Washington v. Astrue, No. 1:2012cv06379 - Document 43 (N.D. Ill. 2014)

Court Description: MEMORANDUM Opinion and Order: Plaintiff Gregory Washington seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his application for Disability Insurance Benefits and Supplemental Insurance Income (collectively herein, "disability benefits") under the Social Security Act ("Act"). Mr. Washington seeks reversal of the Commissioner's final decision and a remand for an award of benefits, or in the alternative, reversal of the Commissioner's final decision and remand for additional proceedings. For the reasons set forth below, Mr. Washington's motion to reverse the Commissioner's final decision is granted [dkt. 25]. Signed by the Honorable Susan E. Cox on 5/21/2014. Mailed notice (np, )

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Washington v. Astrue Doc. 43 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GREGORY A. WASHINGTON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) No. 12-CV-06379 Magistrate Judge Susan E. Cox MEMORANDUM OPINION AND ORDER Plaintiff Gregory Washington seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for Disability Insurance Benefits and Supplemental Insurance Income (collectively herein, “disability benefits”) under the Social Security Act (“Act”). 1 Mr. Washington seeks reversal of the Commissioner’s final decision and a remand for an award of benefits, or in the alternative, reversal of the Commissioner’s final decision and remand for additional proceedings. For the reasons set forth below, Mr. Washington’s motion to reverse the Commissioner’s final decision is granted [dkt. 25]. I. PROCEDURAL HISTORY Mr. Washington filed an application for disability benefits on October 20, 2005, alleging he became disabled on February 15, 2004. 2 On August 31, 2007, after a hearing was held, Administrative Law Judge Marin Dougherty denied Mr. Washington’s claims, stating Mr. Washington was not disabled because he could perform a significant number of jobs in the 1 2 42 U.S.C. §§ 416(I), 423, and 1381 et seq. R. at 187-189, 202-204. 1 Dockets.Justia.com national economy. 3 Mr. Washington filed a timely appeal, and on July 28, 2008, the Appeals Council denied his request for review. 4 Mr. Washington sought judicial review in the U.S. District Court for the Northern District of Illinois. 5 On July 10, 2009, pursuant to a stipulation of the parties to remand, District Court Judge Blanche M. Manning entered an order remanding the matter back to the Commissioner. 6 On remand, the Commissioner was directed to re-evaluate Mr. Washington’s residual functional capacity (“RFC”), the impact of his mental impairment, the combination of his impairments, reassess his credibility, and obtain testimony from a vocational expert (“VE”) based on Mr. Washington’s revised assessment. 7 On September 18, 2009, the Appeals Council, in turn issued, an order remanding Mr. Washington’s case to Administrative Law Judge Daniel Dadabo (“ALJ”). 8 Pursuant to that order, Mr. Washington appeared and testified, along with two medical experts and one VE, at a hearing on February 18, 2011. 9 On March 11, 2011, the ALJ issued a decision finding that Mr. Washington was not disabled because he could perform a number of jobs in the national economy. 10 The Appeals Council declined to exercise jurisdiction, leaving the ALJ’s decision as the final decision of the Commissioner. 11 Mr. Washington filed a complaint in this Court seeking judicial review of the final decision of the Commissioner. 12 3 R. at 10; 90. R. at 1-3, 7-8. 5 Washington v. Astrue, 08 C 5059. 6 Id. at dkt. 30. 7 Id. 8 R. at 1051-52. 9 R. at 989-1045. 10 R. at 965-78. 11 R. at 950-52. 12 Dkt. 1. 4 2 II. BACKGROUND At the time of the hearing, Mr. Washington was fifty years old and lived with mother and aunt. 13 His most recent work consisted of maintenance and janitorial services position in a condominium complex. 14 Prior to this position, Mr. Washington found jobs as a driver, custodian, dishwasher, and janitor through temporary employment services, as well as various positions with the City of Evanston’s Park District. 15 Since at least 2004 Mr. Washington has been treated for a wide variety of medical conditions including: anemia, fatigue, obesity, dyspnea, hypertension, type II diabetes, 17 diabetic retinopathy, 16 pneumonia, chronic bronchitis, 18 glaucoma, cataracts, diabetic neuropathy, 19 diabetic nephropathy, 20 difficulty bending, and edema 21 . Furthermore, Mr. Washington has been diagnosed with borderline intellectual functioning and a learning disability. 22 A. Mr. Washington’s Physical Health Records Mr. Washington’s medical records are extensive and therefore only the relevant portions are discussed below. 13 R. at 995, 1002. R. at 41, 215. 15 R. at 230-35, 1285. 16 Dyspnea is shortness of breath. MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/003075.htm (last visited May 7, 2014). 17 Diabetes is also referred to as diabetes mellitus. MedlinePlus, http://www.nlm.nih.gov/medlineplus/diabetes.html (last visited May 7, 2014). 18 Diabetic retinopathy is damage to the blood vessels in the retina that causes vision loss and blindness. National Eye Institute: Facts About Diabetic Retinopathy, http://www.nei.nih.gov/health/diabetic/retinopathy.asp (last visited May 7, 2014). 19 Diabetic neuropathy is a nerve disorder caused by diabetes that can cause problems with sensation in a person’s feet. National Institute of Neurological Disorders and Strokes: Diabetic Neuropathy Information Page, http://www.ninds.nih.gov/disorders/diabetic/diabetic.htm (last visited May 7, 2014). 20 Diabetic nephropathy is kidney damage caused by diabetes. MedlinePlus, http://www.nlm.nih.gov/medlineplus/diabetickidneyproblems.html (last visited May 7, 2014). 21 Edema is swelling in the body caused by fluid. MedlinePlus, http://www.nlm.nih.gov/medlineplus/edema.html (last visited May 7, 2014). 22 R. at 542, 1299. 14 3 The records show that prior to 2004, Mr. Washington had issues with gallstones, was hospitalized for pneumonia, edema, and hypertension, and complained of left shoulder pain. 23 In September of 2004, Bhupinder Singh, M.D. reported that Mr. Washington was limited to occasionally lifting no more than 20 pounds, could frequently lift up to ten pounds, and had full ability to perform physical activities of daily living. 24 At this time and through 2005, a physician at St. Francis Community Health Center prescribed Mr. Washington Zestroetic, Lipitor, ASA 25, Glucovance, Allupernt, Prednisone, and Zithremax.26 In March of 2005, Mr. Washington visited James H. McClure, M.D. for his diabetes.27 Dr. McClure prescribed the following medications for the following problems: Ecotrine for blood clotting; Glyburide for diabetes; Lipitor for cholesterol; and Lisinpril for blood pressure. 28 In May of 2005, Mr. Washington visited Frank Rubin, M.D. at Evanston Eyes to receive vision testing. 29 Mr. Washington went to see Aaron B. Weinberg, M.D. on August 26 and September 20, 2005 to receive vision exams. 30 Records note that the reason for the visit was that he had experienced loss in vision, although it is unclear which eye was tested. 31 Mr. Washington visited Evanston Health Clinic on October 3, 2005 for a check-up and to receive medication. 32 According to his “Disability Report – Adult – Form SSA-3368,” Mr. Washington indicated that 23 R. at 306-314, 345, 469-476. R. at 386 25 ASA is not defined in the Record. 26 R. at 373. 27 R. at 216-17. 28 R. at 220, 267. 29 R. at 217. 30 R. at 217, 221. 31 Id. 32 R. at 216. 24 4 he had seen two doctors as an outpatient at Cook County Hospital for examinations due to loss of vision in September and October of 2005. 33 After complaining of eye trouble during visits at St. Francis and Cook County Hospitals, Mr. Washington went to see Doctors at the University of Illinois UIC Eye Center. 34 He was seen as a patient from October 27, 2005 to September 12, 2006, by Norman Blair, M.D. 35 On October 27, 2005, Dr. Blair diagnosed Mr. Washington with diabetic retinopathy with traction retinal detachment and vitreous hemorrhage and immature cataract in both eyes. 36 Dr. Blair noted that Mr. Washington had been suffering from substantial vitreous hemorrhage in the right eye for at least three months. 37 Mr. Washington had 20/40 vision in his left eye and testing showed retinal detachment in his right eye. 38 On February 3, 2006, Mr. Washington had surgery on his right eye. 39 In March of 2006, Mr. Washington had an ultrasound done and was being treated for glaucoma. 40 On June 6, 2006, Mr. Washington received care from Benedito Carneiro, M.D. and Kelly Tan, M.D. for his diabetes and high blood pressure. 41 On September 4, 2006, Mr. Washington was admitted to the hospital for pneumonia. 42 On May 20, 2007, a magnetic resonance imagining (“MRI”) scan was performed to evaluate complaints of gait instability. 43 On June 5, 2007, Mr. Washington’s vision was tested and he had no visual complaints. The visual acuity in his left eye was 20/30 with hand movement 33 R. at 217-18. R. at 219-20. 35 R. at 219-20, 249, 266. 36 R. at 492-93. 37 Id. 38 Id. 39 R. at 552-54. 40 R. at 248-50. 41 R. at 266. 42 R. at 811. 43 R. at 883-84. 34 5 in his right eye. 44 On June 11, 2007, Mr. Washington’s visual acuity in his left eye was 20/40 with hand movement in his right eye. 45 From 2007 to 2008 Mr. Washington continued his treatment for diabetic retinopathy, cholesterol, anemia, type II diabetes, obstructive sleep apnea, and gait training. 46 In October of 2007, Dr. Tan suggested physical therapy for gait training and recommended he walk for 30 to 45 minutes per day. 47 In March of 2008, Mr. Washington had surgery on his left eye to repair a detached retina. 48 In November of 2008, Mr. Washington visited Evanston Hospital complaining of foot pain, and was diagnosed with plantar fascial fibromatosis and hallux limitus 49. He was directed to wear over-the-counter orthotics, do calf stretches, and heel lifts. 50 In January of 2008, Mr. Washington was diagnosed with chronic kidney disease. 51 In June of 2008, Mr. Washington received treatment for a chronic wound on his left leg as well as for edema on his lower legs. 52 Treatment included leg elevation, wearing a support stocking, and skin care. 53 In 2009, Mr. Washington continued to be treated at Evanston Hospital for diabetes and chronic kidney disease. On April 15, 2009, Mr. Washington noted that he felt well, did not have 44 R. at 897. R. at 905-06. 46 R. at 1142-43. 45 48 R. at 1245. Plantar fibromatosis and hallux limitus are both feet conditions that can cause pain and difficulty walking. American Foot & Ankle Society: Plantar Fibroma and Plantar Fibormatosis, http://www.aofas.org/footcaremd/conditions/ailments-of-the-heel/Pages/Plantar-Fibroma.aspx (last visited May 7, 2014); American College of Foot and Ankle Surgeons: Hallux Rigidus, http://www.foothealthfacts.org/footankleinfo/hallux-rigidus.htm?terms=Hallux%20limitus (last visited May 7, 2014). 50 R. at 1189-90. 51 R. at 1212. 52 R. at 1231-32. 53 R. at 1232. 49 6 chest pain or shortness of breath, and was walking more. 54 On January 4, 2010, Mr. Washington had surgery for the glaucoma in his right eye. 55 On December 23, 2010, Mr. Washington was admitted to emergency care at Northshore University Health System for flu-like symptoms and pneumonia. 56 The records from his hospital stay indicate that Mr. Washington suffered from stage III chronic kidney disease, hypertension, shortness of breath, diabetes, obstructive sleep apnea, high cholesterol, anemia, and diabetic retinopathy. 57 On June 14, 2010, Mr. Washington was seen by Jonathan G. Lippitz, M.D. at Northshore University Health Systems as a walk-in for shoulder pain. 58 Mr. Washington reported that he had hurt his shoulder helping someone move one month earlier. 59 On November 15, 2010, Roopa K. Karri, M.D. performed a consultative exam on Mr. Washington for the Bureau of Disability Determination Services. 60 Dr. Karri noted that Mr. Washington could not see at all out of his right eye and that his visual acuity in his left eye was 20/70. 61 In addition, Dr. Karri wrote that Mr. Washington had poor depth perception due to his right eye blindness and very poor vision in his left eye. 62 Dr. Karri measured Mr. Washington’s edema at 1+ and observed that Mr. Washington could walk fifty feet without support. 63 His grip strength was normal, as was his range of motion of his shoulders, elbows, and wrists. 64 Regarding Mr. Washington’s neurological response, Dr. Karri noted that he had 54 R. at 1208. R. at 1264. 56 R. at 1325-26. 57 Id. 58 R. at 1442. 59 Id. 60 R. at 1302-12. 61 R. at 1304. 62 R. at 1305, 1310. 63 R. at 1304. 64 R. at 1304-05. 55 7 “sustained, audible and understandable speech” and that the strength in his upper and lower limbs was 5/5.65 Dr. Karri determined that Mr. Washington could lift twenty-one to fifty pounds frequently and fifty-one to one hundred pounds occasionally. 66 Mr. Washington could carry eleven to twenty pounds frequently and twenty-one to fifty pounds occasionally. 67 Dr. Karri opined that Mr. Washington could sit uninterrupted for eight hours, stand uninterrupted for one hour, and walk uninterrupted for one hour. 68 In an eight hour period, Dr. Karri concluded that Mr. Washington could sit for eight hours or stand for four hours and walk for four hours. 69 Dr. Karri found that Mr. Washington could continuously reach with both hands, perform handling, pushing and pulling, and frequently perform fingering and feeling. Dr. Karri did note that Mr. Washington had occasional tingling in his hands. 70 In regards to the operation of foot controls, Dr. Karri concluded that Mr. Washington could operate them on a frequent basis with both of his feet, but he had occasional tingling. 71 In regard to postural activities, Dr. Karri found that Mr. Washington could not climb ladders, scaffolds, or perform activities that required him to balance. Mr. Washington could occasionally climb stairs and ramps, stoop, kneel, crouch, and crawl. 72 Dr. Karri stated that Mr. Washington had “diabetic retinopathy with laser surgeries on both eyes causing blindness in right eye and poor vision in left eye.” 73 Given Mr. Washington’s visual impairment, Dr. Karri opined that he was unable to read very small print, ordinary newspaper or book print, and was unable to view a computer screen. Despite this conclusion, she 65 R. at 1305. R. at 1307. 67 Id. 68 R. at 1308. 69 Id. 70 R. at 1309. 71 Id. 72 R. at 1310. 73 Id. 66 8 believed that he was able to avoid ordinary hazards in the workplace and could determine differences in shape and color of small objects. 74 In regard to environmental limitations, Dr. Karri concluded that Mr. Washington could never tolerate exposure to unprotected heights, moving mechanical parts, or operating a motor vehicle. She found that he could occasionally tolerate exposure to dust, odors, fumes and pulmonary irritants, extreme cold and extreme heat. He could frequently tolerate exposure to loud noise and vibrations. 75 Physically, Dr. Karri found Mr. Washington able to shop, travel without a companion for assistance, ambulate without assistance, walk a block, use public transportation, climb a few steps with handrail assistance, prepare a simple meal and feed himself, and care for his personal hygiene. She found him not capable of sorting or handling paper files due to his poor vision. 76 Subsequent to Dr. Karri’s evaluation, on November 19, 2010, Mr. Washington was examined by Felix Chau, M.D. an ophthalmologist with the City of Evanston. Dr. Chau stated that Mr. Washington was not capable of full-time employment due to poor vision in the right eye and difficulty with reading in his left eye. 77 B. Mr. Washington’s Mental Health Records A psychological assessment of Mr. Washington was performed on May 20, 2010 by Dr. Mark B. Langgut, Ph.D., a licensed clinical psychologist. Dr. Langgut observed that Mr. Washington had a “friendly, immature, and regressed presentation. He was cooperative and 74 Id. R. at 1311. 76 R. at 1312. 77 R. at 1323. 75 9 responded adequately…He was oriented to time, place, and person.” 78 Mr. Washington informed Dr. Langgut that he received special education services while in school. 79 Additionally, Mr. Washington explained his issues with substance abuse, noting his arrest in 1993 for driving while intoxicated. 80 Mr. Washington admitted to occasionally drinking alcohol at the present time, to using marijuana from age fifteen to forty-two, and stated that he occasionally smoked cigarettes. 81 Under “social functioning,” Dr. Langgut noted that Mr. Washington stated he “sleeps adequately well” and during the day he “watches TV, exercises, and walks.” He stated he “helps neighborhood children ‘get on the bus.’” 82 Regarding his mental status, Dr. Langgut stated Mr. Washington was “irritable but cooperative…presented with mild depression, ranking at two on a one-to-ten scale with one indicating minimal sadness and ten being indicative of the most extreme depression.” 83 Dr. Langgut wrote that Mr. Washington “needs external structure. His anxiety appeared within normal limits...Mr. Washington’s emotional presentation appeared within normal limits, while by report it is variable…no behavioral abnormalities were observed.” 84 Dr. Langgut found Mr. Washington to have “variable memory skills” as well as “limited computational skills.” 85 He stated that Mr. Washington “may have significant difficulty with forming generalizations and understanding concepts, and he may become frustrated when faced with these types of tasks.” 86 After administering standardized tests, Dr. Langgut concluded that 78 R. at 1284. R. at 1285. 80 Id. 81 Id. 82 R. at 1286. 83 Id. 84 Id. 85 Id. 86 R. at 1287. 79 10 Mr. Washington had a Full Scale IQ score of 67, which indicated that he was “functioning in the mentally deficient or extremely low range.” 87 Dr. Langgut filled out the “Medical Source Statement of Ability To Do Work-Related Activities (Mental)” and indicated that Mr. Washington had the “ability to understand, remember and carry out instructions…” 88 Dr. Langgut further indicated that Mr. Washington had a mild restriction in his ability to understand, remember, and carry out simple instructions; a moderate restriction in his ability to make judgments for simple work-related decisions; and marked restrictions in understanding, remembering, and carrying out complex instructions, and the ability to make judgments for complex work-related decisions. 89 Further, Dr. Langgut believed that Mr. Washington’s ability to interact appropriately with supervisors, co-workers, and the public was affected by his impairment. 90 Dr. Langgut indicated that Mr. Washington had mild restrictions in interacting with the public; moderate restrictions interacting with supervisors and co-workers; and marked restrictions in responding to usual work situations and changes in a routine work setting. 91 Dr. Langgut did not note any additional impairments, but did mention Mr. Washington’s history of alcohol abuse and self-reported denial of current or recent abuse of alcohol or cannabis. 92 Joan F. Hakimi, Psy.D., also a licensed clinical psychologist, performed a second psychological examination of Mr. Washington for the Bureau of Determination Services on November 15, 2010. 93 Dr. Hakimi determined that Mr. Washington had fair general knowledge, 87 R. at 1288. R. at 1290. 89 R. at 1290. 90 R. at 1291. 91 Id. 92 Id. 93 R. at 1314-21. 88 11 poor judgment and problem solving, and that his capacity for abstract thinking varied. 94 In her report, Dr. Hakimi wrote that Mr. Washington’s mental status was “alert and [he was] oriented to time, place and person,” and that “[h]e understood the purpose of the evaluation and was fully attentive.” 95 Regarding Mr. Washington’s thought content, Dr. Hakimi concluded that he had “logical and sequential” thought processes and that he maintained his attention and concentration during the evaluation. 96 Under the heading “Attention and Concentration,” Dr. Hakimi noted that Mr. Washington was able to say the months of the year forward and backward “with no difficulty.” 97 Dr. Hakimi’s review and assessment also considered that Mr. Washington had diabetes that went untreated for twenty years and that it was the cause of his difficulties with his eyesight, heart, and kidneys. 98 She found no evidence of a formal thought disorder or a mood disorder.99 Dr. Hakimi believed that the results of her exam were “an accurate reflection of claimant’s current level of functioning, consistent with his history and education level.” 100 Dr. Hakimi also filled out a “Medical Source Statement of Ability To Do Work-Related Activities (Mental)” form. Contrary to Dr. Langgut’s answer, she answered “no” to the question “is the ability to understand, remember and carry out instructions affected by the impairment?” 101 She repeated her opinion that Mr. Washington’s impairment did not affect his ability to interact appropriately with supervisors, co-workers, and the public, or respond to 94 R. at 1317. R. at 1316. 96 Id. 97 Id. 98 R. at 1317. 99 R. at 1318. 100 R. at 1317. 101 R. at 1319. 95 12 changes in a routine work setting. 102 Dr. Hakimi noted that Mr. Washington’s visual capabilities were affected by his impairments, and that he reported tingling in his hands and feet. 103 C. The Hearing On February 18, 2011, a hearing was held pursuant to the Appeals Council’s remand order. 104 Pursuant to that order, the purpose of the hearing was to re-evaluate Mr. Washington’s residual functional capacity, the impact of his mental impairment, the combination of his impairments, re-assess his credibility, and obtain testimony from a vocational expert based on Mr. Washington’s revised assessment. 105 Mr. Washington testified and was represented by an attorney, Cody Marvin. 106 Two independent medical experts testified, Hilda K. Martin, M.D. and Kennise Herring, Ph.D. Dr. Martin is a board certified internist and pulmonologist and Dr. Herring is a licensed clinical psychologist. 107 Michelle Peters, a VE, also testified. At the beginning of the hearing, the ALJ noted that Mr. Washington had submitted additional documents that the medical experts were unable to review. Mr. Marvin noted that none of the documents had to do with Mr. Washington’s psychological condition and was willing to proceed with the hearing. 108 There were no other objections with respect to the documents submitted and the exhibits that were marked and received into evidence. 109 Mr. Washington testified that he was fifty years old at the time of the hearing and the furthest that he had gone in school was high school. 110 He stated that he completed a semester 102 R. at 1320. Id. 104 R. at 989, 1051-52. 105 R. at 1051-52. 106 R. at 989. 107 R. 991, 972. 108 R. 992. 109 R. at 994. 110 R. at 995 103 13 and a half of college. 111 When asked why he could not work, Mr. Washington testified that he was limited by his “vision and other impairments.” 112 Mr. Washington identified these impairments as chronic kidney disease, issues with his legs, his heart, and glaucoma in his right eye. 113 First, the ALJ focused on Mr. Washington’s issues with his vision. Mr. Washington stated that he could read a newspaper, but only if the font was large and that he would really have to focus to read the menu at McDonald’s. 114 Mr. Washington also testified that he took courses at Oakton Community College when he was able to drive, but that was thirty years ago from 1979 to 1980.115 Later in his testimony, Mr. Washington testified that he could read his blood sugar number on his machine, so long as he brings it close to his face to see it. 116 Mr. Washington also testified that he does not have a problem taking public transportation, so long as he is going somewhere that he has already been before. 117 Next, the ALJ addressed Mr. Washington’s issues with his legs and his contention that he needed to keep his legs elevated. Mr. Washington testified that he has needed to elevate his legs for the last three years, but that he had recently raked leaves and shoveled the snow. 118 Mr. Washington stated that he only raked leaves for fifteen minutes. 119 He shoveled snow for about an hour and a half, but used a snow blower. 120 When asked what his limitation would be for a job that required Mr. Washington to pick up towels, empty light trash, dust, or lift ten to fifteen 111 R. at 995. R. at 996. 113 R. at 998. 114 R. at 996. 115 R. 997-98. 116 R. at 1001. 117 R. at 1002. 118 R. at 998-99. 119 R. at 999. 120 R. at 1006. 112 14 pounds, Mr. Washington stated that he would not be able bend over and that this has been a problem for the last two years. 121 When asked how far he could walk, Mr. Washington testified that he could walk thirty blocks in about two and half hours. 122 He stated that he has to stop at least three to four times to catch his breath. 123 Mr. Washington also testified that he can go shopping alone, but did not specify a length of time. 124 When asked more specifically about the issues with his legs and feet, Mr. Washington stated that his legs and feet swell and that he has pain and arthritis in his feet.125 Mr. Washington also mentioned an ulcer on his right ankle that he had to have a skin graft for in 1986. 126 Mr. Washington was then questioned by his attorney, Mr. Marvin. Mr. Marvin asked Mr. Washington about his anemia and fatigue. 127 Mr. Washington responded that he needed to rest at least an hour during the day. 128 He also testified that he gets tingling and numbness in his hands, feet, and toes at least twice a month, but could not say how long each episode lasted. 129 Mr. Washington ended his testimony by discussing how he needs to take breaks to catch his breath when he is doing things like shoveling snow. 130 After Mr. Washington testified, Dr. Martin, one of the independent medical experts, was questioned. 131 Dr. Martin testified that Mr. Washington’s impairments which caused more than a 121 R. at 1000. R. at 1002-03. 123 R at 1002. 124 R. at 1003. 125 R. at 1004. 126 R. at 1005. 127 R. at 1007. 128 Id. 129 R. at 1007-08. 130 R. at 1009. 131 R. at 1010. 122 15 minimal impact upon functioning were: diabetes, retinopathy, nephropathy, and neuropathy.132 Dr. Martin then discussed each impairment. 133 With respect to Mr. Washington’s retinopathy, Dr. Martin qualified her statements by saying that she was not an ophthalmologist, but based on Mr. Washington’s medical records it seemed as if he had “no vision or just hand motion in the right eye.” 134 In regards to his nephropathy, Dr. Martin noted that his records indicated that he had kidney damage, but that it was “not that bad.” 135 Dr. Martin did not believe that Mr. Washington’s nephropathy caused him any medical limitations. 136 During cross-examination, it was unclear to Dr. Martin whether Mr. Washington’s medical records indicated his vision was 20/40, 20/70, or 20/90. 137 At this point in the hearing, the ALJ agreed to assume that Mr. Washington “can’t do fine visual acuity,” but was unwilling to assume that he could not walk on his own or navigate street traffic. 138 Next, Dr. Martin discussed Mr. Washington’s neuropathy and his allegations of numbness and tingling. Dr. Martin stated that these allegations “were difficult to demonstrate on physical exam” and that the tests used to measure these issues came back normal. 139 Dr. Martin also did not believe there was medical evidence to support the severity of Mr. Washington’s alleged problems with swelling or edema. 140 On-cross examination, Dr. Martin stated that the evidence of edema and swelling in the record indicated that Mr. Washington may need to elevate his feet at the end of a work day for thirty minutes. 141 132 R. at 1011. Id. 134 Id. 135 R. at 1012. 136 R at 1013. 137 R. at 1020. 138 Id. 139 R. at 1013-14 140 R. at 1021. 141 R. at 1023 133 16 She also commented that Mr. Washington’s anemia and any issues with shortness of breath were not severe or chronic. 142 Dr. Martin did believe that Mr. Washington’s anemia could cause his fatigue, but still did not believe it to be a significant impairment in light of his exercise tolerance. 143 Dr. Martin concluded that the combination of Mr. Washington’s impairments did not equal a listed impairment and his RFC should be “twenty pounds occasionally, ten pounds frequently, six hours stand and walk, six hours sit, no foot controls.” 144 Dr. Martin also suggested no unprotected heights, heavy equipment or operating machinery, no extreme temperatures or environments, no dust, fumes, or odors as additional imitations. 145 Dr. Herring, the second independent medical expert, testified next. Dr. Herring began her testimony by stating that there was no evidence in the record of any severe mental impairments and that any suggested mental impairments were due to Mr. Washington’s testing anxieties.146 Dr. Herring went on to explain that this conclusion was supported by the fact that, during the hearing, Mr. Washington was able to recall specific details about events that occurred in the 1980s and 1990s and Mr. Washington did not exhibit any perceptual or concentration problems. 147 Dr. Herring noted that testing showed that Mr. Washington suffered from mild dysphoria and depression, but that these did not support the finding of an organic impairment.148 Dr. Herring also noted that there was no evidence that Mr. Washington’s previous alcohol abuse impacted his cognitive abilities.149 142 R. at 1015-17, 1023. R. at 1024. 144 R. at 1017-18. 145 R. at 1019. 146 R. at 1025, 1029. 147 R. at 1026. 148 Id. 149 Id. 143 17 The ALJ then questioned Dr. Herring about the conclusions drawn by Dr. Hakimi and Dr. Langgut. 150 Dr. Herring agreed with the ALJ that Dr. Hakimi’s and Dr. Langgut’s conclusions were inconsistent with one another and that Dr. Langgut’s conclusion was inconsistent with the evidence that had been presented at the hearing. 151 Dr. Herring testified, “I believe Dr. Hakimi and what we heard today.” 152 Dr. Herring discredited Mr. Washington’s IQ score of 67, which was reported by Dr. Langgut, because at the hearing Mr. Washington showed the ability to function well, articulated his position clearly, had the capacity for abstract reasoning, and to interact socially. 153 Dr. Herring also commented that she did not see any evidence of Mr. Washington being immature as stated in Dr. Langgut’s report. 154 On cross-examination, Mr. Marvin asked Dr. Herring whether Mr. Washington’s early school reports showed evidence of cognitive problems, to which Dr. Herring answered that it did not. 155 Dr. Herring based her conclusion on that fact although Mr. Washington did not do well in high school; he did enroll in a post-secondary education program which showed he had motivation. 156 Mr. Marvin then attempted to question Dr. Herring about a MRI scan of Mr. Washington’s brain. 157 Dr. Herring answered that she was not competent to read and interpret such a scan because she was not a neuropsychologist. 158 150 R. at 1027. R. at 1028. 152 Id. 153 R. at 1030. 154 Id. 155 R. at 1032 156 Id. 157 R. at 1033. 158 Id. 151 18 Michelle Peters, the VE, testified last. 159 Ms. Peters stated that there was nothing in Mr. Washington’s work history that rose to the level of substantial gainful activity. 160 The ALJ asked Ms. Peters whether there were positions for someone with the following limitations: work that is learnable on short demonstration, light functional capacity, not around unprotected heights, no heavy equipment, no operating machinery, no extreme temperatures, no excessive dust or fumes, is not in direct sunlight, no slippery or uneven surfaces, and no foot controls. 161 Based on these limitations, Ms. Peters stated that the positions available to such a person would be assembler, hand packager, and sorter positions. 162 Next, the ALJ added the limitation of no fine visual acuity. 163 Ms. Peters stated that the type of positions available would not change, but that the number of possible positions would decrease. 164 The ALJ added the additional limitation of the need to elevate one’s legs for several hours a day. 165 Ms. Peters testified that this limitation would eliminate all substantial gainful activity. 166 The ALJ added another limitation of being limited to working at your own pace.167 Again, Ms. Peters testified that this would eliminate all substantial gainful activity. 168 Finally, the ALJ asked whether requiring the assistance of others to correct mistakes or finish work would impact the available positions. 169 Ms. Peters testified that this limitation 159 R. at 1036. Id. 161 Id. 162 R. at 1037. 163 Id. 164 R. at 1038. 165 Id. 166 Id. 167 R. at 1039. 168 Id. 169 R. at 1040. 160 19 would also preclude any of the available positions because it would not be consistent with competitive employment. 170 The ALJ concluded his examination of Ms. Peters by inquiring into the number of days Mr. Washington could miss from work and whether any of the positions required bending.171 Ms. Peters testified that Mr. Washington would only be permitted to miss one to two days a month of work and that the positions she mentioned required frequent bending. 172 On cross-examination, Ms. Peters admitted that Mr. Washington would be precluded from holding any of the positions she mentioned if he was required “to hold objects next to his face in order to see them properly.” 173 She also testified that she defined “fine visual acuity” as the “ability to read or visualize site of smaller print objects.” 174 When questioned about the limitation of only being able to stand or walk for four or two hours out of the day, Ms. Peters testified that such a limitation would only impact the number of jobs available. 175 The ALJ concluded the hearing by confirming that there were “many thousands” of jobs “in the several regions of the United States” that Mr. Washington could perform with the limitations offered by the ALJ and Mr. Marvin in their hypothetical questions. 176 D. THE ALJ’S DECISION On March 11, 2011, the ALJ issued a decision finding that Mr. Washington was not disabled because, although Mr. Washington could not perform his past relevant work, there were other jobs in the national economy that he could perform. 177 In coming to this conclusion, the ALJ went through the requisite five-step sequential analysis in determining whether Mr. 170 Id. R. at 1040-41. 172 Id. 173 R. 1041-42. 174 R. 1041. 175 R. at 1042. 176 R. at 1044. 177 R. 965-78. 171 20 Washington was disabled. 178 The ALJ incorporated the previous decision of ALJ Dougherty, except for her specific findings and conclusions. 179 The ALJ also noted that the District Court’s remand order required him to specifically consider Mr. Washington’s mental impairments using the technique found in 20 C.F.R. 404.1520a(c) and 416.920a(c), re-evaluate Mr. Washington’s RFC, and to obtain additional testimony from a VE. 180 The five-step sequential analysis required the ALJ to determine: (1) whether Mr. Washington was engaging in substantial gainful activity; (2) whether Mr. Washington had a severe impairment or a combination of impairments that is severe; (3) whether Mr. Washington’s impairments meet the criteria of an impairment listed in the SSA regulations; (4) Mr. Washington’s RFC and whether he can perform his past relevant work; and (5) if Mr. Washington cannot perform his past relevant work than whether he can perform any other work. 181 The ALJ’s first step is to determine whether the claimant is presently engaged in substantive gainful activity. 182 In the present case, the ALJ determined that Mr. Washington had not engaged in substantial gainful activity since February 15, 2004, the alleged onset date. 183 At the second step the ALJ must decide whether the claimant has a severe impairment or combination of impairments. 184 Here, the ALJ found that Mr. Washington had the following severe impairments: borderline intellectual functioning (“BIF”), diabetes, diabetic retinopathy involving right eye blindness and left eye glaucoma with status post laser photo emulsification and vitrectomy, diabetic neuropathy, hypertension, moderate stage three chronic kidney disease, 178 Id. R. at 965. 180 Id. 181 20 C.F.R. §§404.1520(a), 416.920(a). 182 20 C.F.R. §§ 404.1520(b), 416.920(b). 183 R. at 967. 184 20 C.F.R. §§ 404.1520(c), 416.920(c) 179 21 level II obesity, status post remote 1986 right ankle skin graft, and polysubstance abuse in remission. 185 The ALJ concluded that Mr. Washington’s anemia, chronic bronchitis, and sleep apnea were non-severe impairments. 186 At the third step the ALJ is required to determine whether the claimant’s impairment or combination of impairments meets or medically equals an impairment listed in the regulations.187 If the requirements of a listing are met then then a finding of disabled is entered. 188 The ALJ determined that Mr. Washington’s impairments did not meet or medically equal a listed impairment in the Social Security Regulations. 189 Specifically, the ALJ found that Mr. Washington did not meet or equal a listed impairment in “section 12.02 (organic brain injury), section 12.05C (intellectual disability), section 9.08 (diabetes) or section 2.02 (vision loss).”190 The ALJ also discussed that the requirements of listing 12.09 had not been met. 191 Listing 2.02 requires “remaining vision in the better eye after best correction of 20/200 or less,” and listing 9.08 192 requires a diagnosis of diabetes and neuropathy. 193 The ALJ concluded that the requirements of listings 2.02 (visual loss) and 9.08 (diabetes) were not shown because there was no evidence that Mr. Washington had a “sustained disturbance of gross and dexterous movements, gait or station,” and because the vision in his left-eye was consistently measured at 20/40. 194 Listing 12.09 requires a showing of “behavioral changes or physical changes associated with the regular use of substances that affect the central nervous system” and the changes must 185 R. at 968. Id. 187 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926. 188 20 C.F.R. §§ 404.1509, 416.909. 189 R. at 968. 190 R. at 968-70. 191 R. at 696. 192 Listing 9.08 has since been revised and consolidated to the current listing 9.00. 193 20 C.F.R. Pt. 404, Subpt. P, App 1 §§ 2.02, 9.08. 194 R. at 968. 186 22 be severe enough to meet one of nine listings, one of which is listing 12.02. 195 Paragraph C of listing 12.02 requires a showing that the claimant is unable “to do basic work activities” and cannot function “outside a highly supportive living arrangement.” 196 With respect to the criteria found in these listings, the ALJ found that they were not met because Mr. Washington was able to perform “his own activities of daily living independently.” 197 The ALJ pointed to the evidence which showed Mr. Washington helped with household chores, was able to go to his doctor appointments alone, walk thirty blocks, and take public transportation alone. 198 The ALJ spent most of his discussion on whether the paragraph B criteria of listing 12.05 (now paragraph D criteria of listing 12.05) was met. Paragraph B requires that the mental impairment cause at least two of the following restrictions: (1) marked restriction in activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; (4) or repeated episodes of decompensation of an extended duration. 199 A marked restriction is more than moderate, but less than extreme.200 The ALJ found that Mr. Washington had a mild restriction in activities of daily living, mild difficulties in social functioning, moderate difficulties in concentration, persistence, or pace, and no episodes of decompensation of an extended duration. 201 Therefore, the ALJ concluded that Mr. Washington did not meet the listing because he did not have two “marked” restrictions. 202 Even though these limitations were not enough to meet the listing criteria, the 195 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.09. Id. 197 R. at 969. 198 Id. 199 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. 200 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. 201 R. at 969. 202 Id. 196 23 ALJ noted that he would consider these restrictions in his RFC analysis at steps four and five of the sequential analysis. 203 The ALJ also looked at paragraphs A, B, and C of listing 12.05 to determine whether these criteria were satisfied. 204 The ALJ concluded that Mr. Washington did not meet paragraph A because he was able to care for himself independently. 205 The ALJ used the same explanation for why Mr. Washington did not satisfy paragraph B’s criteria, even though paragraph B requires “a valid verbal, performance, or full scale IQ of 59 or less.” 206 In regards to paragraph C of listing 12.05, that paragraph requires a “full scale IQ score of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.” 207 The ALJ credited Mr. Washington’s IQ score of 67, but stated that the listing requirements were not met because “the evidence fails to demonstrate significant deficits in adaptive functioning as required in order to satisfy the listing.” 208 When no impairments are found to meet the criteria of an SSA listing, the ALJ proceeds to the fourth step. At the fourth step, the ALJ determines whether the claimant is able to perform his past relevant work. 209 This involves evaluating the claimant’s RFC based on the record and his testimony and comparing it to the requirements of his past work. 210 A claimant’s RFC is defined as the most he can do despite his impairments. 211 203 R. at 970. Id. 205 Id. 206 Id. 207 Id. 208 Id. 209 20 C.F.R. §§ 404.1520(f), 416.920(f). 210 20 C.F.R. §§ 404.1520(e), 416,920(e). 211 20 C.F.R. § 404.1545. 204 24 If determining a claimant’s RFC requires the ALJ to assess subjective complaints of symptoms, then the ALJ follows a two-step process. 212 First, the ALJ determines whether the claimant’s impairments could reasonably be expected to produce the claimant’s symptoms, based on the medically acceptable evidence. 213 Second, the ALJ evaluates the intensity, persistence, and limiting effects of the claimant’s symptoms on his ability to do basic work activities. 214 If the medical evidence does not support the claimant’s statements regarding intensity, persistence, or limiting effects, then the ALJ must make a credibility determination. 215 After this process, if the ALJ finds that the claimant’s RFC allows him to perform his past work, the claimant is not disabled. 216 In the present case, the ALJ found that Mr. Washington’s impairments “could reasonably be expected to cause the alleged symptoms,” but found that Mr. Washington’s statements regarding their intensity, persistence, and limiting effects were “not credible to the extent they are inconsistent with the above residual functional capacity assessment.” 217 In coming to this conclusion, the ALJ analyzed the medical evidence and resolved what he saw as inconsistencies between the various medical experts. In regards to Mr. Washington’s credibility, the ALJ stated that he found Mr. Washington’s statements not credible because they were not consistent with the medical evidence, Mr. Washington’s own testimony, and Mr. Washington’s appearance and demeanor at the hearing. The ALJ “accorded substantial weight” to the independent medical experts present at the hearing, Dr. Martin and Dr. Herring, noting that they “provided adequate and well-reasoned 212 20 C.F.R. § 404.1529. 20 C.F.R. § 404.1529(b). 214 20 C.F.R. § 404.1529(c). 215 20 C.F.R. § 404.1529(c). 216 20 C.F.R. § 404.1520(a). 217 R. at 971. 213 25 bases of their opinions.” 218 The ALJ relied on Dr. Martin’s conclusions that Mr. Washington suffered from diabetic retinopathy, diabetic nephropathy that does not cause uremia, stage III chronic renal disease, had 20/40 vision in his left eye, and a mild limitation from lower extremity edema. 219 The ALJ also credited Dr. Martin’s conclusions that Mr. Washington did not have diabetic neuropathy, had normal monofilament testing, and that he did not have any heart related issues. 220 The ALJ credited Dr. Martin’s opinion in these areas because he found that it was consistent with the medical evidence in the record. 221 Dr. Martin’s conclusion that Mr. Washington suffered from diabetic retinopathy was supported by an October 2005 doctor’s report showing a diagnosis for the same. 222 The ALJ found that this October 2005 report also supported Dr. Martin’s opinion that Mr. Washington’s vision was 20/40 in the left eye and getting better. 223 Finally, the ALJ cited the results of Dr. Martin’s examination of Mr. Washington that showed Mr. Washington could walk fifty feet unassisted, had an unimpaired grip, and normal sensation. 224 After discussing Dr. Martin’s conclusions, the ALJ discussed Dr. Herring’s conclusions. The ALJ noted that Dr. Herring’s opinion corresponded with Dr. Martin’s because Dr. Herring also “discounted the probability that the claimant met or equaled Listing 12.02 due to organic brain damage.” 225 However, the ALJ noted that Dr. Herring was not a neuropsychologist and could not evaluate Mr. Washington’s 2007 MRI which showed white brain matter changes. 226 Nonetheless, the ALJ credited Dr. Herring’s conclusion that Mr. Washington did not have a 218 R. at 972. Id. 220 Id. 221 Id. 222 Id. 223 Id. 224 R. at 973. 225 Id. 226 Id. 219 26 perceptual disturbance, a thought disorder, or diminished concentration. 227 Dr. Herring based her conclusions on her own perception of Mr. Washington and an examination report from Dr. Hakimi. 228 Dr. Hakimi’s report stated that Mr. Washington was able to recall numbers, what he did the day before, what he ate before coming to the appointment, how he got to the appointment, his birthdate, address, telephone number, and was able to remember three objects after three and five minute intervals. 229 The ALJ then turned to what Dr. Herring considered a conflict between Dr. Hakimi’s and Dr. Langgut’s evaluations and conclusions. 230 Essentially, Dr. Hakimi’s evaluation demonstrated that Mr. Washington could do simple tasks, whereas Dr. Langgut’s conclusion was that Mr. Washington had borderline working memory and processing speed. 231 The ALJ noted that Dr. Langgut’s testing found that Mr. Washington had “variable memory skill,” 232 and then accepted Dr. Herring’s opinion that this finding was due to Mr. Washington’s anxiety. 233 The ALJ stated that Dr. Herring “did not regard these results as predictive of the claimant’s capacity for simple work” and that “borderline memory impairment would not be expected to affect his ability to attend work throughout the course of a work day.” 234 The ALJ further discredited Dr. Langgut’s conclusions because in December of 1978, Mr. Washington’s IQ score was 79 and Dr. Langgut’s testing did not include any evidence of “an organic brain damage element that would account for such a significant decline in intellectual functioning.” 235 In all, the ALJ agreed with Dr. Herring’s findings that Dr. Hakimi’s evaluation 227 Id. Id. 229 R. at 1316 230 R. at 973. 231 Id. 232 R. at 1238. 233 R. at 973, 1030. 234 Id. 235 R. at 974. 228 27 “seemed more representative of the claimant’s actual capacity to attend the demands simple work.” 236 The ALJ next discussed what he believed to be discrepancies in Mr. Washington’s testimony and previous statements he had made regarding his physical limitations. 237 First, the ALJ pointed out that Mr. Washington claimed difficulties with balance, his extremities, and sight, but acknowledged that he did not need a cane or an assistive device and was able to climb a flight of stairs. 238 Mr. Washington also stated that he “used a snow blower to remove snow for 1-1/2 hours….” 239 Mr. Washington admitted he can “carry small packages, has shoveled snow in 20 minute intervals…though he asserts resulting shortness of breath and fatigue.” 240 Mr. Washington stated that “on a ‘good day’ he can mop and rake leaves for 15 minutes, again acknowledging that he shoveled snow as well.” 241 Second, Mr. Washington asserted that he must elevate his leg throughout the entire day due to alleged symptoms including swelling, but testified that “he walks from his home to Evanston Hospital, a 20 block walk taking 2.5 hours, asserting that he stops 3-4 times to catch his breath.” 242 He also complained of tingling in his fingers and toes, but “indicated that this only occurs twice per month and he could not describe how long the symptoms last, lacking the specificity to otherwise make his allegations more convincing.” 243 Third, the ALJ found inconsistencies with Mr. Washington’s testimony regarding his difficulty with his eye sight. Mr. Washington stated he had some difficulty reading numbers on 236 Id. Id. 238 Id.. 239 Id. 240 Id. 241 Id. 242 R. at 975. 243 Id. 237 28 public transportation vehicles, but “otherwise acknowledge[d] taking public transportation.” 244 Mr. Washington noted that he could “read a newspaper when the print is big and bold rather than fine print.” 245 In addition, the ALJ noted that Mr. Washington told a field office employee that he could not see through his right eye, but “then dialed the telephone without any help.” 246 The ALJ found that this testimony was inconsistent with Mr. Washington’s alleged limitations and found Mr. Washington’s testimony not “specifically reliable.” 247 The ALJ concluded that Mr. Washington had the RFC to perform light work, subject to the following limitations: standing and walking six out of eight hours; no foot controls; no direct sunlight; no temperature extremes; no unprotected heights; no heavy equipment or operating machinery; no slippery or uneven surfaces; and no work requiring fine visual acuity or detail.248 The ALJ found that Mr. Washington could perform simple, unskilled work that is learnable on short demonstration and which is routine. 249 The ALJ continued his sequential analysis and determined that Mr. Washington was unable to perform any of his past relevant work as a dishwasher, landscape laborer, driver, cleaner/janitor, or garbage pickup worker. The ALJ concluded that Mr. Washington could not perform them because it was “unclear whether these jobs were performed at the level of substantial gainful activity as required to constitute past relevant work.” 250 The ALJ went on to consider whether Mr. Washington could perform other work. In determining whether a successful adjustment to other work can be made, the ALJ must consider a claimant’s RFC, age, education, and work experience in conjunction with the Medical244 R. at 974. Id. 246 R. at 975. 247 R. at 974-75. 248 R. at 970. 249 R. at 971. 250 R. at 976. 245 29 Vocational Guidelines. 251 At the time of the alleged disability onset date, Mr. Washington was a forty-three year-old male, which is defined as a younger individual. Since the onset date, Mr. Washington has changed age category and is now considered closely approaching advanced age. 252 Mr. Washington has a high school education and was able to communicate in English. 253Since the ALJ found that Mr. Washington’s past relevant work was unskilled he did not discuss the transferability of job skills. 254 Considering Mr. Washington’s age, education, work experience, and RFC, the ALJ found that there were jobs in significant numbers in the national economy that Mr. Washington could perform. 255 Next, the ALJ considered Mr. Washington’s ability to perform the requirements of light work, in light of his limitations and relied on the testimony of the VE. 256 The ALJ accepted the VE’s conclusion that an individual with Mr. Washington’s age, education, work experience, and RFC could perform the requirements of occupations such as an assembler, hand packer, and sorter. 257 The ALJ concluded that the VE’s testimony was “consistent with the information contained in the Dictionary of Occupational Titles and Selected Characteristics of Occupations.” 258 Based on this, the ALJ held that Mr. Washington was “not disabled because he was able to make “a successful adjustment to other work that exists in significant numbers in the national economy.” 259 251 20 C.F.R. Pt. 404, Subpt. P, App. 2. R. at 976. 253 Id. 254 Id. 255 Id. 256 R. at 977. 257 DOT 701.687-010, DOT 559.687-074, and DOT 222.687-002. 258 R. at 977. 259 Id. 252 30 III. STANDARD OF REVIEW A reviewing court must sustain an ALJ’s findings if they are supported by substantial evidence and free of legal error. 260 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 261 To be supported by substantial evidence, the findings must be such that a reasonable mind might accept them as adequate to support the conclusion. 262 The standard of review is deferential, but the reviewing court must conduct a critical review, considering both evidence that supports and the evidence that detracts from the ALJ’s decision. 263 If conflicting evidence allows reasonable minds to differ, the responsibility for determining whether a claimant is disabled falls upon the ALJ, not the reviewing court. 264 Although the ALJ need not address every piece of evidence or testimony presented, he must adequately discuss the issues and build an accurate and logical bridge from the evidence to the conclusion. 265 The court reviews the entire administrative record but does not reconsider facts, re-weigh the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment for that of the ALJ. 266 The court will conduct a critical review of the evidence, and will not uphold the ALJ’s decision if it lacks evidentiary support or an adequate discussion of the issues. 267 IV. ANALYSIS Mr. Washington argues that the Commissioner’s decision finding him not disabled should be reversed or remanded because the ALJ committed the following errors: (1) the ALJ failed to address the discrepancies between the VE’s testimony, the Dictionary of Occupational Titles 260 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2001); Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001). 262 Zurawski v. Halter, 245 F.Ed 881 (7th Cir. 2001); Richardson v. Perales, 402 U.S. 389, 401. 263 Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). 264 Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990); quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). 265 Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010); Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). 266 Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). 267 Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). 261 31 (“DOT”), and Mr. Washington’s RFC; (2) he failed to properly evaluate Mr. Washington’s mental impairment under paragraph C of Listing 12.05; (3) he failed to properly consider Mr. Washington’s need to elevate his legs; and (4) the ALJ ’s hypothetical to the VE improperly excluded Mr. Washington’s limitation in concentration, persistence, and pace. The Commissioner’s general response to each of these arguments is that the ALJ’s conclusions are supported by substantial evidence and that the issues raised by Mr. Washington are factual ones, which are best left to the ALJ’s determination. A. The Discrepancies between the VE’s Testimony, the DOT, and Mr. Washington’s RFC. In his hypothetical to the VE, the ALJ asked the VE to proffer potential jobs that Mr. Washington could perform based on the following limitations: work that is learnable on short demonstration, light functional capacity, not around unprotected heights, no heavy equipment, no operating machinery, no extreme temperatures, no excessive dust or fumes, not in direct sunlight, no slippery or uneven surfaces, and no foot controls. The ALJ accepted the VE’s testimony that Mr. Washington could perform the requirements of an assembler, hand packager, and sorter as defined by the DOT. 268 These positions are listed in the DOT at 701.687-010, 559.687-074, and 222.687-022, respectively, and each has a specific vocational preparation level (“SVP”) of 2. An assembler is required to join parts to assemble articles using a “hammer, riveting machine, wrench or pneumatic screwdriver” and may also be required to use a drill press. 269 A hand packager is required to visually inspect products for damage, pack them into shipping cartons, and carry those cartons to a specified area. 270 A sorter, also known as a routing clerk or 268 R. at 977. DOT 701.687-010. 270 DOT 559.687-074. 269 32 router, is required to sort bundles of articles for delivery, read delivery slips, and determine the locations of addresses using charts. 271 The ALJ offered an additional limitation of no fine visual acuity, to which the VE testified that the number of jobs would decrease. On cross-examination, however, the VE admitted that Mr. Washington could not work in these positions if he had “to hold things next to his face in order to see them properly.” 272 Other limitations offered, such as the need to elevate his legs for several hours, the need to work at his own pace, requiring assistance to correct mistakes or finish work, also precluded Mr. Washington from these positions. Nonetheless, the ALJ concluded that Mr. Washington could perform the jobs listed by the VE. Mr. Washington argues the ALJ erred in his analysis at step five because he improperly concluded that he could perform jobs that existed in the national economy. Mr. Washington asserts that there are inconsistencies between the VE’s testimony, DOT, and Mr. Washington’s RFC regarding the SVP levels of the positions offered by the VE. It is Mr. Washington’s position that all of the positions offered by the VE required training beyond a short demonstration, which was one of the limitations identified by the ALJ in Mr. Washington’s RFC. The Commissioner argues that there are no inconsistencies between the VE’s testimony, the DOT, and Mr. Washington’s RFC and that the ALJ did not commit error by failing to inquire as to one. In regards to the different SVP levels, the Commissioner argues that Social Security Regulation 00-4p (“SSR 00-4p”) does not limit Mr. Washington, who was determined to be able to perform unskilled work, to positions with SVP 1 and that there is no evidence that assembler, hand packer, and sorter jobs with an SVP level of 1 do not exist. The Commissioner concludes that any error made was harmless and is not grounds for remand. 271 272 DOT 222.687-022 R. at 1041-42. 33 A position’s SVP level indicates the amount of time required to learn how to perform to the job. 273 SSR 00-4p also characterizes SVP as the skill level required for a certain position.274 Generally, the DOT’s “regulatory definitions of skill levels are controlling.” 275 Pursuant to SSR 00-4p, the ALJ has an affirmative obligation to ask the VE if any of her testimony “conflicts with information provided in the DOT.” 276 If there is an inconsistency between the VE’s testimony and the DOT, the ALJ is required to resolve the inconsistency and provide an explanation of “how he or she resolved the conflict.” 277 The inconsistency must be resolved prior to the final determination of whether the claimant is disabled. 278 The failure of an ALJ to make such an inquiry is grounds for remand. 279 In the case at bar, the ALJ concluded that Mr. Washington could perform unskilled work, with the limitation that the “work was learnable on short demonstration.” The ALJ included this limitation in his initial hypothetical to the VE. The VE identified the positions of assembler, hand packer, and sorter. The ALJ did not ask her whether her testimony conflicted with the information in the DOT. Although unskilled work includes positions with SVP 1 and 2, all of the positions identified by the VE were SVP 2. 280 SVP 2 means “anything beyond short demonstration up to and including 1 month,” whereas SVP 1 means “short demonstration only.” 281 Based on the explicit limitation that the work is learnable on short demonstration and the definitions of SVP 1 and 2, there is clearly an inconsistency between the positions offered by the 273 DOT App. C. SSR 00-4p. 275 Id. 276 Id. 277 Id. 278 Id. 279 Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006). 280 SSR 00-4p. 281 DOT App. C. 274 34 VE and the limitations identified by the ALJ in his RFC analysis. Based on the plain language of the DOT, which defines SVP 1 as “short demonstration only” it appears that Mr. Washington could only perform positions that had an SVP level of 1 and no higher. The Commissioner argues that it is possible, and asks this Court to assume, that there are assembler, hand packer, and sorter positions that could be performed at the level of SVP 1. However, such an assumption would be improper speculation on behalf of Court. It was the ALJ’s obligation to inquire into this conflicting evidence and address it. The ALJ’s failure to do so constitutes error. Further, the Commissioner argues that any such error is harmless. This argument is also unavailing. A harmless error is one that the Court is confident would not impact the ultimate decision of disability. 282 That cannot be said about the ALJ’s failure to inquire and address the conflict between the SVP level of the positions offered by the VE and the limitations identified in Mr. Washington’s RFC. There is nothing in the record that suggests to the Court that the positions identified by the VE could be performed on short demonstration only. The record reveals that a change in SVP level could either eliminate all work for Mr. Washington or simply change the number of positions available to him. For example, the VE testified that Mr. Washington’s need to hold objects close to his face or work at his own pace would eliminate all work, whereas limitations regarding the time a person could stand or walk would only impact the number of positions available and not the type of work itself. 283 Therefore the Court is unwilling and unable to speculate with any certainty about the impact of the change in SVP level on the positions 282 283 McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011). R. at 1041-42. 35 available, if any, to Mr. Washington. The ALJ’s failure to inquire and resolve the inconsistent evidence was not harmless error and is grounds for remand. B. Mr. Washington’s Mental Impairment At step three of the five-step sequential analysis, the ALJ concluded that Mr. Washington did not have any impairments or combination of impairments that met or medically equaled an impairment listed in the regulations. Specifically, the ALJ found that there was no evidence to satisfy the requirements of paragraph C of listing 12.05. Listing 12.05 and paragraph C of that listing state in relevant part: Intellectual disability refers to significantly sub average general intellectual functioning with deficits in adaptive functioning…severity for this disorder is met when…C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function. The ALJ hesitantly credited Mr. Washington’s IQ score of 67, but did not believe that the record showed that Mr. Washington had “significant deficits in adaptive functioning as required in order to satisfy the listing.” 284 Mr. Washington contends that the ALJ erred when concluding that his mental impairment did not equal the mental impairment under paragraph C of Listing 12.05 because the evidence showed that his functioning has been impaired since high school, his IQ score is 67, and he suffers from eight other impairments recognized by the ALJ as severe. Mr. Washington points to the fact that he received special education services in high school, his grades were poor, and he was unsuccessful in the program he enrolled in at Oakton Community College. In regards to his work history, Mr. Washington points out that even the ALJ noted he was unable to keep a full time job. 285 Mr. Washington cites to Dr. Hakimi’s testimony that he “does not appear to possess 284 285 R. at 970. R. at 1040. 36 the skills necessary to live on his own.” 286 In addition, Mr. Washington argues that he has poor hygiene and only showers two to three times a month. 287 Finally, Mr. Washington argues that it is inconsistent for the ALJ to find that he has eight severe impairments and then conclude that paragraph C of listing 12.05 has not been met. In response, the Commissioner argues that Mr. Washington did not show that he satisfied paragraph C of listing 12.05 because he did not provide or identify a diagnosis of mental impairment and the record does not indicate one. The Commissioner argues that the ALJ’s decision on this point is supported by the record and that Mr. Washington’s argument merely goes to how the ALJ weighed the evidence, which is not a proper basis for remand or reversal. The listings describe impairments that are considered to be presumptively disabling when specific criteria are met. 288 To meet or equal a listed impairment, a claimant must satisfy all of the criteria set forth in the listing. 289 The burden is on the claimant to show that his condition meets or equals a listed impairment. 290 In reviewing whether the ALJ erred in finding that Mr. Washington did not meet the requirements of paragraph C of listing 12.05, the Court must remain cognizant that it may not substitute its own judgment for the ALJ's on matters of credibility, weight of evidence, or conflicting evidence. 291 In order to satisfy the requirements of paragraph C of listing 12.05, the claimant must show “sub average general intellectual functioning with deficits in adaptive functioning.” 292 The severity required by the listing is met when there is evidence of an IQ score between sixty and seventy “and a physical or other mental impairment imposing an additional and significant 286 R. at 1315. R. at 1314. 288 20 C.F.R. Pt. 404, Subpt. P, App.1 § 12.05(C). 289 Martz v. Astrue, No. 1:07-CV-00219, 2008 WL 975051, *7 (N.D. Ind. April 8, 2008). 290 Id. 291 Stark v. Astrue, 278 Fed. Appx. 661 (7th Cir. 2008). 292 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05(C). 287 37 work-related limitation of function.” 293 Adaptive functioning refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting. 294 Mr. Washington focuses his arguments on the paragraph C requirements, without appreciating the fact that the ALJ must find a deficit in adaptive functioning prior to assessing whether the criteria of paragraph C had been met. The ALJ found that the evidence failed to demonstrate significant deficits in adaptive functioning because Mr. Washington had personal independence and seemed to be able to cope with common life demands. 295 The ALJ pointed to evidence in the record that Mr. Washington was currently independent in his daily activities, helped with household chores, and took care of his own personal needs, including checking his blood sugar two to three times a day. 296 Furthermore, the ALJ accorded weight to the medical professionals’ independent statements that Mr. Washington had adequate grooming and good hygiene. 297 In regards to his social functioning, the ALJ determined that there were no deficits because Mr. Washington was able to take public transportation alone if he knew where he was going, and acknowledged taking the public bus and train. 298 Mr. Washington’s own testimony supported the ALJ’s conclusion because he testified that he ate out at restaurants with his mother 299 and drank socially with friends several days a week. 300 Based on a review of the record and the ALJ’s explanations, the Court cannot concluded that the ALJ erred in finding that Mr. Washington did not demonstrate significant deficits in adaptive functioning. 293 Id. Id. 295 R. at 970. 296 R. at 1316. 297 R. at 1305. 298 R. at 256. 299 R. at 1317. 300 R. at 774. 294 38 Even though he found that Mr. Washington did not have a deficiency in adaptive functioning, the ALJ went on to discuss why he believed the requirements of paragraph C were not met. Although Mr. Washington argues that the ALJ improperly discredited his IQ score of 67, the ALJ actually credited the IQ score of 67, but found it “questionable.” The ALJ also found that Mr. Washington’s impairments did not “impose an additional significant work-related limitation of function greater than reflected in his [RFC].” Here, it was perhaps error for the ALJ to summarily conclude that Mr. Washington did not suffer significant work-related limitations of functioning when he found eight of his impairments to be severe. The Court, however, finds that such an error was harmless in light of the fact that the ALJ’s determination regarding Mr. Washington’s adaptive functioning is supported by the record and both requirements must be satisfied in order to meet the listing. Accordingly, the Court finds that the ALJ did not commit error in concluding that Mr. Washington did not meet the requirements of paragraph C of listing 12.05. C. Mr. Washington’s Need to Elevate His Legs In explaining his RFC determination and the limitations he recognized, the ALJ discredited Mr. Washington’s need to elevate his legs because he testified that he could walk thirty blocks and operate a snow blower for a period of time. 301 Mr. Washington contends that the ALJ improperly excluded his need to elevate his legs from his RFC assessment and that his need to elevate his legs was supported by the medical evidence in the record. He cites as support for this argument numerous instances in the record that point to his difficulty with edema 302 and various medical reports, including doctors’ instructions to elevate his legs. 303 Additionally, Mr. Washington notes that he was prescribed Hydrochlorothiazide, a diuretic used to treat 301 R. at 975. R. at 219, 241, 302, 303, 305, 306, 308, 382, 742, 819, 830, 841, 1192, 1234, 1235, 1239, 1251, 1304. 303 R. at 418, 1192, 1232. 302 39 symptomatic edema. 304 The Commissioner argues that the ALJ explicitly addressed Mr. Washington’s need to elevate his legs and discredited the limitation because Mr. Washington testified to being able to walk thirty blocks. The RFC is a measure of what an individual can do despite the limitations imposed by his impairments. 305 “The RFC assessment must include a discussion of why reported symptomrelated functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” 306 In support of his argument, Mr. Washington cites to Catchings v. Astrue, a case in which the ALJ’s RFC failed to properly address Plaintiff’s allegation that he must elevate his legs when the VE testified that such a limitation would preclude all employment. 307 In that case, the ALJ’s opinion was silent on whether the claimant needed to elevate his legs for any portion of his work day, and thus error was found. 308 In the case at bar, however, the ALJ was not silent. The ALJ explicitly explained why he discredited Mr. Washington’s allegation that he needed to elevate his legs. The ALJ stated that such an allegation was inconsistent with Mr. Washington’s testimony that he could walk thirty blocks and operate a snow blower for an hour and a half. In addition, the ALJ stated that he gave substantial weight to the opinion of Dr. Martin, which included the finding that Mr. Washington’s edema only required him to put up his feet for half an hour after work and that standing and walking would actually benefit his condition. 309 The ALJ sufficiently addressed and explained his reasoning for discrediting Mr. Washington’s allegation regarding the need to 304 R. at 1172, 1176, 1213, 1315, 1328. 20 C.F.R. § 404.1545(a). 306 SSR 96-8p. 307 Catchings v. Astrue, F.Supp.2d 1137, 1146 (N.D. Ill. 2011). 308 Id. 309 R. at 1023. 305 40 elevate his legs. Furthermore, the ALJ’s conclusion on this issue is supported by substantial evidence in the record and the Court does not find that the ALJ erred. D. Mr. Washington’s Limitations in Concentration, Persistence, and Pace The ALJ concluded that Mr. Washington had “moderate difficulties” 310 in concentration, persistence, and pace. In his hypothetical questions to the VE, the ALJ asked the VE to limit available positions to those that were “learnable on a short demonstration.” Based on the limitations provided in the ALJ’s hypothetical the VE concluded that Mr. Washington could perform the positions of assembler, hand packager, and sorter positions. 311 Mr. Washington argues that the ALJ erred by failing to include Mr. Washington’s limitations in concentration, persistence, and pace in his hypothetical questions to the VE and therefore the VE’s testimony and conclusions did not take into consideration all of his limitations. It is Mr. Washington’s position that it was not enough for the ALJ to include the limitation of work that is “learnable on short demonstration” and that the ALJ had to do more. Mr. Washington points to evidence in the record to support the conclusion that he is has limitations in the areas of concentration, persistence, and pace. The Commissioner argues that the ALJ’s hypothetical questions to the VE did include Mr. Washington’s limitations in these areas because the ALJ asked the VE to limit positions to those that were “learnable on short demonstration.” 312 To the extent that the ALJ relies on testimony from a VE, the hypothetical questions must incorporate all relevant limitations from which the claimant suffers, which in the case at bar would include the ALJ’s conclusion that Mr. Washington had moderate difficulties in 310 R. at 969. R. at 1037-38. 312 R. at 1036. 311 41 concentration, persistence, and pace. 313 When a hypothetical question is flawed because it lacks the limitations the ALJ has determined exist based on his review of the records in evidence, the ALJ’s decision that a claimant can find work in the national economy cannot stand. 314 The Commissioner cites to O’Connor-Spinner v. Astrue for the proposition that an ALJ is allowed some leeway in how he poses hypotheticals to address a claimant’s limitations in concentration, persistence or pace. 315 The court held that “the ALJ should refer expressly to limitations on concentration, persistence and pace in the hypothetical” and that “alternative phrasing [must] specifically exclude those tasks that someone with the claimant’s limitations would be unable to perform.” 316 The court also noted that using phrases like “‘simple, repetitive tasks,’” in hypothetical questions does not necessarily incorporate limitations in concentration, persistence or pace. 317 In the present matter, the ALJ’s initial hypothetical to the VE asked the VE to consider someone who was limited to unskilled work that was learnable on short demonstration, routine, and did not change day-to-day. 318 To which the VE responded that such a person could perform the jobs of assembler, hand packer, and sorter. 319 The ALJ then went on and explicitly asked the VE about limitations in pace. The ALJ asked, “…By performance expectations, I mean he can only work at his own pace, not at a pace assigned by an employer…How would that impact the likelihood that he’s doing one of these jobs?”320 To which the VE responded, “It would impact it greatly, [y]our Honor. There would be no substantial gainful activity with that performance 313 Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir. 2003). Young v. Barnhart, 362 F.3d 995 (7th Cir. 2004). 315 O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010). 316 Id. 317 Id. at 620. 318 R. at 1036. 319 R. at 1037. 320 R. at 1039. 314 42 expectation within the hypothetical.” 321 The ALJ followed-up with, “[What if] other people have to assist him as far as correcting mistakes or telling him to finish work, any impact?” 322 To which the VE responded, “Yes, [y]our Honor. That would not be consistent with competitive employment if that’s happening on a consistent basis…If an individual has to consistently receive help and/or refocusing or, and supervision…” 323 Contrary to Mr. Washington’s argument, the ALJ addressed Mr. Washington’s limitations in concentration, persistence, and pace. Although the ALJ only explicitly used the word pace in his hypothetical questions to the VE, they still incorporated Mr. Washington’s limitations in these areas. Mr. Washington argues that the hypothetical posed did not consider his “‘slow and cautious style,’” that he “‘works slowly,’” makes errors because of “‘lapses in concentration that require him to retrace his steps,’” or “‘tries hard but rarely completes assignments.’” 324 However, this is exactly what the second part of the ALJ’s hypothetical to the VE considered. The Court concludes that the ALJ’s hypothetical to the VE properly included considerations for Mr. Washington’s moderate difficulties in concentration, persistence, and pace. V. CONCLUSION For the reasons set forth above, Mr. Washington’s motion to reverse the Commissioner’s final decision is granted and this case is remanded to the agency for further proceedings consistent with this opinion. ENTERED: May 21, 2014 ______________________________________ UNITED STATES MAGISTRATE JUDGE Susan E. Cox 321 Id. R. at 1039-40. 323 R. at 1040. 324 Pl. Mem. in Supp., Dkt. 25. 322 43

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