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David Corder v. Michael J. Astrue

August 22, 2012


The opinion of the court was delivered by: Magistrate Judge Michael T. Mason


Michael T. Mason, United States Magistrate Judge:

Plaintiff, David Corder ("Corder" or "claimant"), seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") [see 26]. The Commissioner denied Corder's claim for Supplemental Security Income ("SSI") payments under section 1614(a)(3)(A) of the Social Security Act ("the Act"), 42 U.S.C. § 1382c(a)(3)(A). The Commissioner has filed a motion for summary judgment [31] asking that we uphold the decision of the Administrative Law Judge. We have jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The parties consented to proceed before us [8]. For the reasons set forth below, claimant's request for summary judgment [see 26] is granted in part and denied in part, and the Commissioner's motion [31] is denied.


A. Procedural History

On June 1, 1993, Corder applied for SSI and Disability Insurance Benefits ("DIB") stating that he was disabled due to back problems, alcoholism, and asthma. (R. 37-44.)

Corder later abandoned his DIB claim and pursued only his SSI claim. (R. 374.)

After the initial denial of his applications and two unfavorable decisions by Administrative Law Judge ("ALJ") Alan J. Jonas, Corder filed a complaint in the Northern District of Illinois seeking judicial review. (N.D. Ill. No. 00 C 2714 - Compl. [1].) On May 4, 2001, Magistrate Judge Sydney I. Schenkier reversed ALJ Jonas's decision and remanded the matter for further proceedings to determine the extent of Corder's impairments, the extent to which those impairments limit his ability to work, and the work available to him given those limitations. Corder v. Halter, No. 00 C 2714, 2001 WL 477210, at *13 (N.D. Ill. May 4, 2001).

Following that remand, ALJ Maren Dougherty found Corder not disabled. (R. 461-79.) ALJ Dougherty reached her decision after two administrative hearings where Corder, a medical expert, and a vocational expert testified. (R. 482-529, 530-48.) Corder then filed a second complaint in the Northern District of Illinois seeking judicial review on January 5, 2004. (No. 03 C 9308 - Compl. [1].) District Judge Suzanne B. Conlon ultimately reversed ALJ Dougherty's decision and remanded the case for further proceedings, including an assessment of Corder's non-exertional limitations with respect to his residual functional capacity ("RFC"). Corder v. Barnhart, No. 03 C 9308, 2004 WL 1381125 (N.D. Ill. May 10, 2004).

On April 8, 2005, Corder appeared for the second time before ALJ Dougherty.

(R. 869-909.) On April 29, 2005, ALJ Dougherty again issued an unfavorable decision to Corder. (R. 772-85.) On July 13, 2005, Corder filed his third complaint in this District, seeking judicial review of that decision. (No. 05 C 3893 - Compl. [1].) The parties consented to the undersigned's jurisdiction [20, 21]. On July 19, 2007, we reversed ALJ Dougherty's decision, finding she made an improper independent medical determination when evaluating the effect of Corder's subtest scores on his functional capacity. Corder v. Barnhart, 504 F. Supp. 2d 351, 359 (N.D. Ill. 2007). Further, after noting ALJ Dougherty's apparent commitment to denying Corder's claim, we urged the Social Security Administration to assign a new ALJ to the case on remand. (Id.)

On remand, ALJ Robert C. Asbille was assigned to Corder's case. (R. 913.) Pursuant to our order, ALJ Asbille resolved to consider Corder's non-exertional limitations with respect to his subtest scores achieved on the Wechsler Adult Intelligence Scale-Revised IQ test in assessment of Corder's RFC. (Id.) He held a hearing on January 28, 2010, at which Corder, Ellen Rozenfeld, Psy.D., a psychological expert, and Jill K. Radke, a vocational expert, each testified. (R. 1016-17.) ALJ Asbille also held a second, in-camera hearing on June 29, 2010, at which Corder's counsel and Radke were present. (R. 1049-64.) On August 23, 2010, ALJ Asbille issued his decision finding that Corder was not disabled and that, based on the testimony of the vocational expert, and considering Corder's age, education, work experience, and RFC, Corder was capable of finding work in significant numbers in the "national economy."

(R. 927.) Corder did not file exceptions with the Appeals Council, rendering ALJ Asbille's decision the final decision of the Commissioner. 20 C.F.R. § 416.1484.

On November 22, 2010, Corder filed this action, his fourth complaint in this District, seeking judicial review of ALJ Asbille's denial of his application for SSI.

B. Factual Background

1. Personal History

Corder was born in April 1958. (R. 37.) He completed the tenth grade and has not had any further educational or vocational training. (R. 248.) He has not been employed since 1986. (R. 86.) His work history includes working for a roofing company from 1975-79, working as a service man at adult bookstores from 1979-82, and various assembly line work at different factories from 1982-86. (R. 86.) That work involved frequent to constant standing, walking, and bending. (R. 86-91.) Corder has a history of alcohol dependency, but has been sober since April 1995. (R. 112, 485.)

2. Physical Health History

In 1987, Corder was diagnosed with paravertebral muscle spasm at L4-5 and demonstrated a straight leg-raising test on the left of 65 degrees and on the right of 75 degrees. (R. 210.) In 1993, he was diagnosed with tender sacroiliac and spinal disorder with chronicity. (R. 203, 205.) In 1998, he was diagnosed with symptomatic degenerative arthritis of the lumbosacral spine and degenerative disc disease. (R. 382.) Corder was also diagnosed with asthma. (R. 102, 381-82.)

3. Mental Health History

In 1993 and again in 1997, Corder was examined by two different doctors who both administered Wechsler Adult Intelligence Scale-Revised IQ tests, and both times, Corder scored at the lower end of the borderline range of intellectual functioning. (R. 159-75, 248-52.) Michael Diamond, Ph.D, who tested Corder in 1993, also determined Corder possessed below third grade reading and spelling skills, and fifth grade math skills. (R. 161.) Additionally, Dr. Diamond found Corder had borderline scores in assembly skills and eye-hand coordination tasks, as well as poor reasoning skills and a limited vocabulary. (Id.) Mary Gardner, M.S. Ed., Psy. D., who examined Corder in 1997, reported that his information subtest score placed him in the mentally retarded range. (R. 250.) She found him to be at a one percent reading level, lower than 99 percent of the populace. (Id.) She also noted Corder had memory problems and limited abilities to remember locations and work-like procedures, and to concentrate. (R. 263.)

4. Hearing Testimony -- Corder

At the January 28, 2010 hearing, ALJ Asbille briefly questioned Corder. (R. 1019-22.) Corder's counsel gave the caveat that Corder's memory had never been good and had recently gotten worse since undergoing treatment for cancer in the esophageal area. (R. 1019.) Corder testified that he had a driver's license, but had not driven recently because of his current illness. (R. 1021.) ALJ Asbille asked Corder about his educational background and why he dropped out of school during the third year of high school. (Id.) Corder replied that he had difficulty balancing school and work at the same time, so he dropped out to work. (Id.) The ALJ asked when and why Corder stopped working, and while Corder had difficulty remembering the ...

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