Plaintiff based on the regulations governing Social Security determinations. Plaintiff argues that
“[t]he CE’s opinion [Dr. Bernardo] should have been given more weight than the State agency
reviewing physician because he examined Plaintiff instead of simply reviewing medical records, and
he is a specialist in internal medicine, whereas the State examiner’s specialty, if any, is unknown.”
(P1.’s Mem. at 18.) Instead of dealing with that issue, the Commissioner mischaracterizes the issue
as an argument by Plaintiff that the ALJ “gave more weight to the state agency physician opinion that
he could perform medium work, than to Plaintiff's subjective allegations suggesting far greater
limitation.” (Def.’s Mem. at 10.) By mischaracterizing the issue, the Commissioner's brief entirely
fails to mention, let alone discuss, the relevant regulations, and fails to respond to Plaintiff's
arguments.

20 C.F.R. § 404.1527(d)(1) provides, “Generally, we [the SSA] give more weight to the
opinion of a source who has examined you than to the opinion of a source who has not examined
you.” The regulations also state, “We generally give more weight to the opinion of specialist about
medical issues related to his or her area of specialty than to the opinion of a source who is not a
specialist.” 20 C.F.R. § 404.1527(d)(5). The ALJ is required to provide support for his decision to
grant greater weight to a report by a non-examining physician than that of an examining physician.
20 CFR. § 404.1527(d)(2); Cichon v. Barnhart, 222 F. Supp. 24 1019, 1030 (ND. I.
2002)(discussing treating physicians). Finally, unless a treating source’s opinion is given controlling
weight, the regulation requires the ALJ to “explain in the decision the weight given to the opinions

of a State agency medical or psychological consultant or other program physician or psychologist.”

19


residual functional capacity, despite his impairment, to perform his past relevant work; and (5) ifthe
claimant cannot perform his past relevant work, whether the claimant is able to perform any other
work existing in significant numbers in the national economy, considering his residual functional
capacity together with his age, education, and work experience. /d.; see also, Young v. Secretary of
Health & Human Servs., 957 F.2d 386, 389 (7" Cir. 1992). The claimant bears the burden of proof
at steps one through four, after which the burden shifts to the Commissioner at step five. Id.

At the first step of the sequential evaluation the ALJ chose not to determine whether Plaintiff
had engaged in disqualifying substantial gainful activity because the ALJ denied the claim on an
independent ground. (R. 16.)

At the second step of the sequential evaluation the ALJ found that Plaintiff's anosmia was
non-severe. (Jd.) However, he also found that Plaintiffs post-arterial bypass status met the
definition of severe. (Id.)

At the third step of the sequential process the ALJ found that Plaintiffs condition did not
meet or equal the level of severity of any listed impairment. (Jd.) Section 4.12(B)(1) of Appendix
1 to Subpart P of part 404 can be met by factors including peripheral vascular disease characterized
by a “resting ankle/brachial systolic blood pressure ratio of less that 0.50.” The ALJ found that
Plaintiff's ratio was “greater than one.” (R. 16.)

In the body of the opinion, the ALJ determined Plaintiff's RFC to be as follows: “The
claimant’s impairments preclude only the following work-related activities: lifting more than fifty
pounds occasionally or 25 pounds frequently; or performing frequent walking or climbing.” (Id.)
However, in his findings, the ALJ concluded that “the claimant has the residual functional capacity

to perform the requirements of work except for lifting more than 50 pounds occasionally or 25

13


that walking and climbing on some jobs to which he was assigned was more than he could handle
and he had no contro] over the jobs to which he was assigned. (R. 69.) He further testified that there
were things he was supposed to do on those assignments that he was unable to do. (R. 70.) The
ALJ’s opinion makes no effort to address this testimony. In addition, the VE observed at the hearing
that Plaintiff's work as a security guard could not be considered as part of his work record because
it was too short. (R. 73.) The ALJ’s conclusion thus fails to accurately reflect the record and address
significant pieces of testimony.

The Commissioner argues that even if the ALJ erred in considering Plaintiff's past work as
a security guard as past relevant work this error was harmless. (Def.’s Mem. at 11.) An ALJ’s error
is harmless if it does “not affect an ALJ’s determination that a claimant is not entitled to benefits.”
Bacidore v. Barnhart, No. 01 C 4874, 2002 WL 1906667 at *11 (N.D. Ill. Aug. 19, 2002)(Keys,
M.J.). In this case, it is impossible to conclude that the error was harmless. For example, the ALJ’s
determination that Plaintiff quit his work as a security guard only because of transportation problems
was part of the rationale for the ALJ’s determination that Plaintiff's report of symptoms was less
than credible. (R. 17-18.) On remand, the ALJ will be required to make a proper determination of

whether Plaintiff's work as a security guard constitutes past relevant work.

D. Assessment of Credibility and Pain

Plaintiff argues that the ALI failed to comply with SSR 96-7p by failing properly to assess
the credibility of Plaintiff's testimony about his limitations and pain. (P1.’s Mem. at 20.) SSR 96-
‘7p requires specific reasons for a credibility finding.

The determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently

23


the record, Plaintiff's attorney stated that Plaintiff picked cotton “as a kid.” (R. 35.) Plaintiff
worked for U.S. Steel from 1964 to 1966 as a bar straightener. (R. 41-43.) He then worked for the
Ford Motor Company from 1966 to 1997 in a variety of assembly line positions. (R. 43-44.) Finally,
he worked as a security guard from October, 1998 to either December, 1998 (R. 46, 135, 144; Def.’s
Mem, at 2), or February, 1999. (R. 174.) The ALJ adopted the later date without discussing the
contrary evidence. (R. 16.)

The record is not clear as to why Plaintiff left his job as a security guard. At one point in the
hearing he stated that he stopped because he did not have a driver’s license, but Plaintiff's testimony
was cut off by the ALJ before he finished explaining why a license was necessary. (R. 48; see
footnote 3, above.) Later in the hearing the ALJ returned to the issue of why Plaintiff left his job,
and both the ALJ and Plaintiff's attorney questioned Plaintiff on this issue. Questioned by his
attorney, Plaintiff explained that he left the security guard job because the walking and climbing
required by certain assignments was more than he could handle and he had no choice about which
assignments he was given. (R. 69.) Questioned by the ALJ Plaintiff then seemed to suggest that he
quit due to a transportation problem. QR. 69-70.) Questioned again by his attorney Plaintiff re-
asserted that he could not fulfill the requirements of some of the jobs he was assigned. (R. 70.)
Questioned again by the ALJ and his attorney Plaintiff again stated that he was not able to do all of
the things that he was required to do on the security job. (R. 70.) In his decision, the ALJ stated that
“claimant testified that . . . he quit his security guard job due only to transportation problems, not his
medical condition.” (R. 18, emphasis added.) The ALJ did not discuss Plaintiff's testimony that he

could not do all of the the walking and climbing required in the security guard job.


20 CER. § 404.1527(£(2)Gi)

Ina footnote, the Commissioner argues that “a fair reading of Dr. Bermardo’s report” is that
Plaintiff s difficulty walking “less than half a block or more than fifty feet” was a symptom reported
by Plaintiff and thus is no more reliable than any of Plaintiff's other statements as to how far he
could walk without pain and not entitled to special difference. (Def.’s Mem. at 10, n.8.) That
assertion is not supported by the record. Dr. Bernardo’s report makes four references to Plaintiff's
ability to walk. These references indicate that, while Plaintiff reported his difficulty walking to Dr.
Bernardo, Dr. Bernardo also independently evaluated Plaintiff's ability to walk and incorporated his
findings into a diagnosis.” Significantly, the Commissioner’s discussion of this point fails to discuss
in any way Dr. Bemardo’s finding, based on his examination of Plaintiff, that Plaintiff had “severe

diminution of pulses” in his lower right leg. (R. 368.) See Def.’s Mem. at 10, n. 8. That objective

% Plaintiffs initial Memorandum cites 20 C.F.R. § 416.927 (d)(1-2), which is the regulation
governing Supplemental Social Security Income applications. The corresponding section applicable
to Plaintiff's Disability Insurance Benefits application, 20 C.F.R. § 404.1527(f)(2){ii), is identical.

4 Dr. Bernardo’s report first notes that Plaintiff stated that “by walking less than half a
block, he would also have the claudication.” (R. 366.) That is unquestionably a self-report. Dr.
Bernardo then notes, under a section titled Physical Examination that Plaintiff “walks slowly, albeit
with a normal gait.” (Jd.) It appears that the statement is a result of Dr. Bernardo’s personal
observation. Dr, Bernardo’s report also describes, under the section Degree and Performance of
Different Maneuvers, Plaintiff s ability to walk on his toes, heels and in tandem as well as his ability
to squat and rise. (R. 367.) It then states, “He has moderate difficulty walking 50 feet because of
pain secondary to claudication.” (/d.) Given the title of the section, the lack of any reference to
statements by Plaintiff and the unlikelihood of Plaintiff reporting his ability to, for example, walk
on his toes, that section is also apparently based on Dr. Bernardo’s observations. Finally, Dr.
Bernardo’s report states, under a section titled Diagnostic Impression, that Plaintiff “can only walk
approximately less than half'a block.” (R. 368.) A diagnosis is “the determination of the nature of
a disease, injury or congenital defect.” (Stedman’s at 491.) Plaintiff's inability to walk more than
half a block without pain thus represents Dr. Bernardo’s determination, based on both his
observations and Plaintiff's reports, and is subject to the deference given to an examining
consultant’s opinion.

20


duty to fully develop the record, the adjudicator will inquire, on the record, as to
whether or not there is such a consistency.

When a VE or VS provides evidence about the requirements of a job or occupation,

the adjudicator has an affirmative responsibility to ask about any possible conflict

between that VE or VS evidence and information provided in the DOT.

SSR 00-4p, 2000 WL 1898704 at *1-2, 4 (2000). SSR 00-4p became effective on December 4,
2000, prior to the date of Plaintiff's hearing. The inquiry described in SSR-004p did not take place
in the present case.

Although the language of SSR 00-4p appears to require the ALJ to inquire as to the
consistency of the VE’s testimony with the DOT on every occasion, the Commissioner argues that,
under Donahue v. Barnhart, 279 F.3d 441, 446-47 (7 Cir. 2002), the ALI is only required to ask
for clarification if'a conflict is identified by Plaintiff and brought to the attention of the ALJ. (Def.’s
Mem. at 9-10.)

In the Donahue case the court stated that SSR 00-4p “Tequires an explanation only if the
discrepancy was ‘identified’—that is, if the claimant (or the ALJ on his behalf) noticed the conflict
and asked for substantiation. Raising a discrepancy only after the hearing . . . is too late.” 279 F.3d
at 446-47. However, the court’s statements regarding SSR 00-4p are technically dicta. The court
observed that SSR 00-4p was “not directly applicable” because that ruling went into effect only after
the decision of the ALJ that was the subject of the Donahue case. Id. at 446. Because the issue may
not arise on the remand of this case, this court declines to interpret SSR 00-4p in the context of this
case,

CONCLUSION

For the reasons discussed above, the Commissioner’s Motion for Summary Judgment is

26


below a certain level, his work does not constitute substantial gainful activity. Regarding length
Tequirements, the regulations state, “Ordinarily, work you have done will not show that you are able
to do substantial gainful activity if, after working for a period of 6 months or less, your impairment
forced you to stop working” or reduce work to below the amount necessary to meet the earnings
requirements. 20 C.F.R. § 404.1574(c)(1). Ifan individual works for three months or less, the SSA
considers that work to be an unsuccessful work attempt if the individual “stopped working, or [they]
reduced [their] work and earnings below the substantial gainful activity earnings level, because of
[their] impairment or because of the removal of special conditions which took into account [their]
impairment.” 20C.F.R. § 404.1574(c)(3). Ifthe plaintiff has worked between three and six months
the SSA will consider the work to be an unsuccessful work attempt if “it ended, or was reduced
below substantial gainful activity earnings level, within 6 months because of [plaintiff s] impairment
or because of the removal of special conditions” and other requirements were met. 20 C.F.R.
404.1574(c)(4). In addition, an individual must be out of work for at least thirty days or have been
forced to change to another type of work or employer prior to beginning work that is to be classified
as an unsuccessful work attempt. 20 C.F.R. § 404.1574(c)(2).

The ALJ found that Plaintiff worked as a security guard for four months. (R. 16.) The ALJ
did not address whether Plaintiff's earnings were sufficient to warrant a finding that his work
constituted substantial gainful activity despite the fact that Plaintiff testified he was working “eight
hours this week, six hours on one week” and earning minimum wage. (R. 71.) Nor did he properly
analyze whether Plaintiff's work ended as a result of his impairment. As discussed above, the
opinion states that Plaintiff testified that “he quit his security guard job due only to transportation

problems, not his medical condition.” (R. 18.) However, Plaintiff’s testimony included statements

22


the opinion states a finding that Plaintiff has the capacity to do work except for lifting more than 50
pounds occasionally or 25 pounds frequently and “ascending stairs.” (R. 19.) That finding says
nothing about limitations as to standing or walking, or the other limitations expressed by the state
agency consultants in their RFC.

The ALJ’s RFC findings fail to comply with SSR 96-8p, which states:

The RFC assessment must first identify the individual's functional limitations or

restrictions and assess his or her work-related abilities on a function-by-function

basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. 404.1545

and 416.945. Only after that may RFC be expressed in terms of the exertional levels

of work, sedentary, light, medium, heavy, and very heavy.

SSR 96-8p, 1996 WL 374184 at *1.” A function by function analysis requires that “each function
must be considered separately (e.g., ‘the individual can walk for 5 out of 8 hours and stand for 6 out
of 8 hours.’)” Id. at *5. Furthermore, “[t]he RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts . . . and
nonmedical evidence.” Jd. at *7. Failure to complete the RFC properly “could be critical to the
outcome of a case.” Id. at *3.

For example, the ALJ’s opinion fails to address Plaintiff's ability to stand. Standing, like
walking, is specifically identified by SSR 96-8p as a factor that must be “considered separately.”
Although he mentions Plaintiff's testimony that he can stand only thirty to forty minutes, the ALJ
did not explain the basis for excluding this limitation from Plaintiff's RFC stated in the opinion. In
these circumstances, the court is unable to identify the evidence the ALJ relied upon in reaching his

conclusions or the reasons the ALJ believed it supported the conclusions. The ALJ thus fails to build

an accurate and logical bridge between the evidence and his conclusions as required by Hickman v.

2 Social Security Regulations are binding on the SSA. 20 C.F.R. § 402.35(6)(1).

‘17



have reviewed all the evidence in file and the assessment of 06/19/00 is hereby affirmed as written.”
(Id.) The RFC (dated June 16 or June 19, 2000), refers to “CE report,” presumably the report of Dr.
Bemardo, which was done on October 16, 2000, four months after the purported date of the RFC.
QR. 363, 367.) In addition to these inconsistencies, there are substantive inconsistencies. Dr. Bone
found that Plaintiff could occasionally lift fifty pounds and frequently lift twenty-five pounds, and
could stand or walk for about six hours in an eight hour workday. (R. 358.) Dr. Bone concluded that
Plaintiff should avoid concentrated exposure to extreme heat, cold, wetness and humidity. (R. 361.)
Inresponse to questions about Plaintiffs reported symptoms, Dr. Bone checked boxes indicating that
the severity of the symptoms reported by Plaintiff was consistent with the medical and non-medical
evidence. (R. 362.) However, a note in a different handwriting (presumably that of Ms. Angelo)
states that the “CE report” (presumably Dr. Bernardo’s report) that Plaintiff had difficulty walking
fifty feet was not supported by Doppler flow studies showing ankle pressure or the attending
physician’s report on June 6, 2000 that Plaintiff can walk one to two miles with out symptoms. (R.
363.) The RFC report concludes, “Therefore, RFC can be affirmed.” (/d.) The ALJ did not discuss
or try to reconcile these inconsistencies.

In his testimony Plaintiff stated that the furthest he can walk before he has to stop and rest
is “a couple of blocks.” (R. 62.) Ifhe rests until the pain stops he can walk another halfblock. (/d.)
As a result “it take{s] me quite a while to walk a mile.” (/d.) When asked about records which
indicated he had told a doctor he could walk further, he stated that “I think Dr. Penny got that mixed

up. I never told him that [I could walk one or two miles]. He probably said I could walk two miles,


to a report prepared by Dr. Sales, these procedures were a right femoral graft,’ a balloon
thrombectomy,’ and a balloon angioplasty." (R. 176.) According to a report prepared by the
surgeon, Dr. So, the procedures were a right femoral graft exploration, a venogram,"' a
thrombectomy, a graft arteriogram’ and a balloon angioplasty. (R. 179.)

On August 29, 1997, Plaintiff underwent another set of procedures at the Roseland
Community Hospitals designed to treat thrombosis" of his graft, claudication and a lack of pulse in
the right foot. (R. 188.) According to Dr. Sales’ report the procedures performed were an open
femoral popliteal graft thombectomy, a right balloon angioplasty and an arteriogram. (R. 188.) Dr.
So’s report adds an inguinal exploration to that list. (R. 191.)

A lower extremity arterial resting segmental pressures examination administered on June 30,
1998 showed “severe right lower extremity arterial insufficiency,” among other findings. (R. 255.)
On July 24, 1998, Plaintiff underwent a right femoral to below knee popliteal artery bypass graft with

reverse saphenous vein at the University of Chicago Hospitals.’ (R. 295.) Plaintiffs University of

narrowing of an artery. It is characterized by attacks of lameness or pain brought on by walking.
Stedman's at 360.

5 A femoral graft is the transplantation of tissue or an organ in the femur or thigh. Stedman’s
at 655, 765.

° A thrombectomy is the excision of a clot within a blood vessel. Stedman’s at 1830, 1832.

® A balloon angioplasty is the recreation of a blood vessel involving dilation of the vessel
with a balloon. Stedman’s at 83.

‘A venogram is an x-ray of a non-transparent vein. Stedman’s at 1951, 1504.

An arteriogram is an x-ray picture of an artery. Attorney’s Dictionary, Vol. 1, Letter A.
'3 A thrombosis is a clot within a blood vessel. Stedman's at 1831.

‘ A saphenous vein is a vein within the leg. Stedman’s at 1592.

6


B. Medical History
I. Anosmia

Plaintiff suffers from anosmia.’ Plaintiff was examined at least four times by Dr. Robert
Naclerio, a professor and chief of Otolaryngology-Head and Neck Surgery at the University of
Chicago. (R. 371-74.) Dr. Naclerio ordered a CT scan and prescribed several medications. (Id.)
Ina December 16, 1999 letter, Dr. Naclerio stated that “[m]y impression is that [Plaintiff] has most
likely lost his sense of smell related to a viral infection and it will not return.” (R. 372.) Plaintiff
also suffers some lack of taste. (R. 374.) Plaintiff does not allege that his anosmia has limited his

ability to work. (See R. 135.)

Il. Peripheral Vascular Disease

Plaintiff has been diagnosed with, and treated extensively for, peripheral vascular disease.
See, e.g., R. 208.° Plaintiff's records state that he has undergone at least three surgeries on his legs
with numerous procedures performed as part of each surgery. On July 16, 1997, Plaintiff received

treatment at the Roseland Community Hospitals for “severe claudication.”” (R. 176.) According

5 Anosmia is the loss or absence of the sense of smell. Stedman’s Medical Dictionary
(“Stedman’s”) 92 (27" ed. Lippincott Williams Wilkins 2000).

6 Peripheral vascular disease is a disease “of any of the blood vessels of the limbs, especially
the legs.” E.J. Schmidt, Attorney’s Dictionary of Medicine, Vol. 4, Letter P (Matthew Bender 2003).
There are two types of peripheral vascular disease, peripheral arterial disease, which involves a
narrowing and hardening of the arteries, and peripheral veinius disorders such as chronic venous
insufficiency, that effect the peripheral veins. Wesley S. Moore, ed., Peripheral Vascular Disease
Overview <www.heartcenteronline.com\myheartdr\common\articles.cfm? ARTID=444> (accessed
July 1, 2003).

7 Claudication is defined as “‘a limping; lameness; cramplike pains in the legs.” Attorney’s
Dictionary of Medicine, Vol. 2, Letters CH-CZ. Intermittent claudication is caused by a localized
lack of blood in the muscles due to a mechanical disruption of the blood supply such as the

5


Apfel, 187 F.3d 683, 689 (7 Cir. 1999).

The ALJ’s failure to perform and articulate a proper analysis of Plaintiff's RFC is reflected
in the fact that the ALJ made two contradictory findings about whether Plaintiff is able to return to
his position as security guard. Notably, the VE testified that, in the hypotheticals posed by the ALJ
in which Plaintiff was to avoid “frequent walking,” Plaintiff could not perform the duties of a
security guard. (R. 73.) When the ALJ posed a hypothetical with only a light work function and no
other limitations, the VE testified that security guard duty is considered light. (R. 75.) The ALJ’s
performance of this outcome-critical step was patently inadequate.

Plaintiff asserts that “[a]t no point during the VE’s testimony were the Plaintiff's limitations
addressed in the context of the jobs that exist in significant numbers, as it must in Step Five.” (P1.’s
Mem. at 11.) Plaintiff's argument appears to be that the ALJ’s hypothetical question to the VE did
not accurately state Plaintiff’ s limitations as identified by the ALJ. Hypothetical questions to the VE
telied on by the ALJ must accurately state the plaintiff's RFC as determined by the ALJ. See
Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 538 (7" Cir. 1992)(“the
hypothetical question posed by the ALJ was proper because it reflected [the plaintiffs] impairments
to the extent that the ALJ found them supported by evidence in the record.”). In this case on remand
the ALJ must make a properly determined and articulated RFC, which wili be reflected in the
questioning of a vocational expert.

B. The Conflict between the Opinion of the CE and the Opinions Expressed by the State
Agency Consultants in Their RFC
At the outset, it must be noted that the Commissioner’s Memorandum completely

mischaracterizes this issue, and thus fails to respond in any way to the legal arguments made by the

18


(R. 168.) On November 20, 2000, Plaintiff reported that he was taking 800mg of Ibuprofen"” three
to four times a day. (R. 173.) He also reported taking 200mg doses of Aleve'* as needed. (R. 173.)
At the hearing Plaintiff stated that he is taking a lot of painkillers. (R. 51.)

Dr. Angelito Bernardo, a consultive examiner (“CE”) completed a consultive examination
of Plaintiff for the Bureau of Disability Determination Services on October 16, 2000. (R. 365.) He
reported that Plaintiff complained of “cramps and pain on both of his lower extremities” that restrict
his ability to walk. (R. 366.) Plaintiff also complained of a persistent “old burn oil smell.” (Id.)
In his examination Dr. Bemardo noted “markedly diminished femoral pulses bilaterally . . . as well
as diminished popliteal and dorsalis pedis pulses bilaterally.” (R. 367.) He observed “severe
diminution of pulses” in both legs. (R. 368.) He further reported that Plaintiff “walks slowly, albeit
with a normal gait” and “has moderate difficulty walking 50 feet because of pain secondary to
claudication.” (R. 366-67.)

A Residual Functional Capacity Assessment (“RFC”) of Plaintiff was completed by Dr. Bone
in June, 2000. Dr. Bone reviewed medical records but did not examine Plaintiff. (R. 357-64.) There
is some inconsistency and confusion about the report. The RFC is signed by Dr. Bone in the box
labeled “medical consultant’s signature” and dated “6/19/00.” (R. 364.) The RFC is also signed by

“R. Angelo, DCA IL” id.) This signature appears across from the date “6/16/00” and the note “I

17 Touprofen is used to reduce inflammation. Attorney’s Dictionary of Medicine, Vol. 3,
Letter I.

'8 Aleve is a non-prescription medication indicated for pain and fever. Physician’s Desk
Reference for Nonprescription Drugs and Dietary Supplements at 602.

19 Presumably “R. Angelo” is “Rose Angelo” printed on the RFC form. (R. 357.) Neither
Dr. Bone’s nor Ms. Angelo’s qualifications appear in the record.

8


specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual's statements and the reasons for that weight.

SSR 96-7p, 1996 WL 374186 at *2. Blanket statements are specifically disproved. “It is not
sufficient for the adjudicator to make a single, conclusory statement that ‘the individual's allegations
have been considered’ or that ‘the allegations are (or are not) credible.” Id.

In assessing the testimony regarding pain the ALJ is required to consider “all of the available
evidence, including your medical history, the medical signs and laboratory findings, and statements
from you, your treating or examining physician or psychologist, or other persons about how your
symptoms affect you.” 20 C.F.R. § 404.1529(c)(1). Moreover, the ALJ is specifically required to
consider factors relevant to symptoms including daily activities, location, duration and intensity of
pain and other symptoms, precipitating and aggravating factors, the type, dosage, effectiveness, and
side effects of medication, treatment other than medication received and, measures used to relieve
pain or other symptoms. 20 C.F.R. § 404.1529(c)(3).

An ALJ’s credibility determination “is afforded special deference because the ALJ is in the
best position to see and hear the witness and determine credibility.” Shrameck v. Apfel, 226 F.3d
809, 811 (7" Cir. 2000). However, the ALJ’s decision must contain an accurate and logical bridge
from the evidence to the conclusion. Green, 204 F.3d at 718.

In this case the ALJ’s credibility finding fails to comply with SSR 96-7p. The finding is
limited to the statement that “The claimant’s allegations of disabling symptoms and limitations are
not considered fully credible.” (R. 19.) The ALJ does not specify what evidence lead him to this
conclusion. Moreover, to the extent the ALJ engages in a general discussion of the evidence, his

discussion is based on an incomplete and inaccurate recitation of the evidence in the record.


‘ioute Order Form (O87)

wa, . 4 United States District Court, Northern District of Illinois
Name of Assigned Judj i Sitting Judge if Other
ame Magura " Jones Geraldine Soat Brown thant Assigned Judge

CASE NUMBER 02 C 3821 DATE 7117/2003

CASE Embry vs. Barnhart
. TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented]

DOCKET ENTRY:

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

(2) Q Brief in support of motion due

(3) Oo Answer brief to motion due. . Reply to answer brief due

(4) a Ruling/Hearing on set for at

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

(6) im) Pretrial conference[held/continued to) [set for/re-set for] on set for at .

(O) oO Trial[set for/re-set for] on at

@) Oo {Bench/Jury trial] [Hearing] held/continued to at

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

OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a)\(1) OO FRCP41(aX(2).

ee | [Other docket entry} The Commissioner’s motion for summary judgment is denied and the
plaintiff's motion for summary judgment is granted as set out in the attached memorandum opinion and
order. The case is hereby remanded to the Commissioner of Social Security for further proceedings
eer: the attached memorandum opinion and order. Enter Memorandum Opinion and Order.

di) oO [For further detail see order (on reverse side offattached to) the original minute order.]

No notices required, advised In open court.

No notices required.

S| Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.
courtroom
MW deputy's
initials

YNOI LIINISIA“s'A
Wage

O:S kd LI np eu

Document
Number

umber of notices

‘Mu 18 2003

ute docketed

docket initiate

m703

date mailed notice

UL 151" patditimeteceived in
central Clerk's Office

Mw

mailing deputy initials



court's role is limited. There the role of the district court is only to determine whether the decision
of the ALJ is supported by substantial evidence in the record. Wolfe v. Shalala, 997 F.2d 321, 322
(7* Cir. 1993). In reviewing the Commissioner's decision, the court may not decide facts anew,
teweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v.
Shalala, 19 F.3d 329, 333 (7" Cir. 1994); Brown v. Chater, 913 F. Supp. 1210, 1213-14 (N.D. DL.
1996). Thus, the court does “not substitute [its] own judgment for that of the ALJ.” Perkins v.
Chater, 107 F.3d 1290, 1296 (7" Cir. 1997). Rather, the court must affirm a decision if it is
supported by substantial evidence and the ALJ has made no error of law. Herr y. Sullivan, 912 F.2d
178, 180 (7" Cir. 1990); Edwards v. Sullivan, 985 F.2d 334, 336-37 (7* Cir. 1993). Substantial
evidence means “such relevant evidence as a reasonable mind might accept as adequate to support
aconclusion.” Luna v. Shalala, 22 F.3d 687, 689 (7" Cir. 1994)(quoting Richardson v. Perales, 402
USS. 389, 401 (1971)).

When evaluating a disability claim 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.
Where conflicting evidence allows reasonable minds to differ, the responsibility for resolving the
conflict falls on the ALJ, not the court. Herr, 912 F.2d at 181; see also Stuckey v. 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). Where there is a conflict between medical opinions, the ALJ
may choose between those opinions but may not substitute his own lay opinion for that of the
medical professionals. Davis v. Chater, 952 F. Supp. 561, 566 (N.D. Ill. 1996). A treating
physician’s opinion regarding the nature and severity of a medical condition is entitled to controlling

weight ifit is well supported by medical findings and not inconsistent with other substantial evidence

11


and J told him two blocks.” (R. 63.)”° Plaintiff testified that he could only lift ten to fifteen pounds.
(Id)

At the hearing, the ALJ posed several hypothetical questions to Cheryl Hoiseth, the
Vocational Expert (“VE”), (R. 72-73.) The ALJ asked the VE to assume the person is 58 years of
age, has a 12" grade education, has worked in the positions the VE stated (laborer, assembly line
worker and security guard), and to assume that his limitation is to a medium work function, but he
should not be in a position or job that would require repetitive walking or climbing. (R. 73.) The
VE concluded that Plaintiff could not return to any of his past jobs but that jobs existed at the
medium and light work levels. (R. 73-74.) Ifthe RFC were for medium or light work but the worker
could not sustain eight hours of work, that would preclude full time work. (R. 75.) The VE testified
that ifthe RFC were “just for an RFC for light work function” then Plaintiff could work as a security
guard. (R. 74-75.) If, in addition to the limitation to light, unskilled work without repetitive walking
or climbing, the worker needed a sit/stand option, there would be only 2,000 jobs available. (R. 76-
77)

STANDARD OF REVIEW

The Social Security Act provides for limited judicial review of a final decision of the
Commissioner (effectively that of the ALJ where, as here, the Appeals Council has denied the
applicant’s request for review). Where the ALJ commits an error of law, “reversal is required
without regard to the volume of the evidence in support of the factual findings.” mani v. Heckler,

797 F.2d 508, 510 (7" Cir. 1986). With respect to the ALJ’s conclusions of fact, the reviewing

2° Dr. Penny does not otherwise appear in the record. The name may represent a phonetic
spelling of another doctor’s name.

10


Chicago Hospital records state that Plaintiff “has undergone multiple thrombectomies of thrombose
grafts,” (R. 269), seven right lower extremity revasculizations, one left lower extremity
tevasculization and bilateral lower extremity bypasses. (R. 294.) There is reference to a “fem/pop
bypass” performed at Holy Cross Hospital in February, 1998 but no record from that hospital. (R.
244.)

Dr. James McKinsey of the University of Chicago Vascular Clinic, the attending physician
at Plaintiffs July, 1998 operation, noted in September, 1998 that Plaintiff reported he was able to
walk three miles without difficulty, although he experienced intermittent swelling in his right leg.
(R. 242.)

A lower extremity arterial resting segmental pressures examination administered on
September 8, 1998 reported no evidence of lower extremity arteria insufficiency or stenosis.'* (R.
212.) Dr. McKinsey reported in December, 1998 that Plaintiff had no further complaints of
claudication or rest pain. (R. 238.) An examination performed on April 27, 1999 reported no
evidence of stenosis, and resting segmental pressure indexes of one or greater except in the right
brachial “PT ankle,” for which no information is provided. (R. 239.) A bypass graft surveillance
dated June 6, 2000 reported normal ankle pressure indices in both extremities. (R. 219.)

On August 4, 2000, Plaintiffreported that he took Ibuprofen and “sometime Tylenoy! [sic]”"®

‘5 Stenosis is abnormal narrowing. Attorney's Dictionary of Medicine, Vol. 5, Letter S.

'6 Regular Strength Tylenol is indicated for treatment of minor aches and pains, and fever
reduction. Physician’s Desk Reference for Nonprescription Drugs and Dietary Supplements, 647-48
(22TM ed. Medical Economics Co. 2001).


medical finding undercuts any argument that the ALJ was entitled to dismiss Dr. Bernardo’s findings
as a “self-report.”

Ultimately, however, it is not the role of the court to re-weigh the evidence, nor may the
Commissioner’s counsel supply reasoning that the ALJ failed to supply. E.g., Golembiewski v.
Barnhart, 322 F.3d 912, 916 (7" Cir. 2003). The important point here is that, contrary to the
applicable regulations, the ALJ failed to explain in his opinion why he apparently gave greater
weight to a non-examining consultant’s report based on a Doppler study done in June, 2000 than to
the medical findings in an examining physician’s report done in October, 2000. Thus, on remand
the ALJ must identify the weight granted to the reports of the various consultants and properly justify
that determination, as well as dealing with the inconsistencies in the RFC report by Dr. Bone and Ms.

Angelo that are discussed above.

C. Relevant Past Work

As discussed above, the ALJ made a number of contradictory findings, including finding that
Plaintiff s job as a security guard constituted past relevant work that Plaintiff could perform (R. 18),
and then assuming that Plaintiff could not perform that work and concluding that other jobs existed
in significant numbers that Plaintiff could perform. (Jd.)

The evidence fails to support the ALJ's conclusion-that Plaintiff's work as a security guard
constituted past relevant work rather than an unsuccessful work attempt. To constitute past relevant
work, that work must first rise to the level of substantial gainful activity. Lauer v. Bowen, 818 F.2d
636, 639 (7" Cir. 1987). To be considered substantial gainful activity, work must meet certain

earnings and length requirements. Under 20 C.F.R. § 404.1574(a)-(b) if an individual’s earnings fall

21


DENIED and Plaintiff's Motion for Summary Judgment is GRANTED and the case is remanded to
the Commissioner for proceedings consistent with this opinion. This court recommends that, on

remand, the case be assigned to a different Administrative Law Judge.

IT IS SO ORDERED.

GERALD) SOAT BROWN
United States Magistrate Judge

DATED: July 17, 2003

27


Finally, the ALJ appeared to mock Plaintiff (R. 37), belittle his impairments (R. 61, 65), and to
dispense medical advice. (R. 59.) One result of this style of “questioning” was to render Plaintiff's

testimony on several important issues confusing or ambiguous.*

BACKGROUND AND MEDICAL HISTORY

A. Background

Plaintiff was born in May, 1943 and was 58 years old at the time of the hearing, held in June,
2001. (R. 19, 21.) The extent of Plaintiff's education is unclear. In his disability report Plaintiff
indicated that he had completed the 12" grade. (R. 141.) However, he testified at the hearing that
he did not complete high school. (R. 36-37.) Plaintiff explained that “they just like put me through,
you know, the last year, couple years, they just-they put me through some kind.” (R. 37.) Later in
the hearing the ALJ returned to the subject of Plaintiff's education and Plaintiff testified that he
effectively dropped out of school in the tenth grade because he was working. (R. 39-40.) The ALJ
then confirmed that the Plaintiff could read some of the words in the newspaper and write a note if
necessary. (R. 40.) The ALJ did not further clarify the extent of Plaintiff’ s education but proceeded
on the assumption that Plaintiff had a 12" grade education. (R. 73, 19.)

Plaintiff testified that he has held at least four jobs. Although not mentioned elsewhere in

it? Not all the way, but I left because I had numbness in my toe, then, when I had to
do a lot of walking. See, anything on these different jobs, and some of the jobs I
could do, some of them I couldn’t.

(R. 48-49.) The last question presumably includes Plaintiff s answer, contrary to the appearance in
the transcript.

‘ This problem is further exacerbated by errors in the transcript supplied by the

Commissioner, e.g. R. 42 (missing page), which subsequently was supplemented on July 14, 2003,
R49,


pounds frequently; and ascending stairs.” (R. 19.) The findings state nothing about any limitations
on standing, walking or sitting. The ALJ also made two different findings regarding whether
Plaintiff had the capacity to return to his previous position as a security guard. In finding 7, the ALJ
determined that “(t]he claimant is unable to perform any past relevant work.” (R. 18.) However,
in finding 9, the ALJ determined that “[t]he claimant’s residual functional capacity does not preclude
the performance of claimant’s past relevant work as a security guard.” (Jd.) The ALJ then proceeded
to the fifth step of the sequential process and found that there are jobs existing in significant numbers
that Plaintiff could perform. (R. 18-19.) At this step the ALJ found that there were other jobs such

as hand packer and cleaner/janitor that Plaintiff could perform. (Id.)

DISCUSSION

Plaintiffraises five issues for review. Plaintiff challenges: the ALJ’s RFC determination; the
ALJ’s disregarding of the opinion of CE Dr. Bernardo in favor of the RFC by the non-examining
state doctors; the ALJ’s decision that Plaintiff s work as a security guard was relevant past work; and
the ALJ’s credibility determination; and the ALJ’s failure to inquire into potential conflicts between
the VE’s testimony and the Dictionary of Occupational Titles (“DOT”).

In addition to the issues specifically raised by the Plaintiff, there is a further issue with the
accuracy of the ALJ’s factual findings in his opinion. The ALJ must “build an accurate and logical
bridge from the evidence to [his] conclusion. ...” Blakes ex rel Wolfe v. Barnhart, 331 F.3d 565,
569 (7" Cir. June 4, 2003)(emphasis added), citing authority including Steele v. Barnhart, 290 F.3d
at 941. Ifthe factual basis for the opinion is not an accurate representation of the record, the opinion

cannot be sustained.

14


an African-American born in Mississippi in 1943 and reared in Arkansas, was in school were before
and just after the decision in Brown v. Board of Education, 347 U.S. 483 (1954), when separate but
unequal education was the reality in many states. The ALJ’s mockery of Plaintiff's attempts to
describe his educational experience (see, e.g., R. 37) reveals an appalling insensitivity. To
characterize the record as reflecting “at least” a high school education adds injury to insult.

These inaccuracies along with the insufficiency of the record created by the ALJ’s handling
of Plaintiff's testimony are enough to require remand. However, certain issues raised by Plaintiff

should also be corrected on remand.

A. RFC Determination

Even setting aside the inaccuracies described above, the ALJ’s determination of Plaintiffs
RFC is problematic. The opinion is vague and internally inconsistent as to Plaintiffs RFC. The
opinion initially states that Plaintiff's impairment precludes only lifting more than 50 pounds
occasionally or 25 pounds frequently, and “performing frequent walking.” (R. 16.) The ALJ did not
quantify “frequent” in either the opinion or in his hypothetical to the VE in which the ALJ referred
to “repetitive” walking or climbing. (R. 73.) The opinion subsequently refers to the state agency
consultants as finding Plaintiff capable of “a limited range of medium exertional work.” (R. 18,
emphasis added.)*! However, the ALJ never incorporated certain of the limitations found by the
agency consultants, specifically that Plaintiff should avoid concentrated exposure to extreme heat,
cold, wetness and humidity. (R. 361.) These factors were never mentioned by the ALJ in his RFC

or his recitation of the evidence in either the opinion or the hypotheticals posed to the VE. Finally,

21 The opinion refers to the state agency “physicians,” but there is no evidence in the record
regarding Rose Angelo’s qualifications.

16


constitutes the final ruling on the cross-motions. For the reasons set forth below, the
Commissioner’s Motion for Summary Judgment is DENIED, Plaintiff's Motion for Summary
Judgment is GRANTED, and the case is remanded to the Commissioner for further proceedings
consistent with this opinion.

As a preliminary matter, it must be stated that the tenor of the proceedings before the ALJ
in this case was unusual. Proceedings before the ALJ are intended to be non-adversarial. Williams
vy, Massanari, 171 F. Supp. 2d 829, 833 (N.D. Hl. 2001). Moreover, the ALJ is required to develop
a“full and fair” record. Smith v. Apfel, 231 F.3d 433, 437 (7" Cir. 2000). In this case, however, the
record indicates that the ALJ failed to comply with that obligation. At the hearing, the ALJ
repeatedly cut Plaintiff off as Plaintiff attempted to answer questions fully. (See, e.g., R. 36-37, 48,
50, 54, 58, 65, 69-70.) The ALJ provided answers to questions he had asked Plaintiff (R. 50, 56, 61-
62, 70), and questioned Plaintiff in an adversarial manner. (R. 49.) The ALJ also summarized

Plaintiffs answers in his own words and added details not testified to by Plaintiff. (E.g. R. 40, 49.)°

3 The following exchange between Plaintiff and the ALJ is characteristic of many at the
hearing in this case:

Q: Why did you stop being a security guard?

A: Because I didn’t have any driver’s license, and they said I had to have a driver’s
license to—

Q: Well, the record would indicate here that you had an angioplasty . . . So that was
a couple two or three months before you worked as a security guard. You had the
surgery in July 1998, do you remember, when you had the surgery in your legs?

A: Yeah.

Q: Bypass graft, but then the-after that they said there was no blockage, they did a
good job on you, and~but then you took a job as a security guard.

A: Yeah, okay.

Q: So obviously your leg must have improved. I mean, you-did the pain go away?
A: I thought it was improved, but it never improved. It-the pain come back off and
on, you know what I mean.

Q: Yeah, off and on, but that wasn’t the reason why you left the security guard, was

2


Some of the inaccuracies are discussed above. As a further illustration, the opinion states
that Plaintiff “testified that he climbs three flights of stairs to get to his apartment, and he quit his
security guard job due only to transportation problems, not his medical condition.” (R. 18.) Plaintiff
also testified, “I don’t go out except when absolutely necessary because I live on the 3" floor.” (R.
162.) That testimony is not addressed by the ALJ. Likewise, the ALJ failed to consider the state
agency consultants’ finding that the symptoms alleged by Plaintiff were consistent with, and not
disproportionate to the medical evidence. (R. 362.) ALJ may not simply select and discuss only that
evidence which favors his ultimate conclusion. Rather, “an ALJ's decision must be based upon
consideration of all the relevant evidence.” Smith v. Apfel, 231 F.3d 433, 438 (7" Cir. 2000)(citation
omitted). Furthermore, “[a]n ALJ must consider all of the evidence and discuss significant evidence
contrary to her ruling.” Lauer v. Apfel, 169 F.3d 489, 494 (7 Cir. 1999). The ALJ also noted that
the Plaintiff took “only Ibuprofen” for his peripheral vascular disease. (R. 17.) The Seventh Circuit
has cautioned against drawing negative inferences from the fact that an individual is not being treated

with heavy painkillers. Green, 204 F.3d at 782. On remand, the ALJ shall comply with SSR 96-7p.

E. SSR 00-4p
Plaintiff also argues that the ALJ failed to comply with SSR 00-4p, which states:

Our adjudicators must: Identify and obtain a reasonable explanation for any conflicts
between occupational evidence provided by the VEs or VSs and information in the
[DOT] . . . and Explain in the determination or decision how any conflict that has
been identified was resolved.

When there is an apparent unresolved conflict between VE or VS evidence and the
DOT, the adjudicator must elicit a reasonable explanation for the conflict before
relying on the VE or VS evidence to support a determination or decision about
whether the claimant is disabled. At the hearings level, as part of the adjudicator’s

25


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS DOCKETED
EASTERN DIVISION JUL 18 2003
WILLIE EMBRY, )
Plaintiff, ) Cause No. 02 C 3821
)
v. ) Magistrate Judge Geraldine Soat Brown
)
JO ANNE B. BARNHART, Commissioner )
of Social Security, )
Defendant. )

(0) [DUM OPINIO) ORDE

Willie Embry (‘Plaintiff’) brought this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the decision of the Commissioner of Social Security denying his application for Disability
Insurance Benefits’ under the Social Security Act. (R. 125)’; see 42 U.S.C. § 423 et seg. The
Commissioner denied Plaintiff's application for disability benefits initially and on reconsideration.
. 82, 87.) Plaintiff requested and received a hearing before an Administrative Law Judge (“ALJ”),
who rendered an unfavorable decision. (R. 20.) After the Appeals Council of the Social Security
Administration’s Office of Hearings and Appeals (“Appeals Council”) declined his request for
review (R. 4), Plaintiff filed the present action. [Dkt # 1.] The parties have filed cross-motions for
summary judgment under Fed. R. Civ. P. 56 [dkt ## 20, 22], and have consented to the jurisdiction

of a magistrate judge under 28 U.S.C. § 636(c)(1). [Dkt ## 13, 14.] Thus, the decision of this court

' Plaintiffs Memorandum refers to an application for Supplemental Security Income but the
application in the record is for Disability Insurance Benefits. (Pl.’s Mem. at 1; R. 125.)

2 “R,__” refers to the certified record of proceedings, evidentiary documents, and
administrative hearing transcripts prepared by the Social Security Administration’s Office of
Hearings and Appeals pursuant to 42 U.S.C. § 405(g).

1


in the record, 20 C.F.R. § 404.1527(d)(2); Clifford v. Apfel, 227 F.3d 863, 870 (7" Cir. 2000).

Although the district court’s role is limited to determining whether the ALJ’s final decision
is supported by substantial evidence and based upon proper legal criteria, this does not mean that the
AL] is entitled to unlimited judicial deference. In addition to relying on substantial evidence, the
ALJ must articulate his analysis at some minimal level and state his reasons for accepting or
Tejecting “entire lines of evidence,” although he need not evaluate in writing every piece of evidence
in the record. See Herron, 19 F.3d at 333. Regardless of whether there is adequate evidence in the
record to support an ALJ’s decision, the ALJ must rationally articulate the grounds for his or her
decision, building an accurate and logical bridge between the evidence and his or her conclusions,
because the district court confines its review to the reasons supplied by the ALJ. Steele v. Barnhart,
290 F.3d 936, 941 (7" Cir. 2002). An ALJ’s opinion cannot contain conflicting factual
determinations. Smith v. Massanari, No. 00 C 7504, 2001 WL 936123 at *1-2 (N.D. il Aug. 16,
2001).

THE ALJ’S DECISION

The Social Security Regulations (“Regulations”) prescribe a sequential five-part test for
determining whether a claimant is disabled. 20 C.F.R. § 404.1520 (2003). Under this test the Social
Security Commissioner must consider: (1) whether the claimant has performed substantial gainful
activity during the period for which he claims disability; (2) if he has not performed any substantial
gainful activity, whether the claimant has a severe impairment or combination of impairments; (3)
if the claimant has a severe impairment, whether the claimant's impairment meets or equals any
impairment listed in the Regulations as being so severe as to preclude substantial gainful activity,

(4) if the impairment does not meet or equal a listed impairment, whether the claimant retains the

12


In the present case, the opinion contains a number of misrepresentations of the record. For
example, the opinion states that Plaintiff testified that he can “stand and walk 30 to 40 minutes
each.” However, while Plaintiff testified he could stand for 30 to 40 minutes (R. 61), he did not
testify that he could walk 30 to 40 minutes. Likewise, as discussed above, the ALJ’s statement that
Plaintiff testified that he quit his security guard job due only to transportation problems and not due
to medical problems (R. 18) misrepresents Plaintiff's testimony. The ALJ’s opinion states that Dr.
McKinsey’s notes reflect that “claimant had no leg cramping, but did report leg swelling, after
ambulating more than three miles.” (R.17, emphasis added.) That is not an accurate report of Dr.
McKinsey’s notes, which actually say that Plaintiff reported that he is able to walk three miles
without difficulty, “though he does intermittently note swelling of his right lower extremity which
has improved with elevation.” (R. 242, emphasis added.) Obviously, intermittent swelling is very
different from swelling that occurs only after walking three miles. The ALJ discounted the CE’s
report that Plaintiffhad difficulty walking 50 feet, because, the ALJ stated, “the most recent Doppler
flow study showed normal ankle pressure.” (R. 17-18.) This is misleading in implying that the
Doppler was subsequent to the CE’s examination, when, in fact, the CE’s physical examination that
showed “severe diminution of pulses in both legs” (R. 368) was four months after the Doppler study.

The ALJ’s statement (made three times in the opinion) that Plaintiff “has at least a high
school education” (R. 18-19, emphasis added) is also hardly a fair reading of the record. The record
is devoid of any suggestion that Plaintiff has had any post-12" grade education. Indeed, a fair
reading of the record raises the question whether Plaintiff's education was, in fact, the equivalent of
a 12" grade education or is more aptly characterized as “limited” or even “marginal.” See 20 CFR.

§ 404.1564 and SSR 82-63. The court takes judicial notice of the fact that the years when Plaintiff,

15