Claimant’s results on the BDI-II, in which he stated, “Specifically, [Claimant] endorsed
feelings of sadness, hopelessness, anhedonia, anergia, irritability, and decreased
concentration,” R. 229. In his summary, Dr. Nyenhui recommended Claimant’ s continued
work with Dr. Sicard and further opined, that Claimant was not at acute risk for self harm
due to his anergia, but remained at a significant risk for suicidal behavior. R. 230. The
ALJ's decision, specifically notes the Claimant’s results on the BDI-I and his decreased
concentration, anhedonia, and anergia. R. 15. Thus, the ALJ did not fail to consider this
medical evidence.

Claimant next argues that the ALJ did not consider Claimant’s inability to manage his
funds independently. Dr. Smith performed a consultive psychological exam. R. 218-25. He
completed two reports, dated the same day, one summarizing Claimant’s results on the Luria-
Nebraska, R. 218-19, and one summarizing his results on the WAIS-II, WMS-IIT, WRAT-
IH, and Beck Depression Inventory. R. 220-25. In the first summary, he opined that the
Claimant would need help managing his own funds. R. 219. In the second report he
indicated that Claimant would be able to manage his own funds. R. 225. Thus, to the extent
that these two reports differ, the ALJ was proper in not relying on that evidence.

The Claimant next contends that the AT.J did not properly consider his urinary
frequency problems. Claimant indicated that he had prostate problems that cleared up but
then came back. R. 282-83. The ALJ discussed the prostate problem briefly in his decision

stating that it had cleared up. R. 16. He did not discuss its recurrence. ‘There is, however,

19



Dr. Smith also completed an MRFC. R. 214-17, He found that Claimant was
moderately limited in the following five areas: 1) ability to carry out very short and simple
instructions, 2) ability to maintain attention and concentration for extended periods, 3) ability
to complete a normal workday and workweck without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods, 4) the ability to get along with coworkers or peers without distracting
them or exhibiting behavioral extremes, and 5) ability io travel to unfamiliar places or use
public transportation. R. 214-15. Ile also found Claimant to be markedly limited in the
following two areas: 1) ability to understand and remember detailed instructions, and 2)
ability to carry out detailed instructions. R. 214. Dr. Smith indicated that Claimant was not
significantly limited in all other work-related functions. R. 214-15.

D.  ALJ’S DECISION

The ALJ’s decision denying Claimant's SSI benefits followed the familiar five-step
process. At step one, the ALJ found that Claimant had not engaged in substantial gainful
activity since the alleged onset date of his disability. R. 14. After reviewing the medical
evidence, the testimony from two medical experts, and the Claimant’s testimony, the ALJ
found that Claimant’s impairments were severe, but not severe cnough to mect or equal a
listed impairment. R. 17.

The AT.J made a determination on the Claimant’s RFC after reviewing the MRI'C

completed by Dr. Smith and the testimony given by Dr. Kravitz at the supplemental hearing.



jobs, with no interaction with the general public, and very little interaction with supervisors.
R. 330. Further, the jobs do not require travel other than commuting to and from work. R.
331.

The Claimant’s counsel then asked the VE if a person would be unable to maintain
a job, if he experienced production work stress on a sustained basis that exceeded his
threshold. R. 332. The VE agreed that a person would not be able to maintain a job that
exceeded his stress level. /d.

Contrary to Claimant’s contention, this additional testimony in response to counsel’s
questioning, adds nothing to the analysis. It is simply a true statement with no relation to the
jobs actually named by the VE. The VF. specifically indicated that these jobs were low
stress. R, 330. Furthermore, even if they did involve some minimal level of stress, there is
no indication that the Claimant must avoid all stress. The testimony of the ME indicated that
Claimant had a mild limitation in his ability to follow short simple instructions which
becomes moderate when he experiences stress. R. 323.

In addition, Claimant argues that the VE’s testimony should not be credited because
it assumed that the Claimant could travel to work. Again, the ME indicated that the
Claimant’s ability to travel was moderately limited. R. 326. Purthermore, the jobs are such
that onec the Claimant arrives at work, he has no additional travel involved, in contrast to his
taxi driving job. Nothing in the record indicates a marked impairment in his ability to travel.

R. 331. Thus, the AT.J’s finding was supported by substantial evidence and the VI’s

23



stocking shelves at the grocery store and working as a salesman at flea markets. R. 301. He
stopped working at the grocery store because he became irritable and nervous around people.
ld.

Claimant gained fifty-five pounds aller quitting smoking. R. 280. Since quitting,
Claimant feels that he has increased arguing with his family and become less active socially.
R. 280-81. Smoking reduced Mr. Zayed’s anxiety which is worsened by his coffee
consumption of approximately twenty-seven cups per day. R. 281. At the time of the second
hearing, Claimant had gained approximately fiftecn more pounds R. 295.

Claimant experienced back pain and prostate problems that began in March of 2001.
R. 283. Although Claimant was treated successfully for his prostate problems, the problem
recurred, fd. Ilis back pain was not relieved after the treatment of his prostate. Jd.

Claimant has problems sleeping. R. 303. He goes to sleep at approximately 11:00
p.m., R. 317, and wakes up at approximately 2 a.m, without returning to sleep. R. 303. He
begins drinking coffee when he gets up and had approximately nine cups before the
supplemental hearing with the ALJ. R. 317. He explained how much he enjoys coffee and
indicated that he could not live without it. /d. lis doctors have recommended that he stop
drinking coffee and begin exercise. R. 304, Claimant exercises in his room by stretching
with a rubber band, R. 304, 306, and taking walks outside carly in the morning. R. 306.

Claimant does not do any household chores, but sits in his room all day watching TV.

R. 305. His wife reminds him to complete personal hygiene tasks. dd. He becomes very


no medical evidence of the recurrence of the problem. ‘The record is lacking in any
documentation of a continued problem after the original episode which concluded with a
positive result. R. 152. The Court finds that the ALJ did not err in failing to discuss this
further.

The Claimant also argues that the ALJ failed to consider his lumbosacral spine
limitations and dizziness while driving and walking. These issues were raised by Dr. Biale
in his consullive exam. R. 186-89. The ALJ specifically noted the ME’s discussion of Dr.
Biale’s exam and Claimant’s lower back pain in his decision. R. 16, 17. The ALJ found that
one of Claimant’s impairments was lower back pain. R, 17, Furthermore, the radiology
exam by Dr. Kovalsky revealed no lumbosacral spine problems. R. 183. Regarding
Claimant’s dizziness, the ALJ discussed this issue in his decision, R. 16, and accounted for
it in his determination of Claimant’s RKC by indicating thal he was to avoid all exposure to
heights and moving machinery. R. 18,

Finally, Claimant argues that the ALJ did not consider that he is socially withdrawn
and has a poor memory. The ALJ discussed Both Dr, Smith’s and Dr. Kravitz’s findings on
the MRFC indicating his limited abilities to interact with co-workers, the public, and
supervisors. R. 18. In addition, the ALJ determined that Claimant had a marked limitation
in his ability to understand and remember long detailed instructions, and a mild limitation in
ability to understand and remember very short detailed instructions. R. 18. ‘These limitations

were considered and accounted for by the ALJ.

20



copies mailed to:

Agustin G. Garcia, P.C.

53 West Jackson Blvd.
Suite 730
Chicago, LL 60604

Attorney for Plaintiff

26

Edward J. Kristof

Special Assistant to the United States
Attorney

200 West Adams Street

30th Floor

Chicago, IL 60606

Attorney for Commissioner



public, R. 325, 18, whereas Dr. Smith had found him not significantly limited in this area.
R. 215.

The ALJ further noted that in making his RFC determination, he considered the
Claimant's “allegations of limitation due to pain and psychological impairment.” R. 18, He
went on further to note that he found the Claimant’s testimony somewhat credible because
it generally followed the evidence in the record, although he experienced physical problems
greater than the medical evidence supported. fd.

‘The ALJ’s MRFC determination, closely tracking both the consullive psychological
examiner and the MM, is supported by substantial evidence.

Cc. THE ALJ DID NOT FAIL TO CONSIDER TESTIMONY FROM THE VE

THAT CLAIMANT WOULD BE PRECLUDED FROM SOME JOBS DUE TO

THE STRESS LEVEL.

The Claimant next argues that the ALJ ignored the VE’s testimony that the siress level
of the jobs indicated would reduce the number or preclude the jobs Claimant could obtain.
The hypothetical from the ALJ indicated that the person has a mild limitation in his ability
to carry out short simple instructions which becomes moderate when he experiences stress.
R. 328-29. He clarified by stating that “any jobs that might be available would have to be
non-stressful.” R. 329. The VE responded that given all of the hypothetical facts, the
individual would qualify for 8,000 assembly positions, 7,000 hand packing positions, and
6,500 inspection jobs. R. 330.

Upon further questioning from the ALJ, the VE indicated that these are low stress

22



1995)).
IV, ANALYSIS

Claimant raises four issucs with the ALJ’s decision. Ile argues that: 1) the ATJ
ignored medical and psychological evidence of several of Claimant’s impairments, 2) the
AL] failed to consider psychiatric evidence supporting Claimant’s testimony regarding his
medical and vocational limitations, 3) the AI.J failed to consider testimony of the VE. that
stress might preclude or reduce the jobs that Claimant would be able to complete and
improperly assumed that travel to and from a job was attainable for the Claimant, and 4) the
ALJ’s step five determination was not supported by substantial evidence. Each will be
addressed in turn.

A. THE ALJ DID NOT IMPROPERLY IGNORE MEDICAL OR
PSYCHOLOGICAL EVIDENCE IN THE RECORD.

Claimant first argues that the ALJ ignored medical and psychological evidence related
to the Claimant’s depression. Specifically he claims that the ALJ ignored evidence of: 1)
Claimant’s inability to serve on a jury because he is unable to sit for long periods of time, 2)
the Claimant can not be confined to small spaces, 3) Claimant has difficulty in concentrating
subsequent to his neurological deficits, 4) anhedonia, 5) anergia, 6) inability to manage his
funds independently, 7) urinary frequency problems, 8) lumbosacral spine limitations, 9)
dizziness while driving and walking, and 10) socially withdrawn and poor memory. In
addition to the ALJ’s failure to address these issues, the Claimant argues that evidence of the

above limitations conflicts with the ALJ’s finding that the Claimant can perform a significant

17



carrying out short instructions which is moderate when he experiences stress; has a modcrate
limitation in his ability to work in a schedule, maintain regular attendance, and be punctual
within customary limits; has a moderate limitation in his ability to carry out a normal
workweek without interruptions from psychologically based symptoms; has a moderate
limitation in his ability to interact with the gencral public and accept instructions from and
respond to supervisors; and a moderate limitation in his ability to travel to unfamiliar places.
R. 328-29.

The VE responded that such a person would not be able to return to the Claimant’s
past relevant work as a cab driver. R. 329. ‘he person could, however, perform simple
unskilled light or medium level work. R. 330. In the light range, the VE indicated the
existence of 8,000 assembly jobs, 7,000 hand-packing jobs, and 6,500 inspection jobs. Jd.
All of these jobs are considered low stress and have no interaction with the public. Jd. In
addition, there is very little interaction with supervisors. /d.

‘The VE further opined that a moderate limitation in the person’s ability to complete
a workday or week without interruption from psychologically based symptoms would not
preclude this type of work or reduce the number of available jobs. R. 330-31. Further, a
moderate limitation in the ability to travel to unfamiliar places should not preclude this work
because there is no travel involved once the person is at work, R. 331.

Upon questioning from Claimant’s counsel, the VE indicated that a hypothetical

person would not be able to perform work that exceeds his stress level. R. 332. He also

9



Claimant does no cooking: he eats most of his meals and spends most of his time in

his room. His family tries to encourage him to leave the bedroom, but he argues with them.
R. 310-11. The Claimant’s relationship with his children has deteriorated since he has
become less social and more reclusive. R. 311. Claimant belicves that his job driving a cab
caused his current health and psychological problems. R. 312.

2. Medical Expert Testimony

a, Dr. Ernest Mond

Dr. Ernest Mond, an internist, testified at the first hearing as the ME. R. 270, 282-88.
He listed Claimant’s medical problems as: 1) lower back pain with a normal gait, tendon
reflexes, straight leg raising, and x-rays, but with some dizziness, 2) a history of prostate
problems, with benign prostatic hypertrophy, evidence of prostatitis, and inability to empty
his bladder completely for ten ycars, 3) history of chest pain with no indication of coronary
artery disease, and a normal neurological exam, but which may radiate into the lefi shoulder
and face, and 4) anxiety and depression. R. 283-86.

Dr. Mond opined that Claimant’s impairments did not meet or equal a listing. R. 286.
He further gave an opinion on Claimant’s work-related limitations. R. 287-88. Claimant has
no limitation on sitting, standing, walking, pushing, pulling, simple grasping and fine motor
manipulation, operating foot controls, reaching above the shoulder, exposure to changes in
temperature and humidity, commercial driving, and exposure to dust fumes and gases. R.

287-88. Furthermore, Claimant can lift filly pounds occasionally and twenty-five pounds


irritated when grocery shopping, and taking public transportation. Jd. Claimant also
experiences chest pain and begins to sweat when he drives for longer than thirty minutes.
R. 318. Although able to use public transportation, Claimant becomes irritated because he
thinks people are looking at him and sometimes misses his stop. R. 307, 318-19.

In addition to chest pain and anxiety, Claimant suffers from back pain. R. 307. His
back pain is not constant, but becomes worse with increased periods of sitting. /d. Claimant
experiences chest pain when he becomes irritated—-approximately three times per day. R.
308. Claimant took Vioxx in the past for the neck pain, but currently docs stretches to help.
Jd. Ve takes Selexa for his back pain which has improved his condition. fd. He indicated,
however, that the most comfortable position for him is lying down on his side. Jd, Claimant
also takes Flomax and Proscar for his prostate, Lipitor, Effexor, and Zyprexa. R. 308-09.
Claimant indicated that the Zyprexa has made him eat more and gain weight. R. 309.
Claimant gaged the effectiveness of his medications at about fifly per cent. Jd.

Claimant sometimes has suicidal thoughts, but indicated that he would never commit
suicide, R. 310. Claimant does not enjoy being around other people. Jd. He secs a
psychiatrist, Dr. Sicard, on a regular basis, R. 310, 312, beginning in March 2000. R. 311.
He has been on medication since that time, but has nol improved enough to return to work
as a cab driver, /d. In the month before the hearing, Claimant’s Effexor dosage was

increased to 300 milligrams, but Claimant has not noticed any positive change, R. 313-14.


range of medium work.

The AT.J “must sufficiently articulate his assessment of the evidence to assure [the
court] that [he] considered the important evidence . . . and to enable [the court] to trace the
path of [his] reasoning.” Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1996) (quoting
Stephens v, Heckler, 766 ¥.2d 284, 287 (7th Cir. 1985)), In addition, the ALJ is “not
required to address every piece of evidence, [but] he must articulate some legitimate reason
for his decision.” Clifford, 227 F.3d at 872.

In Claimant’s first three claims, he argues that the ALJ ignored evidence of Dr.
Rovner’s letter excusing Claimant from jury duty due to his problems sitting for a long period
of timc, being confined to small spaces, and difficulty in concentration due to his
neurological deficits. R. 166. The letter was written on behalf of the Claimant one month
after he first saw Dr. Rovner. R. 166, 171. In addition, afler a nerve conduction study, and
x-rays were completed, no evidence of severe neurological problems was found. R. 170. In
addition, Dr. Mond opined that the Claimant had no limitations on silling, R. 287, and Dr.
Biale who completed a consultive exam, also thought Claimant could sit for six hours of an
eight hour workday. R. 192. To the extent the letter was not consistent with later medical
evidence found at Dr. Rovner’s request it need not be discussed. Overall, the ALJ’s
discussion of Dr. Rovner’s analysis was fair and appropriate.

Claimant next argues that the ALJ did not consider evidence of the Claimant’s

adnedonia and anergia. These symptoms are raised in Dr. Nyenhui’s discussion of

18



be moderately limited in this area. R. 323-24. In addition, Dr. Smith indicated that Claimant
was not significantly limited in the two following areas, while Dr. Kravitz opined that
Claimant would experience a moderate limitation: 1) the ability to interact appropriately with
the gencra] public, and 2) the ability to accept instructions and respond appropriately to
criticism from supervisors. R. 215,325. Finally, Dr. Smith indicated a moderate limitation.
in Claimant’s ability to get along with co-workers or pecrs without distracting them or
exhibiting behavioral extremes. R. 215. Dr. Kravitz, on the other hand, indicated that
Claimant was not significantly limited in this area. R. 325-26.

3. Vocational Expert Testimony

Dr. Richard J. Hamersma testified as the VE at the supplemental hearing. R. 76-77,
326-333. He characterized Claimant as a person approaching advanced age with marginal
education. R. 327. Although Claimant had low Wide Range Achievement Test scores
(“WRAT”), Dr. Hamersma thought these low scores were due to the different cultural
setting, and Claimant is not illiterate. /d. Claimant’s past relevant work as a cab driver was
unskilled or semi-skilled medium work. R. 328. Dr. Hamersma could not determine if
Claimant’s work prior to the cab driver was significant gainful activity. Id.

The ALJ presented the following hypothetical to the VE: a person who can sit, stand,
or walk for eight hours; lift fifty pounds occasionally and twenty-five pounds frequently; can

not be exposed to unprotected heights or moving machinery; has a marked limitation in

understanding and remembering detailed instructions; a moderate to mild limitation in



testimony was not improperly credited.
D. THE ALJ’S FINDING THAT THE CLAIMANT CAN PERFORM A LIMITED

RANGE OF MEDIUM WORK AVAILABLE IN THE NATIONAL ECONOMY

TS SUPPORTED BY SUBSTANTIAL EVIDENCE.

The Claimant finally argues that the ALJ’s finding under paragraph twelve is not
supported by substantial evidence. Substantial evidence is more than a mere scintilla of
evidence, but only “such relevant evidence that a rcasonable mind might accept it as adequate
to support a conclusion.” Scott v. Barnhart, 297 T.3d 589, 593 (7th Cir. 2002) (citing Diaz
v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)).

Claimant’s argument on this issue builds upon his argument that the ALJ failed to
consider the entire line of medical and psychiatric evidence previously addressed. As
discussed above, much of what Plaintiff alleges was ignored by the ALJ, was in fact
addressed in his decision, Furthermore, as the AT.J found, the medical evidence appears to
support Claimant’s claims of pain, however, there is no indication of the source or cause of
the back or chest pain in the medical evidence. The x-rays of the back indicated no problems
that could be causing the severe pain, and the nerve conduction study and the cardiac
evaluation also failed to reveal any medical explanation for Claimant’s chest pain. In
addition, the ALJ thoroughly discussed the psychological evidence and credited the diagnosis
of severe depression. Also, both Dr. Mond, the ME at the first hearing, and Dr. Kravitz, the
ME at the supplemental hearing, opined that the Claimant did not meet or equal a listing.

Moreover, the ALJ’s determination of Claimant’s MRFC was substantially similar to

24



+ Minute Onler Form (0697)

A “ly United States District Court, Northern District of Mlinois
jame uf A ue , Sitting Judge if Oth
wipe Maputrate Judge Morton Denlow hau Assigned Judge
CASE NUMBER 03 C378 DATE 8/21/2003
CASE Naji B. Zayed vs. Jo Anne B. Barnhart
TITLE

[ln the following box (a) indicate the party filing the motion, ¢.g., pluintiff, defendant, 37d party plaintiff, and (b) state briefly the nature
of (he motion being presented.)

MOTION:

DOCKET ENTRY:

qd) im Filed motion of | use listing in “Motion” box above,]

(2) Oo Bricf in support of motion due

(3) o Answer brief to motion duc__. Reply to answer briefduc___.

(4) o Ruling/Hearingon set fort

(5) q Status hearing[held/continued to] [sct for/re-set for]on ____set for at

(6) a Pretrial confcrence[held/continucd to] [set for/re-sct for]on set fort

(7) oO Trial[set for/re-set for]un 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]
OFRCP4(m) O Local Rule 41.1 OOFRCP4i(a(1) O FRCP41(a)(2).

ao ff [Other docket entry] Enter Memorandum Opinion and Order. The Commissioner’s motion for

summary judgment [15-1] is granted and the Claimant’s motion for summary judgment [10-1] is denied.
The decision of the Administrative Law Judge is affirmed.

dl) @f [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required.

pumber of motive cx 4

26,2003

v | Notices mailed hy judue's statt,

h - —

Notified counsel by telephone.

Ducketing to mail notices.

Mail AO 450 form, 48N09 Laisia sn sa You
yyes5 bing op
Copy to judge/magistrate judge. eae
"ho Ly Sz sny waivao03
OY a WJ 4 fat notice
courtroom We dave epaled
DK deputy’ yyy: : _
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back pain, 2) dizziness, and 3) gastro-esophageal reflux disease that was being treated with
Prilosec. R. 188-89. In late December, a Department of Disability Services consultant
performed a residual functional capacity assessment (“RFC”) indicating that Claimant could
lift fifty pounds occasionally and twenty-five pounds frequently; he could stand, walk, or sit
for six hours in an eight hour work day, his pushing and pulling ability was limited only by
his lifting limitations; and he could occasionally climb, balance, stoop, kneel, crouch, and
crawl, R. 191-98. He had no other work related limitations. Jd. In addition, Dr. Eugene
Kovalsky completed a consultive radiological examination revealing normal results. R, 183-
85.

Claimant also saw Dr. Carl Sicard for major depression with anxiety beginning in
October of 2000. R. 200. Dr. Sicard was treating the depression with medication and
psychotherapy. /d. In late 2001, Dr. Sicard completed a report indicating that weekly
appointments may improve Claimant’s condition, R. 206, and that neuropsychological testing
would be an appropriate step in Claimant’s evaluation. R, 209. In addition, Dr. Sicard
completed a supplemental MRFC assessment indicating Claimant had a moderate impairment
in his abilitics to: 1) relate to other people, complete daily activities such as his ability to
attend meetings and socialize with friends, and 3) respond to customary work pressures. R.
210.

On Dr. Sicard’s referral, a neuropsychological cxam was completed in January 2002

by Beth A. Keys and Dr, David Nyenhuis. R. 227-30. ‘The following tests were



indicated that the person must be able to travel to the place of employment on a daily basis.
Id.
Cc. MEDICAL EVIDENCE

Claimant was treated by Dr. Jodi Rubin in June and July of 2000 for urinary retention
problems. R. 176-80. Claimant also saw Dr. Christopher Coogan for prostate problems in
August and September of 2000. R. 147-60. His problems appear to be resolved. R. 152.
Claimant was treated by neurologist, Dr. Richard Rovner, throughout 2000. R. 263, 64-66,
171-73. Claimant's original complaints included lefi chest wall pain, left arm pain, and
intermittent numbness and tingling of the left upper extremity and face. R. 171. Claimant
reported to Dr. Rovner that a cardiac cvaluation was completed with normal results. /d.

At Dr. Rovner’s referral, a nerve conduction study was completed and x-rays were
taken of the Claimant’s back. R. 169-70, 174, Although the nerve conduction study revealed
mildly abnormal results, there was no evidence ofa lefi cervical radiculopathy. R. 170. The
back x-rays indicated some slight calcification, but revealed no abnormalities related to the
Claimant’s chest pain. R. 174, On July 14, 2000, Dr. Rovner wrote a letter on the
Claimant’s behalf indicating that he would be unable to complete jury duty duc to his
difficulty sitting in a confined space and difficulty with concentration. R. 166, Claimant also
received physical therapy for his chest and shoulder pain. R. 169.

On December 7, 2000, Dr. Peter Biale completed a consultive internal medicine

examination. R. 186-90. He indicated three problems in his clinical impressions: 1) low



frequently, can bend, squat, crawl, and climb occasionally, and should avoid unprotected
heighis and moving machinery such as forklifis. /d.
b, Dr. Larry Kravitz

Dr. Larry Kravitz, a psychologist, testified at the supplemental hearing as the ME. R.
291, 314-26. He listed the Claimant’s mental impairments as: 1) major depression, and 2)
mild cognitive difficulties with severe depressive disorder. R. 320. He thought Claimant’s
cognitive functioning was in the low average range. R. 321. This was further supported by
Claimant's ability to follow the conversation while testifying and respond the ALJ’s
questions. R. 321-22, Dr. Kravitz found thal Claimant did not meet or equal a listing. R.
322.

The ALJ then asked Dr. Kravitz if he agreed with the mental residual functional
capacity assessment (“MRFC”) completed by Dr. David Paul Smith. R. 322, Dr. Kravitz
agreed with the majority of Dr. Smith’s MRFC, but disagreed on several indicators. R. 322-
26, Dr. Smith opined that Claimant’s ability to carry out very short and simple instructions
was moderately limited, R. 214, while Dr. Kravitz thought Claimant would be limited in this
area only when experiencing stress which would be only occasionally. R. 323. Dr. Kravitz
also disagreed with Dr. Smith’s assessment of Claimant’s ability to perform activities within
a schedule, maintain regular attendance, and be punctual within customary tolerances. Dr.
Smith indicated Claimant was not significantly limited in this area, R. 214, but Dr. Kravitz

indicated that due to Claimant’s history of spending so much time in his bedroom, he would



B. THE ALJ DID NOT IMPROPERLY FAIL TO CONSIDER PSYCHIATRIC
EVIDENCE.

The Claimant next argues that the ALJ ignored psychiatric evidence supporting his
testimony that he becomes nervous, irritable, and sweats around people, and people stare at
him while on public transportation causing him to miss his stop. Contrary to Claimant’s
argument, the ALJ discussed the psychological evidence in detail. He discussed Dr. Sicard’s
treatment of Claimant for severe depression with anxiety, and his description of the Claimant
as isolative, irritable, and anxious about his financial situation, R. 15. He reviewed the
neuropsychological test completed by Dr. Nyenhui including the BDI-II score which was
consistent with severe depression. /d. ‘lhe ALJ further reviewed the psychological
examination performed by Dr. Smith indicating Claimant’s overall intellectual functioning
was deficient or extremely low. R. 16. Moreover, the ALJ reviewed the Beck Depression
Inventory completed by Dr. Smith, again indicating severe depression. /d. Finally, the ALJ
reviewed the MRFC completed by Dr. Smith and the ME’s opinion regarding the MRIC.

To the extent that Dr. Smith and Dr. Kravitz disagreed on the MRFC, the ALJ
generally credited the more severe limitation. For instance, Dr. Smith opined that Claimant
was not significantly limited in his ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances. R. 214. Dr. Kravitz.
indicated that Claimant would be moderately limited in this area. R. 323-24. The ALJ also
found Claimant to be moderately limited in this area. R. 18. The ALJ also agreed with Dr.

Kravitz that the Claimant was moderately restricted in his ability to interact with the general

21



summary judgment.
B. HEARING TESTIMONY

1 Claimant's Hearing Testimony

Claimant testified at both the original and supplemental hearings before the ALJ. R.
279-83, 295-314. Claimant was born on July 29, 1947 and was fifty-four years old at the
time of the hearings. R. 279. He was born in Palestine and emigrated to the United States
in 1969. Jd. Claimant has three children; one in college, and an adult daughter and teenage
son living at home. R. 296. He pays rent on the an apartment with his daughter’s help. fd.
Claimant’s wife is employed as a housekeeper through public aid. R. 296-97. Claimant
attended school through the sixth grade in Palestine. R. 299. He reads Arabic, but reads only
enough English to understand the newspaper headlines. R. 299. He can not make change
at a grocery store. fd.

Claimant’s last employer was American United, a taxi cab company. R. 300. While
he was required to make change at this job, he often made mistakes. /d. He worked as a cab
driver for this company from January of 1999 through March of 2000. Id. Te worked twelve
hours per day, until he quit in March 2000 due to chest pain. Jd. Claimant went to the
emergency room where the doctors diagnosed no heart problems but indicated that he
suffered from depression. /d, Te had a neurological consultation, and was sent for physical
therapy and to a psychiatrist. Jd,

Before his employment as a cab driver, the Claimant worked at odd jobs, including

res)


R. 17-18. He determined the following: Claimant can lift, carry, push, or pull twenty-five
pounds frequently and fifly pounds occasionally; sit, stand, and walk up to six hours in and
eight hour work day; has occasional postural limitations such as balancing, stooping,
kneeling crouching, and crawling: and must avoid climbing ropes, scaffolds, ladders all
heights, and moving machinery. R. 18. The ALJ determined Claimant’s mental limitations
as: a mild limitation in his ability to understand and remember short, simple instructions
which increases to a moderate limitation when the Claimant is experiencing stress, and a
marked limitation in his ability to understand, remember, and carry out detailed instructions.
fd. Claimant also has moderate limitations in the following areas: 1) performing activitics
within a schedule, maintaining regular attendance, and punctuality within customary
tolerances, 2) completing a normal workday and workweek without interruptions from
psychologically-based symptoms and performing at a consistent pace without an
unreasonable number and length of rest periods, 3) interacting appropriately with the general
public, 4) accepting instructions and responding to criticism from supervisors, and 5)
traveling in unfamiliar places or using public transportation. Jd.

The AT.J further discussed the medical evidence and evidence of the consultive RFC
report, and determined that the Claimant could perform a significant range of medium work.
R. 19-20. He found that Claimant’s ability to perform a wide-range of medium work was

impeded by his non-exertional limitations including the postural limitations, and the MRFC

limitations. R. 20-22.



the power to enter a judgment “affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42
U.S.C. § 405(g).

B. DISABILITY STANDARD

A person is disabled if “he is unable to engage in any substantial gainful activity by
reason of any 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. § 1382e(a)(3)(A).

The Commissioner uses a five-slep sequential process in order to determine if an
individual is disabled. 20 C.F.R. § 416.920. The sequential evaluation ends if the ALJ, at
any step of the process, finds that the claimant is not disabled. /d. The ALJ must inquire:
1) whether the claimant is working and the work is a substantial gainful activity, 2) whether
the claimant’s impairment is severe, 3) whether the impairments mect or cqual a listed
impairment in 20 C.F.R., Pt. 404, Subpt. P, Appendix 1, 4) whether the claimant is able to
perform his past relevant work, and 5) whether the claimant’s age, education, and past
relevant work expcricnce in reference to his RFC, enables him to do other work, 20 C.I.R.
§ 416,920(a)-(t). A person’s RFC is what he can do despite his physical and mental
limitations. 20 C.F.R. § 416.945, The burden of proof is on the claimant through step four
of the analysis; the burden then shifts to the Commissioner only at step five. Clifford v.

Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citing Knight v. Chater, 585 F.3d 309, 313 (7th Cir.

16



{L. BACKGROUND FACTS

A.

PROCEDURAL HISTORY

Claimant filed an application for SSI on June 1, 2000 alleging that he had been
disabled since March 10, 2000. R. 81. His application was denied on September 14, 2000,
R. 26, His application was denied again, R. 25, after he requested a reconsideration of the
initial determination. R. 30. Claimant requested a hearing before an ALJ on January 24,
2001. R. 39. A hearing was held before ALJ B. Carleton Bailey, Jr. on December 20, 2001,
R. 270-90. Claimant was represented by counsel at the hearing. R. 270. In addition to the
Claimant, Dr. Earnest Mond testified as the medical expert (“ME”), R. 282-88. Ms. Sisilia
Zayed, the Claimant's wife, and Ms. Glecann Curr, a vocational expert (“VI:”), appeared but
did not testify, R. 270, 289.

A supplemental hearing was held on May 16, 2002. R. 291-333. Claimant was again
represented by counsel. R. 29]. Claimant, Dr, Larry Kravitz, the ME, and Dr. Richard
Hamersma, the VE, testified at the hearing. R. 291-333, The ALJ issucd a decision on July
25, 2002 finding the Claimant not disabled and denying benefits. R. 13-22. Claimant filed
a request for review of the ALJ’s decision with the Appeals Council on September 14, 2002,
R. 9, which denied review on December 6, 2002. R. 6. Thus, the ALJ’s decision became the
final decision of the Commissioner, 42 U.S.C. § 1383(c)(3); 20 C.FLR. § 416.1455.

Claimant filed a complaint seeking review of the final decision of the Commissioner

in this Court on January 17, 2003. ‘The case is now before the Court on cross-motions for


that completed by both the consultive examiner, Dr. Smith, and the testimony of the ME, Dr.
Kravitz. The hypothetical to the Vl accounted for his moderate ability to travel by limiting
the individual to jobs with one work site. In addition, the jobs listed by the VE had little
interaction with supervisors, no interaction with the public, and were low stress, unskilled
work. Having found that the ALJ properly addressed the evidence presented, this Court finds
that the ALJ’s decision that the Claimant could perform medium unskilled work was
supported by substantial evidence.
V. CONCLUSION

For the reasons stated above, the Commissioner’s motion for summary judgment

is granted and the Claimant’s motion for summary judgment is denied. The decision

of the ALJ is affirmed.

SO ORDERED THIS 21ST DAY OF AUGUST, 2003.

Muridin onto

MORTON DENLOW
United States Magistrate Judge

25



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

EASTERN DIVISION
NAJIB. ZAYED, )
)
Plaintiff, )
) Case No. 03 C 0378
v. )
) Magistrate Judge Morton Denlow
JO ANNE B. BARNHART, )
Commissioner of Social Security, )
)
Defendant. y DOCKETED
MEMORANDUM OPINION AND ORDER AUG & 6 2003

I. INTRODUCTION

Plaintiff, Naji B. Zayed (“Claimant”), secks judicial review of the decision of the
Commissioner of Social Security (“Commissioner”) finding him not disabled and denying
him Supplemental Security Income (“SSI”) benefits under 42 U.S.C. § 405(g). This case is
before the Court on cross-motions for summary judgment. Claimant argues that the
Administrative Law Judge (“ALJ”) ignored medical and psychological evidence in
determining that Claimant could perform a significant range of medium work, and finding
a significant number of appropriate jobs in the national economy. For the following reasons,
Claimant’s motion for summary judgment is denied, and the Commissioner’s motion for

summary judgment is granted.



administered: 1) Peabody Picture Vocabulary Test-3rd edition (“PPVT-3"), 2) Wechsler
Adult Intelligence Scale-3rd edition (“WAIS-3"), 3) Similarities, Matrix Reasoning, Digit-
Symbol, 4) Trailmaking Test, 5) Animal Fluency, 6) Wechsler Memory Scale-3rd edition
(“WMS-3"), 7) Memory for Objects, 8) Beck Depression Inventory-2nd edition (“BDI-2"),
and 9) Personality Assessment Inventory (“PAI”). R. 228. The results indicated that
Claimant has mild cognitive impairment involving his memory and concentration. R. 230,
Dr. Nyenhuis further indicated that the results should be interpreted with caution due to the
Claimant’s limited knowledge of English vocabulary. Jd. He also noted Claimant’s
symptoms associated with severe depression and recommended that he obtain a sleep
consultation to improve Claimant’s sleep hygiene. Jd.

Dr. David Smith completed a consultive psychological exam including an MRFC in
January of 2002. R. 218-225. On the Luria-Nebraska Neuropsychological Battery-11
(“LNNB-II”), three of the five indicators of brain dysfunction fell in the abnormal range. R.
218-19. Claimant also received several other elevated scales including: intermediate
memory, arithmetic, memory, tactile functions, and writing. R. 219. On the Wide Range
Achievement Test-Revision 3 (“WRAT-3"), the Claimant tested at the fourth grade level in
reading and arithmetic, and at the third grade level in spelling. R. 224. Dr. Smith found
these scores consistent with the WAIS-3 scores. R. 224. In addition, Claimant’s full scale

IQ was in the extremely low range, R. 225, and his score on the Beck Depression Inventory

again placed him in the severe range of depression. R. 224.



The ALJ continued by discussing the VE’s testimony regarding the number of low-
stress, medium exertion, unskilled jobs in the economy. R. 20. ‘The ALJ ultimately found
that the Claimant was capable of making a successful transition to the jobs indicated by the
VE which totaled approximately 21,000 jobs, and found the Claimant not disabled. R. 20-21.

ILL LEGAL STANDARDS
A. STANDARD OF REVIEW

Judicial review of the Commissioncr’s decision denying SST benefits is governed by
42 U.S.C. § 405(g). 42 U.S.C. § 1383(c)(3). Section 405 provides that the findings of the
ALJ are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). A mere scintilla of evidence is not enough, /d. Tiven
if there is adequate evidence in the record to support the decision, the findings will not be
upheld if “the reasons given by the trier of fact do not build an accurate and logical bridge
between the evidence and the result.” Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).

A reviewing court may not re-cvaluate the facts, re-weigh the evidence, or substitute
its own judgment for that of the Social Security Administration, Diaz, 55 F.3d at 305-06.
Thus, judicial review is limited to determining whether the ALJ applied the correct legal

standards in reaching his decision and whether there is substantial evidence to support the

findings. Sctvally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir, 1992). The reviewing court has