Security Act defines “disability” as the inability to engage in any substantial gainful activity due to
physical or mental impairment(s) which can be expected to either result in death or last for a
continuous period of not less than 12 months. See 42 U.S.C. § 1614(a)(3)(A). The Social Security
Regulations require the ALJ to follow a five-step inquiry process to determine disability status. See
20 C.F.R § 416.920(a)-(f). The following must be analyzed in sequence: (1) whether the claimant
is currently employed; (2) whether he has a severe impairment; (3) whether his impairment meets
or equals one listed by the Commissioner; (4) whether the claimant can perform his past work; and
(5) whether the claimant is capable of performing any work in the national economy. See id. A
claimant has the burden of proving steps one though four. See Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987). Once the first four steps are established, the burden shifts to the Commissioner to show
that the claimant is capable of performing work in the national economy. See Knight v. Chater, 55
F.3d 309, 313 (7th Cir. 1995).

In determining Reed’s disability status, the ALJ found that Reed met his burden of proving
“disability” under the first four steps of the evaluation process. At step five, the ALJ found that Reed
was disabled from December 18, 1997 through January 28, 1999; however, he also found that as of
January 29, 1999, Reed had the residual functional capacity (“RFC”) to perform some work in the
regional economy. Specifically, relying on testimony of the VE, the ALJ opined that Reed could
perform light work, such as that required of a hotel housekeeper, a light janitorial worker, and hand
packer. Thus, the ALJ determined that as of January 29, 1999, Reed’s RFC had changed and he was
no longer disabled under the Social Security Act.

Reed raises three issues on appeal: (1) whether the ALJ’s decision to the change Reed’s

physical RFC after January 28, 1999 was supported by substantial evidence; (2) whether the ALJ’s



the job.” (R. 22). After January 29, 1999, the ALJ determined that Reed had the capacity for
concentration, persistence and pace sufficient to perform unskilled work activity on a sustained basis.
(R. 24, 26). Ultimately, the ALJ concluded that Reed’s capacity of concentration and memory had
improved by January 29, 1999 so that he could then perform unskilled work on a sustained basis.
(R. 24).
Inreaching this conclusion, the ALJ ultimately relied on evidence submitted by two doctors.
First, the ALJ relied on a report submitted by Dr. Rama Embar, who conducted a psychiatric
consultation with Reed on January 29, 1999. Inher report, Dr. Embar specifically opined on Reed’s
mental capacity. Citing Dr. Embar’s findings, the ALI stated:
[Reed] reported some problems with memory since his stroke. Although there was
no evidence of depression, or any gross psychopathology, Dr. Embar noted the
claimant had to pause before he could answer questions, and had some problems
finding words. His short and long term memories seemed fairly intact, however, and
Dr. Embar diagnosed him with memory difficulty. Dr. Embar also felt that the
Claimant could manage his own funds... .
{R. 21). Thus, the ALJ acknowledged Dr. Embar’s diagnosis of Reed’s continued memory
difficulties, including his tendency to pause before answering questions and his difficulty finding
words.

Despite this diagnosis, however, what the ALJ found more compelling was Dr. Embar’s
determination that Reed’s short and long term memories were fairly intact. This s a reasonable
conclusion given entirety of Dr. Embar’s report. For example, her report states that Reed was able
to recall four digits forward, but not backward; was able to recall two out of three objects; was able

to recall what he last ate for dinner and breakfast; and was able to recall the name of his hi igh school

and his birthplace. (R. 190). Additionally, Dr. Embar’s report indicates that Reed could perform


right-sided weakness, resulting from stroke. (R. 185). Additionally, Dr. Rana’s report indicates that
Reed related he could walk one mile without the use of an ambulatory aid, although he drags his
right foot somewhat while walking. (R. 183).

Second, the ALJ considered Reed’s hearing testimony in determining his physical RFC. On
November 9, 1999, Reed testified about his abilities and limitations. For example, despite the fact
that he lives on the third floor of an apartment building with no elevator, he expressed some
difficulty climbing stairs. (R. 51). Additionally, Reed stated that he cleans his own apartment and
currently performs maintenance chores for his landlord (R. 38-41); he worked part-time for a
trucking company sweeping floors, removing trash, and answering telephones (R. 41-44); his right
leg is not as strong as it once was, and it is weaker than the left leg (R. 51); and he could only walk
4 or 5 blocks before having to stop and rest. (R. 50), Additionally, although he stated he does not
have a cane, he expressed his belief that he needs one. (R. 50). Reed also stated he can sit for a long
time; however, he frequently has to move his right leg while doing so to avoid stiffness. (R. 55).
Further, he testified that he continues to have problems with his right-hand grip, alleging he cannot
hold a cup of water, and must use his left hand for most manipulations. (R. 55).

Finally, the ALJ considered the November 9, 1999 testimony of Dr. Ellis Johnson, a Board-
certified psychiatrist and neurologist who served as medical advisor to the ALJ. After hearing
Reed’s testimony and reviewing the medical evidence of record, Dr. Johnson opined that Reed was
post status cardiovascular accident (“CVA”). (R. 66). He stated that Reed has residual right-sided

hemiparesis”, which is more severe in the upper than the lower extremity, and that there is also slight

? Defined as “weakness affecting one side of the body.” See Stedman’s.

6


decision to change Reed’s mental RFC after January 28, 1999 was supported by substantial evidence;
and (3) whether the ALJ’s credibility findings were proper. The court will address each of these
issues in turn.

J. Reed’s Physical Residual Functional Capacity

Effective January 29, 1999, ALJ Harmon determined that Reed’s physical condition
improved such that it changed his RFC. Prior to January 29, 1999, the ALJ concluded that although
Reed could sit without restriction, he could only walk 4 or 5 blocks slowly before needing to rest.
(R. 22). Given this fact, along with evidence of significant impairments to the right upper extremity,
the ALJ found that Reed was disabled under the Social Security Act, (R. 23). However, after
January 29, 1999, the ALJ concluded that Reed could walk/stand up to 6 hours in an 8 hour period.
(R. 24, 26). Based on this change in Reed’s physical condition, the ALJ ruled that as of January 29,
1999 Reed had the RFC to perform unskilled work on a sustained basis. (R. 24). Reed argues that
the ALJ’s decision to change Reed’s physical RFC was not supported by substantial evidence.

The ALJ based his decision to change Reed’s physical RFC on numerous grounds. First, the
ALJ relied on the medical report submitted by Dr. Fauzia A. Rana to support his conclusion. Dr.
Rana, who examined Reed on January 29, 1999, noted that Reed had no back spasms, tenderness,
or difficulty moving; however, Reed did have sight limitation on his right side due to muscle
weakness. (R. 185-86). Dr. Rana also noted that Reed’s lumbar and lower extremity motion was
full, except for a reduction of the right hip flexion. (R. 185). He observed Reed’s gait! as abnormal,

in that he walked with a limp favoring his right side. (R. 185). He diagnosed Reed with residual

‘Refers to a person’s manner of walking. See Stedman’s Online Medical Dictionary,
available at http://www.stedmens.com (last visited May 21, 2004) (hereinafter “Stedman’s”).

5


conclusions. See Godbey, 238 F.3d at 808. Here, the only evidence which contradicts the ALJ’s
conclusion is Reed’s testimony that he can only walk 4 or 5 blocks slowly before having to stop and
rest. (R. 50). However, the ALJ found this statement incredible because it is disproportionate to the
clinical signs, laboratory findings, or the evidence of the record. (R. 24). The ALJ’s finding is
evinced by Dr. Rana’s January 29, 1999 report which indicates that he is capable of walking at least
one mile without the use of an ambulatory aid. (R. 183). It is also established through Reed’s
testimony indicating that from July through November 1998, he worked fora trucking company for
up to five hours a day doing office work and light cleaning. (R. 41-44). Additionally, Reed testified
that he currently does maintenance chores for his landlord, albeit on a limited basis. (R. 38-41).
Thus, the ALJ’s finding on the issue is supported by the record. As such, the court is satisfied with
the ALJ’s basis for discrediting Reed’s contradictory statement. See Diaz, 55 F.3d at 308 (the court
will not disturb ALJ’s credibility findings unless they are patently wrong).

After weighing the evidence, the ALJ concluded that Reed’s physical RFC had improved and
he regained the ability to perform unskilled work on a sustained basis. (R. 24). Based on the record
before the court, the ALJ’s conclusion to change Reed’s physical RFC as of January 29, 1999 was
supported by substantial evidence. See Johansen y. Barnhart, 314 F.3d 283, 288 (7th Cir. 2002)
(indicating that a claimant who performs daily activities such as home exercises, grocery shopping,
laundry, and walking one mile per day is not likely disabled).

2. Reed’s Mental Residual Functional Capacity

Reed also argues that the ALJ’s decision to change Reed’s mental RFC was not supported
by substantial evidence. Prior to January 29, 1999,the ALJ found that Reed’s memory “would often

(Le., up to one-third of a normal workday) interfere[] with concentration, persistence, and pace on



inate Order Form (06/97)

New United States District Court, Northern District of Illinois
c
Name of Assigned Judge Charles Norgle Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 6000 DATE 5/25/2004
CASE James Reed, Jr. vs. Joanne Barnhart
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:
Motions for Summary Judgment
DOCKET ENTRY:
qd) Qo Filed motion of [ use listing in “Motion” box above.]
(2) ao Brief in support of motion due
(3) oO Answer brief to motion due___. Reply to answer brief due.
(4) Oo Ruling/Hearing onset for at
(5) Q Status hearing{held/continued to] [set for/re-set for}on____—setfor ss at_
(6) a Pretrial conference[held/continued to] (set for/re-set for]on___—ssetfor_——at_
” a Trial[set for/re-set for]on___at
(8) oO [Bench/Jury trial] [Hearing] held/continued to __at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

qo) «ol [Other docket entry] The parties have filed cross-motions for summary judgment. For the reasons
stated in the attached order, Defendant’s Motion for Summary Judgment [12-1] is GRANTED; Plaintiff's
Motion for Summary Judgment [7-1] is DENIED. The Clerk shall enter judgment in favor of Defendant
and against Plaintiff pursuant to Rule 58. It is so ordered. (See attached Opinion and Order).

Ltprtee”

al) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
ot req! number of notices

Notices mailed by judge’s staff. MAY 27 2004

Notified counsel by telephone. date dockoted

| Docketing to mail notices

Mail AO 450 form.

Copy to judge/magistrate judge.

date nied notice
courtroom a

deputy’s
initials

Date/time received in
‘Cefitral Clerk's Office mailing deputy initials
Ee



instructions; however, he is not significantly limited in his ability to understand, remember, and
carry out short and simple instructions. (R. 208-09). Thus, Dr. Morris’ opinion distinguishes
between Reed’s ability to perform simple as opposed to detailed instructions. (R. 208-09). Based
on this distinction, Reed’s deficiencies in concentration, persistence, and pace may not preclude his
ability to perform unskilled work ona sustained basis. See Jens v. Barnhart, 347 F.3d 209, 213 (7th
Cir. 2003) (affirming ALJ’s finding that a claimant who often experiences deficiencies of
concentration, persistence, or pace is capable of performing semi-skilled work). As such, Dr.
Morris’ findings actually support the ALJ’s conclusion that Reed’s mental RFC had improved as
of January 29, 1999, Therefore, the ALJ’s decision was based on substantia! evidence.
3. ALJ’s Credibility Findings
Finally, Reed argues that the ALJ’s credibility determination was improper. The ALJ
addressed Reed’s credibility and found that it was “highly credible” with regard to his condition
prior to the medical improvement, but incredible with regard to his condition after the medical
improvement. (R. 24). Specifically, the ALJ stated:
Finally, and for the reasons noted above, I must discount any complaints of
debilitating residuals on or after January 29, 1999 as disproportionate to the clinical
signs, laboratory findings, and other evidence of record. I should reiterate, however,
that I found him highly credible in describing the pain and limitations that existed
prior to medical improvement (Social Security Ruling 96-7p).
(R. 24). Thus, the ALJ gave less weight to Reed’s statements regarding his condition after January
29, 1999 than he gave to those statements pertaining to his condition thereafter. Reed argues that
such a bifurcated finding of credibility defies common sense. The court disagrees. The ALJ simply

found that at one time Reed’s debilitating residuals were supported by the medical evidence;

however, after some medical improvement, this was no longer the case. Based on the ALJ’s

ll



simple arithmetic problems and that he could perform serial threes with some difficulty. (R. 190).
He also had accurate memory for various types of information, such as how many nickels are ina
dollar, how many weeks are in a year, and the names of large cities and famous people. (R. 190).
Although Dr. Embar noted that Reed had difficulty remembering names, he did know the names
of both the current and former president of the United States, as well as the name of the mayor of
the city of Chicago. (R. 190). These findings support Dr. Embar’s conclusion that despite Reed’s
memory difficulties, his short and Jong term memories were fairly intact as of January 29, 1999.
(R. 190). Hence, the ALJ accurately stated Dr. Embar’s conclusions and reasonably relied on them
to find that as of January 29, 1999, Reed was capable of performing unskilled work activity on a
sustained basis. (R. 24, 26).

The ALJ also adopted the opinion Dr. Charles S. Morris, the state agency examiner who
examined Reed on March 29, 1999. (R. 22). Dr. Morris opined that Reed had slight limitations on
his daily living activities and his social functioning. (R. 218). He found that Reed often had
deficiencies of concentration, persistence or pace resulting in failure to complete tasks ina timely
manner. (R. 218). In adopting Dr. Morris’ decision, the ALJ did not elaborate on any of Dr.
Morris’ findings.

Dr. Morris found that Reed often suffers deficiencies in concentration, persistence, or pace.
Reed argues that the ALJ’s decision to adopt Dr. Morris’ finding is inconsistent with the ALJ’s
finding that, as of January 29, 1999, Reed had the capacity for concentration, persistence, and pace
sufficient to perform unskilled work activity on a sustained basis. (R. 218). However, these
findings are not inconsistent given the totality of Dr. Morris’ submissions. Dr. Morris indicates that

Reed is moderately limited in his ability to maintain sufficient concentration to carry out detailed

10


expressive dysphasia®, (R. 65). Dr. Johnson stated that Reed was still experiencing mild-to-
moderate weakness of the right upper extremity, and he also has some slight memory problems. (R.
65-66). He also indicated that Reed’s abnormal gait and limp could be caused by weakness in the
right leg, due to his post status CVA. (R. 68-69). Dr. Johnson concluded by noting that Reed has
made a noticeable improvement since his stroke in 1997, and that further rehabilitation should
enhance the level of improvement. (R. 67).

After weighing the evidence, the ALJ concluded that Reed’s medical condition improved
since he first had his stroke in 1997. Recognizing that this medical improvement affected Reed’s
ability to work, the ALJ stated:

Although [Reed] was still demonstrating a slight limp at the time of the internal

medicine consultative evaluation on January 29, 1999, there is no objective basis for

concluding he could not stand and/or walk consistent with ability to perform light

work activity by that time. He could, after all, walk independently at the time of the

evaluation, and has apparently never used a cane or other assistive device for

ambulation. I should also note that [Reed’s] lower extremity weakness has never

been that significant, and that he has had almost two years to adjust to his residual

upper extremity weakness. Hence, with reasonable precautions, there is nothing to

preclude [Reed] from standing and/or walking up to 6 hours per day.
(R. 23-24).

Thus, the ALJ clearly considered all of the relevant evidence regarding Reed’s physical
condition, including that which was favorable to Reed. See Godbey, 238 F.3d at 808. Despite some
evidence to the contrary, the ALJ found that with reasonable precautions Reed is capable of standing

and/or walking up to 6 hours a day. While the ALJ need not articulate his reasons for rejecting every

piece of evidence, he is required to at least minimally discuss evidence that contradicts his

*Defined as “impairment in the production of speech and failure to arrange words in an
understandable way; caused by an acquired lesion of the brain.” See Stedman’s.

7



conclusive.” Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). Thus, the reviewing court does not

eee.

reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute our own

299

judgment for that of the Commissioner.” Kasarsky, 335 F.3d at 543 (quoting Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000)). The court’s task is limited to determining “whether the ALJ’s factual
findings are supported by substantial evidence.” Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir.
2004). If the ALJ’s decision is supported by substantial evidence, it will be upheld even if an
alternative position is also supported by substantial evidence. See Scheck v. Barnhart, 357 F.3d 697,
699 (7th Cir. 2004).

Where, however, “the Commissioner’s decision lacks evidentiary support or is so poorly
articulated as to prevent meaningful review, the case must be remanded.” Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002). The Seventh Circuit requires the ALJ to “build an accurate and

logical bridge from the evidence to [his] conclusions so that [the court] may afford the claimant

meaningful review of the SSA’s ultimate findings.” Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565,

569 (7th Cir. 2003). Itis not enough that the record contains evidence to support the ALJ’s decision;
if the ALJ does not rationally articulate the grounds for that decision, then the court must remand.
See Steele, 290 F.3d at 941. In reaching his decision, the ALJ must confront evidence that does not
support his conclusion and explain why it was rejected. See Godbey v. Apfel, 238 F.3d 803, 808
(2001); see also Heron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994), With these principles in mind,
the court will examine the parties’ motions.
B. Review of the ALJ’s Decision

Disability Insurance Benefits and Supplemental Security Benefits are available only to

claimants who can establish “disability” under the terms of the Social Security Act. The Social


Reed was discharged from the hospital and ordered to seek follow-up testing, physical therapy, and
occupational therapy.

On January 6, 1998, Reed applied for DIB and SSI. The Social Security Administration
(“SSA”) denied Reed’s initial applications and requests for reconsideration. On November 9, 1999,
Reed received a hearing before Administrative Law Judge (“ALJ”) Percival Harmon. At the hearing,
the ALJ heard testimony from Reed himself, Ellis D. Johnson, M.D. (“Dr. Johnson”), and Vocational
Expert (“VE”) Susan Entenberg. After considering evidence from both the hearing and the written
record, the ALJ found that Reed was disabled for the period of December 18, 1997 to January 28,
1999, but not thereafter. Reed subsequently sought review by the Appeals Council, which denied
review on July 13, 2001. On July 31, 2001, the Commissioner adopted the ALJ’s decision.

On August 6, 2001, Reed commenced this action seeking judicial review pursuant to 42
US.C. §§ 405(g) and 1383(c)(3). Generally, Reed contends that the mental and physical problems
resulting from his stroke continue to preclude employment, and therefore his disability status should
not be limited to the period from December 18, 1997 to January 28, 1999. The parties have filed
cross-motions for summary judgment which are fully briefed and before the court.

Il. DISCUSSION
A. Standard of Review

When reviewing an ALJ’s decision, the court must affirm if it is supported by substantial
evidence and free of legal error. See 42 U.S.C. § 405(g); Kasarsky v. Barnhart, 335 F.3d 539, 543
(7th Cir. 2003) (per curiam). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

“The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES REED, JR, )
)
Plaintiff, )

) No. 01 C 6000

vs. ) Judge Charles R. Norgle

)
JOANNE BARNHART, )
Commissioner of Social Security, )
)
Defendant. )

OPINION AND ORDER
CHARLES R. NORGLE, District Judge.

Plaintiff James Reed, Jr. (“Reed”) seeks judicial review of a decision by the Commissioner
of Social Security (“Commissioner”) denying him Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). The parties have filed cross-motions for summary, ‘judgment.
For the following reasons, Defendant’s Motion for Summary Judgment is GRANTED; Plaintiff's
Motion for Summary Judgment is DENIED.

I, BACKGROUND

Reed was born on May 30, 1950 and has a high school education. From 1966 through 1996,
he worked steadily and held a variety of jobs, including truck driver, heavy equipment operator,
landscape worker, and carpenter.

In December 1996, Reed experienced serious medical problems. He was hospitalized for
seven days due to right hand weakness and slurred speech. He was diagnosed with acute stroke,

secondary to cocaine abuse. Additionally, he suffered from hypertension. On December 26, 1996,


thorough recitation of the medical evidence in his decision, the court wil] not disturb his credibility
determination. See Sims v. Barnhart, 309 F.3d 424, 431 (7th Cir. 2002) (refusing to disturb ALJ’s
finding that claimant’s testimony was not credible where statements made to ALJ were not
reasonably consistent to record as a whole); see also Diaz, 55 F.3d at 308 (the court will not disturb
ALJ's credibility findings unless they are patently wrong).
Ill, CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED;
Plaintiffs Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.

ENTER:

LtearleeZ

CHARLES R. NORGLE, Judgé
United States District Court
Date: Sar4~ a

12