medical examination, the ALJ should seek the assistance of a medical advisor to help infer
the onset date. /d. Where it is not possible to make a reasonable inference from the available
evidence, it may be necessary to explore other sources, such as information from family,
friends, and former employers, to determine why the medical evidence is not available and
to obtain additional evidence regarding the history of the claimant’s condition. /d.

Vocational evidence in some cases may be relevant to the determination of an onset
date. Id. at *2. Social Security Ruling 83-20 describes this form of evidence as particularly
relevant with slowly progressive impairments. Jd. The Ruling notes: “[I]t is not necessary
for an impairment to have reached listing severity . . . before onset can be established. In
such cases, consideration of vocational! factors can contribute to the determination of when
the disability began.” Jd.

Objective medical evidence is a “useful indicator” in determining whether a claimant
was disabled. 20 C.F.R. § 404.1529(c)(2). However, when determining whether a disabling
condition exists, lack of objective medical evidence substantiating claims of pain can not be
the sole basis for rejecting the claimant’s allegations. /d. According to Social Security
Ruling 96-7p (“SSR 96-7p”), when a finding of a disabling condition can not be made solely
on objective medical evidence, the ALJ must carefully consider the claimant’s alleged
symptoms along with all the other relevant evidence in the record in assessing the credibility
of the claimant’s statements. SSR 96-7p, 1996 WL 374186, at *} (S.S.A. 1996).

Specifically, if Plaintiff claims that symptoms of pain affected his ability to work, this


the medical evidence. R, 285-86. Contrary to SSR 83-20, the ALJ rejected Plaintiff's
testimony because there was no objective proof of his alleged onset date. R. 288-89.
However, SSR 83-20 does not require the Plaintiff to produce conclusive results from
specific medical tests in order to establish an onset date. R. 289. SSR 83-20 directs the ALJ
to consult with Plaintiff's previous employers, physicians, family members, and/or friends
when the medical evidence is insufficient.: 7d. Because the ALJ and Dr. Abramson
repeatedly stated that they believed the medical evidence was insufficient, the ALJ should
have sought additional testimony to assist in determining an onset date. /d.

The ALJ also failed in his obligation to fully develop the record. R. 290-91. The
record was not fully developed because (1) the ALJ failed to ascertain why Plaintiff did not
seek more frequent medical treatment for his pain, and (2) the ALJ failed to acquire or to
consult the missing 1993 SSI file deemed “critical” by Plaintiff, the ALJ, and the medical
expert at the first administrative hearing, or alternatively, to explain why he proceeded
without the file. R. 290-93. Judge Keys ordered supplemental proceedings not inconsistent
with his opinion, R. 294.

E, 2003 ALJ DECISION

On January 29, 2003, ALJ Bailey issued a second unfavorable decision, finding that
Plaintiff was not disabled prior to the expiration of his insured status on March 31, 1991. R.
251-61. In his second opinion, the ALJ did not mention SSR 83-20. The ALJ also did not

consider the 1993 SSI file, and his decision did not explain why he proceeded without it.

13


considered Plaintiff's testimony, rejected it, and found that it was not corroborated by the
medical evidence. /d. Although subjective credibility determinations will not be disturbed
on appeal unless patently wrong, Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003), the
ALJ may not reject a claimant’s testimony solely because there is not substantiating objective

medical evidence, see 20 C.F.R. § 404.1529(c)(2).

The Commissioner argues that the ALJ was not required to address Plaintiffs
statements. The Commissioner erroneously reasons that the ALJ did not have to consider
Plaintitf’s testimony because the ALJ found Ms. Taylor’s testimony not credible and Ms.
Taylor’s statements essentially corroborated Plaintiffs testimony. The Commissioner’s
reliance upon Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993), is misplaced. In
Carlson, the Seventh Circuit determined that the ALJ did not have to consider the testimony
of the claimant’s wife because it was repetitive of the claimant’s testimony, but the Court
noted that such a scenario is distinguishable from a situation in which the ALJ failed to

discuss uncontradicted testimony by the claimant himself. Carlson, 999 F.2d at 181.

Moreover, SSR 83-20 requires the ALJ to consider lay testimony when the medical
evidence is insufficient to allow tor a proper inference as to the onset date. SSR 83-20, 1983
WL 31249, at *3. SSR 83-20 also indicates that Plaintiff's allegations should be the starting
point of the analysis. /d. at *2. Thus the ALJ’s failure to consider Plaintiff's testimony was

contrary to SSR 83-20.

23


insured status on March 31, 1991. R. 251-64. Plaintiff again seeks judicial review of the
ALJ’s decision. Katherine Briscoe, Plaintiff's sister, was substituted as party in interest and
continues to pursue Mr. Taylor’s claim for disability benefits.
B. HEARING TESTIMONY

The evidence presented at the March 18, 1998 hearing (“1998 hearing”) included the
testimony of Plaintiff, the testimony of the Commissioner’s ME, Dr. Richard Abramson, and
medical records. R. 209-47. The evidence presented at the November |, 2002 hearing
(“2002 hearing”) included the testimony of Plaintiff's long-time partner, Lola Taylor, a
different medical expert, Dr. Ashok Jilhewar, and a VE, Richard Hamersma. R. 315-65.

1. Plaintiff's Testimony - 1998 Hearing

Plaintiff was born January 27, 1941. R. 219. He had a fifth grade education, he did
not read or write well, and he could not understand a lot of words when attempting to read
a newspaper. R. 240, 246. Plaintiff worked at a steel mill as a forklift and machine operator
for ten years until 1986. R. 238-39. He then worked as a forklift operator for the Leaf Brand
Company. R. 237-38. On March 1, 1987, Plaintiff quit because his legs bothered him;
driving a forklift requires constant foot movement, which caused him significant leg pain.
R. 238.

By early 1987, Plaintiff experienced difficulty when walking. R. 221-22. The pain

would start after he walked approximately one-half block, forcing him to stop, sit-down, and


thinking of peripheral vascular disease.” R. 137-38, 351, 354. Finally, both medical experts
testified that an onset date prior to the expiration of Mr. Taylor’s insured status was possible.
R. 236, 347, 352-53. Specifically, Dr. Jilhewar stated that a diagnosis of peripheral vascular

disease back to 1987 or 1991 was not inconsistent with the medical records. R. 352-53.

This Court refuses to grant the ALJ a third chance to “get it right.” This case is
remanded for an award of benefits as of January 7, 1990, given the obduracy demonstrated
by the ALJ in failing to follow Judge Keys’ opinion, and the consistency between the alleged

onset date of January 7, 1990 and the medical evidence, as evaluated pursuant to SSR 83-20.
Il. CONCLUSION

For the reasons set forth in this opinion, Plaintiffs motion for summary
judgment is granted and the Commissioner’s motion for summary judgment is denied.
This case is reversed and remanded to the Commissioner for an award of benefits based

on an onset date of January 7, 1990.

SO ORDERED THIS 11th DAY OF MARCH, 2004.

Murdsn Kb Le

MORTON DENLOW
UNITED STATES MAGISTRATE JUDGE

34


evidence can not be disregarded solely because it is not substantiated by objective medical

evidence. /d.
IV. ANALYSIS

Plaintiff argues that the ALJ’s decision should be reversed for six reasons. In
particular, Plaintiff contends that the ALJ (1) did not properly apply SSR 83-20 as mandated
by Judge Keys; (2) based his credibility determination of Lola Taylor on an unreasonable
inference and an incorrect factual finding; (3) did not consider the testimony of Dr.
Abramson; (4) did not properly determine whether the VE relied on sound principles and
methods; (5) did not resolve a discrepancy between the VE’s testimony and the DOT; and
(6) did not make a literacy determination. Each of the aforementioned issues will be

discussed in turn.

A. THE ALJ DID NOT PROPERLY APPLY SOCIAL SECURITY RULING
83-20 AS MANDATED BY JUDGE KEYS.

The law of the case doctrine requires the ALJ to conform further proceedings on
remand to the principles set forth in Judge Keys’ opinion unless there is a compelling reason
todepart. Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998). Judge Keys indicated that SSR
83-20 set the standard for determining the onset date. Once again, the ALJ did not properly
apply SSR 83-20 because the ALJ (1) did not determine whether the alleged onset date was
inconsistent with the medical evidence, (2) did not obtain the SSI file, or alternatively,

explain why he proceeded without it, and (3) did not properly consider Plaintiff's testimony.

20


Accordingly, the ALJ did not find her testimony to be credible. However, this rationale is
fundamentally flawed because Ms. Taylor was never questioned on this matter. Instead, the
ALJ asked her who would be able to testify concerning Plaintiff's ability to work in 1987.
R. 325-27. Ms. Taylor responded that half of Plaintiff's former co-workers were deceased
and she didn’t know many of them. R. 326. It is not unreasonable that she could not name
Plaintiff's former co-workers from more than fifteen years ago. The rationale for the ALJ’s
credibility determination is based on an incorrect factual finding. Given this error, the ALJ

has failed to build a logical bridge between the evidence and his credibility conclusion. See
Clifford, 227 F.3d at 872. Because the ALJ’s credibility finding of Ms. Taylor is premised

on an erroneous factual finding, it is patently wrong.

Cc. THE ALJ WAS JUSTIFIED IN NOT ARTICULATING A CONSIDERATION
OF DR. ABRAMSON’S TESTIMONY.

Plaintiff argues that the ALJ erred by neither discussing the testimony of Dr.
Abramson nor articulating an explanation for its rejection. Plaintiff maintains that failure to
consider Dr. Abramson’s testimony affected the determination of Plaintiff's RFC. In
particular, Plaintiff points to Dr. Abramson’s testimony, which states that pain from
intermittent claudication can be brought on by standing still. Plaintiff argues that this
testimony contrasts with Dr. Jilhewar’s testimony that patients only experience claudication
while walking. Plaintiff maintains that an RFC based on Dr. Abramson’s testimony would

not have included the ability to perform light work since light work involves lifting weight

26


determining an onset date absent corroborating medical documentation. Taylor, 2001 WL
1035286, at *7. In fact, under SSR 83-20, the ALJ may not rely on the first date of diagnosis
simply because an earlier diagnosis date is unavailable. Lichter, 814 F.2d at 435. The tirst

date of diagnosis does not control the determination of the onset date. /d.

The ALJ erroneously continued to require objective medical evidence when he stated
that “‘an inference must be based on sufficient information to enable one to make an educated
guess,” R. 259, However, according to Judge Keys, the issue is not whether there is
sufficient information to make an educated guess, but rather whether the date alleged by
Plaintiff is consistent with the medical evidence. Taylor, 2001 WL 1035286, at *5. The ALJ

did not follow Judge Keys’ directive and improperly applied SSR 83-20.

2. The ALJ improperly dismissed the testimony of Plaintiff from the
March 1998 administrative hearing.

Plaintiff argues that the ALJ erred in not considering his testimony from the 1998
administrative hearing. Because the only articulation of Plaintiff's testimony is in the ALJ’s
first opinion, wherein the ALJ erroneously dismisses it for lack of corroborating medical
evidence, the ALJ improperly failed to reconsider Plaintiff's allegations of pain and physical

Itmitation.

In the 2003 opinion, the only mention of Plaintiff's testimony was that “even if [the
ALJ] accepted [Plaintiff’s} allegations and sufficient medical evidence supported them...

it is doubtful that any benefits could be paid.” R. 259-60. This indicates that the ALJ

22


Copies mailed to:

Barry A. Schultz

Law Offices of Barry A. Schultz, P.C.

1609 Sherman Avenue
Suite 207
Evanston, IL 60201

Counsel for Plaintiff

35

Kathryn A. Beverly

Special Assistant United States Attorney
200 West Adams Street

30" Floor

Chicago, IL 60606

Counsel for Defendant



(7th Cir. 2000). Lastly, although the claimant bears the burden of demonstrating his
disability, the ALJ must build a full and fair record. Thompson v. Sullivan, 933 F.2d 581,
585 (7th Cir. 1991).

An ALJ’s failure to fulfill his obligation to build a full and fair record is good cause
to remand for gathering additional evidence. /d. at 586. Additionally, when the ALJ’s
decision is not supported by substantial evidence, generally aremand for further proceedings
is appropriate. Campbell v. Shalala, 98 F.2d. 741,744 (7th Cir. 1993). However, even if the
ALJ’s decision is not supported by substantial evidence, and there is not one supportable
conclusion in favor of a plaintiff, a court may still remand the case for an award of benefits
ifthe ALJ was obdurant in complying with the law of the case. See Wilder v. Apfel, 153 F.3d
799, 804 (7th Cir. 1998).

B. DISABILITY STANDARD

The ALJ uses a five-step sequential analysis in order to determine if an individual is
disabled. 20 C.F.R. § 404.1520. The sequential evaluation ends if the ALJ, at any step of
the process, determines that the claimant is not disabled. Jd. The ALJ must inquire: (1)
whether the claimant is working and whether the work is a substantial gainful activity; (2)
whether the claimant’s impairment is severe; (3) whether the impairments meet or equal a
listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 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 experience in reference to his residual functional capacity (“RFC”) enable him


a sit and stand option.” R. 356. “Light work” means that they can lift twenty pounds
occasionally and ten pounds frequently. Jd. However, Dr. Jilhewar does not know if
Plaintiff could have performed this level of work. /d. Plaintiff would have had to avoid
markedly cold weather because it could cause the precipitation of gangrene. Jd. Plaintiff
also would have to avoid commercial driving and exposure to dust, fumes and gases because
an x-ray in 1994 indicated that he had the beginning ofemphysema requiring the avoidance
of all concentrated pulmonary irritants. R. 356-57.

5. Richard Hamersma - Vocational Expert - 2002 Hearing

Richard Hamersma, the VE, testified at the 2002 hearing. R. 358-64. He was
informed that Plaintiff could perform work at the light level of exertion but could not be
exposed to marked temperature changes or humidity, and could not drive automotive
equipment or be exposed to concentrated dust, fumes, or gases. R. 360. The VE determined
that none of Plaintiff's past relevant work could have been performed at the light level of
exertion. R. 359. However, an individual with Plaintiff's vocational protile could perform
8,000 jobs as an assembler, 7,000 jobs as a hand packager, and 6,500 jobs as an inspector.
R. 360-61. Although these jobs are classified as light jobs due to the weight involved, they
are performed primarily in the seated position. R. 361-63. The VE obtained these figures

from the County Business Patterns put out by the Illinois Department of Security.? R. 363.

2 The County Business Patterns is a source of occupational information published by the
Bureau of the Census. 20 C.F.R. § 404,1566(d)(2). The information from this source aids the
SSA in determining disability at step five in the sequential analysis of 20 C.F.R. § 404.1520, and
the SSA will take administrative notice of the reliable job information published in this source.

9


In Wilder, the Court of Appeals, which had previously remanded the case, reviewed the
district court’s decision to affirm the Commissioner’s denial of benefits, found no reasoned
basis for the denial, and reversed the district court’s ruling. Jd. The court did not find that
the record yielded one supportable conclusion, but rather found that the new evidence “left
the case exactly where it was the last time.” /d. Nonetheless, the court refused to remand
the case to the Commissioner for further proceedings. /d. at 801. In reaching its decision,
the court pointed to the actions of the agency. Jd. at 804. The ALJ’s opinion, the court
stated, was no more reasoned than the one that resulted in the remand, contained
misstatements of evidence, ignored the instructions from the court’s previous remand order,
and relied on evidence not in the record. fd. at 802-04. In order “to bring the charade to an
end,” the court ordered the Commissioner to award the claimant the benefits for which she
had applied. /d. at 801; see also Rohan v. Barnhart, No. 03 C 3029, 2004 WL 383294, at
*14 (NLD. Ill. Feb 24, 2004) (awarding benefits rather than remanding for a third time

because of the Commissioner’s obduracy).

Likewise, this case warrants an automatic award of DIB due to obduracy by the ALJ.
Not following the remand order ofa district court evidences obduracy. See Wilder, 153 F.3d
at 803. Additionally, under the law of the case doctrine, the law articulated by Judge Keys
was binding upon the ALJ on remand. See id. Nevertheless, the ALJ ignored Judge Keys’
opinion by failing to obtain the SSI file, or alternatively, to explain why he proceeded without

it, and by applying an analysis inconsistent with the standard articulated by Judge Keys.

32


one’s ability to meet vocational requirements. Id. § 404.1564(b)(3). Education is assessed
by considering Plaintiffs schooling and any other training. The importance placed on formal
schooling may vary depending upon how much time has lapsed between the completion of
the schooling and the beginning of the impairment and also upon what Plaintiff did with his
education in a work or other setting. Thus the last completed numerical grade level may not
be representative of Plaintiff's educational abilities. However, if there is no other evidence
to contradict it, then Plaintiff’s numerical grade level is used to determine his educational

tevel. /d.

There are four categories of education: illiteracy, marginal education, limited
education, and high school education and above. Id. § 404.1564(b)(1)-(3). literacy is
defined as an inability to read or write, and generally an illiterate person has little or no
formal schooling. /d. § 404.1564(b)(1). Plaintiff is considered illiterate if he cannot read or
write a simple message such as instructions or inventory lists, even though he can sign his
name. /d. Ifa plaintiff has a marginal educational level, then he has an ability in reasoning,
arithmetic, and language skills, which are needed to do simple, unskilled types of jobs. /d.
§ 404.1564(b)(2). Generally, formal schooling at a sixth grade level or lower is a marginal
educational level. Jd. If Plaintiffhas a limited education, then he has an ability in reasoning,
arithmetic, and language skills, but not enough to allow him to do most of the more complex
job duties needed in semi-skilled or skilled jobs. /d. § 404.1564(b)(3). Generaily, a formal

education of at least seventh grade and up to the eleventh grade is a limited education. /d.

29


ceased driving, and he and Ms. Taylor began walking their destinations. R. 338.
Furthermore, when Plaintiff would remove the snow off the porch or take out the garbage,
he had trouble breathing. R. 338, 339.

3. David Abramson, M.D. - Medical Expert - 1998 Hearing

Dr. David Abramson testified as the ME at the 1998 hearing. R. 220-37. He is board
certified in internal medicine with a sub-speciality in cardiovascular diseases. R. 45. Dr.
Abramson was reluctant to give an opinion regarding the onset of Plaintitf’s disability
because he could not study the period from 1987 through 1991 to determine Plaintiffs actual
impairment. R. 232. Dr. Abramson stated that the only way to determine the onset date of
Plaintiffs disability would be to obtain the treatment records, or any circulation tests, from
that time period in order to see whether there was any reference to absence or reduction of
pulses in the groin or whether arteriosclerosis obliterans were present in Plaintiff’s lower
extremities. /d.

Plaintiff had disabling conditions in 1994, but Dr. Abramson was unsure how tong the
conditions existed. R. 236. It was clear that by 1994 Plaintiff suffered from very severe
arteriosclerosis obliterans and a block in the abdominal aorta. R. 232-34. These conditions
did not develop suddenly but rather progressed slowly, allowing sufficient time for new
vessels to grow. /d. Plaintiff also suffered from intermittent claudication, which causes pain
when the muscles are being exercised. Jd, Additionally, Plaintiff had a leg ulcer in 1994

that had been present for approximately six months. R. 234. The fact that the ulcer was


massage his left leg. R. 222-23. After Plaintiff stopped working, his life changed “a lot.”
R. 245. His pain prevented him from helping with chores around the house, visiting with
friends, and taking part in favorite pastimes. Jd.

in late 1993 or early 1994, Plaintiff developed a leg ulcer that would not hea}. R. 225.
By 1994, he could walk only ten or twelve steps without stopping or sitting down. R. 223-
24. In 1994, Plaintiff had an operation because there was a block in a main artery. R. 224.
After that surgery, Plaintiff could walk about two blocks. R. 227. Shortly thereafter,
Plaintiff had corrective surgery to alleviate stomach pain. R. 229. Following his surgery, his
doctor instructed him not to lift anything heavier than twenty pounds. R. 245.

2. Lola Taylor - Domestic Partner - 2002 Hearing

Lola Taylor testified for Plaintiff at the 2002 hearing. R. 329-41. She and Plaintiff
lived together for seventeen years, although they never married and had no children, R. 329.
Ms. Taylor states that Plaintiff stopped working in 1987 because he could no longer perform
his job duties. R. 330. He would come home and complain about his leg giving him
problems. /d. Plaintiff developed a sore on his left leg a couple months after he stopped
working. R. 331. Prior to that time, Plaintiff had cramps in his leg about every half hour
both day and night. R. 332-33. The left leg bothered him first, with pain in the middle of his
calf. R. 331. Plaintiff woke up frequently during the night because of the pain, and the pain
was worse during the night than during the day. R. 332. Ms. Taylor had to rub the cramps

out of his legs. R. 335. The cramps grew worse in August of 1991. /d, Asa result, Plaintiff


to do other work. Jd. A person’s RFC is what he can do despite any physical and mental
limitations. 20 C.F.R. § 404.1545(a)(1). The burden of proof is on a claimant through step
four of the analysis, and the burden then shifts to the Commissioner at step five. Clifford,
227 F.3d at 868.

Cc DETERMINING AN ONSET DATE

Another rule applies when determining the onset date of a claimant’s disability. To
be entitled to disability benefits under the Act, one must be insured at the same time that the
evidence establishes the presence of a disabling condition. 20 C.F.R. § 404.130-32;
Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997). SSR 83-20 controls the
determination of the onset date of'a disability. Lichter v. Bowen, 814 F.2d 430, 434 (7th Cir.
1987) (citing SSR 83-20, 1983 WL 31249, at *1). If the disability is of a nontraumatic
origin, the ALJ should consider three factors in determining the onset date: (1) the claimant’s
alleged onset date, (2) the claimant’s work history, and (3) any medical evidence or all other
relevant evidence. /d. (citing SSR 83-20, 1983 WL 31249, at *2).

The date alleged by a claimant is the starting point of the analysis. /d. If the onset
date alleged by the claimant is consistent with the medical and other evidence available, SSR
83-20 requires the ALJ to adopt that date. SSR 83-20, 1983 WL 31249, at *3. However, the
date a claimant stops working is of great significance when selecting an onset date, /d. at *2.
Moreover, the medical evidence is described as the primary element in the onset
determination. /d. Where the medical evidence lacks an indication of the precise onset date,

and the disabling condition appears to have begun prior to the date of the first recorded

18


about the severity of the peripheral! vascular disease to establish whether it was severe under
the Act. R. 354.

The medical notes dated February 5, 1991, also mention pain in Plaintiffs left leg.
R. 343. During the February 5, 1991 visit, there were no objective findings in Plaintiffs
extremities; the medical note indicates that the findings from the examination were merely

eres

subjective: “extremities pain, left leg.” /d. The note does not say “positive,” “negative,” or
“pulses,” so Dr. Jilhewar could not interpret with any certainty what the note means. R. 343-
44. The note orders Plaintiff to continue treatment at home, but Dr. Jilhewar did not know
what that treatment was. R, 344.

It is possible that Plaintiff was having symptoms from peripheral vascular disease as
early as 1987, orin 1991, R. 352. However, the cramping in Plaintiff's legs or calves would
not be consistent with intermittent claudication. /d. In Dr. Jilhewar’s practice, cramping is
much more common than claudication, and he often does not find any cause for the
cramping, or a cause related to vascular disease. R. 352-53. Given the sparsity of the
documentation, Plaintiff may have had claudication, but Dr. Jilhewar is uncertain. R. 353.

With regard to Plaintiff’s residual functional capacity, prior to January 7, 1990, “there
was no establishment of any restrictions, or any affect on the residual functional capacity.”
R.354. After January 7, 1990, Dr. Jilhewar did not know how much of a physical limitation

Plaintiff had, and Dr. Jilhewar could not make any inference except that Plaintiff was

affected. R.354. Dr. Jilhewar’s patients with this condition can usually do “light work with


3. The ALJ failed to obtain the SSI file, or alternatively, to explain why he
proceeded without it.

Plaintiff maintains that the ALJ failed to obtain the SSI file, or alternatively, to explain
why he proceeded without it, in direct contravention of Judge Key’s order. Dr. Abramson,
Plaintiff, and the ALJ considered the SSI file to be critical in determining the progression of
Plaintift’s disability and, therefore, whether Plaintiff was disabled on or before March 31,
1991, R. 214, 216, 218, 292. Consequently, Judge Keys determined that the ALJ should
have at least explained why he proceeded without the file, even though he did not have an
absolute duty to obtain it. R. 292-93. This obligation to explain himself is pursuant to the

ALJ’s duty to build a full and fair record. See Thompson, 933 F,2d at 585.

The ALJ indicated at the 2002 hearing that he would again attempt to obtain the file
or explain his reasoning for proceeding without it. R. 322, However, there is no indication
in the record that the ALJ obtained this file, and there is no explanation in his opinion
regarding why he rendered a decision without it. This is inconsistent with Judge Keys’
opinion. See R. 293. Additionally, this failure is contrary to the requirement of SSR 83-20
that the ALJ secure any additional medical evidence in the file concerning the onset date.
SSR 83-20, 1983 WL 31249, at *3 (“If there is information in the file indicating that
additional medical evidence concerning onset is available, such evidence should be secured

before inferences are made.”).

24


__Minute Order Form

¢c
_ Hb Y Anite States District Court, Northern District of Dlinois

Namectasinet eae | Morton Denlow | Sine ude oer
CASE NUMBER 03 C 2762 DATE 3/11/2004
CASE Katherine Briscoe, on behalf of Nelson Taylor, deceased, vs. Jo Anne B. Barnhart
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) o Answer brief to motion due__. Reply to answer briefdue__.
(4) im) Ruling/Hearingon___sset for____at
(5) a Status hearing[held/continued to] [set for/re-set for]on___setfor__—_—at
()) Q Pretrial conference[held/continued to} [set for/re-set for]on__—setfor__—sat__
(o) Oo Trial[set for/re-set for]on__ 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}
QUFRCP4(m) OLocal Rule 41.1 COFRCP4i(a\1) [I FRCP41(a)(2).
do wi [Other docket entry} | Enter Memorandum Opinion and Order. Plaintiff’s motion for summary

judgment [19-1] is granted and the Commissioner’s motion for summary judgment is denied. This case
is reversed and remanded to the Commissioner for an award of benefits based on an onset date of
January 7, 1990.

(il) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court,

No notices required.

of | Notices mailed by judge's staff.
Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form,

In amwiyenqee
Copy to judge/magistrate judge. Lacs dolursid sn
sea
courtroom te
DK deputy’s ibis

initials



medical note reveals that Plaintiff complained of a cough and a cold, which he had
experienced for one week. R. 142, There are no medical notes in the record for 1988. The
January 9, 1989 medical notes indicate that Plaintiff complained of weight loss and dizziness.
R. 137.

The January 7, 1990 medical note indicates that Plaintiff complained of cramping in
his leg. R. 137-38. Plaintiff's leg cramped in the back when he walked a block or so. R.
138. Additionally, Plaintiff did not obtain the “GI” x-rays ordered the previous year because
he could not afford it. R. 137. Furthermore, Plaintiff was assessed as being unable to walk
more than a block and was given a prescription for Trental. R. 138. Finally, the assessment
ruled out peripheral vascular insufficiency. Jd. The February 5, 1991 medical notes indicate
that Plaintiff again complained of pain in his left leg. R. 136. The notes indicate that
Plaintiff should continue treatment at home. Jd.

2. Medical Records After Expiration of Insured Status

Plaintiff did not return to Hamlin Hospital until May 28, 1993, after the expiration of
his insured status. R. 135. At that time, he claimed that he could not walk for more than one
block without resting, was short of breath, walked with a cane, and had pain in his lett leg.
Id.

One year later, Plaintiff was hospitalized at St. Elizabeth’s Hospital from June 14,
1994 through July 1, 1994, due to abdominal aorta occlusion, ulcer of lower limbs,

obstructive chronic bronchitis, cellulitis of the leg, and abscesses of the leg. R. 174. Plaintiff

II


These sources do not discuss the availability of light jobs that allow the individual to sit
while performing the work. Jd. The VE determined that the identified jobs allow for a
sit/stand option from his personal observations, talking to employers, doing job analysis, and
surveys. /d. The identified jobs were consistent with the information in the Dictionary of
Occupational Titles.’ /d.
C. MEDICAL RECORDS

1. Medical Records Before Expiration of Insured Status

Although Plaintiffs SSI file was not available at either administrative hearing, the
record does contain some medical evidence covering the period prior to the expiration of
Plaintiff's insured status. Plaintiff was treated at the Chicago Hamlin Medical Center
(“Hamlin”) between 1985 and the expiration of his insured status on March 31, 1991. R.
136-44.

On December 1, 1986, Plaintiff complained of being nauseated and dizzy, and he was
referred to Belmont Hospital to rule out an intra-abdominal tumor. R. 141. The December
15, 1986, treatment note from Hamlin is mostly illegible, but it does indicate that Plaintiff

was to be released to return to work on January 5, 1987. R. 140. The January 14, 1987

Id.

3 The Directory of Occupational Titles is published by the Department of Labor and it is
used by the SSA at steps four and five of the sequential analysis to determine disability under 20
C.F.R. § 404.1520. The SSA relies primarily on this publication for information regarding job
requirements in the national economy. /d. The SSA will take administrative notice of reliable
job information published in this source. 20 C.F.R. §§ 404.1566(d), 416.966(d).

10


G. THE ALJ’S DECISION SHOULD BE REVERSED FOR AN AWARD OF
BENEFITS AS OF JANUARY 1990.

Generally, when an ALJ’s decision is not supported by substantial evidence, a remand
for further proceedings is the appropriate remedy. Campbell v. Shalala, 98 F.2d 741, 744
(7th Cir. 1993). An award of benefits is appropriate only if all factual issues have been
resolved and the “record can yield but one supportable conclusion.” /d. In such cases,
further administrative proceedings would serve no useful purpose but would only delay the
receipt of benefits. Parks v. Sullivan, 766 F. Supp. 627, 638 (N.D. Il. 1991). Therefore, the
proper remedy for errors is not an automatic award of benefits but rather a remand for further

proceedings. Gotz v. Barnhart, 207 F. Supp. 2d 886, 903 (E.D. Wis. 2002).

However, the Commissioner is not entitled to “endless opportunities to get it right.”
Seavey v. Barnhart, 276 F.3d 1, 13 (1st Cir. 2001); Miller v. Chater, 99 F.3d 972, 978 (10th
Cir. 1996). A court may step in and award DIB when the agency has displayed “obduracy”
in complying with the law of the case. Wilder v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998).
In this case, the obduracy doctrine permits the Court to award Plaintiff DIB when the
Commissioner fails to follow the reviewing court’s clear direction, even though there is not
substantial evidence to support a finding of not disabled, and thus more than one supportable

conclusion.

For example, the court in Wilder v. Apfel, automatically awarded DIB to the claimant

because of the “obduracy” evidenced by the Social Security Administration. 153 F.3d at 804.

31


The ALJ found that Plaintiff had a limited education. R. 260. Thus, the ALJ made
a finding regarding Plaintiff's educational level. Jd. However, Plaintiff's testimony
contradicts the finding of a limited education because Plaintiff testified that he had a fifth
grade education, R. 240, thereby initially placing him in the marginal education category.
In contrast, Plaintiffs Disability Report indicates that he had an eighth grade education, R.
115, thereby initially qualifying his educational level as limited. Regardless of this
discrepancy, there is substantial evidence in the record that Plaintiff was not illiterate.
Although he testified that he could not read or write well, and that he could not understand
a lot of words when attempting to read a newspaper, R. 240, 246, these facts do not
sufficiently contradict the ALJ’s determination such that Plaintiff's formal education is not
indicative of a higher level of education. An inability to read or write well, or an inability
to understand words in a newspaper, does not necessitate a finding that Plaintiff was unable
to perform minimal literary endeavors similar to writing simple messages such as instructions
or inventory lists. See 20 C.F.R. § 404.1564. Furthermore, Plaintiff testified that he can read
and write a little bit, and when he does read, he likes to read the newspaper. R. 240. There
is substantial evidence in the record indicating that Plaintiff was not illiterate, and thus the

ALJ was not required to find him disabled under 20 C.F.R. § 404, Subpt. P, App. 2, 202.09.

30


present for six months and did not heal indicated to Dr. Abramson that its cause was impaired
arterial circulation. R. 234-35. Plaintiff's condition was probably disabling one year prior
to Plaintiff’s 1994 surgery, but Dr. Abramson could got say whether the condition went back
to 1987 without some objective proof. /d. Dr. Abramson had no way of knowing how long
it took the condition to develop because in some cases it takes three years to develop, but in
other cases it may take longer or shorter depending on the person’s metabolism. R. 236. He
was certain, however, that it didn’t happen in six months because a complete occlusion of
the aortic vifercation is a slow process. /d. With regard to specific work-related limitations,
Plaintiff had no limitations on his ability to lift, carry, sit, or stand, but he would have some
problems with walking. R. 243.

4. Ashok Jilhewar, M.D. - Medical Expert - 2002 Hearing

Dr. Ashok Jilthewar testified as a medical expert at the 2002 hearing. R. 341-58.
From Dr. Jilhewar’s analysis of the medical records, Plaintiff's extremities were reportedly
normal on December 1, 1986, January 14, 1987, December 20, 1988, January 6, 1989, and
January 7, 1990. R. 342-43. January 7, 1990 is the date of the first medical note in which
a doctor referenced a complaint by Plaintiff of leg cramping. R. 350-51. The doctor also
prescribed 400 mg of Trental for the claudication on that day, which “is strong evidence that
the doctor was thinking of a peripheral vascular disease.” R. 351, 354. However, Dr.
Jilhewar does not know if the doctor took peripheral pulses at that time or if he did anything

else to come to his conclusions. R. 351-52. Consequently, one can not make a judgment


lL. The ALJ did not determine whether the alleged onset date was
inconsistent with the medical evidence.

The ALJ analyzed this case inconsistently with Judge Keys’ opinion and SSR 83-20.
The ALJ did not ascertain whether the alleged date was inconsistent with the medical
evidence. The ALJ did not even mention SSR 83-20. Although this omission by itselfis not
reversible error, see Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1989), the ALJ’s
reasoning indicates that he did not apply the Consistency standard from SSR 83-20. Instead,
the ALJ incorrectly relied on the lack of corroborating medical evidence. This approach was
in direct contradiction to the opinion of Judge Keys. Judge Keys noted that at the first
administrative hearing the ALJ was mistaken in believing that Plaintiff was required to
produce conclusive medica} evidence in order to establish an onset date. Taylor, 2001 WL
1035286, at *7. SSR 83-20 provides that “in the case of slowly progressive impairments, it
is not necessary for an impairment to have reached listing severity (i.c., be decided on
medical grounds alone) before onset can be established.” SSR 83-20, 1983 WL 31249, at

*2

In his second opinion, the ALJ stated that he adopted the opinion of Dr. Jilhewar. R.
257. However, neither Dr. Jilhewar nor Dr. Abramson opined that Plaintiff's alleged onset
date of March 1987 was inconsistent with the medical evidence. On the other hand, the ALJ
acknowledged that Dr. Jilhewar’s opinion was based ona lack of objective medical evidence.

Jd. However, Judge Keys specifically stated that SSR 83-20 contemplates the possibility of

21


while standing. The ALJ is not required to evaluate in writing every piece of testimony
presented, but the ALJ may not ignore an entire line of evidence. Zblewski v. Schweiker, 732
F.2d 75, 79 (7th Cir. 1984). However, in this case, Dr. Abramson’s testimony does not
constitute an entire line of evidence mandating separate consideration because Dr.
Abramson’s testimony does not materially contrast with Dr. Jilhewar’s testimony. See

Carlson v. Shalala, 999 F.2d 180,18! (7th Cir. 1993).

Dr. Abramson qualified his statement that the pain can arise while standing by noting
that there must be continuous movement of the legs thereby requiring circulation to those
muscles. R. 237. More importantly, Dr. Abramson stated that there would not be a problem
with standing because it is a minor activity that does not put on enough of a load such that
it significantly decreases circulation. R. 243. Therefore, Dr. Abramson’s testimony does not
materially supplement or contradict Dr. Jilhewar’s statements that the symptoms of
insufficient claudication arise when walking or using the leg muscles. R. 357. Dr.
Abramson’s testimony is repetitive of the findings of Dr. Jilhewar regarding Plaintiff’s RFC,

and thus the redundancy rationale from Car/son applies.

Similarly, the other relevant portions of Dr. Abramson’s testimony are essentially
corroborated by Dr. Jihlewar, Both experts indicated that the lack of objective medical tests
prior to the expiration of Plaintitf’s insured status was the basis for their inability to establish
an onset date during this time. R. 232,354. Moreover, both Dr. Abramson and Dr. Jilhewar

were unable to dismiss the possibility that Plaintiff's disabling condition existed prior to the

27


employed. R. 56-58, 98. The application was denied initially and upon reconsideration. R.
23, 28. On June 27, 1997, Plaintiff requested a hearing before Administrative Law Judge
(“ALJ”) B. Carlton Bailey, Jr., which was held on March 18, 1998. R. 35, 208-47. ALJ
Bailey determined that Plaintiff was not disabled prior to the expiration of his insured status
on March 31, 1991, because his impairments were not “severe” during that time.’ R. 11-20.
On July 28, 2000, the Appeals Council denied Plaintiff's request for review. R. 5-7. The
ALJ's determination consequently became the final decision of the Commissioner.

Plaintiff then filed a complaint in district court. On September 6, 2001, Magistrate
Judge Arlander Keys reversed the decision of the ALJ and remanded Plaintiff's claim to the
Commissioner for supplemental proceedings. Taylor v. Massanari, No. 00 C 5643, 2001 WL
1035286, at *9 (N.D. Il. Sept. 7, 2001). In particular, Judge Keys found that the ALJ (1)
failed to apply Social Security Ruling 83-20, which pertains to determining the onset date of
a claimant’s disability; (2) improperly relied upon gaps in Plaintiff’s treatment in assessing
the severity of his condition; and (3) failed to obtain Plaintiff's 1993 SSI application file, or
alternatively, to explain why he proceeded without it. Jd. at *6-9.

On November 1, 2002, ALJ Bailey held a supplemental hearing. R. 315-65. Plaintiff
was deceased at the time of the second administrative hearing; he passed away on June 7,
2002. R. 309, On January 29, 2003, the ALJ issued a decision finding that Plaintiff was not

disabled prior to January 7, 1994, and thus was not disabled prior to the expiration of his

‘Tn order to be entitled to DIB, an individual must establish disability while insured for
benefits. See 42 U.S.C. §§ 423(a)(1)(A), (c)(1); 20 C.F.R. § 404.131; Stevenson v. Chater, 105
F.3d 1151, 1154 (7th Cir. 1997).


Finally, the ALJ heard testimony from Plaintiff's long time partner, Lola Taylor, but found
her “not totally credible.” R. 260.

The ALJ’s decision that Plaintiff was not disabled prior to the expiration of his
insured status was based on two determinations. First, the ALJ determined that the available
medical evidence did not support a finding that his disability was “severe.” R. 257. Second,
the ALJ determined that Plaintiff was able to perform a significant number of jobs in the
economy involving “light work.” R. 260.

{In making his first determination, the ALJ emphasized the sparsity of the medical
evidence. R. 259. First, ALJ Bailey noted that there was not sufficient information to
support an onset date prior to the date last insured. Jd, Additionally, he noted that although
Plaintiff's extremities were reportedly normal, or not mentioned, at doctor’s visits on
December |, 1986, January 14, 1987, December 20, 1988, January 6, 1989, and January 7,
1990, there were no objective findings made about the extremities on February 5, 1991, the
day Plaintiff first complained of pain in his legs. R. 256-57. The ALJ emphasized Dr.
Jilhewar’s statements that he could not make the inference from the record that the condition
existed prior to January 7, 1994, although it was possible Plaintiff had intermittent
claudication in 1987, Jd. The ALJ stated that he “had the same difficulty as the medical
expert in fixing an onset date,” and that “an inference must be based on sufficient

information to enable one to make an educated guess.” R. 259. Finally, the ALJ noted that


fact must be affirmed by the reviewing court if they are supported by substantial evidence.
42 U.S.C. § 405(g); Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). Substantial
evidence is “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
“Tt means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Jd.

The reviewing court reviews the entire record, but it may not decide the facts anew,
reweigh the evidence, or substitute its own judgment for that of the ALJ. Herron, 19 F.3d
at 333. If conflicting evidence allows reasonable minds to differ, the responsibility for that
decision falls on the Commissioner or her designee, the ALJ. Herr v. Sullivan, 912 F.2d 178,
181 (7th Cir. 1990).

However, the ALJ is not entitled to unlimited judicial deference. Ehrhart, 969 F.2d
at 538. First, the ALJ must consider all relevant evidence. Herron, 19 F.3d at 333.
Although it is not necessary that he evaluate in writing every piece of evidence in the record,
the ALJ can not pick and choose which evidence he will weigh. fd. Additionally, the ALJ
must articulate his analysis of the evidence at some minimal level. /d. In order to permit
meaningful appellate review, the ALJ must state his reasons for accepting or rejecting entire
lines of evidence, /d. at 333-34, Most importantly, the ALJ “must build an accurate and

logical bridge from the evidence to his conclusions.” Clifford v. Apfel, 227 F.3d 863, 872

16


award of benefits because the Administrative Law Judge (“ALJ”) (1) did not properly apply
Social Security Ruling 83-20 (“SSR 83-20”) as mandated by Magistrate Judge Arlander
Keys’ prior decision; (2) based his credibility determination of Lola Taylor on an
unreasonable inference and an incorrect factual finding; (3) did not consider the testimony
of Dr. Abramson, the Commissioner’s medical expert (“ME”); (4) did not properly determine
whether the vocational expert (“VE”) relied on sound principles and methods; (5) did not
resolve a discrepancy between the VE’s testimony and the Dictionary of Occupational Titles
(“DOT”); and (6) did not make a literacy determination. Alternatively, Plaintiff requests that
this matter be reversed and remanded for additional proceedings. For the following reasons,
Plaintiff's motion for summary judgment is granted and the Commissioner’s motion for
summary judgment is denied. The case is remanded to the Commissioner to award benefits
based on an onset date of January 7, 1990.
II. BACKGROUND FACTS

A. PROCEDURAL HISTORY

On May 1, 1993, Plaintiff applied for SSI. R. 254. The Social Security
Administration (“SSA”) granted the application, and Plaintiff was put into SSI pay status as
of the date of his application, R. 119.

On December 11, 1996, Plaintiff filed an application for DIB under Title II of the
Social Security Act (“the Act”), 42 U.S.C. §§ 416, 423, claiming disability as a result of poor

circulation in the legs and alleging an onset date of March 1, 1987, the last date Plaintiff was


B. THE ALJ’S CREDIBILITY DETERMINATION OF LOLA TAYLOR WAS
PATENTLY WRONG.

Plaintiff argues that the ALJ’s credibility determination of Lola Taylor is based on an
unreasonable inference and an incorrect factual finding. Specifically, Plaintiff argues that
the ALJ incorrectly based his credibility determination on a lack of testimony that Ms. Taylor
has a remarkable or photographic memory. Plaintiff also argues that the credibility
determination was based erroneously upon her inability to identify individuals who could

corroborate that she lived with Mr. Taylor for seventeen years.

An ALJ’s credibility determinations will not be overturned unless they are patently
wrong. Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003). An ALJ’s credibility
determination deserves special deference because the ALJ is in the best position to observe
awitness. Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000). However, when credibility
determinations are based on objective factors or fundamental implausibilities, appellate
courts have greater freedom in reviewing the ALJ’s finding. Clifford v. Apfel, 227 F.3d 863,

872 (7th Cir. 2000).

The ALJ stated in his opinion that Ms. Taylor had a remarkably detaited memory of
Plaintiff's daily activities, sleeping habits, and the ability to ambulate from 1987 to 1991.
R. 258. The ALJ contrasted this testimony with his finding that Ms. Taylor was unable to
name at the hearing any other person, such as ministers, siblings, or friends, who could

corroborate her testimony that she had been living with Plaintiff for seventeen years. R. 258.

25


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

EASTERN DIVISION
KATHERINE BRISCOE, on behalf)
of NELSON TAYLOR, deceased, )
)
Plaintiff, )
) Case No. 03 C 2762
v. )
) Magistrate Judge Morton Denlow
JO ANNE B. BARNHART, ) .
Commissioner of Social Security, )
) &,,
Defendant. ) A as
§ ~~
MEMORANDUM OPINION AND ORDER w

I. INTRODUCTION

Plaintiff, Katherine Briscoe, on behalf of Nelson Taylor, deceased, (“Plaintiff”), seeks
judicial review of the decision of JoAnne B. Barnhart, the Commissioner of Social Security
(“Commissioner”), which determined that Plaintiffs disability onset date is not prior to the
expiration of Plaintiff's insured status, and denied Plaintiff Social Security Disability
Insurance Benefits (“DIB”) under 42 U.S.C. §§ 416(i), 423. This case is before the Court
on cross motions for summary judgment. The ultimate issue to be resolved is the onset date
of Plaintiff's disability because Plaintiff already is in Supplemental Security Income (“SSI”)
pay status and his insured status for Title II benefits expired on March 31, 1991.

Plaintiff contends that the onset date of his disability is March 1, 1987. Plaintiff

further contends that the Commissioner’s decision should be reversed and remanded for an

25


The SSI file was deemed critical by the ALJ, Dr. Abramson, and the Plaintiff. R. 214,
216, 218, 292. It contained information that led the SSA to find Plaintiff eligible for SSI
disability benefits in 1993. Judge Keys noted its importance and mandated that the ALJ
obtain the file, or alternatively, explain why he proceeded without it. Taylor, 2001 WL

1035286, *9. Yet, the ALJ issued a second decision without mentioning the 1993 SSI file.

Moreover, Judge Keys’ explanation of the applicable legal standard was also ignored.
Judge Keys stated that SSR 83-20 controlled the determination of onset date and that
Plaintiff's alleged onset date must be accepted unless it is inconsistent with the medical
evidence. Taylor, 2001 WL 1035286, at *7. Judge Keys also stated that it was erroneous for
the ALJ to insist on medical documentation diagnosing Plaintiff's condition. Jd. at *9.
Nonetheless, as stated above, the ALJ again did not apply SSR 83-20 and instead, for a
second time, erroneously relied on a lack of objective medical evidence. See R. 257, 259.

These obdurate acts by the ALJ warrant reversal for an award of benefits.

Plaintiff stated in his reply brief and during oral argument that January 1990 is the
most reasonable onset date. See PI. Reply Br., at 9. Moreover, an onset date of January 7,
1990 is consistent with the medical evidence for the following reasons. First, Plaintiff
testified that he stopped working in 1987 due to pain in his legs. R. 238. Additionally, a
medical note dated January 7, 1990 indicates that Plaintiff complained of leg cramping to his
treating physician. R. 137-38, 343. The note further indicates that the doctor prescribed 400

mg of Trental, which Dr. Jilhewar indicated was “strong evidence that the doctor was

33


expiration of his insured status. R. 236, 352-53. Finally, both doctors indicated that they
were unable to infer an earlier onset date based on the sparsity of the medical evidence
provided, R. 232, 236, 354. Because Dr. Jilhewar corroborated the important parts of Dr.
Abramson’s testimony, the ALJ was justified in not articulating his consideration of Dr.

Abramson’s testimony in his second opinion.

D. THE VOCATIONAL EXPERT’S TESTIMONY IS IRRELEVANT TO THE
ONSET DATE ISSUE.

The ALJ utilized the expertise of VE Richard Hamersma in order to ascertain whether
there were a significant number of jobs in the national economy that Plaintiff could have
performed. SSR 83-20 indicates that consideration of vocational factors can contribute to
the determination of an onset date particularly in the case of slowly progressive impairments
that have not reached fisting severity based on medical evidence. SSR 83-20, 1983 WL
31249, at *2. However, the vocational evidence referred to in SSR 83-20 refers to a
plaintiff's work history, not the testimony of a vocational expert. /d. The Plaintiff in this
case was out of work since 1987. Therefore, the VE’s testimony is irrelevant to the onset

date issue.

F, THE ALJ’S LITERACY DETERMINATION IS SUPPORTED BY
SUBSTANTIAL EVIDENCE,

Finally, Plaintiff argues in his reply brief that the ALJ failed to make a literacy
determination. If Plaintiff was found to be illiterate, then he is disabled given his age and the
fact that he was found to have no transferable skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2, §
202.09; R 260. Illiteracy is a level of education created by the SSA in order to determine

28


was diagnosed with a non-healing ulcer of the left leg, severe vascular occlusive arterial
disease, chronic bronchitis, and emphysema. R. 176.

A June 17, 1994 Consultation Report for vascular surgery at St. Elizabeth’s indicates
a long-standing history of claudication pain in the lower extremities, with severe hip pain
lasting six to seven months, and a non-healing ulcer in the left lower leg that started over two
months earlier and has increased in size. R. 192. On June 24, 1994, Plaintiff underwent an
aorta-iliac femoral bypass and repair of the blood vessels. R. 174.

On. August 9, 1994, Plaintiff had a CT scan of the abdomen at St. Elizabeth’s
Hospital. R. 150. The CT Scan Report indicates that findings were compatible with small
bowel obstruction. R. 167. On August 13, 1994, Plaintiff returned to St. Elizabeth’s
Hospital for a lysis of peritoneal adhesions, dilation of the colon, and lysis of perineal or
periureteral adhesions. R. 149.

D. THE OPINION BY MAGISTRATE JUDGE KEYS

On September 6, 2001, Magistrate Judge Keys vacated the unfavorable 1998 ALJ
decision and remanded Plaintiff’ s claim to the Commissioner for supplemental proceedings.
Taylor, 2001 WL 1035286, at *9, Judge Keys found that the ALJ (1) failed to apply SSR 83-
20; (2) improperly insisted on documented medical diagnosis of Plaintiff’s condition prior
to March 31, 1991; and (3) failed to fully develop the record. /d.

The ALJ had improperly applied the consistency standard set out in SSR 83-20 by

rejecting Plaintiff’s alleged onset date without determining whether it was consistent with

12


the information provided was too scattered and contradictory to enable him to make more
than a plain unvarnished guess, which was not sufficient. Jd.

The ALJ doubted the sufficiency of the testimony of Plaintiff's longtime partner, Lola
Taylor. R. 258, Her memory was remarkably detailed and unwavering, yet there was no
testimony that she had a photographic or even a remarkable memory. /d.

Because the ALJ had determined that Plaintiff's disability was not severe prior to the
expiration of his insured status, he went on to determine whether Plaintiff's residual
functional capacity allowed him to perform either his past relevant work or a significant
number of existing jobs in the economy. R. 257. Plaintiff had not engaged in substantial
gainful activity since the alleged onset date of his disability on March 1, 1987, and Plaintiff
was unable to perform his past relevant work, R. 258, 260. However, Plaintiffs residual
functional capacity at the time allowed him to perform a significant range of light work. R.
259, 261. Plaintiff could not perform the full range of light work, given his exertional
limitations; however, there were a significant number of jobs in the national economy that
he could perform, including jobs as an assembler (8,000 jobs), hand packager (7,000 jobs),
and inspector (6,500) jobs. /d.

Ii. LEGAL STANDARDS
A. STANDARD OF REVIEW

A reviewing court in a disability case is limited to determining whether the ALJ’s final

decision is supported by substantial evidence and based on the proper legal criteria. Ehrhart

v. See'y of Health & Human Servs., 969 F.2d 534, 538 (7th Cir. 1992). Determinations of

15