Moreover, the ALJ’s restriction of Elster to jobs not involving understanding, remembering,
or carrying out detailed and complex work tasks was consistent with the use of Grid Rule 203.28 as
a framework for decisionmaking. “Unskilled work is work which needs little or no judgment to do
simple duties that can be learned on the job ina short period of time.” 20 C.F.R. § 404.1568(a). The
RFC restriction against detailed and complex work tasks is accommodated by Grid Rule 203.28,
which specifies performance of unskilled work.. Consistent with the Commissioner’s rulings and
regulations, the ALJ reasonably concluded_that Elster’s nonexertional restrictions did not
significantly erode the occupational base of medium work. The ALJ’s decision to use the grid as a
framework for decisionmaking without the assistance of a vocational expert is supported by
substantial evidence.

IV. CONCLUSION

For the reasons stated, this Court grants Elster’s motion in part and denies it in part and
grants the Commissioner’s motion in part and denies it in part. This case is remanded pursuant to
Sentence 4 of 42 U.S.C. § 405(g) for further proceedings consistent with this decision. The Clerk
is directed to enter judgment pursuant to Fed.R.Civ.P. 58 in favor of plaintiff and against defendant.
This case is terminated.

ENTER:

Wen & Tek mes
Nan R. Nolan
United States Magistrate Judge

Dated: far eRe)

-13-


R. 236. An adaptive behavior assessment dated July 22, 1992 indicated that Elster was functioning
in the moderately low range in the areas of communication, daily living skills, and ‘socialization.
Elster’s overall adaptive behavior composite was rated in the moderately low range. R. 240.

On Stanford-Binet testing administered.in October 1995, Elster obtained borderline range
scores in Verbal and Quantitative Reasoning subtests but performed within the mildly mentally
retarded range on visual spatial tasks. R. 272,274. Elster was found to be functioning overall w ithin
the upper end of the MMI [mild mental impairment] range on the Stanford-Binet test. R. 274.
School psychologist William Turton, Psy.D., concluded that Elster was “probably best categorized
as an MMI [mild mental impairment] student.” R. 277. Dr. Turton opined that Elster was a high
functioning MMI student with relatively significant spatial processing deficits that were going to
further handicap his abilities and probably accounted for much of his slowness in motoric work. R.
274. Dr. Turton stated that Elster continued to need a highly structured, low enrollment,
individualized classroom environment where teacher support was available to help with academics
and process deficits as well as assist in developing self-confidence and independence. R. 276. Dr.
Turton further opined that once Elster graduates, he should be considered eligible for programs for
the developmentally disabled, particularly those for an MMI population. R. 277.

Nicholas D. Kokonis, Ph.D., performed psychological testing on Elster on November 4,
1996. R. 295. Kokonis observed that Elster’s IQ scores placed him in the borderline range of
intellectual ability and he had an overall profile indicative of a learning disability. R. 296. Michael
S. Trieger, Psy.D., the State Agency psychologist who reviewed Elster’s file at the initial stage of
administrative review, opined that Elster’s condition fit within the diagnostic criteria for Listing

12.05 of 20 C-F.R. Part 404, Subpart P, Appendix 1. John T. Tamassetti, Ph.D., the psychologist

AE



which imposes significant work-related limitation of function. Substantial evidence does not support
the ALJ’s finding that Elster did not meet the “additional impairment” prong of listing 12.05(C).

The Commissioner maintains that proof of significantly subaverage general intellectual
functioning is a separate and additional requirement of Listing 12.05(C). The Commissioner relies
on a recent set of revised regulations regarding the evaluation of mental impairments. The Revised
Medical Criteria for Evaluating Medical Disorders and Traumatic Brain Injury provides that a
claimant must show that he is mentally retarded (i.e., that he had “significantly subaverage general
functioning with deficits in adaptive functioning initially manifested during the developmental
period”) before proceeding to the requirements of Listing 12.05:

The structure of the listing for mental retardation (12.05) is different from that of the

other mental disorders listings. Listing 12.05 contains an introductory paragraph

with the diagnostic description for mental retardation. It also contains four sets of

criteria (paragraphs A through D). If your impairment satisfies the diagnostic

description in the introductory paragraph and any one of the four sets of criteria, we

will find that your impairment meets the listing.

65 Fed.Reg. 50746, 50776 (August 21, 2000) (codified in 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.00 (2001)) (emphasis added).

The new rules revising the regulations for evaluating mental impairments were effective
September 20, 2000, after the ALJ issued his decision in this matter on December 23, 1998. In his
brief, the Commissioner assumes that the new regulations apply retroactively. Pope v. Shalala, 998
F.2d 473 (7th Cir. 1993) (reversed on other grounds), provides guidance concerning when an
interpretation of a rule or statute is applied retroactively. A rule changing the law is retroactively

applied to events prior to its promulgation only if Congress expressly authorized retroactive

rulemaking and the agency clearly intended that the rule have retroactive effect. Id. at 483.


4. Is the claimant unable to perform her former occupation?
5. Is the claimant unable to perform any other work?
20 C.F.R. § 416.920(a)-(f). An affirmative answer at either step 3 or step 5 leads to a finding that

the claimant is disabled. Young v. Secretary of Health and Human Services, 957 F.2d 386, 389 (7th

Cir. 1992). A negative answer at any step, other than at step 3, precludes a finding of disability. Id.
The claimant bears the burden of proof at steps 1-4. Id, Once the claimant shows an inability to
perform past work, the burden shifts to the Corfitnissioner to show ability to engage in other work
existing in significant numbers in the national economy. Id.

Judicial review of the ALJ’s decision is limited to determining whether the ALJ’s findings
are supported by substantial evidence or based upon a legal error. Stevenson v. Chater, 105 F.3d
1151, 1153 (7th Cir. 1997). 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, 91
S.Ct. 1420 (1971). This Court may not substitute its judgment for that of the Commissioner by
reevaluating facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of
credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998).

In his summary judgment motion, Elster first challenges the ALJ’s conclusion that he did not
meet the criteria Listing 12.05(C). Listing 12.05(c) provides in relevant part:

12.05 Mental retardation: Mental retardation refers to significantly subaverage

general intellectual functioning with deficits in adaptive functioning initially

manifested during the developmental period, i.e., the evidence demonstrates or

supports onset of the impairment before age 22.

The required level of severity for this disorder is met when the requirements in A, B,
C, or D are satisfied.

ae



who apparently reviewed the file at the reconsideration level, opined that Elster’s impairments did
not fit within those criteria) R. 314. Marcia.Martin a Transition Specialist from the Illinois
Department of Rehabilitation Services stated in-an undated note that Elster’s learning disability
created a substantial barrier to employment as it seriously limited his functional capacities in the
areas of work skills, self-direction, and communication. R. 324.

Elster was 20 years old when the ALJ issued his decision. R. 27. Elster was unmarried and
living at home with his father and sister. R. 27.. Elster testified that he graduated from a special
education high school. R. 28. After graduating, Elster attended job training courses at the high
school. R. 28. As part ofa job training program, Elster worked at a hospital as a recycling collector
and sorter. R. 29-30. He also attended a job training program where he made boxes. R. 31. At the
time of the hearing, Elster was working at Jewel as a bagger and cart retriever, with guidance from
ajob coach. R. 32, 35-36, 44.

III. DISCUSSION

Under the Social Security Act, a person is disabled if she has an “inability to engage in any
substantial gainful activity by reason of a medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a). In order to determine

whether a claimant is disabled, the ALJ considers the following five questions in order:

1. Is the claimant presently unemployed?
2. Is the claimant’s impairment severe?
3. Does the impairment meet or medically equal one of list of specific

impairments enumerated in the regulations?



by section 3.03. Tr. 15. The ALJ noted that the record did not reflect an pulmonary function studies
with results the equivalent to that required under the tables associated with section 3.02(a). Tr. 16.

Elster takes the position that the physical or other mental impairment prong of 12.05(C) is
met when the additional impairment has a more than slight or minimal effect on his ability to
perform work. But the newly revised § 12.00 equates “additional and significant” with “‘severe:”

For paragraph C, we will assess the degree of functional limitation the additional

impairment(s) imposes to determine if it significantly limits your physical or mental

ability to do basic work activities, i.e, is a “severe” impairment(s), as defined in §§

404.1520(c) and 416.920(c). If the additional impairment(s) does not cause

limitations that are “severe”. . ., we will not find that the additional impairment(s)

imposes “an additional and significant work-related limitation of function,” ....

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. Substantial deference is afforded an agency’s
interpretation of its own regulations. Rhodes 'v, Brown, 153 F.3d 785, 789 (7th Cir. 1998). 20
C.F.R. §§ 416.920 and 404.1520 address the five step sequential analysis applicable to Social
Security cases. In step two, the Commissioner determines whether the claimant’s impairment or
combination of impairments is severe. 20 C.F.R. §§ 416.920(c) and 404.1520(c). An impairment
is severe if it significantly limits the claimant’s physical or mental ability to do basic work activities.
Id.

Under the ALJ’s own findings, Elster satisfied the “additional impairment” requirement of
Listing 12.05(C). The ALJ found that in addition to Elster’s borderline range of intelligence, he
suffers from a learning disability, a history of moderately low functioning range in adaptive behavior,
and a history of asthma. R. 15. The ALJ specifically found that these impairments produce

limitations which meet the definition of “severe.” R. 15. Under the regulations, a severe impairment

meets the second requirement of Listing 12.05(C) of an additional physical or mental impairment



‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

N; f Assigned Judy Sitting Judge if Oth
sr Magistrate Judge Nan R. Nolan han Assigned Jodge
CASE NUMBER 01 C 4085 DATE 1/9/2003
CASE Elster vs. 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:

DOCKET ENTRY:

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

(2) Oo Brief in support of motion due

(3) a Answer brief to motiondue__. Reply to answer briefdue__.

(4) im Ruling/Hearingon___setfor___at

6) Oa Status hearing(held/continued to] [set for/re-set for] on__set for___—_at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___—setfor__—sat__.

(7) ag Trial{set for/re-set forjon____—_at

(8) Q [BenclyJury trial] [Hearing] held/continued to___—_at

(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O Local Rule 41.1 OOFRCP41(a)(1) O FRCP4i(a)(2).

qo) of [Other docket entry} For the reasons stated in the attached Memorandum Opinion and Order, this

Court grants Elster’s motion for summary judgement [9-1] in part and denies it in part. The
Commissioner’s motion for summary judgement [13-1] is granted in part and denied in part. This case
is remanded pursuant to Sentence 4 of 42 U.S.C. Section 405(g) for further proceedings consistent with
this decision. The Clerk is directed to enter judgement pursuant to Fed. R. Civ. P. 58 in favor of plaintiff

and against defendant. This case is terminated.

Number

Document

dl) (For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.
oS | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.
& | Mail AO 450 form. Luyned LOWLSid “Sn
Copy to judge/magistrate judge yas}
courtoom €034 Hd OL Mor eu
cav deputy’s ne oe
mae Coble tleteatat
central Clerk's Office smaiing deputy inials



concerning whether Elster exhibits significantly subaverage general intellectual functioning.”
Elster also asserts that the ALJ erred at step five by using the grid without obtaining
testimony from a vocational expert. In appropriate cases, the ALJ may rely on the grid in
determining disability. “The grid is a chart which 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 (7th Cir. 1987). If use of the grid is appropriate, the grid alone constitutes
substantive evidence sufficient to support the decision of the Commissioner. Id. However, “use of
the grid may be inappropriate if the claimant suffers from severe non-exertional impairments,
including pain, which prevent the claimant from performing the work indicated by the grid.” Id. at
640-41. When a claimant suffers from a non-exertional limitation which might substantially reduce
the range of work which he can perform, the ALJ must consult a vocational expert. Luna v. Shalala,
22 F.3d 687, 691 (7th Cir. 1994). An ALIJ’s use of the grids may be upheld were there is some
reliable evidence that would persuade a reasonable person that the limitations in question do not

significantly diminish the employment opportunities otherwise available. Walker, 834 F.2d at 641.

In this case, the ALJ determined that Elster’s additional limitations were only slight and did
not significantly erode the relevant occupational base for jobs. R. 19. Applicable Social Security
rulings and regulations confirm that the ALJ did not err in failing to utilize a vocational expert. The
ALJ’s residual functional capacity finding restricted Elster from working in settings containing any

respiratory irritant at concentrated levels; working in relative extremes of heat or cold; and

> The ALJ’s failure to attach his completed Psychiatric Review Technique Form to his written
decision does not require a remand. Godbey v. Apfel, 238 F.3d 803, 810 (7th Cir. 2000).

-11-



Retroactivity is not an issue if a rule simply clarifies an unsettled or confusing area of the law and
does not change the law. Id. “In determining whether a rule is a clarification or a change in the law,
the intent and interpretation of the promulgating agency as to the effect of the rule is certainly given
great weight.” Id.

The Commissioner has previously taken the position that the Social Security Agency has for
many years applied a three-part standard under 12,05(C) which requires a threshold showing that the
claimant is mentally retarded. Cooper v. Massanari, 2001 WL 1464930, * 6 (N.D. Ill. Nov. 15,
2001). In a 1998 acquiescence ruling, the Commissioner outlined a three-part test to be used in
determining whether a claimant meets Listing 12.05(C). S.S.R. 98-2(8). Moreover, in the revised
regulations published in the Federal Register, the Social Security Administration explains that it
merely “added a description of the structure of listing 12.05, ‘Mental retardation,” because it is the
only other listing that does not employ the same paragraph A-paragraph B system as the other mental
disorders listings in all of its sections.” 65 Fed.Reg. 50746, 50749 (August 21, 2000). The new
regulations did not change the structure or substance of Listing 12.05. The new regulation
concerning Listing 12.05 which makes clear that the claimant must initially show that he is mentally
retarded before proceeding to the requirements of Listing 12.05(C) appears to be consistent with the
Commissioner’s prior position. The Court concludes that no retroactivity issue exists.

The ALJ’s determination that Elster does not meet Listing 12.05(C) is not supported by
substantial evidence because the ALJ did not make a finding regarding whether Elster evidenced
“significantly subaverage general intellectual..functioning” as required by Listing 12.05(C).

Accordingly, the Court remands this case to the Commissioner to make specific findings at step three

-10-



C. A valid verbal, performance, or full scale 1Q of 60 through 70 and a physical or

other mental impairment imposing an additional and significant work-related

limitation or function.

20 CER. Pt. 404, Subpt. P. App. 1 § 12.05(C) (2002).

Elster argues that he meets or equals Listing 12.05(C) because he has (a) a valid performance
IQ of less than 70; and (b) a physical or other, mental impairment imposing an additional and
significant work-related limitation or function., The Commissioner argues that Elster was required
and failed to establish a third factor to meet the listing for mental retardation, namely that he had
“significantly subaverage general intellectual functioning.”

Before addressing the parties’ apparent disagreement over whether a Listing 12.05 has two
or three requirements, the Court considers whether substantial evidence supports the ALJ’s finding
that Elster cannot satisfy the “additional impairment” requirement of Listing 12.05.' Elster argues
that his asthma and learning disability are impairments which create an “additional and significant
work-related limitation.” The Commissioner addresses this prong of 12.05(C) only by arguing that
ifthe ALJ erred on this point, it would be harmless because Elster cannot satisfy the requirement that
he had “significantly subaverage general intellectual functioning.”

The ALJ found that Elster does not have a physical or other mental impairment which
imposes additional and significant work-related limitation of function. R. 15. The ALJ stated that
Elster’s mental/emotional impairments did not meet the requirements or equal the level of severity
contemplated under any of the mental categories cited under section12.00 of the Listing. R. 15. The

ALJ further found that Elster’s asthma had not resulted in attacks occurring as frequently as required

'The ALJ correctly found that Elster had obtained a valid performance IQ score of 68. R.
15.

-7+



+ Elster’s verification skills were weak on spatial reasoning tasks,

+ Items involving social judgment were often disjointed and confusing with little
organization and evidence of casual relationships;

+ Elster’s problem-solving attempts on these tasks were weak and he often
perseverated, repeating the same errors over and over with little change;

+ Elster appeared to be easily distracted and sustained concentration/attention was
seemingly difficult for him;

* Directions needed to be concrete, detailed, and provided through multiple sensory
channels.

R. 163.

In September 1989, Daly opined that in view of Elster’s auditory/visual/spatial processing
weakness, weak adaptive behavior skills, particularly in the areas of social perception, inconsistent
attention, variable academic skills and academic weaknesses in comprehension in particular, Elster
continued to require a highly structured and supportive learning environment that provided him with
support and intervention in the above areas. Daly stated that Elster meet the criteria for receiving
LD support services. R. 173.

Ina July 1992 psychological re-evaluation performed by A. Brogan, a school psychologist,
Brogan concluded:

Richard is a 14-year-old male, who appears to have Low Average to Average

intellectual potential, but his performance within the academic setting is limited by

specific learning deficits. His academic delays may be the result of unevenly
developed cognitive skills, marked by a 31-point difference between visual
processing skills and verbal abilities, in favor of the latter. Richard currently has
significant developmental deficiencies in the visual perceptual and the visual motor
integration areas. His learning difficulties further impact on his peer relationships,
as his social comprehension is also impaired. Significant strengths are evident in the
verbal realm and, more specifically, in auditory short-term memory skills.

Significant emotional issues, resulting form the recent death of Richard’s mother,
also appear to be significantly impacting on his attention and concentration.

3-



upon reconsideration. R. 378-86. Elster requested a hearing before an Administrative Law Judge.
R. 70-71. On September 9, 1998, ALJ Irving Stillerman held an administrative hearing at which
Elster and his father, Kenneth Elster, appeared and.testified. R. 22-58. The AL] issued a written
decision dated December 23, 1998 in which he found that Elster was not disabled. R. 13-21. The
Appeals Council denied Elster’s request for review of the ALJ’s decision. R. 6-9. Elster then filed
this action for judicial review of the ALJ’s decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Il. STATEMENT OF FACTS
At the age of three, Elster was found to have multiple developmental disabilities in his
speech, motor, and emotional areas. R. 157. During his primary grades, Elster attended a self-
contained learning disability classroom at Riley School. R. 231. In the sixth grade, Elster moved
to a special education combined junior high/high school. R. 231.
Elster’s intelligence has been tested numerous times. His IQ scores are as follows:

Date Verbal IO Performance IO Full Scale IO

9/86 88 64 74
9/89 95 63 one
7192 89 58 —
11/9681 68 74

R. 166, 233, 296.

A psychological re-evaluation performed by Maureen Daly, a school psychologist, in
September 1989 included the following behavioral observations of Elster:

* Nonverbal items were particularly difficult for Elster;

¢ Elster did not attend to visual stimuli well and often missed salient clues;

-2-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RICHARD ELSTER, )
)
Plaintiff, )
v. ) Case No. 01 C 4085
)
JO ANNE BARNHART, )
Commissioner of Social Security, ) Mother
) NV
Defendant. ) L3 2,

MEMORANDUM OPINION AND ORDER

Plaintiff Richard Elster (“Elster”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration denying his claim for Disabled Adult Child’s
Insurance Benefits (“DCIB”) and Supplemental Security Income (“SSI”) under the Social Security
Act. Elster seeks summary judgment reversing the Commissioner’s decision to deny him benefits,
or in the alternative, a remand of the case to the Commissioner for further proceedings. The
Commissioner has filed a cross-motion for summary judgment to affirm the ALI’s decision denying
Social Security disability benefits. The parties have consented to the jurisdiction of the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Court grants in
part and denies in part Elster’s Motion for Summary Judgment and grants in part and denies in part
the Commissioner’s Motion for Summary Judgment. This matter is remanded to the Commissioner
for further proceedings consistent with this opinion.

\. BACKGROUND
Elster filed applications for DCIB and SSI benefits in March 1997, alleging that he had been

disabled since 1981 due to a learning disability. The Agency denied his applications initially and


understanding, remembering, and/or carrying out detailed and complex work tasks. R. 16.3 Based
on an exertional capacity for medium work, and the claimant's age, educational background, and
work experience, a framework application of Grid Rule 203.28 directs a conclusion of "not
disabled."

Social Security Ruling (SSR) 83-14 confirms that environmental restrictions, such as the
need to avoid working in settings containing any respiratory irritant at concentrated levels and in
relative extremes of heat or cold does not significantly affect the potential medium occupational
base. SSR 83-14 states that “[t]he need to avoid environments which contain objects or substances
commonly known not to exist in most workplaces would be an obvious example of a restriction
which does not significantly affect the medium occupational base.” SSR 85-15 provides: “Where
a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the
broad world of work would be minimal because most job environments do not involve great noise,
amounts of dust, etc.” Furthermore, a person who is capable of performing medium work, can also
perform light work. 20C.F.R. § 404.1567(c). SSR 83-14 states that environmental restrictions, such
as the need to avoid exposure to feathers, would not significantly affect the potential unskilled light
occupational base. Grid Rule 202.20, which would apply to an individual with Elster’s vocational

characteristics and an RFC for light work, directs a finding of “not disabled.”

3 Elster argues that the ALJ should have‘consulted a vocational expert regarding how his
alleged non-exertional impairments of a limited functional ability in the areas of work skills, self-
direction and communication affected the relevant occupational base, The ALJ did not include the
non-exertional impairments of a limited functional ability in the areas of work skills, self-direction
and communication in his residual functional capacity (RFC) finding. Elster does not challenge the
ALJ’s RFC assessment. Thus, the ALJ was not required to consult a vocational expert regarding
these alleged non-exertional symptoms. R. 16.

-12-