can obtain and perform.” Bapp v. Bowen, 802 F.2d 601, 603 (2d
Cir. 1986).
DISCUSSION

Plaintiff contends that the ALJ erred in concluding that she
is not disabled. Specifically, Plaintiff argues that the ALJ: 1)
did not have substantial evidence to conclude that Plaintiff had
the RFC for a full range of light work; 2) had no medical
evidence to support his finding that Plaintiff was capable of
light work; 3) ignored Plaintiff’s exertional limitations when
concluding that Plaintiff was capable of performing “a full range
of light work”; 4) ignored evidence favorable to Plaintiff and
discussed only the evidence that supported ALJ’s conclusion; 5)
does not explain what evidence supports the exertional
requirements of any of the jobs the VE purported Plaintiff could
undertake; 6) posed inaccurate hypotheticals to the VE because
the ALJ did not specify that the VE was required to testify to
jobs existing in significant numbers on or before 1990; and 7)
erred by failing to use a medical advisor to determine the
disability onset date, violating the requirements of SSR 83-20.

Plaintiff’s arguments have varying degrees of merit.
However, the Court agrees that the ALJ did not develop a full and
fair record to support his findings with substantial evidence.
Specifically, the Court finds that the ALJ failed to develop the

record regarding Plaintiff's exertional limitations.

19


Plaintiff’s history and physical findings were consistent with
multiple sclerosis, as evidenced by optic neuritis, physical
findings suggestive of a brain stem lesion, and weakness in her
right leg. (Id.) Dr. Kammenzind reported that Plaintiff was not
able to walk the one hundred feet down his office hall without
the use of a cane. (Id.)

Dr. Gwendolyn I. White, M.D.- Agency Non-Examining Medical
Consultant.

Dr. White, a retired pediatrician (R. at 160), performed
Plaintiff’s residual functional capacity (“RFC”) assessment on
April 4, 1997 to determine her RFC at the date last insured,
December 1990. (R. at 146.) Dr. White checked the boxes “None
established”’ for exertional limitations, postural limitations,
manipulative limitations, and communicative limitations. The
report contained no evidence or documentation to support her
determinations. (R. at 146-153.) In the exertional limitations
category, the evidence Dr. White lists to support her finding
relates only to Plaintiff’s vision problems, with no mention of
evidence that would lead to an exertional determination. (R. at
147.)

Dr. White marked the visual limitations box on the report,
and noted that Plaintiff’s vision in her right eye was 20/40, and
20/200 in her left eye. (R. at 149.) The doctor also noted an
environmental limitation for machinery and heights due to

Plaintiff's vision loss. (R. at 150.) The only notes and

13


functional limitations.” (R. at 18; ALJ’s Opinion at 3.) And
yet, in assessing Plaintiff’s RFC, the ALJ ignored Plaintiff’s
testimony indicating that she was unable to work for more than 3
or 4 hours each day, and that by 1990, she was unable to do even
housework. Similarly, Mr. Brasel testified that his wife was
incapable of performing most office-related tasks without
substantial oversight and/or correction, and that she was unable
to work a full day. This testimony is inconsistent with the
conclusion that Plaintiff could perform light work, and yet the
ALJ made no attempt to resolve the inconsistency.

Notably, Plaintiff’s and Mr. Brasel’s testimony regarding
her functional limitations, in and of itself, does not compel the
conclusion that Plaintiff was incapable of performing light work.
But it does highlight the inconsistency within the ALJ's
decision. The ALJ had an obligation to resolve any gaps or
inconsistencies in the record evidence. He did not fulfill his
obligation in this regard, and he did not elicit sufficient
testimony to support his finding that the Plaintiff had the
exertional ability to perform light work.

Certainly, Plaintiff’s counsel could have remedied the
situation at the hearing by objecting or posing additional
questions to Plaintiff or the VE. However, the existence of
counsel for the Plaintiff does not relieve the ALJ of his

obligation to gather enough evidence to support his conclusion.

23


In addition to her vision problems, Plaintiff’s general
physical condition was deteriorating. Initially, Plaintiff
worked three to four hours a day for Mr. Brasel, but eventually,
Plaintiff’s worsening medical condition forced her to reduce the
amount of time she worked and diminished her duties to answering
the phone. (R. at 33, 46.) Plaintiff was unable to research,
draft letters, take dictation, or perform a set amount of work in
a day. (R. at 61.) Plaintiff testified that, in 1990, she could
stand for approximately thirty minutes, sit for extended periods
of time, and lift up to twenty pounds. (R. at 48.) While she was
able to work in the yard, she was unable to do most household
chores. Nevertheless, Plaintiff continued working for Mr.
Brasel, as the two had developed a close, personal relationship.
In 1991, Plaintiff and Mr. Brasel were married. (R. at 31.)

Plaintiff’s condition continued to deteriorate. By 1994,
Plaintiff could only lift the weight of a dish and could not bend
over or squat to pick something up. (R. at 40-41.) One year
later, Plaintiff's pain was more severe. (R. at 36.) In 1995,
Plaintiff began using a wheelchair when she needed to go further
than thirty to forty feet, because she would get too exhausted
using her walker. (R. at 39, 47.) Plaintiff's impaired vision,
combined with the pain she experienced when sitting for prolonged
periods, forced her to stop typing. (R. at 46.) Plaintiff

stopped working for Mr. Brasel in 1996, when her vision


A. Plaintiff's Employability at Step 5.

Plaintiff challenges the ALJ’s conclusion that Plaintiff
could perform a significant number of “light work” jobs existing
in the local economy. In particular, the Plaintiff argues that
the hypothetical posed to the VE was inaccurate and/or
incomplete.

The Seventh Circuit has determined that hypothetical
questions posed to VEs must fully set forth all of the claimant’s
impairments that are supported by the medical evidence in the
record. Herron v. Shalala, 19 F.3d 329, 337 (7 Cir. 1994).

The hypothetical posed by the ALJ need not account for every
aspect of the claimant’s impairments if the information supplied
to the VE is nevertheless valid and reliable. See, e.g., Cass v.
Shalala, 8 F.3d 552, 556 (7 Cir. 1993) (finding that because
the VE viewed all of the evidence prior to the hearing, “the VE’s
testimony constitute{d] substantial evidence . . . despite any
omissions in the hypothetical.” ) Accordingly, the
Commissioner’s decision may stand, despite the fact that the ALJ
posed an inaccurate hypothetical, if the evidence shows that: 1)
the plaintiff’s attorney accurately supplemented the ALJ’s
hypothetical; 2) the ALJ’s hypothetical, while not incorporating
all of the plaintiff’s complaints, was based upon those
impairments the ALJ found were supported by the record; and 3)

the VE reviewed the record prior to the hearing and was present

20


B. On Remand, the ALJ Should Discuss Evidence Favoring the
Plaintiff's Disability Determination

In his decision, the ALJ contends that there are no medical
records, prior to 1990, substantiating certain of Plaintiff's
complaints. Contrary to the ALJ’s remarks, although the medical
records are not substantial, they do, in fact, exist. For
example, Dr. Foody notes in a 1996 medical report that the onset
of Plaintiff’s pathology for demyelinating eye disease in both
eyes was March 1985. (R. at 17.) The ALJ refers to Dr. Foody’s
report but does not explain why he ignores the noted onset date
for demyelinating eye disease. Dr. Foody’s report supports Dr.
Kammenzind’s evaluation of Plaintiff’s condition, but the ALJ did
not discuss either doctor’s report.

In addition, the ALJ overlooked Plaintiff's evidence of
medical treatment from May 1983 through September 1985 for back
pain. The evidence was submitted by Dr. Cook and was part of Mr.
Brasel’s testimony. The ALJ pointedly states that there is no
evidence of treatment for back pain prior to 1995.

The Court concedes that it is entirely plausible that the
existence of these records would have no impact on the ALJ’s
conclusions. Nevertheless, upon remand, the ALJ should account
for these records, which he previously overlooked.

Conclusion
Applying the standards set forth above to the facts of this

case, the Court must conclude that the Commissioner’s

26


The ALJ determined that Plaintiff was capable of performing
a full range of light work. As a general rule, light work
involves lifting 20 pounds or less at a time, with frequent
lifting or carrying of objects up to 10 pounds.? It requires
significant walking or standing, or, if sitting most of the time,
it requires some pushing or pulling with arm or leg controls.
See 20 C.F.R. § 404.1567(b). Finally, to be considered capable
of performing a full range of light work, the person must have
the ability to do substantially all of these activities.
(Id.) (Diaz v. Chater, 55 F.3d 300, 306 (7 Cir. 1995) (citing
Herron v. Shalala, 19 F.3d 329, 332 (7 Cir. 1994)).

In determining that Plaintiff was capable of light work,

the ALJ relied heavily on Plaintiff’s testimony that, in 1990,
she could stand for one half hour at a time, sit for an unlimited
time and lift 20 pounds at one time. What is left unresolved by
this testimony is the total amount of time during an eight-hour
day that Plaintiff could stand, and how frequently she could lift
20 pounds.

Further complicating matters is the fact that the ALJ
repeatedly stated that he found Plaintiff’s and Mr. Brasel’s

testimony credible; particularly with regard to her “symptoms and

2 The parties are not contending that the VE’s opinion
contradicted the DOT. See Powers v. Apfel, 207 F.3d 431, 436
(7 Cir. 2000) (if the VE’s testimony contradicts the DOT, the
ALJ can choose to rely on the expert’s opinion.)

22


Finally, although Plaintiff bears the burden of

demonstrating his disability, “[i]t is a basic obligation of the
ALJ to develop a full and fair record.” Thompson v. Sullivan,
933 F.2d 581, 585 (7 Cir. 1991) (quoting Smith v. Sec’y of HEW,
587 F.2d 857, 860 (7 Cir. 1978)). “Failure to fulfill this
obligation is ‘good cause’ to remand for gathering additional
evidence.” Smith v. Apfel, 231 F.3d 433, 437 (7% Cir. 2000)
(finding that, if the ALJ found the evidence before him
insufficient, he should have obtained more evidence.)
SOCIAL SECURITY REGULATIONS

The Social Security Regulations prescribe a sequential five-
part test for determining whether a claimant is disabled. See 20
C.F.R. §§ 404.1520 and 416.920 (2001). The ALJ must consider:
(1) whether the claimant is presently unemployed; (2) whether the
claimant has a severe impairment or combination of impairments;
(3) whether the claimant’s impairment meets or equals any
impairment listed in the regulations as being so severe as to
preclude gainful activity; (4) whether the claimant is unable to
perform his past relevant work; and (5) whether the claimant is
unable to perform any other work existing in significant numbers
in the national economy. See 20 C.F.R. §§ 404.1520 and 416.920;
see also Young, 957 F.2d at 389. A finding of disability
requires an affirmative answer at either step 3 or step 5. A

negative answer at any step (other than step 3) precludes a

17


4. Medical Evidence

Despite Plaintiff’s long and complicated medical history,
she submitted to the ALJ only limited medical records for the
period prior to 1990. The Court will discuss these records in
full.

Dr. Lacy H. Cook, Jr., D.C.- Treating Chiropractor.

Dr. Cook treated Plaintiff from May 1983 through September
1985 for lower back and neck pain. (R. at 205.) The doctor noted
that Plaintiff’s lower back pain was improved at times throughout
the treatment. (Id.) Dr. Cook also diagnosed her with right
shoulder bursitis, for which she prescribed ultrasound and
exercises. (Id.) By September 1985, Plaintiff's shoulder had
improved and Plaintiff stopped treatment. (Id.)

Dr. Cook treated Plaintiff again from January 25, 1995
through September 1995 for lower back and right leg pain. (R. at
182-197, 205.) During Plaintiff's first visit in 1995, Dr. Cook
noted that Plaintiff had great difficulty walking because of the
pain in her right leg and abnormal ataxic gait and posture. ( R.
at 197.) Dr. Cook prescribed various treatments to try to
relieve Plaintiff’s pain. Over a nine month period, Plaintiff
was treated with hot packs and ice packs; spinal adjustment;
flexion distraction; ultrasound; and electrical and needle
acupuncture. (R. at 182-197.) In August 1995, the doctor noted

that Plaintiff was moving better and not in tears from the pain.


2. Raymond T. Brasel’s Testimony

At the hearing, witness Raymond T. Brasel testified that he
is seventy-nine years old, has known Plaintiff for twenty-one
years, and has been married to her for the last eleven years. (R.
at 49.) Mr. Brasel is a lawyer and first met Plaintiff as a
client in 1980. (Id.) In 1982, when Plaintiff was looking for
work, Mr. Brasel hired her to do general housekeeping on a part-
time basis. (R. at 49-50.)

Approximately one year later, Mr. Brasel and Plaintiff began
dating. (R. at 51.) Around this time, Plaintiff tried to assist
Mr. Brasel with his law practice, but her vision problems
prevented her from being of any real assistance. (R. at 50-51.)
Mr Brasel testified that he nevertheless continued to employ her
because he had become attached to her and enjoyed her company.
({Id.)

Mr. Brasel was aware of Plaintiff’s back pain in 1983 or
1984. At that time, the couple bowled together, and Mr. Brasel
frequently saw Plaintiff in pain after throwing the ball.
Occasionally, her pain was so severe that Plaintiff would go to
the chiropractor the day after bowling. (R. at 54.)

Mr. Brasel opined that Plaintiff was limited in her vision
as far back as 1982 or 1983, and has been on a continuous
progression downhill. (R. at 53, 55.) However, around 1984,

Plaintiff's vision improved slightly for a short time. (R. at


impairments and back pain made it impossible for her to do any
work. (R. at 43-44.) By 1997, Plaintiff was taking a combination
of hydrocodone and over the counter pain medication to help
manage the pain. (R. at 37, 46, 161.)

As of the hearing date, Plaintiff’s activities were limited
to showering, washing dishes, and doing laundry because of her
visual impairment, pain, and fatigue.(R. at 39.) Plaintiff uses
a stool for these activities because she is so weak. (Id.) She
can only walk thirty to forty feet, and then only with
assistance. (R. at 36.) Plaintiff can stand for only one
minute, and sit for three to four hours at a time with the aid of
a pillow. (R. at 39.)

Plaintiff’s vision problems are so severe that she can not
drive. She requires a magnifying glass to read a newspaper, and
is unable to focus on the television screen. (R. at 38.) In
addition, Plaintiff can not type because she can not see the
letters well enough to check her work. (Id.)

Plaintiff is aware that, at sometime in the past few years,
she was diagnosed with multiple sclerosis. (R. at 43.)

Plaintiff is now in constant pain. (R. at 36.) She describes her
back pain as throbbing, and compares her leg pain to “a
toothache.” (Id.) She testified that her pain and pain
medication affect her memory and ability to concentrate. (R. at

34, 37.)


finding of disability. Id. The claimant bears the burden of
proof at steps 1-4, but the burden shifts to the Commissioner at
step 5. Id.

The ALJ's analysis at step 5 typically involves an
evaluation of the claimant’s RFC to perform a particular category
of work (i.e. sedentary, light, medium, heavy, or very heavy
work), in combination with an application of the Medical-
Vocational Guidelines (“the Grid”) to determine whether an
individual of the claimant’s age, education, and work experience
could engage in substantial gainful activity. See 20 C.F.R. Part
404, Subpart P, Appendix 2. The Grid is a chart that classifies
a claimant as disabled or not disabled, based on the claimant’s
physical capacity, age, education, and work experience. Walker
v. Bowen, 834 F.2d 635, 640 (7 Cir. 1987). If the use of the
Grid is appropriate, the Commissioner or ALJ may rely upon it for
determining disability, and, in such a case, the Grid alone
constitutes substantial evidence sufficient to uphold the
decision of the Commissioner. Id.

However, where a plaintiff suffers from significant non-
exertional impairments, the ALJ may not rely upon the Grid. See
SSR 83-14. “When a plaintiff’s non-exertional impairments
significantly diminish his ability to work . . . the Commissioner
must introduce the testimony of a vocational expert (or other

similar evidence) that jobs exist in the economy which plaintiff

18


six out of eight hours; could lift no more than twenty pounds at
a time; and was blind in one eye. (Id.) Mr. Schweihs testified
that the hypothetical person could perform general office clerk
positions. (Id.) Mr. Schweihs estimated that nine to ten
thousand jobs of this type are available within the metropolitan
Chicago area. (R. at 63.)

The ALJ then proposed a second hypothetical to Mr. Schweihs,
with additional physical limitations. (Id.) This hypothetical
assumed that the individual could sit for only four hours at a
time, stand for only one minute at a time, walk no more than
thirty to forty feet without assistance, not bend or stoop, lift
only ten pounds occasionally, and is blind in one eye. (Id.) Mr.
Schweihs testified that the jobs available to that person would
be further narrowed, but opined that there would be three
thousand general office clerk positions available to that
individual. (R. at 63-64.)

The ALJ proposed a final hypothetical, adding that,
nonexertionally, such an individual would also suffer from
fatigue and would require breaks longer than the standard fifteen
minute break, was somewhat limited in memory, and experienced
mild to moderate pain to a degree that affected the individual’s
ability to concentrate. (R. at 64.) The VE testified that no

jobs would be available to that individual. (Id.)


Shannon v. Chater, 54 F.3d 484, 488 (8° Cir. 1995) (citing
Onstad v. Shalala, 999 F.2d 1232, 1234 (8% Cir. 1993))

The ALJ must develop a full and fair record regardless of
Plaintiff’s representation.

Having determined that the ALJ failed to gather substantial
evidence to support his conclusion that Plaintiff was capable of
performing light work, the Court further finds that the
hypothetical posed to the VE was similarly deficient. Moreover,
the Court finds that none of the exceptions, which the Seventh
Circuit has determined sometimes resuscitate deficient
hypotheticals, applies.

Specifically, the Court finds that Plaintiff’s attorney
failed to accurately supplement the ALJ’s hypothetical.
Moreover, although the ALJ’s hypothetical was based upon those
impairments that the ALJ found were supported by the record, this
is meaningless where the ALJ’s underlying conclusions were not

supported by substantial evidence. 3 Similarly, it is irrelevant

3-The ALJ noted the absence of limitations recommended by
any doctors in determining Plaintiff’s RFC. However, the only
doctor that evaluated Plaintiff’s ability to work was Dr.
Gwendolyn White, a non-examining former pediatrician, who
performed Plaintiff’s physical RFC assessment. The notations in
Dr. White’s report refer to Plaintiff's vision impairments,
ignoring any of Plaintiff’s other complaints. Dr. White did not
cite specific clinical findings, observations, or lay evidence to
support her conclusions regarding the lack of exertional,
postural, manipulative or communicative limitations, as required
by the evaluation form. Dr. White merely checked boxes denoting
limitations with virtually no explanation. Reports like this are
“entitled to relatively little weight.” Berrios-Lopez v. SHHS,

24


t
2

<2 o> Minule?Order Form (0692)

United States District Court, Northern District of Illinois

arte of Assiened\Judge Sitting Judge if Other
ae ere zi Arlander Keys than Assigned Judge

‘CASH NOME 01C771 DATE 5/8/2002
‘ASE Ellen Brasel vs. Larry Massanari
__ AITLE

MOTION: of the motion being presented.]

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

DOCKET ENTRY:

() Qa Filed motion of [ use listing in “Motion” box above.]

Q@) oO Brief in support of motion due

(3) Qa Answer brief to motion due___. Reply to answer briefdue___.

(4) a Ruling/Hearingon__setfor__at

(5) oO Status hearing[held/continued to] [set for/re-set for] on setfor_ at

(6) oO Pretrial conference[held/continued to] [set for/re-set forlon___——ssetfor_ at.
) Oo Trial{set for/re-set for]on_____at

(8) Qo [Bench/Jury trial] [Hearing] held/continuedto__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) (ClGeneral Rule21 OOFRCP41(a\(1) OO FRCP41(a\(2).

the Commissioner for further proceedings consistent with this Opinion.

(11) ff [For further detail see order attached to the original minute order.]

ao) of [Other docket entry] Memorandum Opinion and Order entered. Plaintiff's Motion for Summary
Judgment is granted in part; Defendant’s Motion for Summary Judgment is denied; case is remanded to

No notices required, advised in open court.

No notices required.

v | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.
v | Mail AO 450 form.

docketing deputy initials

Copy to judge/magistrate judge.
‘5/8/2002

day maibd notice

courtroom

FI, deputy’s Lie Mat :
initials
Daiplime jeosivedin _
central Clerk's Office‘ railing deft nis



164) The lumbar scan showed no significant narrowing of the
spinal canal or evidence of nerve root impingement. (Id.}

Dr. Ta interpreted the results of the MRI scan and
Plaintiff’s neurological examination as benign, with no surgical
lesion. (R. at 191.) He recommended that Plaintiff continue
chiropractic treatment with Dr. Cook and non-steroidal anti-
inflammatory medication. (Id.) In addition, Dr. Ta recommended
that Plaintiff continue on the imipramine medication she was
taking, because it would help her with anxiety and her bladder
problem. (Id.)

On June 6, 1996, Dr. Ta examined Plaintiff for multiple
sclerosis on a referral from Dr. Haag. During this visit, Dr. Ta
reported that Plaintiff had a long, complicated neurological
history dating back to 1984, when she first experienced problems
with vision loss in her left eye. (R. at 165.) At that time, the
vision loss was assumed to be post-infectious optic nerve
neuritis. (Id.) Dr. Ta noted that Plaintiff has had no major
exacerbation of this problem, but had experienced some recent
worsening of her vision. (Id.)

The examination in 1996 revealed a visual acuity of 20/80 on
the right eye and 4/200 on the left eye. (Id.) Dr. Ta observed
bilateral optic nerve atrophy and a prominent bilateral
internuclear ophthalmoplegia. He also noted that Plaintiff

walked with mild ataxia and was unable to walk in tandem. (Id.)

11


(R. at 183.) In September 1995, Dr. Cook recommended that
Plaintiff rent a TENS unit, which finally helped control some of
her pain. (R. at 187.) In 1995, Dr. Cook referred Plaintiff to
Dr. Andrew Ta, for a neurological evaluation in reference to her
back pain.

Dr. Jefferey Haag, M.D.- Treating Ophthamologist.

Plaintiff began seeing Dr. Haag, an Ophthamologist, in
October 1984. The doctor reviewed Plaintiff’s history of vision
problems, which began in January 1973, when she contracted the
London Flu. (R. at 173.) The doctor found that a past infection
had caused optic neuritis, which resulted in optic atrophy in
both eyes. (R. at 172.) Dr. Haag saw the Plaintiff again in 1996
on a referral from Dr. Foody. (R. at 169.) He noted that
Plaintiff’s visual acuity had decreased since 1984, she had
damaged optic nerves, and optic nerve atrophy. (R. at 169.) In
May 1996, Dr. Haag referred Plaintiff to Dr. Andrew Ta to
evaluate her for multiple sclerosis. (R. 168.)

Dr. Andrew D. Ta, D.O.-— Treating Neurologist.

On July 25, 1995, Dr. Ta examined Plaintiff on a referral
from Dr. Cook. During the examination, Dr. Ta ordered a lumbar
scan MRI examination. (R. at 192.) The MRI report, dated August
7, 1995, revealed mildly decreased signal intensity within the
L4-5 and L5-S1 intervertebral discs, and mild to moderate

degenerative change in the facet joints at the L4-5 level. (R. at

10


50.) During this time, Plaintiff assisted with minor office
related activities, but typing was still difficult. (Id.)
Although Mr. Brasel asked Plaintiff to type for him, he spent a
significant amount of time correcting her mistakes. (Id.)

Mr. Brasel needed a secretary for eight hours a day, but he
knew Plaintiff was not up to the task. (R. at 53, 55.) Mr.
Brasel continued to pay Plaintiff until 1995, but testified that
he was paying her as much for her company as for work she had
done. (R. at 52.) He recalled telling Plaintiff early in their
relationship that, if she had come looking for a job at that
point, he would not have hired her. (Id.)

3. Vocational Expert’s Testimony

Mr. Schweihs, the vocational expert (“VE”), testified that
Plaintiff had no significant past work. (R. at 60.) Mr. Schweihs
classified Plaintiff’s work as between unskilled and the low end
of semiskilled, and predominately sedentary. (R. at 61.) Any
transferrable skills she may have would be at the low end of
semiskilled, related to filing, typing, and bookkeeping. (R. at
61-62.)

The ALJ proposed a hypothetical to Mr. Schweihs describing a
person of the same age, education, and work experience as the
Plaintiff at the time she was claiming disability onset. (R. at
62.) The hypothetical assumed the person could sit with no

exertional limits; stand for one half hour at a time for at least


during the testimony tending to establish the omitted
limitations. Griffith v. Barhart, No. 00 C 7302, 2002 WL 181959,
at *13 (N.D. Ill. Feb. 6, 2002).

In the instant case, Plaintiff contends that the
hypothetical posed by the ALJ to the VE was inaccurate, because
it was not based upon substantial evidence. Specifically,
Plaintiff argues that the ALJ failed to develop the record to
support his determination of Plaintiff's functional limitations,
and, therefore, his hypothetical to the VE presumed that
Plaintiff was capable of performing at a level unsupported by
record evidence.

The ALJ’s findings must be supported by substantial evidence
in order to be sustained. See 42 U.S.C. § 405(g);% Clifford v.
Apfel, 227 F.3d 863, 869 (7° Cir. 2000). To determine if
substantial evidence exists to support the findings, the Court
will review the entire administrative record. Id. (citing Powers
v. Apfel, 207 F.3d 431, 434-35 (7* Cir. 2000)). The Court will
not assume that the ALJ considered particular evidence of record
if he did not mention it in his decision. Pappas-Sanavaitis v.
Chater, 978 F.Supp. 782, 788 (N.D. Il. 1997). If the Court does
not find that substantial evidence supports the ALJ’s
conclusions, the case will be remanded. Rohan v. Chater, 98 F.3d

966, 970 (7** Cir. 1996).

21


determination is not supported by substantial evidence in the
record. The Commissioner did not develop a fair and full record
and did not adequately articulate his analysis.

Neither the ALJ nor Plaintiff’s counsel properly developed
the record to include evidence indicating the scope of
Plaintiff's exertional impairments. As such, the hypothetical
posed to the VE was not based upon substantial evidence, and,
similarly, the VE’s response to that hypothetical cannot
constitute substantial evidence that Plaintiff retained the
ability to perform light work. Ultimately, the ALJ’s decision
may be the same. However, this Court remands the case for
further factual development and analysis.

IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgement be, and the same hereby is, GRANTED in part, consistent
with this Opinion.

IT IS FURTHER ORDERED that the Commissioner’s Motion for

Summary Judgment be, and the same hereby is, DENIED.
Dated: May 8, 2002 ENTER:

Qu Qa4Or

ARLANDER KEYS
United States Magistrate Judge

27


December 6, 2000, and the ALJ’s decision stands as the final
decision of the Commissioner. (Id.)

STATEMENT OF FACTS
A. Evidence Presented At Plaintiff's Hearing.

1. Plaintiff's Testimony

At the hearing, Plaintiff testified that she was born on
June 23, 1939, and had a high school education. (R. at 32.) She
lives in a mobile home in Aurora, Illinois with her husband of
eleven years. (R. at 31.)

Plaintiff’s work history began with Jewel Food Stores, where
she worked as a checker from 1979 through 1981. (R. at 33-34.)
While on the job, in the early part of 1981, Plaintiff injured
her back when she picked up a frozen turkey. (R. at 35.) The
injury forced Plaintiff to take medical leave for approximately
nine months, and eventually forced her to quit her job. (R. at
34.)

In 1982, Plaintiff was hired by attorney Raymond T. Brasel
to do light housekeeping and dishes in his home office. (R. at
32.) Plaintiff gradually began to do light typing, filing
papers, and answering phones for Mr. Brasel. (Id.) During this
time, Plaintiff began experiencing vision problems in both eyes.
(R. at 39, 47.) By 1984, Plaintiff was legally blind in her left

eye. (R. at 46-47, 169.)


comments written by Dr. White refer to Plaintiff’s vision
limitation. (R. at 152.)
Dr. Cha, M.D.- Pain Management Doctor.

Plaintiff was undergoing pain management therapy at the
Century Pain Management Center from July 1997 through February
1998. (R. at 208-214.) Plaintiff was able to get some pain relief
with prescription medications, but still had significant pain.

(R. at 210-214.)
B. THE ALJ’S DECISION.

On September 3, 1998, the ALJ issued his decision, finding
the Plaintiff not disabled. (R. at 20.) The ALJ reviewed
Plaintiff’s testimony regarding her personal, work, and medical
history, as well as Mr. Brasel’s and the VE’s testimony before
turning to the medical evidence. (R. at 16-17.)

The ALJ determined that, at all times through December 31,
1990, her date last insured, Plaintiff retained the RFC to
perform a full range of light work. (R. at 18-19.) The ALJ found
that Plaintiff could stand thirty minutes at a time for up to six
hours in a day, lift and carry up to twenty pounds, and had no
vision in her left eye. (R. at 18.)

The ALJ concluded that Plaintiff did not have past relevant
work, and relied on the VE’s testimony to determine if a
significant number of jobs existed in the national economy that

the Plaintiff could perform. (R. at 19.) The ALJ found that,

14


Sullivan, 881 F.2d 506, 509 (7% Cir. 1989) (the ALJ has the
authority to assess medical evidence and give greater weight to
that which he finds more credible). Rather, the Court must
accept findings of fact that are supported by “substantial
evidence,” 42 U.S.C. § 405(g), where substantial evidence is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Herron, 19 F.3d at 333
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

The Court is limited to determining whether the
Commissioner’s final decision is supported by substantial
evidence and based upon proper legal criteria. Ehrhart v. Sec’y
of Health and Human Servs., 969 F.2d 534, 538 (7% Cir. 1992).
This does not mean that the ALJ is entitled to unlimited judicial
deference, however. The ALJ must consider all relevant evidence
and may not select and discuss only that evidence that favors his
ultimate conclusion. Herron, 19 F.3d at 333. In addition to
relying on substantial evidence, the ALJ must articulate his
analysis at some minimal level. See Young v. Sec’y of Health and
Human Servs., 957 F.2d 386, 393 (7 Cir. 1992) (ALJ must
articulate his reason for rejecting evidence “within reasonable
limits” in order for meaningful appellate review). The ALJ must
build “an accurate and logical bridge” from the evidence to his
conclusion. Clifford v. Apfel, 227 F.3d 863, 872 (7% Cir.

2000).

16


PROCEDURAL HISTORY

In 1988, Plaintiff filed an application for disability
insurance benefits (“DIB”), claiming that vision problems
rendered her disabled. (R. at 45.) This claim was denied on April
15, 1988. (R. at 30.) Plaintiff filed a second application for
DIB on January 28, 1997, claiming that vision problems and severe
back pain rendered her disabled and alleging a disability onset
date of December 31, 1985.' (R. at 84.) Plaintiff last met the
disability insured status requirements on December 31, 1990. (R.
at 17.) Therefore, Plaintiff must establish that she was
disabled as of that date.

The second claim for DIB was denied initially and on
reconsideration. (R. at 70-72, 75.) Plaintiff requested and
received a hearing before Administrative Law Judge Mark Anderson
(“ALJ”) on August 18, 1998. (R. at 25, 78.) Following the
hearing, the ALJ issued an unfavorable decision, finding the
Plaintiff not disabled at any time through September 3, 1998. (R.
at 20.) Plaintiff then filed a request for review of the ALJ's

decision. (R. at 7.) The Appeals Council denied the request on

‘Initially Plaintiff alleged an onset date of December 31,
1985. Realizing that the res judicata impact of the
Commissioner’s decision barred her from seeking disability
benefits as of that date, Plaintiff amended her application to
reflect a new onset date of June, 23, 1989, after the res
judicata period of her previous claim. (R. at 65.)

2


that the VE likely reviewed the record prior to the hearing and
was present at Plaintiff’s hearing, because the record evidence
was inadequate to make an informed decision regarding Plaintiff’s
RFC. Therefore, the case must be remanded to the ALJ.

Upon remand, the Court further advises that the ALJ obtain
additional evidence regarding Plaintiff’s ability to work a full
day. Both Plaintiff and her husband testified that Plaintiff was
capable of working, at most, four hours each day. Admittedly,
there is minimal medical evidence supporting such a restriction.
However, Plaintiff testified that her ability to work even four
hours a day declined over time, and Mr. Brasel’s testimony
revealed that Plaintiff made fewer and fewer contributions to his
business and home over the years. The ALJ expressly stated in
his opinion that he found the testimony of Plaintiff and Mr.
Brasel to be credible, and he did not offer any explanation for
rejecting their testimony on this point.

The ALJ’s hypothetical to the VE, and the VE’s response to
that hypothetical, both presumed that Plaintiff could work a full
day. Once again, counsel for Plaintiff failed to highlight this
oversight. Nevertheless, the ALJ’s failure to address evidence
indicating that Plaintiff was unable to work a full day in
forming his hypothetical was a significant omission and warrants

redress on remand.

951 F.2d 427, 431 (1% Cir. 1991.)

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ELLEN J. BRASEL, Case No. 01 C 771
Plaintiff,

Magistrate Judge
Arlander Keys

LARRY G. MASSANARI, Acting
Commissioner of Social Security,

DO p27.
js ge AP
ny HED

4 2Nb2

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Elaine J. Brasel moves this Court for summary
judgment, pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, reversing the final decision of the Commissioner of
Social Security, which denied her application for Disability
Insurance Benefits. See 42 U.S.C. §§ 405(g), 1383(c) (3) (West
2002.) %In the alternative, Plaintiff seeks an order remanding
the case to the Commissioner for further inquiry and evidence.
The Commissioner has filed a Cross-Motion for Summary Judgment in
his favor. For the reasons set forth below, the Commissioner’s
Motion is denied and Plaintiff’s Motion is granted in part.
Specifically, this cause is remanded to the Commissioner for

further proceedings consistent with this Opinion.


Dr. Ta concluded that Plaintiff is affected by bilateral optic
neuritis and her ocular motility indicates a possible brain stem
lesion. He determined that Plaintiff most likely has
demyelinating disease (a/k/a. multiple sclerosis). (Id.) Dr. Ta
noted that Plaintiff decided to proceed with IV corticosteroid
treatment. (Id.)

Dr. Foody - Treating Ophthamologist.

Dr. Foody, at the Aurora eye clinic, where Plaintiff had
been treated since the early 1980s, prepared a report on February
27, 1997 (R. at 98, 176.) Dr. Foody diagnosed Plaintiff with
optic nerve atrophy and neuritis in both eyes. He noted a
history of demyelinating disease and febrile illness, with the
onset of her pathology as March 1985. (Id.) His diagnosis for
both eyes was guarded. (Id.) Plaintiff’s visual field was
abnormal, with bilateral scotoma. (Id.) Dr. Foody indicated that
employability would not be markedly improved by treatment or
appliance. (R. at 177.)

Dr. Richard Kammenzind, M.D.- Treating Physical
Consultative Evaluator.

Dr. Kammenzind saw Plaintiff for a consultative disability
examination and reported to the Agency on March 25, 1997. (R. at
198.) The doctor had difficulty testing her range of motion
because of Plaintiff's poor balance and weakness. (R. at 200.)
He noted that she walks with a cane, is slightly ataxic and

cannot walk in tandem. (Id.) Dr. Kammenzind concluded that

12


given Plaintiff’s background and the fact that her RFC for light
work was reduced by her inability to do work requiring fine
visual acuity, Plaintiff could qualify for nine to ten thousand
general office clerk jobs in the Chicago metropolitan area. (Id.)

The ALJ found that the medical evidence established that
Plaintiff had severe blindness in her left eye and back pain, but
that she does not have an impairment or combination of
impairments listed in, or medically equal to, one listed in
Appendix 1, Subpart P, Regulations No. 4. (R. at 20.)

The ALJ found that Plaintiff was not disabled, as defined by
the Social Security Act, at any time through the date of the
decision. (Id.) The ALJ concluded that the Plaintiff now has
much more severe limitations that would probably render her
disabled, but her testimony and lack of medical evidence of
record supports a finding of not disabled through December 1990.
(R. at 19.)

STANDARD OF REVIEW

In reviewing the ALJ’s decision, the Court may not decide
the facts, reweigh the evidence, or substitute its own judgment
for that of the ALJ. Herron v. Shalala, 19 F.3d 329, 333 (7%
Cir. 1994). Where conflicting evidence allows reasonable minds
to differ, the responsibility for determining whether a claimant
is disabled falls upon the Commissioner, not the courts. Herr v.

Sullivan, 912 F.2d 178, 181 (7 Cir. 1990); see also Stuckey v.

15