Listing 1.03A.
B. The ALJ’s Decision was Supported by Substantial Evidence

Greer contends the ALJ erred at Step Three in concluding his impairments did not
meet or equal any of those listed in Subpart P. Specifically, he submits he met Listing 1.03A.
20 CFR. Pt. 404, Subpt. P., App.1, §1.03A. Greer also contends the ALJ mistakenly relied
upon the opinions of the two non-treating, non-examining physicians.

In making a decision, the ALJ must articulate his analysis of the evidence. Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). The ALJ is not required to address every
piece of evidence or testimony, but must provide some glimpse into his reasoning. Id.
Where an ALJ denies benefits, he must build an accurate and logical bridge from the
evidence to his conclusion. Jd.

The main issue presented is whether Greer meets the requirements for a finding of
disability based upon the Listing of Impairments Section 1.03A for arthritis of a weight-
bearing joint. 20 C.F.R. Pt. 404, Subpt. P., App.1, §1.03A. A claimant is eligible for
benefits if he has an impairment, or combination of impairments, which meets or equals an
impairment found in the Listing of Impairments. 20 C.F.R. §§ 404.1520(d), 416.920(d); 20
C.F.R. Pt. 404, Subpt. P, App. 1; Maggard v. Apfel, 167 F.3d 376, 379 (7th Cir. 1999).

A claimant may demonstrate his impairments are presumptively disabling by 1)
meeting the specific criteria described in the Listing; 20 C.F.R. §§ 404.1525(a), 416.925(a)

or 2) showing his impairments are accompanied by findings equal in severity to those

13


by Dr. Kopplin.

1. Cook County Hospital

On March 8, 1996, Greer was diagnosed with bilateral hip osteoarthritis and

hypertension and given medication after Greer was seen at CCH Emergency Room with
complaints of bilateral hip pain. (R. 156-57). While Greer was tender in both hips, his hip
range of motion was normal. (R. 157). On July 1, 1996, Greer was evaluated at Fantus
Health Center and reported “my hips need fixing bad.” (R. 155). The examining doctor
determined Greer’s hip range of motion was decreased, ordered x-rays, and advised him to
lose weight. (R. 155). In October 1996, the doctor reported Plaintiff's hip x-rays showed
bilateral degenerative joint disease. (R. 153). Greer was scheduled for surgery on May 20,
1997; however, on May 5 he cancelled stating he did not have the time or money for surgery,
but he would consider surgery later. (R. 149-50).

2. Dr. Knott - Consulting Examination

Greer’s first consultative examination, at the request of the state disability examiners,
occurred on February 6, 1998, by Dr. A.P. Knott. (R. 158). Greer informed Dr. Knott he did
not use an assistive device. (/d.). Dr. Knott examined Greer and found he could dress and
undress and slowly get on and off of the examination table. (R. 159). Greer’s gait was
abnormal because both feet are everted to 20 degrees - Greer explained he walks this way to
balance himself. (/d.). He could not walk on his heels and toes and was unable to squat.

(d.). Greer had a full range of motion in all joints of his upper extremities and normal fine


ALJ thoroughly analyzed the medical and other evidence; therefore, substantial evidence
existed and the ALJ’s decision is affirmed. See Dixon, 270 F.3d 1177-78 (rejecting argument
ALJ played doctor where he thoroughly discussed all of the relevant medical evidence).

The ALJ also considered the combination of Greer’s impairments and concluded the
level of severity does not equal that contemplated for any of the Appendix 1 impairments.
R. 13. Once again, the ALJ relied on Greer’s alleged symptoms, the medical evidence of
hypertension, knee pain, and hip pain, the treating and consultative examinations, and Greer’s
daily living activities to reach this conclusion. R. 13-18.

Because the ALJ articulated his analysis of the evidence, provided more than a
glimpse into his reasoning, and built an accurate and logical bridge from the evidence to his
conclusion, the ALJ’s decision is supported by substantial evidence. Dixon, 270 F.3d at

1176.

problems only “sometimes.” R. 54. Furthermore, Greer stated none of his medications caused
him drowsiness except for the medication prescribed to help him sleep. R. 62-63.

17


symptoms; the medical evidence regarding hypertension, chronic knee pain, and hip pain;
Greer’s physical and consultative examinations and treatment records; lack of evidence of
mental disorder; and Greer’s daily living activities. (R. 14-18). Additionally, Greer’s
treatment has been routine and conservative in nature and Greer was not prescribed any
narcotic based pain relieving medications despite his allegations of pain. (R. 18). Finally,
the ALJ expressed no treating or examining source imposed greater limitations upon Greer
than those determined by the ALJ. (Ud.).

Atstep four, the ALJ determined Greer was unable to return to any past relevant work.
(id.). Therefore, after the burden shifted to the Commissioner at step five, the ALJ looked
to Medical-Vocational Rules 201.27, 201.28, and the testimony of the Vocational Expert
(“VE”) to determine whether a significant number of jobs remain in the economy which
Greer can perform. (R. 18-19).

Following the ALJ’s decision, Greer requested review by the Appeals Council. On
April 7, 2001, the Appeals Council denied Greer’s request for review, thus the ALJ’s
decision stands and became the final decision of the Commissioner. (R. 4).

Currently before this Court are Greer’s and the Commissioner’s motions for summary
judgment. Greer contends the ALJ’s decision to deny him benefits was contrary to law and
was not supported by substantial evidence. Oral argument was held May 14, 2002. For the

reasons stated herein, Greer’s motion is denied and the Commissioner’s decision is affirmed.


of motion of all joints except for both hips. (/d.). Greer’s back was non-tender with a full
range of motion. (R. 170). Greer had an antalgic gait with a broad base; however, Dr. Rios
opined Greer should be able to ambulate any distance without the use of an assistive device.
(d.). Greer had minor difficulty getting on and off the examination table, but had no
difficulty tandem walking, walking on toes, or walking on heels. Greer was unable to squat
and rise and hop on one leg. (/d.). Dr. Rios concluded Greer had bilateral hip tenderness
with decreased range of motion more severe on the left and hypertension without end organ
damage. (/d.).

6. State Agency Physicians

On April 9, 1998, medical consultant, Dr. F. Paul LaFata reviewed Greer’s medical
records and completed a Residual Physical Functional Capacity Assessment (“RFC”)
concluding Greer could occasionally lift twenty pounds, frequently lift ten pounds, stand
and/or walk six hours in an eight-hour workday, and periodically alternate between sitting
and standing to relieve pain and discomfort. (R. 174-81). Dr. LaFata also found Greer had
occasional limitations in climbing, balancing, stooping, kneeling, crouching, and crawling,
and should avoid unprotected heights due to his balancing difficulties. (R. 176, 178). As
evidence for his conclusion, Dr. LaFata noted Greer’s history of degenerate arthritis in both
hips and both knees, wearing braces on both knees, not using an assistive device, walking up
to two blocks, abnormal gait, reduced range of motion in lower extremities, and high blood

pressure. (R. 175, 181). A second state agency physician, Dr. Charles Kenney affirmed Dr.


finger dexterity and gross manipulation. (R. 160). He also had full range of motion in all
joints of the lower extremities except his hips, ankles, and knees. (R. 161). Dr. Knott
diagnosed Greer with 1) degenerative arthritis of both hip joints, moderate to severe, 2)
degenerative arthritis of both knees, 3) hypertension, treated and not controlled, control
advised. (Id.).

3. Dr. Gerber - Radiologist

On March 12, 1998, Radiologist Samuel T. Gerber, M.D. submitted an x-ray report
on Greer’s knees and hips. The x-ray of Greer’s knees showed a slight narrowing of the right
and left medial knee joint compartments and a spur at the superior anterior aspect of the right
and left patella. (R. 163). The x-ray of his hips showed evidence of his previous bilateral
hip pinning arthroplasty and some narrowing of the right and left hip joint spaces. (/d.).

4. Fantus Clinic

On March 16, 1998, Greer was seen at Fantus Clinic and the high blood pressure
clinic. (R. 166-67). He was walking with a cane intermittently and advised that prior to total
hip replacement surgery, he needed to get his high blood pressure under control. (R. 166).
He was also advised to stop using alcohol and given medication. (R. 166-67).

5. Dr. Rios - Consulting Examination

Greer’s second consultative examination, at the request of the state disability
examiners, occurred on May 30, 1998 with Dr. Alvaro Rios. (R. 168). Greer reported he did

not need an assistive device for ambulation. (R. 169). Dr. Rios found a painless full range


IV. CONCLUSION
The ALJ’s decision is not contrary to law and is supported by substantial evidence.
For the reasons set forth in this opinion, Claimant’s motion for summary judgment is
denied and the Commissioner’s motion for summary judgment is granted and the
Commissioner’s decision finding Claimant not disabled is affirmed. The Clerk of the
Court is instructed, pursuant to Federal Rule of Civil Procedure 58, to enter judgment in
favor of Defendant.

SO ORDERED THIS 28" DAY OF MAY, 2002.

Morin. A doollowi

MORTON DENLOW
United States Magistrate Judge

Copies mailed to:

Mary Elizabeth Kopko Kurt N. Lindland

McBreen and Kopko Assistant United States Attorney
1525 East 53" Street, Suite 709 219 South Dearborn Street, 5" Floor
Chicago, Illinois 60615 Chicago, Illinois 60604

(773) 752-2526 (312) 353-4163

Kathryn A. Beverly

Assistant Regional Counsel

200 West Adams Street, 30° Floor
Chicago, Illinois 60606

(312) 353-8244

Attorney for Plaintiff Attorneys for Defendant

18


analysis, finding Greer not disabled because he could perform a significant number of
sedentary jobs in the national economy, notwithstanding his impairments. (R. 19-20).
Although the ALJ concluded Greer met steps one, two, and four because Greer was not
engaged in substantial gainful activity, he had a severe impairment, and he could not return
to any past relevant work, the ALJ did not find Greer’s allegations of disabling symptoms
and limitations fully credible. (R. 13, 18, 20).

At step three, the ALJ concluded disability could not be established because Greer’s
condition did not meet the level of severity contemplated by Regulation 4, Subpart P,
Appendix 1. (R. 13). Specifically, the ALJ found no clear evidence of significant joint space
narrowing or significant bony destruction on x-ray with an associated “markedly” limiting
ability to walk or stand during the entire relevant period, thus not meeting the standard of
Listing 1.03A. (/d.). Furthermore, with regards to Greer’s RFC, the ALJ concluded Greer’s
impairments only preclude him from the following work-related activities:

lifting up to 10 pounds at a time more than occasionally or lifting or carrying articles

like docket files, ledgers, and small tools more than frequently; standing and/or

walking for no more than a combined total of 2 hours in an eight-hour workday, and
for more than brief periods of 5 to 10 minutes on each occasion, with a cane being
used for ambulation; sitting for up to 6 hours in an eight hour workday with normal
breaks, but must be allowed to alternate between sitting and standing positions at
intervals of approximately one hour for a period of 5 to 10 minutes on each such
occasion; squatting, climbing of ladders, ropes or scaffolds; more than occasional
balancing, stooping, kneeling, crouching, crawling; more than occasional climbing
of stairs and ramps; working in environments with exposure to unprotected heights

and excavations, exposed moving parts, or dangerous machinery.

(R. 13-14). The ALJ thoroughly supported his finding by discussing Greer’s alleged


Minne Csder Form (06/97)

|

United States District Court, Northern District of Illinois

C

age pf Assigned Judge Morton Denlow Sitting Judge if Other

Magistrate Judge than Assigned Judge

(ASE NUMBER 01 C 3227 DATE 5/28/2002
CASE Greer 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:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) oO Answer brief to motion due, . Reply to answer brief due.
(4) im) Ruling/Hearing on _ set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) i) Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(@) a Trial[set for/re-set for] on at
(8) ao (Bench/Jury trial] [Hearing] held/continued to at
(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) O General Rule 21 CFRCP41(a)(1) CI FRCP41(a)(2).

do) =o [Other docket entry] | Enter Memorandum Opinion and order. Claimant’s motion for summary

judgment [16-1] is denied and the Commissioner’s motion for summary judgement [19-1] is granted and

the Commissioner’s decision finding Claimant not disabled is affirmed.
al [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required,

Notices mailed by judge's staff.

Notified counsel by telephone, MAY v4 9 2002
Docketing to mail notices.
Mail AO 450 form,

Copy to judge/magistrate judge.

number of notices

q
Aditi deputy Dials

DK

5728/2002

date mailed noi
courtroom te mailed notice
deputy's oK
initials

Date/time-teceived in
central Clerk's Office mailing deputy initials



expected to last for at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Additionally, an individual shall be considered disabled “only if his physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other
kind of substantial gainful work.” 42 U.S.C. §§ 423 (d)(2)(A), 1382c(a)(3)(B).

The Social Security Regulations provide a five-step process to determine whether a
claimant has established a “disability.” 20 C.F.R. § 404.1520. The process is sequential; if
the ALJ finds that the claimant is not disabled at any step in the process, the analysis ends.
Jd. The ALJ must inquire: 1) whether the claimant is still working; 2) whether the claimant
has a severe impairment; 3) whether the claimant’s impairment meets or equals a listed
impairment; 4) if the claimant does not suffer from a listed impairment, whether he can
perform past relevant work; and 5) whether the claimant is capable of performing any work
in the national economy. Jd.

HI. ANALYSIS

The issues presented are: 1) what Listing to apply, the pre or post February 19, 2002
final rules; and 2) whether the ALJ’s decision that Greer did not meet Listing 1.03A was
supported by substantial evidence.

A. The ALJ’s Decision is Not Contrary to Law
Greer argues the ALJ’s decision is contrary to law because the ALJ concluded Greer

was not disabled based on Listing 1.03A, the listing in effect prior to February 19, 2002. 20

1


II. LEGAL STANDARDS

Judicial review of a Commissioner’s final decision is governed by 42 U.S.C. § 405(g)
which provides the “findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.” Substantial evidence is “such
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). In other words, the ALJ’s findings must
be supported by more than a mere scintilla of the evidence. Jd.

A reviewing court may not decide facts anew, reweigh the evidence, or substitute its
own judgment for that of the Commissioner. Knight v. Chater, 55 F.3d 309, 313 (7th Cir.
1995). Rather, judicial review is limited to determining whether the ALJ applied the correct
legal standards in reaching its decision and whether there is substantial evidence in the record
to support the findings. 42 U.S.C. § 405(g); Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th
Cir. 1992), The SSA gives a court 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 hearing.” 42 U.S.C. § 405(g).

In order to be entitled to DIB under Title II of the SSA the claimant must establish a
“disability” as defined by the Social Security Act. The same is true to qualify for SSI under
Title XVI of the SSA. Zurawski v, Halter, 245 F.3d 881, 885 (7th Cir. 1997). To establish
a “disability” the claimant must show he is suffering from a medically determinable physical

or mental impairment which can be expected to result in death or, which has lasted or can be

10


LaFata’s assessment on June 9, 1998 after reviewing the evidence and assessment. (R. 174).

7. Dr. Kopplin

Greer submitted additional medical records to the ALJ prior to the March 1999
hearing. Progress notes from an October 19, 1998 and June 1, 1998 outpatient visit note his
exam was unchanged and his medications were renewed. (R. 185-86). Greer was advised
he would not be scheduled for surgery until he was off alcohol and his hypertension was
controlled. (R. 185). A musculoskeletal defects or fractures questionnaire completed by Dr.
Kopplin, an orthopedist with CCH, on December 21, 1998 indicates Greer has atrophy,
weakness or swelling, deformity, pain, and Greer walks with a cane. (R. 188-89). Dr.
Kopplin diagnosed Greer with chronic degenerative joint disease and a reduced range of hip
motion. (R. 188). Dr. Kopplin opined Greer’s complaints of pain were reasonably related
to his impairments, his condition was deteriorating, and he needs a hip replacement. (R.
189). Progress notes from a March 15, 1999 outpatient visit indicate Greer was scheduled
for surgery on his left hip on August 9, 1999. (R. 190).
Cc. The ALJ’s Decision

On October 29, 1999, ALJ Robert T. Karmgard determined Greer was not entitled to
a period of disability or disability insurance benefits or for supplemental security income.
(R. 12-21). In reaching this conclusion, the ALJ engaged in the five-step analysis required

by SSA regulations. 20 C.F.R. §§ 416.920, 404.1520. The ALJ assessed each step of the


walk one to two blocks with the cane and a half a block to a block without the cane. (R. 57-
58). He had no trouble taking the train to the hearing, but had to stop four times along the
way because the walking caused him pain. (R. 51). Greer claimed sitting in one place also
causes him pain. (R. 52).

At the time of the hearing, Greer was five feet, six and one half inches tall and
weighed between 225 and 230 pounds. (R. 32). He has high blood pressure and takes
medication to control it. (R. 50). The high blood pressure causes him headaches lasting all
day, five to six times a week. (/d.). Because of his high blood pressure, his doctors told him
to refrain from alcohol. (R. 56). He has trouble sleeping because of the pain and was
prescribed Amitriptyline which makes him drowsy, yet over the past two months, it was not
working. (R. 53). His other medications do not make him drowsy. (R. 63).

On a typical day, Greer watches television and may sit on the porch. (R. 46). His
landlord does the cleaning, cooking, and grocery shopping, although, at times he
accompanies her to the store and does his own cooking. (R. 54-55). He carries his own
groceries and the heaviest item he can lift is a half gallon of milk. (R. 59-60).

B. Medical Evidence

The medical evidence in this case consists of records from Greer’s visits to CCH and
Fantus Clinic, reports of consulting physicians A.P. Knott and Alvaro Rios, the report of
Radiologist Samuel T. Gerber, reports ofnon-examining reviewing physicians F. Paul LaFata

and Charles Kenney, and the musculoskeletal defects or fractures questionnaire completed


described in a section of the Listing. 20 C.F.R. §§ 404.1526, 416.926; Maggard, 167 F.3d
at 380. To meet or equal a listed impairment, the applicant must satisfy all of the criteria of
the listed impairment. Maggard, 167 F.3d at 380. The claimant also bears the burden of
proving his condition meets or equals the listed impairment. Jd.
Substantial evidence in the record supports the ALJ’s decision that Greer did not meet

all of the requirements of 1.03A. Listing 1.03A provides:

Arthritis of a major weight-bearing joint (due to any cause):

With history of persistent joint pain and stiffness with signs of marked |

imitation of motion or abnormal motion of the affected joint on current

physical examination. With:

A. Gross anatomical deformity of the hip or knee (e.g. sublaxation,

contracture, bony or fibrous ankylosis, instability) supported by X-ray evidence

of either significant joint space narrowing or significant bony destruction and

markedly limiting ability to walk or stand.
20 C.F.R. Pt. 404, Subpt. P., App.1, §1.03A. The parties agree Greer has arthritis of a major
weight-bearing joint with a history of persistent joint pain and stiffness with signs of marked
limitation of motion or abnormal motion of the affected joint on current physical
examination. Therefore, the only dispute is over subpart A.

Greer argues both his knees and hips satisfy the Listing because he has x-ray evidence

of significant joint space narrowing found at Record pages 150 and 153 and a markedly
limited ability to walk or stand. In contrast, the ALJ found “no clear evidence of significant

joint space narrowing or significant bony destruction on X-ray with an associated ‘markedly’

limiting ability to walk or stand during the entire relevant period.” R. 13. To reach this

14


deformity, and pain; however, at no time did he opine Greer’s impairments met the Listing.
R. 188-89. Nor did the reviewing state agency physicians determine Greer’s impairments
met or equaled any Listing. R. 79-80, 174-81, 197-98, 202-03. Finally, the Seventh Circuit
has held an ALJ may rely upon the state agency physician’s opinion to determine eligibility
because the physician was designated by the Secretary to determine medical equivalence.
Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir. 1990).

Despite this, Greer argues the ALJ did not give appropriate weight to the opinions of
his treating physicians in determining whether or not he was disabled. Greer’s doctors did
report some abnormal examination findings, and as noted by the ALJ, they did not opine
Plaintiff was incapable of performing even a significantly restricted range of sedentary work.
R. 17-18. The ALJ noted the objective medical evidence demonstrated Greer had a reduced
ability to walk and stand (R. 16); accordingly, he limited Greer to work requiring no more
than two hours of standing in an eight-hour workday and for no more than brief periods of
five to ten minutes on each occasion. R. 13-14. The ALJ also determined Greer would need
to use a cane for ambulation. R. 14. Notwithstanding these and other significant limitation
which the ALJ found to be appropriate, the VE testified Plaintiff would be capable of

performing a significant number of jobs in the Chicago metropolitan area.' R. 69-74, The

' Greer’s argues he cannot perform sedentary work because he cannot maintain sufficient
concentration or attention to meet the minimum requirements of work. This argument is
rejected. The ALJ found no evidence of any mental disorder relying on the mental status
examination conducted in May 1998. R. 17. That exam showed no deficiencies or
abnormalities; normal mood and affect; average intellect; and memory, insight, judgment, and
abstract reasoning all within the normal limits. R. 170. Greer testified he had concentration

16


in December 1997 after he was terminated for engaging in a dispute with a customer. (R. 33,
38-39). Greer’s previous work experience included appliance repairman, unskilled laborer,
warehouseman, and flooring installer. (R. 67-68, 146).
A. Greer’s Hearing Testimony

On March 31, 1999, Greer testified before Administrative Law Judge (“ALJ”) Robert
T. Karmgard at a Social Security Administration (“SSA”) Hearing. Greer testified he was
unable to work since December 18, 1997 because of pain in his hips, knees, ankle, back, and
shoulders. However, Greer also explained he was terminated in December 1997 from
Victory Distributors for engaging in a dispute with a customer. (R. 38-39).

Greer underwent surgery in 1969 and had pins put in both hips. (R. 39). Over the past
25 years, he claimed he experiences daily pain in both hips and his left hip slips out of the
joint. (R. 47). He received cortisone shots in both hips five years ago, but that only
alleviated the pain for a couple of days. (R. 48). Greer has experienced pain in his knees
since 1985 or 1986 and wears an elastic brace on his right knee and a styrofoam brace on his
left knee. (R. 48-49). Greer also expressed some difficulty with his right ankle. (R. 55).
Greer asserted his back pain stems from his hip and knee problems and started in 1986 or
1987. (R. 58). Lastly, Greer claimed, in 1992 or 1993, he believes he dislocated both
shoulders because he sometimes cannot raise his arms over his head; however, he has not
discussed this alleged problem with his doctor. (R. 39-40).

Cook County Hospital (“CCH”) gave him a cane in March 1998. (R. 46). Greer can


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

EASTERN DIVISION yer?
L\\\) 9 pw

wn?
JOHN GREER, )
)
Plaintiff, )

) Case No. 01 C 3227

v. )
)
JO ANNE B. BARNHART, )

Commissioner of Social Security, ) Magistrate Judge Morton Denlow
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff John Greer (“Claimant” or “Greer”) seeks judicial review of the final
decision of the Commissioner of Social Security (“Commissioner”), Jo Anne Barnhart,
denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under the Social Security Act, Titles I] and XVI, 42 U.S.C. §§ 416, 423,
1381a. Greer claims the Commissioner’s decision to deny him benefits should be reversed
because it is contrary to law and not supported by substantial evidence. Both parties now
move for summary judgment. For the reasons stated herein, this Court affirms the
Commissioner’s decision, denies Greer’s motion for summary judgment, and grants the
Commissioner’s motion for summary judgment.

I. RELEVANT FACTS
Greer was born on May 15, 1955. (R. 79). He graduated from high schoo! and

received vocational training in home entertainment repair. (R. 31, 128). He stopped working

35


C.F.R. Pt. 404, Subpt. P., App.1, §1.03A. In November 2001, the Commissioner published
final rules (“final rules”) revising the medical criteria in the Listing of Impairments used to
evaluate musculoskeletal impairments. 66 Fed. Reg. 58,010 (2001). These new final rules,
Listing Section 1.02A, became effective February 19, 2002. Jd. The Commissioner argues
Listing 1.03A applies. The Court agrees with the Commissioner and holds Listing 1.03A
applies to this case.

The Commissioner’s final rules make clear the revised musculoskeletal listings only
apply to claims pending at the administrative level on or after the effective date and do not
apply to claims currently pending in federal court. Jd. at 58,011 (stating “With respect to
claims in which we have made a final decision, and that are pending judicial review in
Federal court, we expect that the court’s review of the commissioner’s final decision would
be made in accordance with the rules in effect at the time of the final decision”). “Courts
grant an agency’s interpretation of its own regulations considerable legal leeway.” Barnhart
v. Walton, 122 S.Ct. 1265, 1269 (2002). Here, the Commissioner interprets this phrase to
mean Listing 1.03A applies to Greer’s claim because a final decision was made in this case
prior to the effective date of the final rules. This Court agrees. Greer received a final
decision in this matter on April 7, 2001 (R. 4) and filed his complaint in this Court on May
3, 2001. Therefore, because a final decision was made pending judicial review in federal
court prior to the effective date (Feb. 19, 2002) of the final rules, this Court must review the

ALJ’s decision in accordance with the rules in effect at the time of the final decision, namely

12


conclusion, the ALJ relied on the medical evidence in the record and specifically looked to
x-ray evidence establishing a slight narrowing of the medial knee joint compartment
bilaterally and some narrowing of both hip joint spaces. R. 14-18, 163. Furthermore, the
radiology report the ALJ relied on in making this finding was dated March 1998 (R. 163),
while the Outpatient Progress Notes Greer relied upon are dated March 1997 and October
1996 and make no mention of joint space narrowing. R. 150, 153. Therefore, the ALJ relied
on the more up-to-date x-ray in assessing slight knee and some hip joint narrowing.

The ALJ also looked to the medical evidence and testimony regarding Greer’s daily
life and ambulation. Greer can function in daily life. He can leave home alone and rides the
bus. R. 131. In fact, he had no trouble taking the train to the hearing, although he did have
to stop four times because he was in pain. R. 51. Greer also does his own laundry once a
week and grocery shops twice a month. R. 130. He carries his own groceries, and at times,
does his own cooking. R. 54-55.

Greer testified he used a cane since March 1998 (R. 46); however, he told both
consultative examiners in January and May 1998 he did not need an assistive device for
ambulation. R. 158, 169. Dr. Rios also opined Greer was able to walk without a cane (R.
170) and Greer testified he was able to walk half a block or a block without his cane. R. 51-
52; 57-58. Dr. Kopplin’s report indicates Greer uses a cane for ambulation but did not
elaborate on how often or if it was required. R. 189.

Dr. Kopplin’s report did find Greer suffers from atrophy, weakness or swelling,

15