Opinion
No. 98 C 6735
March 13, 2000
MEMORANDUM OPINION AND ORDER
Ronnie Cole ("Cole") brings an action for judicial review of a final administrative decision of the defendant Kenneth Apfel, Commissioner of the Social Security Administration ("Commissioner"). Before this court are Cole's motion for summary judgment and the Commissioner's cross-motion for summary judgment. For the reasons discussed herein, both motions are denied.
I. Standard of Review
The Social Security Act authorizes judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g); Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993). Where the Commissioner commits an error of law, "reversal is required without regard to the volume of the evidence in support of the factual findings." Imani v. Heckler, 797 F.2d 508, 510 (7th Cir. 1986). With respect to the Commissioner's conclusions of fact, the reviewing court's role is limited. The Commissioner is charged with weighing the evidence, resolving conflicts, and making independent findings of fact. Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). As the reviewing court, this court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner, that is, unless the findings of the Commissioner are not supported by substantial evidence. Delgado v. Bowen, 782 P.2d 79, 82 (7th Cir. 1986); 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); Hickman v. Apfel, 187 P.3d 683, 684 (7th Cir. 1999). If the reviewing court determines that substantial evidence does not support the Administrative Law Judge's ("ALJ") decision, the court may reverse the decision and immediately award benefits only if the record can "yield but one supportable conclusion" and there exist no unresolved factual issues. Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993).
II. Factual Background
An October 3, 1997 decision of an administrative law judge ("ALJ") denying Cole's application for period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., stands as the final decision of the Commissioner.
The following procedural history is taken from that decision. On May 18, 1995, Cole was granted disability insurance benefits because he was found disabled based on a substance abuse disorder, depression, and borderline intellectual functioning. Cole's substance abuse was considered material to his disability. On March 28, 1996, the law changed. Congress enacted legislation precluding an award of benefits where alcoholism and/or drug addiction is a contributing factor material to the determination of disability. 42 U.S.C. § 423(d)(2)(B). As part of a review conducted under this change in law, the Social Security Administration ("SSA") reconsidered Cole's disability status in September 1996. The SSA found that Cole's disability ceased as of January 1, 1997. Subsequently, a hearing was held before ALJ Craig Ellis. On October 3, 1997, ALJ Ellis issued a decision stating that Cole's entitlement to disability insurance benefits ceased on January I, 1997. The ALJ noted that Cole's substance abuse had previously been found to have been a contributing factor material to his disability. Pursuant to the act, Cole's benefits were terminated retroactively beginning January 1, 1997.
In addition, the ALJ determined that Cole had no other disabling impairment which would entitle him to benefits. At the time of the hearing before the ALJ, Cole was 46 years of age and had completed seven years of formal education. Because of his physical impairments, Cole was unable to perform his past relevant work as a construction laborer. Specifically, he complained of arthritis with back and knee pain, a right arm injury, high blood pressure, chest pain, and a learning disability. The ALJ concluded that Cole suffered from degenerative disease, hypertension, and substance abuse disorder in remission. Nevertheless, the ALJ observed, Cole had the residual functional capacity ("RFC") to perform a full range of sedentary work. Citing Rules 201.25 and 201.24 of the Medical-Vocational Guidelines set forth in Table 1, Appendix 2, Subpart F, Part 404, the ALJ deemed Cole not disabled for the purpose of collecting benefits.
The Appeals Council denied Cole's request for further review. Cole brought suit in this Court pursuant to 42 U.S.C. § 405(g). In its motion for summary judgment, Cole urges the Court to reverse the Commissioner's decision. In the alternative, Cole asks that the claim be remanded. The Commissioner also moves for summary judgment in his favor.
III. Analysis
To be eligible for Disability Insurance Benefits, a claimant must prove that she is "under a disability" as defined by the Social Security Act. 42 U.S.C. § 423(a)(1)(D). A claimant suffers from a disability if she is unable to engage in any substantial gainful activity on account of a physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). A claimant's disability is evaluated through a five-step sequential process. 20 C.F.R. § 404.1520. Initially, the burden of proof rests with the claimant, who must prove that (1) she is not engaging in "substantial gainful activity;" and (2) she has a "severe" impairment; and (3) her impairments meet or equal one of the impairments enumerated in the "Listing of Impairments" set forth in Appendix 1 of 20 C.F.R Part 404, Subpt. F, or (4) she is unable to perform "past relevant work." 20 C.F.R. § 404.1520. Thomas E. Bush, 1 Social Security Disability Practice § 112 (2d ed. 1999). At step five, the burden shifts to the Commissioner to show that the claimant, considering her age, education and work experience, is able to engage in other substantial gainful employment Butera, 173 F.3d at 1054; Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir. 1986).
In satisfying this burden, the Commissioner has promulgated a regulatory guideline to aid in the determination of whether the claimant is able to perform other jobs. The Medical Vocational Guidelines, set forth in Appendix 2 of 20 C.F.R. Pt. 404, Subpt. P, contain rules which answer the question of whether a claimant, based on her maximum physical RFC, age, education, and work experience, is disabled. Because disability is a function, in part, of employment opportunities, the guidelines allow a person, albeit qualified to perform sedentary work, to collect disability benefits if she is illiterate. Glenn v. Secretary of Health and Human Serv., 814 F.2d 387, 389 (7th Cir. 1987). For example, pursuant to rule 201.17 of the guidelines, a finding of disability is warranted for claimants between the ages of 45-49 who (1) are restricted to sedentary work; (2) are unskilled or have no transferrable skill; (3) have no past relevant work or can no longer perform vocationally relevant past work; and (4) are either illiterate or unable to communicate in the English language. 20 C.F.R. Part 404, Subpart F, Appendix 2, § 201.00(h). Where a claimant fits the profile of a particular rule, application of that rule is mandatory. 20 C.F.R. § 200.00(a).
Cole does not refute the ALJ's finding that, under the 1996 legislation, he is no longer eligible for benefits due to his substance abuse disorder. He does, however, contend that he should have been found eligible based on his other impairments. In the October 3, 1997, ruling, the ALJ established that, because Cole was unable to perform his past relevant work as a construction worker, Cole satisfied his burden of proof. The ALJ also found that Cole's maximum sustained work capacity was limited to a full range of sedentary work as a result of his physical impairments. Finding that Cole had a limited education, the ALJ deemed Cole, under the guidelines, able to perform a significant number of other jobs, thereby disqualifying him from receiving disability benefits.
In light of the ALJ's findings, Cole's profile (age 46, limited to sedentary work, unable to perform past work) mandated the application of the Medical-Vocational Guidelines. The parties agree that Cole satisfies the first three elements of rule 201.17 outlined above. The parties, however, contest the ALJ's determination of the fourth element: whether Cole is illiterate within the meaning of the regulations. The ALJ improperly cited rules 201.24 and 201.25 of the guidelines as the basis for his decision denying Cole disability benefits. Although the citation to those particular rules, which apply to individuals between the ages of 18-44 (Cole was 46 at the time of the hearing), was erroneous, the error in itself is harmless as long as Cole would have been found not disabled under the appropriate rule. If Cole is found to be illiterate, rule 201.17, articulated above, compels a finding of disability. In contrast, if he is found to be literate, rule 201.18 dictates the opposite result.
The Commissioner argues at length that the ALJ properly determined that Cole's impairments did not prevent him from performing the full range of sedentary work. Indeed, the Court is convinced that the ALJ's finding is supported by substantial medical evidence. In his initial memorandum of law as well as his reply brief, Cole does not object to that finding.
Without proffering any findings of fact on the issue of literacy, the ALJ summarily determined that Cole had a limited education and therefore was not illiterate. At the May 8, 1997, hearing before the ALJ, the following facts were presented. Cole attended school in the rural south, During the fall, he attended classes every day, but in the spring and summer, he missed at least two days of class each week because he was needed to work in the fields. (Trans. at 36). At the age of sixteen and in the seventh grade, Cole dropped out of school. Cole testified that he could read "some." (Trans. at 31). Asked if he could read a newspaper, Cole replied that he could not read it "all the way." When asked to clarify, he stated, "[I]t's some things that I can read out of it, you know. Like when you get to the big words that I can't, I can't understand them." (Trans. at 32). When he filled out his Social Security forms, Cole had to rely on a friend's assistance. Cole also informed the ALJ that he was able to count change when he went to the store. Tests revealed that Cole's reading capacity is below the third grade level. (Rec. at 152).
All citations to the transcript of the May 8, 1997, oral hearing before ALJ Ellis contain page references, not to the original transcript pagination, but to the pagination of the entire record.
The regulations define illiteracy as the inability to read or write a simple message, even though the person can sign her name. 20 C.F.R. § 404.1 564(b)(1). Although an illiterate person generally has had little or no formal education, the fact and amount of formal schooling does not decisively foreclose a finding of illiteracy. 20 C.F.R. § 404.1546(b); Glenn, 814 F.2d at 390 (observing that the quality and standard of American schools precludes an automatic assumption that schooling has made one capable of reading and writing);Heldenbrand v. Chater, No. 96-3971, 132 F.3d 36, 1997 WL 775098, at 4, (7th Cir. Dec. 15, 1997) (referring to Department of Education data released in 1994 indicating that as many as one quarter of all high school graduates are completely or functionally illiterate). Essentially, the question is "whether the applicant is so deficient in ability to read and write so that he cannot obtain even an unskilled job." 814 F.2d at 391.
Even though the "standard for literacy has been pitched quite low," not enough evidence has been presented in this case to ascertain whether Cole surpasses this threshold. 814 F.2d at 391. Both parties rely on Glenn to make their case. See 814 P.2d at 390-91. In that case, the claimant, Richard Glenn, completed either the fourth or sixth grade of elementary school. Glenn could not read a newspaper, but he was able to pick out some words. Glenn had previously worked as a baker's assistant, and testified that he could read simple work orders. At his hearing, Glenn further demonstrated his reading capacity by reading aloud a portion of a recipe from a cookbook. Although Glenn could not write a letter, he could write a brief note such as, "I'll be back at 10:00." Glenn could not read the notice of hearing issued by the Social Security Administration, but the court, noting that the notice was filled with "legalese, " discounted this factor as a conclusive indication of illiteracy. Although the Seventh Circuit concluded that Glenn could read and write only the simplest messages, the court also observed that this was adequate literacy for purposes of Glenn's previous job as a baker's helper. 814 F.2d at 391. In turn, the court inferred that Glenn's literacy level "may be adequate for the unskilled sedentary jobs" to which he was confined.Id. The Seventh Circuit twice emphasized that Glenn's situation presented a close case. Id. Nevertheless, the Court concluded that the ALJ's determination that Glenn qualified as literate within the SSA regulations was not unsupported. Id.
Cole's literacy level, too, is a close call. The fact that he had a seventh grade education is not dispositive by any means. He has below a third grade reading capacity, but it is difficult to ascertain, without more, whether that level surpasses the threshold set by the regulations. Cole's vague testimony about the extent to which he is able to read the newspaper is unhelpful. The same goes for the evidence concerning his ability to fill out the social security forms. Whereas the Seventh Circuit could infer from Glenn's former work as a baker's aid that he was sufficiently literate for unskilled sedentary jobs, no similar inference can be made here. Cole worked in construction. Most likely, his job required little, if any, reading and/or writing ability. Thus, Cole's situation is not conducive to an inference that he is equipped with adequate literacy for a sedentary job, which certainly requires a higher level of reading and/or writing capacity than required for manual labor. The Commissioner argues that Cole's ability to count change compels a finding of literacy. Yet the capacity to do simple arithmetic, a "prerequisite to literacy," is just that, a prerequisite. 814 F.2d at 390.
In making a meaningful determination of literacy, it would have been helpful to know what specific words Cole could navigate in the newspaper. However, no specific examples were presented to the ALJ, as was done in Glenn. At Cole's hearing, either his attorney or the ALJ could have asked Cole to demonstrate his reading and/or writing ability to the court. See. e.g., 814 F.2d at 390-91 (plaintiffs attorney asked claimant to read a recipe in court); Heldenbrand, 1997 WL 775098, at 1 (stating that "the ALJ has the duty of developing a complete record. Here, the ALJ could have easily explored further to resolve several crucial questions") (citing Smith v. Secretary of Health, Education, and Welfare, 587 F.2d 857, 860 (7th Cir. 1978)). Ascertaining Cole's literacy would have involved a simple task such as asking him to read aloud a short news article, or asking him to write a note. 20 C.F.R. § 404.1564 ("We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists.") Yet no such thing was done. At the conclusion of the May 8 hearing, the ALJ invited Cole's lawyer to submit more evidence on the literacy issue while the case was in post-development status for thirty days. (Trans. at 44-45). It is unclear from the record whether Cole's attorney ever took advantage of that opportunity.
On the facts presented, this Court cannot conclude that substantial evidence supported the ALJ's determination that Cole was literate. The evidence before the ALJ did not contradict a finding that Cole was literate, but neither did the evidence support such a finding. Simply put, there was not enough evidence to render any finding on this critical issue. Furthermore, the ALJ was not entitled to infer, from the fact that Cole had finished the seventh grade, that Cole was not illiterate. See 20 C.F.R. § 404.1564(b)(1)(2) ("We generally consider that a 7th grade through the 11th grade level of formal education is a limited education.") The regulations state, "[T]he numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower. However, if there is no other evidence to contradict it, we will use your numerical grade level to determine your educational abilities." 20 C.E.R. § 404.1564(b). Even if the evidence was insufficient to render a determination of literacy, the evidence clearly indicated that Cole's reading/writing capacity was not consistent with a 7th grade education. (Even if one subscribes to the belief that American schools are failing in their educational mission, it is assumed that a 7th grade graduate can master "big words" in a newspaper.) Therefore, Cole's formal education level was not a meaningful measure of his educational attainment and could not be used as such. Compare Robinson v. Sullivan, No. 91-1939, 958 F.2d 374, 1992 WL 55547, at 2-3 (7th Cir. 1992 Mar. 23, 1992) (affirming ALJ's finding of literacy on basis of claimant's sixth grade education because no evidence contradicting claimant's capacity presented to ALJ).
Unlike the Glenn case, where the ALJ was able to consider concrete examples of the claimant's literacy through his live demonstration and make reasonable inferences of literacy from his previous work, ALJ Ellis did not base his decision on enough evidence "as a reasonable mind might accept as adequate to support a conclusion." Hickman 187 F.3d at 684. Accordingly, the ALJ's finding of literacy is reversed. The case is remanded for a hearing on the issue of literacy. 42 U.S.C. § 405(g).
IV. Conclusion
For the foregoing reasons, the final administrative decision of the Commissioner denying Cole disability benefits is reversed. Plaintiff's motion for summary judgment is DENIED and Defendant's motion for summary judgment is also DENIED. Instead, this case is REMANDED for further hearing on the question of whether Cole is illiterate within the meaning of the Social Security regulations.