. R. 95.

4. Ms. Glee Ann Kehr-Vocational Expert ("VE")

Ms. Kehr testified that Claimant's previous work experience as a fast food worker and as a picker and packer was unskilled labor. R. 107. Before presenting his hypothetical to the VE, the ALJ discussed Claimant's educational background with the VE. R. 107--08. The ALJ presented the VE with a detailed hypothetical person based on Claimant's vocational profile and RFC. R. 109--10. The VE testified that the hypothetical person would be able to work as an account clerk, telephone clerk, or order clerk. R. 110. She stated there were 3,800, 4,700, and 8,000 of these jobs, respectively, in the Chicago metropolitan area. Id. The ALJ then asked if the hypothetical person could still perform these jobs if he needed to elevate his leg for two hours during the day, take a five-minute break every thirty minutes, or could not sit for more than two hours in an eight-hour period. Id. The VE said that any one of these issues would, by themselves, preclude him from all three of the jobs. Id. The VE testified that a criminal background might preclude someone from being hired as an account clerk, but not the other two jobs.

R. 112. The VE stated that none of her answers conflicted with information contained in the Dictionary of ...

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