United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER United States Magistrate Judge.
Kesia Yvette Howard ("claimant" or "Ms.
Howard") has filed a motion for summary judgment seeking
reversal or remand of the final decision of the Commissioner
of Social Security ("Commissioner") denying her
claim for Supplemental Security Income benefits
("SSI") (doc. #15: Pl.'s Mot. for Summ. J.).
The Commissioner has filed a motion seeking affirmance of the
decision denying benefits (doc. #23: Def.'s Mot. for
Summ. J.). For the following reasons, we grant Ms.
Howard's motion for remand and deny the
October 25, 2011, Ms. Howard applied for SSI, claiming that
she became disabled on July 26, 2011 due to asthma, sleep
apnea, vision problems, memory problems, anemia, arthritis in
her knees and fibroids (R. 384, 394, 417, 421). After her
claim was initially denied, Ms. Howard filed a request for
reconsideration, which was denied on April 5, 2012 (R. 229,
234, 239). Ms. Howard subsequently requested a hearing by an
Administrative Law Judge ("ALJ"), which was held on
December 18, 2012 (R. 175, 243). On January 25, 2013, the ALJ
ruled that Ms, Howard was not disabled, and she filed a
request for review (R. 178, 284). On May 13, 2014, the
Appeals Council remanded the case for further consideration
of: (1) new evidence related to Ms. Howard's learning
disability and General Ability Index; (2) Ms. Howard's
obesity; and (3) how Ms. Howard's assessed limitations
were specifically supported in the ALJ's determination of
her RFC (R. 194, 196).
two additional hearings on September 8, 2014 and May 28,
2015,  the ALJ issued a written opinion on August
26, 2015, finding Ms. Howard was not disabled from October
25, 2011 through the date of the decision (R. 220). The
Appeals Council upheld the ALJ's determination on April
7, 2016, making the ALJ's determination the final opinion
of the Commissioner (R. 1-7). See 20 C.F.R. §
404.981; Varga v. Colvin, 794 F.3d 809, 813 (7th
Howard was born on April 11, 1965 and was 50 years old at the
time of her final hearing in May 2015 (R. 136). She completed
the eighth grade and had taken some classes towards her GED,
but had not finished the program (R. 137). She never married
and has three adult children, one of whom lives with her
(Id.). Ms. Howard previously worked as a driver for
a youth program, a lunch room attendant, and a security
guard, although not at the level of substantial gainful
activity (R. 138-142, 219). Between 2001 and 2006, Ms. Howard
also worked as a "parent patrol" at Limb Blue High
School while one of her children attended there (R. 78, 79,
444). In a Work History Report she completed in connection
with her application for benefits, Ms. Howard wrote that this
job involved assisting teachers, patrolling hallways, and
greeting school guests (R. 446).
(as we discuss below), our decision to remand rests on the
ALJ's treatment of Ms. Howard's mental impairments,
we will only briefly summarize her physical issues. Ms.
Howard has a history of asthma, which is treated primarily
through medication management; she has no recent hospital
visits related to complications from asthma (R. 554). Ms,
Howard had surgery for uterine fibroids in August 2011 and
has arthritis in her knees; she had surgery on her left knee
in 1995 (R. 547, 938). While diagnostic testing in 2011 and
2012 (MRI and x-ray) revealed degenerative changes from
osteoarthritis in her knee, Ms. Howard's pain and
tenderness was generally managed with medication and regular
physical therapy (R. 587, 599, 600, 617, 733, 915, 918, 944,
December 1, 2011, Charles Carlton, M.D., examined Ms. Howard
in connection with her claim for benefits (R. 554). Dr.
Carlton's report summarized his examination of Ms. Howard
with respect to both her physical and mental health (R. 556).
The entirety of Dr. Carlton's mental status evaluation of
Ms. Howard stated "[g]eneral observations are as noted
above. She was alert and oriented to time, place and person.
She describes no history of treatment for depression or
psychiatric disorders" (R. 556). Dr. Carlton also noted
that Ms. Howard complained of memory problems, but his report
does not reflect that he tested Ms. Howard's memory
December 2011, Lionel Hudspeth, Psy.D, completed a
psychiatric review technique for Ms. Howard, based on Dr.
Carlton's examination and not upon his own examination of
Ms. Howard (R. 563-72). Dr. Hudspeth opined that Ms. Howard
did not have any mental health impairments and thus he did
not complete a Paragraph B assessment (R. 563). Dr.
Hudspeth's written summary of his findings identifies Ms.
Howard's allegations of memory problems as her only
potential mental health issue; he found that she was not
credible with respect to her allegations of memory problems
but did not explain why he made this finding (R. 575). On
April 4, 2012, agency doctor David Voss, PhD, affirmed Dr.
Hudspeth's findings on the ground that Ms. Howard
reported no psychiatric disorders or treatment (R. 607).
Howard underwent several days of psychological and
intelligence testing between January 11, 2013 and February
19, 2013 to determine the possibility of a learning disorder,
after a referral from Richard J. Daley College, which she was
attending to obtain her GED (R. 652). The testing report
showed that Ms. Howard was alert and oriented for situation,
time, place and person, her mood was calm, and she was
cooperative and friendly (R. 653). Ms. Howard's memory
was grossly intact and she had average insight and judgment
(Id.). Ms. Howard was judged to have index scores of
70 in verbal comprehension, 85 in perceptual reading, 86 in
working memory, 59 in processing speed, and 70 in general
ability, leading to a full scale IQ of 67 (Id.). The
report cautioned that given the large spread among the
individual indexes, Ms. Howard's generally ability index
of 70 was a better estimate of her overall functioning than
the IQ of 67 (R. 653-54). The report summarized that
claimant's intellectual functioning was in the
borderline/extremely low range and her verbal and performance
abilities were significantly disparate (R. 658). Ms.
Howard's anxiety could also contribute to her academic
functioning (Id.). The report listed diagnoses of a
reading disorder and a disorder of written expression
request of the ALJ, state agency consultant Harvey I.
Friedson, Psy.D, performed a mental status examination on Ms.
Howard on December 3, 2014 (R. 899). His report reflects that
Ms. Howard was cooperative, with relevant and coherent speech
(R. 901). She had some range of affect and cried during the
exam (Id.). Dr. Friedson's testing of Ms.
Howard's memory consisted of asking her how she had
gotten to the appointment; she correctly responded that her
son had driven her (Id.). Dr. Friedson diagnosed Ms.
Howard with "depressive disorder" and added that
his diagnosis would include borderline intellectual
functioning (R. 902). On a Medical Source Statement of
Ability to Do Work-Related Activities (Mental), Dr. Friedson
opined that Ms. Howard was moderately limited in her ability
to understand, remember, and carry out simple instructions
and to make judgments on simple work-related decisions (R.
904). He assessed her as markedly limited in her ability to
understand, remember, and carry out complex instructions and
make judgments on complex work-related decisions
(Id.). Dr. Friedson also judged Ms. Howard to be
moderately limited in her ability to interact appropriately
with the public, coworkers, and supervisors and to respond
appropriately to usual changes in her work setting (R. 905).
When asked to identify the factors that supported his
assessment, Dr. Friedson wrote "9th grade education, no
diploma, slow learner, chronic pain, medical issues" (R.
hearing on May 28, 2015, after considering the additional
evidence of Ms. Howard's learning disability and mental
health impairment, the ALJ gave the vocational expert
("VE") a hypothetical that asked her to consider an
individual with the plaintiffs age, education and work
history, who could lift 20 pounds occasionally and 10 pounds
frequently, could stand and walk six hours in an eight-hour
day and sit for six hours in an eight-hour day but who needed
the opportunity to alternate between sitting and standing for
up to two hours each, although not necessarily at will (R.
31-32). The hypothetical claimant also had
additional limitations of being unable to understand,
remember, and carry out detailed and complex job tasks, and
was limited to casual contact with general public, coworkers
and supervisors (Id.). The VE responded that such an
individual would be able to perform light, unskilled work as
a laborer, a small parts assembler or as an inspector, for
which approximately 105, 000 positions existed nationwide (R.
32, 33). However, the VE testified that all of the jobs
identified would be ruled out if the individual were to be
off task for 15 percent or more of the workday or miss more
than one day per month (R. 33).
opinion dated August 26, 2015, the ALJ followed the familiar
five-step process for determining disability, 20 C.F.R.
§ 404.1520(a)(4), and 416.920(a) (R. 204-08). After
considering the new evidence of claimant's learning
disability and Dr. Friedson's report, and further
considering plaintiffs obesity, her need to alternate between
sitting and standing, and other functional limitations, the
ALJ found that Ms. Howard was not disabled within the meaning
of the Social Security Act (the "Act") (R. 202,
203). The ALJ determined that Ms. Howard had not engaged in
substantial gainful activity since the date of her
application and that she had the following severe
impairments: asthma, obesity, arthritis, history of learning