Banks v. Commissioner of Social Security
OPINION AND ORDER: The decision of the Commissioner of Social Security is REVERSED and this case is REMANDED to the Commissioner of Social Security for further proceedings in accordance with this Opinion and Order. Clerk DIRECTED to enter judgment in favor of Plaintiff Andrew Banks and against Defendant Commissioner of Social Security. Signed by Magistrate Judge Susan L Collins on 3/28/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
COMMISSIONER OF SOCIAL
SECURITY, sued as Nancy A.
Berryhill, Acting Commissioner of
Social Security Administration,1
CAUSE NO. 1:15-cv-00400-SLC
OPINION AND ORDER
Plaintiff Andrew Banks appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application under the Social
Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”).2 (DE 1). For the following reasons, the Commissioner’s decision will be
REVERSED, and the case will be REMANDED to the Commissioner for further proceedings in
accordance with this Opinion and Order.
I. PROCEDURAL HISTORY
Banks applied for DIB and SSI in November 2012, alleging disability in December 2010.
(DE 10 Administrative Record (“AR”) 226-33, 258-59). The Commissioner denied Banks’s
application initially and upon reconsideration. (AR 147-50, 156-59). After a timely request, a
Nancy A. Berryhill is now the Acting Commissioner of Social Security, see Casey v. Berryhill, — F.3d
—, 2017 WL 398309 (7th Cir. Jan. 30, 2017), and thus, she is automatically substituted for Carolyn W. Colvin in
this case, see Fed. R. Civ. P. 25(d).
All parties have consented to the Magistrate Judge. (DE 14); see 28 U.S.C. § 636(c).
hearing was held on May 29, 2014, before Administrative Law Judge Maryann S. Bright (“the
ALJ”), at which Banks, who was represented by counsel, and a vocational expert, Amy
Kutschbach (the “VE”), testified. (AR 32-87). On August 29, 2014, the ALJ rendered an
unfavorable decision to Banks, concluding that he was not disabled because he was capable of
performing a significant number of jobs in the economy despite the limitations caused by his
impairments. (AR 12-26). The Appeals Council denied Banks’s request for review (AR 1-4), at
which point the ALJ’s decision became the final decision of the Commissioner. See 20 C.F.R.
§§ 404.981, 416.1481.
Banks filed a complaint with this Court on December 28, 2015, seeking relief from the
Commissioner’s final decision. (DE 1). In this appeal, Banks argues that the ALJ: (1) failed to
develop the record as to his current functioning, and (2) improperly discounted the credibility of
his symptom testimony. (DE 15 at 18-25).
II. FACTUAL BACKGROUND3
At the time of the ALJ’s decision, Banks was 42 years old (AR 26, 226); had a tenth
grade education (AR 42, 263, 373) with special education classes (AR 42-43, 325); and had past
relevant work experience as a foundry worker (AR 264, 323).
A. Banks’s Testimony at the Hearing
At the hearing, Banks testified that he is single and has two children, ages 22 and 14.
(AR 37). He lives with his mother and grandmother; his mother takes care of all the household
tasks, so he does not do much around the house. (AR 37-40). Banks had been denied Medicaid
but was appealing that decision; he was receiving food stamps. (AR 41). His license had been
In the interest of brevity, this Opinion recounts only the portions of the 412-page administrative record
necessary to the decision.
suspended due to falling behind in child support payments, and a female friend drives him
places. (AR 41-42). He does not go to the store, fearing people might bump into him and cause
him to fall. (AR 44-45). He is independent with his self care. (AR 70-71).
When asked why he thought he could not work, Banks cited his auto accident in 2010,
explaining that he could no longer run, jump, or stand for very long. (AR 54-55, 60). When he
sits, he feels needles in his left leg, so he props his leg up. (AR 55, 64). He states that his left
leg swells when he stands or walks too long, so he spends most of the day with his leg propped
up. (AR 59-60, 64, 77). Elevating his left leg reduces the swelling and feeling of needles but
does not eliminate it. (AR 78). He uses a cane all the time. (AR 65-67). He asserted that he is
in constant pain every day. (AR 56, 64). He was not, however, taking any medication for his
symptoms other than what he obtained by visiting an emergency room. (AR 58-60). Banks
stated that a doctor had recently recommended that the hardware be removed from his left leg,
but he could not afford the surgery. (AR 73). He also complained of shoulder pain. (AR 5556). Additionally, Banks claimed that he could not work because his past car accident is always
on his mind, causing him to “freak out.” (AR 67). When asked if he had consulted anyone
about these thoughts, Banks stated that he could not afford to do so. (AR 68).
The ALJ also asked Banks about his education, noting that he had attended school
through the tenth grade. (AR 42). Banks responded that he was “in the slow class learning,”
“couldn’t learn for nothing,” and “couldn’t read.” (AR 42). The ALJ then further inquired:
Q Okay. Now, can you read?
A No. I cannot. I’m not that good of a reader.
Q Okay. Small words?
Q What about a newspaper?
A No, I can’t.
Q No even the captions or - A No. I can’t. Can’t even write.
Q You can’t write anything?
A I can write my name.
Q Okay. What about a grocery list? Can you read or write one of those?
A No. No, I cannot.
(AR 43). The ALJ then asked Banks whether he had completed the disability application,
observing that he had signed it as if he had. (AR 43-44). Banks denied completing it, stating
that a friend had helped him and that he maybe had “signed the wrong thing.” (AR 44). The
ALJ further noted that on a third party function report, Banks’s friend indicated that Banks reads
books and magazines. (AR 69; see AR 290-91). Banks explained that he looks at catalogs and
magazines but cannot read them, stating: “I’m not a reader. I’m not a good reader. I’m not. I
mean, that’s kind of embarass[ing] to say, but I’m not. That is it.” (AR 70).
B. Banks’s Educational History
In November 1984, Banks, who was 13 years old at the time, scored “66-73-68 PS” on
the Weschler Intelligence Scores for Children, Revised (WISC-R). (AR 325). Subsequent to
this testing, Banks was enrolled in the mild mentally handicapped program at Fort Wayne
Community Schools Department of Special Education. (AR 325). Banks retook the WISC-R in
July 1987, scoring “54-58-52 ND.” (AR 325). He reports a history of learning difficulties and
special education classes, and he left school in the tenth grade. (AR 378).
C. Summary of the Relevant Medical Evidence
On October 30, 2009, Banks was involved in a motor vehicle collision, sustaining a left
calcaneus fracture and a large de-gloving of his left lower extremity. (AR 342). Banks
underwent six surgeries on his left leg and was hospitalized for three weeks. (AR 328, 330, 332,
On November 30, 2009, Banks visited Dr. David Goertzen at Ortho Northeast for followup care. (AR 362). Banks reported intermittent dull pain in his left leg, rating it as a “four” on a
10-point scale. (AR 362). Dr. Goertzen found that Banks’s wounds were healing nicely and that
the hardware was in good position. (AR 362). He instructed Banks to remain non weightbearing, to work on his left ankle range of motion, and to perform seated work for at least six
weeks. (AR 362).
Banks returned to Dr. Goertzen in December 2009. (AR 358-60). He was using assistive
devices to ambulate and exhibited limited range of motion in his left lower extremity; he rated
his pain as a “two.” (AR 359-61). Dr. Goertzen pulled the K-wires from Banks’s left leg and
instructed him to remain non weight-bearing and to stay off work for three more months. (AR
360). In January 2010, Dr. Goertzen allowed Banks to be weight-bearing as tolerated, but to stay
off work for another six weeks if his employer would not allow him to perform seated work.
In March 2010, Banks told Dr. Goertzen that he was experiencing dull pain at a level
“eight” all the time. (AR 357). Dr. Goertzen observed that Banks’s ankle was fairly tight. (AR
357). Dr. Goertzen recommended that Banks perform daily activity as tolerated, work on range
of motion, and return to regular duties in April 2010. (AR 357). When Banks returned to Dr.
Goertzen in April, he reported a sharp, burning, throbbing pain in his left ankle that occurred
intermittently and when walking. (AR 356). Dr. Goertzen observed that Banks was doing well
and recommended that he continue to be weight-bearing, to perform activities, and to work, as
tolerated. (AR 356). Dr. Goertzen referred Banks to physical therapy for work conditioning and
work hardening and recommended that he ride an exercise bike. (AR 356).
In April 2010, Banks underwent an initial physical therapy evaluation. (AR 349). He
was employed as a machine operator/truck driver at the time, working eight to 12 hour shifts.
(AR 349). Banks reported pain in his left ankle, which increased with standing, walking, or
going up or down stairs. (AR 349). The physical therapist observed mild edema in Banks’s left
ankle with increased pain upon palpation. (AR 349). Banks stood with less weight on his left
leg, and he ambulated slowly with reduced left ankle plantarflexion and dorsiflexion. (AR 349).
Banks demonstrated reduced active range of motion, and manual muscle testing was 2/5 for all
left ankle movements. (AR 349). Dr. Goertzen recommended that Banks continue physical
therapy. (AR 349).
In May 2010, Banks told Dr. Goertzen that he was experiencing sharp pain at a level
“seven” or “eight,” both intermittently and with activity. (AR 354). Banks’s gait was antalgic,
demonstrating limited range of motion in his left leg. (AR 354). Dr. Goertzen recommended
that he continue physical therapy and be weight-bearing as tolerated, and further instructed him
to stand for three hours of his eight-hour shift and to increase his amount of standing each week.
(AR 354). In June, Banks still complained of pain. (AR 353). Dr. Goertzen observed swelling
in Banks’s left leg. (AR 353). Dr. Goertzen kept Banks off work for another month, with
weight-bearing and activity as tolerated. (AR 353). In August 2010, Banks reported that he was
no longer in pain. (AR 352). Dr. Goertzen found that Banks’s condition had significantly
improved and was stable; Dr. Goertzen instructed him to be weight-bearing as tolerated. (AR
Almost a year and a half later, in January 2012, Banks re-injured his ankle while pushing
a car. (AR 350). He was seen by a physician’s assistant at Ortho Northeast, presenting with
pain, swelling, tenderness, tingling, and stiffness in his left ankle. (AR 350-51). He rated his
sharp, throbbing pain as a “10,” stating that it worsened with activity and improved with rest.
(AR 350). Upon examination, Banks had tenderness and bruising in his left ankle; he also had
limited movement from his previous injury. (AR 350). He was diagnosed with status post open
reduction internal fixation (“ORIF”) left fibula fracture as well as a new soft tissue injury. (AR
350). He was instructed to wrap his ankle, to remain non weight-bearing, and to follow up with
Dr. Goertzen. (AR 350).
In July 2012, Banks went to the emergency room after being hit by a bottle on the left
side of his face two days earlier. (AR 368). He reported pain, headache, lightheadedness,
blurred vision, and nausea; he had bruising, inflammation, and hematoma to the left periorbital
area. (AR 395, 397). A head CT scan showed fractures to the left maxillary sinus and left
orbital wall. (AR 367-68). He was prescribed antibiotics and pain medication. (AR 398).
In January 2013, Banks visited a nurse practitioner at the Matthew 25 Clinic for chronic
left leg and foot pain and blurred vision in his left eye. (AR 365-66). On exam, Banks’s left
lower leg was tender, had edema, and had reduced sensation. (AR 365). He was prescribed a
trial of mobic for his pain and was referred for further evaluation of his left eye. (AR 366).
Also in January 2013, Dr. H.M. Bacchus, Jr., performed a consultative physical
examination at the request of the state agency. (AR 373-76). Dr. Bacchus found that Banks’s
gait was antalgic with partial weight-bearing on his left lower extremity; he was unable to
perform heel-toe gait, hop on his left, or tandem walk. (AR 374). His gait was slow with poor to
fair sustainability. (AR 374). Dr. Bacchus found that Banks was unable to ambulate without the
cane due to an inability to place full weight on his left leg. (AR 374). Banks exhibited
hypersensitivity to touch on his left ankle, atrophy in his left calf, and reduced range of motion in
his knees and left ankle. (AR 374-75). Dr. Bacchus diagnosed Banks with: (1) history of motor
vehicle accident with significant crushing injuries to his left lower extremity; status post multiple
reconstructive surgeries with skin grafts, muscle flap transfer, and left ankle ORIF; and (2) weak,
antalgic gait with partial left lower leg weight-bearing with cane use 100% of time. (AR 374).
Dr. Bacchus noted that in light of his residual left leg and ankle weakness, pain, decreased range
of motion, and hyperesthesia, Banks had significant left lower extremity limitations but
nevertheless could perform “light duties, mainly sit-down in nature with 1-2 hours noncontinuous standing in a 6-8 hour day, and avoid squatting, climbing, or walking on uneven
ground.” (AR 374).
In March 2013, Dr. Goertzen penned a letter to the state agency indicating that he
thought Banks could ambulate and carry 10 pounds, and if he needed a cane, it would only be
intermittently for ambulation, not for standing. (AR 377).
Also in March 2013, Banks underwent a consultative psychological examination by
Andrew Miller, Psy.D., at the request of the state agency. (AR 378-81). Dr. Miller found that
Banks exhibited symptoms of an anxiety disorder, including nightmares about his accident, and
an adjustment disorder due to his leg injury, in the form of depression, crying easily, sleeping a
lot, and withdrawal. (AR 379). Dr. Miller observed that Banks’s mood was depressed and his
affect tearful. (AR 380). He was a poor historian; he recalled just one of three items after five
minutes and incorrectly answered two of three calculation problems. (AR 380). He completed
serial sevens from 100, making four errors. (AR 380). Dr. Miller assessed that Banks’s daily
routines did not appear well established and that he needed support from others to accomplish
his tasks. (AR 380). Dr. Miller opined that although Banks’s daily activities appeared simple,
his ability to sustain these efforts on a daily basis appeared impaired. (AR 380). Dr. Miller
diagnosed Banks with an adjustment disorder with mixed anxiety and depressed mood, post
traumatic stress disorder (“PTSD”), and borderline intellectual functioning, and assigned him a
Global Assessment of Functioning (“GAF”) score of 58.4 (AR 381).
In April 2013, F. Kladder, Ph.D., a state agency psychologist, reviewed Banks’s record.
Dr. Kladder concluded that Banks could perform simple, unskilled tasks on a sustained basis
without special considerations. (AR 97-98). Dr. Kladder’s assessment was affirmed by another
state agency psychologist, William Shipley, Ph.D, two months later. (AR 124-26; see also AR
In May 2013, J. Sands, M.D., a state agency physician, reviewed Banks’s record and
concluded that he could lift 10 pounds frequently and 20 pounds occasionally; sit for six hours in
GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., Text Rev. 2000). A GAF score
of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). Id. “The American Psychiatric Association no longer uses the GAF as a metric.” Spencer v. Colvin, No.
13-cv-1487, 2015 WL 684545, at *17 n.5 (C.D. Ill. Feb. 17, 2015) (citing Am. Psychiatric Ass’n, Diagnostic &
Statistical Manual of Mental Disorders 16 (5th ed. 2013)). However, Dr. Miller used a GAF score in assessing
Banks, so it is relevant to the ALJ’s decision. See id. (citing Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013)).
an eight-hour workday; stand or walk for six hours in an eight-hour workday; occasionally
balance, stoop, kneel, crouch, crawl, and climb ramps or stairs, but never climb ladders, ropes, or
scaffolds; and must avoid even moderate exposure to wetness and all exposure to hazards. (AR
Almost a year later, in March 2014, Banks visited the emergency room for pain and
swelling in his left leg and ankle. (AR 391, 404). Banks had pain, swelling, and tenderness on
the lateral aspect of his left lower extremity and there was an area with drainage from one
wound. (AR 404-05). An examination revealed that Banks had joint swelling, arthralgias, and a
gait problem. (AR 405). X-rays showed degenerative changes to the left ankle and hindfoot,
subchondral sclerotic appearance of the proximal tibiofibular articulation, post-surgical changes
of the distal fibula and ankle, with focal soft tissue swelling in the lateral soft tissues adjacent to
the distal fibular as well as the anterior lateral shin, and a lucency adjacent to the proximal
screws of the fixation plate, possibly representing loosening of the hardware in his left lower
extremity. (AR 406-08). Banks was diagnosed with left leg pain and complication of surgical
procedure and was prescribed antibiotics and pain medication. (AR 391).
In April 2014, Banks saw a physician’s assistant at Ortho Northeast for a reevaluation of
his left leg and ankle pain. (AR 392). He had no insurance at the time. (AR 392). Banks
reported that a pinpoint wound at the bottom of his skin graft site had some yellow drainage on
and off for about three years; he was using a cane. (AR 410-11). Decreased motion and joint
pain was noted on examination, with hypersensitivity over the graft sites and mild ankle arthritis.
(AR 411). The physician’s assistant ordered a laboratory work-up and instructed Banks to be
weight-bearing as tolerated; she also discussed possible removal of his hardware, but
emphasized that there was no guarantee it would relieve his pain. (AR 392). Banks was to keep
an eye on the drainage and finish the antibiotic he was given in the emergency room. (AR 392).
A. The Law
Under the Act, a claimant is entitled to DIB or SSI if he establishes an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to . . . last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is currently
unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. §
404, Subpt. P, App’x 1; (4) whether the claimant is unable to perform his past work; and (5)
whether the claimant is incapable of performing work in the national economy.5 See Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted); 20 C.F.R. §§ 404.1520,
416.920. An affirmative answer leads either to the next step or, on steps three and five, to a
finding that the claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001)
Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite his limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(e), 416.945(a). The RFC is
then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20
C.F.R. §§ 404.1520(e), 416.920(e).
(citation omitted). A negative answer at any point other than step three stops the inquiry and
leads to a finding that the claimant is not disabled. Id. (citation omitted). The burden of proof
lies with the claimant at every step except the fifth, where it shifts to the Commissioner.
Clifford, 227 F.3d at 868 (citation omitted).
B. The Commissioner’s Final Decision
On August 29, 2014, the ALJ issued the decision that ultimately became the
Commissioner’s final decision. (AR 12-26). The ALJ concluded at step one of the five-step
analysis that although Banks had worked after his alleged onset date at what appeared to be at
the substantial gainful activity level, this work constituted an unsuccessful work attempt. (AR
14-15). At step two, the ALJ found that Banks had the following severe impairments:
status/post ORIF left fibula fracture, history of soft tissue injury to left ankle, subtalar and ankle
joint arthrosis, adjustment disorder with mixed anxiety and depressed mood, PTSD, and
borderline intellectual functioning. (AR 15).
At step three, the ALJ concluded that Banks did not have an impairment or combination
of impairments severe enough to meet or equal a listing. (AR 15-17). Before proceeding to step
four, the ALJ determined that Banks’s symptom testimony was not fully credible to the extent
that it was inconsistent with the following residual functional capacity (“RFC”):
[T]he claimant has the [RFC] to perform sedentary work . . . with
the following: He can lift/carry and push/pull up to 10 pounds;
stand or walk for approximately 2 hours per 8-hour workday; and
sit for approximately 6 hours per 8-hour workday, with normal
breaks. He is limited to occasional climbing of ramps and stairs,
balancing, stooping, kneeling, crouching and crawling; and never
climbing ladders, ropes or scaffolds. He should avoid even
moderate exposure to wetness and all exposure to hazards of slick,
uneven surfaces and unprotected heights. He is unable to engage
in complex or detailed tasks, but can perform simple, routine and
repetitive tasks consistent with unskilled work and is able to
sustain and attend to task throughout the eight-hour workday.
Based on this RFC and the VE’s testimony, the Commissioner concluded at step four that
Banks was unable to perform any of his past relevant work. (AR 24). At step five, however, the
Commissioner found that there were a significant number of jobs in the economy that Banks
could perform, including sorter, assembler, and final assembler. (AR 25). Accordingly, Banks’s
applications for DIB and SSI were denied. (AR 25-26).
C. The ALJ Failed to Adequately Develop the Record Concerning Banks’s Literacy
Banks argues that the ALJ erred by failing to develop the record and minimally articulate
her findings concerning his intellectual abilities.6 The Court agrees that the ALJ failed to carry
her burden at step five with respect to Banks’s literacy, necessitating a remand of the
Commissioner’s final decision.
In evaluating a claimant’s educational level, the Commissioner uses the following
(1) Illiteracy. Illiteracy means the inability to read or write. We consider someone
illiterate if the person cannot read or write a simple message such as instructions or
inventory lists even though the person can sign his or her name. Generally, an
illiterate person has had little or no formal schooling.
(2) Marginal education. Marginal education means ability in reasoning, arithmetic,
and language skills which are needed to do simple, unskilled types of jobs. We
generally consider that formal schooling at a 6th grade level or less is a marginal
(3) Limited education. Limited education means ability in reasoning, arithmetic,
The Commissioner’s response brief does not specifically address Banks’s argument concerning his
literacy level, and instead generally argues that a claimant “has the burden of providing that his impairments were of
disabling severity and caused specific restrictions.” (See DE 20 at 11).
and language skills, but not enough to allow a person with these educational
qualifications to do most of the more complex job duties needed in semi-skilled or
skilled jobs. We generally consider that a 7th grade through the 11th grade level of
formal education is a limited education.
(4) High school education and above. High school education and above means
abilities in reasoning, arithmetic, and language skills acquired through formal
schooling at a 12th grade level or above. We generally consider that someone with
these educational abilities can do semi-skilled through skilled work.
20 C.F.R. §§ 404.1564(b), 416.964(b). The numerical grade level that the claimant completed in
school may not always represent a claimant’s actual educational abilities—these may be higher
or lower. 20 C.F.R. §§ 404.1564(b), 416.964(b); see Carbaugh v. Colvin, No. 14 C 7431, 2016
WL 792299, at *4 (N.D. Ill. Mar. 1, 2016) (“[T]he fact and amount of formal schooling does not
decisively foreclose a finding of illiteracy.” (quoting Cole v. Apfel, No. 98 C 6735, 2000 WL
290432, at *3 (N.D. Ill. Mar. 17, 2000))). However, if there is no other evidence to contradict
the numerical grade level, an ALJ will use the grade level to determine a claimant’s educational
abilities. 20 C.F.R. §§ 404.1564(b), 416.965(b); see Skinner v. Sec’y of Health & Human Servs.,
902 F.2d 557, 450 (7th Cir. 1990); Holliday v. Schweiker, 563 F. Supp. 1272, 1279 (N.D. Ill.
1983) (“At most, one’s numerical grade level gives rise to a rebuttable presumption of basic
An ALJ must minimally articulate her finding concerning a claimant’s educational level
and build an accurate and logical bridge between the evidence and her conclusion. In that
regard, “[w]hen reasonable minds can disagree as to the ALJ’s conclusion . . . , the ALJ’s
decision should be affirmed unless the reasoning is ‘so poorly articulated as to prevent
meaningful review.’” Truckey v. Astrue, No. 2:10 cv 447, 2011 WL 5101883, at *7 (N.D. Ind.
Oct. 27, 2011) (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)) (finding that the
ALJ’s conclusory statement that the claimant had a “limited education,” without more, was not
enough to support the decision that the claimant was not disabled).
Here, the record contains some evidence of both literacy and illiteracy, leading
reasonable minds to disagree about whether Banks was either illiterate or had a limited or less
education. On the one hand, suggesting that Banks may be illiterate, he was enrolled in special
education classes in school; he testified that he could not read a newspaper or a grocery list; he
testified that he could not write anything other than his name; he represented in his adult function
report that he could not follow written instructions because he “can’t read & understand what is
asked” (DE 306); and he testified that a friend completed his application for him. (AR 43). On
the other hand—and supporting a literacy finding—Banks attended school through the tenth
grade; he testified that he could read “small words”; he signed his application as if he had
completed it himself; his friend represented on the third party adult function report that Banks’s
interests include “reading about sports” and reading the Bible and that he has no problems
following written instructions (AR 290-91); Banks’s work history includes several semi-skilled
positions (AR 24, 80-82); and Banks indicated in his disability report that he could read and
understand English and could write more than just his name in English (AR 261).
Faced with this conflicting evidence, the ALJ had to make a decision regarding Banks’s
literacy.7 As explained earlier, “[w]hen reasonable minds can disagree as to the ALJ’s
conclusion, as is the case here, the ALJ’s decision should be affirmed unless the reasoning is ‘so
poorly articulated as to prevent meaningful review.’” Truckey, 2011 WL 5101883, at *7
(quoting Steele, 290 F.3d at 940). Here, the ALJ simply pronounced in her decision that Banks
No medical source of record specifically opined about Banks’s ability to read and write.
had a “limited education” (AR 24), never addressing Banks’s testimony that he could not read a
newspaper or a grocery list and or write anything other than his name. However, as explained
earlier, the Commissioner considers a person illiterate “if the person cannot read or write a
simple message such as instructions or inventory lists even though the person can sign his or her
name.” 20 C.F.R. §§ 404.1564(b), 416.964(b).
On the record presented, “the gap between concluding [that Banks] was illiterate or that
he had a limited [or less] education required a logical bridge to traverse.” Truckey, 2011 WL
5101883, at *7. “Without such a bridge, this [C]ourt is unable to provide a meaningful review of
the ALJ’s decision without re-weighing evidence or substituting its own reasoning or judgment.”
Id. (citing Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000)). The ALJ in this instance failed to
provide such a bridge, as she never explained why Banks fell into the “limited education”
category rather than the “illiterate” category. See id. (remanding the case where the record
contained evidence of both illiteracy and literacy but the ALJ merely concluded that the claimant
had a limited education without offering any explanation); Schimpf v. Astrue, 780 F. Supp. 2d
798, 802-03 (S.D. Ind. 2011) (remanding because the ALJ failed to articulate any reason why the
claimant fell into the limited education category rather than the illiterate category).
Given the ALJ’s conclusion that Banks was unable to perform his past work, the
Commissioner bore the burden at step five of showing that Banks retains the capacity to perform
a significant number of jobs in the economy. See Clifford, 227 F.3d at 868 (explaining that the
claimant bears the burden at steps one through four, but the Commissioner bears the burden at
step five); Jones v. Astrue, No. 08-6016, 2009 WL 485395, at *2 (W.D. Ark. Feb. 26, 2009)
(stating that the Commissioner bore the burden at step five of proving that the claimant’s reading
level was sufficient to perform the jobs identified by the VE); Holliday, 563 F. Supp. at 1281
(same). More succinctly stated, “[i]t is the Commissioner’s burden of establishing that [Banks]
is literate, and it has not done so here.” Mendoza v. Colvin, No. 1:15-cv-777-GSA, 2016 WL
6441603, at *6 (E.D. Ca. Oct. 31, 2016) (citing Silviera v. Apfel, 204 F.3d 1257, 1261 (9th Cir.
The literacy issue matters because the jobs identified by the VE require a higher reading
level than the level to which Banks testified at the hearing. A review of the Dictionary of
Occupational Titles (“DOT”) reveals that all three jobs identified by the VE—sorter, assembler,
and final assembler—require the ability to: (1) “[r]ecognize the meaning of 2,500 (two- or threesyllable) words”; (2) “[r]ead at the rate of 95-120 words per minute”; and (3) “[p]rint simple
sentences containing subject, verb, and object, and series of numbers, names, and addresses.”
See DOT 521.687-086, 1991 WL 674226 (4th ed. 1991); DOT 706.684-030, 1991 WL 679052
(4th ed. 1991); DOT 713.687-018, 1991 WL 679271 (4th ed. 1991); see, e.g., Jones, 2009 WL
485395, at *2 (remanding case where the VE did not testify that a person with a first-grade
reading level could perform work as a housekeeper, which required the ability to recognize 2,500
words, read at a rate of 95-120 words per minute, etc.).
Ultimately, it may be that Banks is able to read enough to perform the jobs identified by
the VE. However, on this record, it is far from clear because the VE never addressed the effect
Banks’s literacy would have on his ability to perform the identified jobs. (AR 82); see
Carbaugh, 2016 WL 792299, at *5 (“In the Seventh Circuit, the Dictionary of Occupational
Titles[’] presumption that an illiterate person can hold no job may be overcome with appropriate
VE testimony.” (citing Donahue v. Barnhart, 279 F.3d 441, 444-47 (7th Cir. 2002)).
Consequently, this case will be remanded “so that the Commissioner may meet her
burden of proving that there exist jobs in the economy that [Banks] can perform.” Carbaugh,
2016 WL 792299, at *5; see Cole, 2000 WL 290432, at *4 (“Even though the ‘standard for
literacy has been pitched quite low, not enough evidence has been presented in this case to
ascertain whether [the claimant] surpasses this threshold.” (quoting Glenn v. Sec’y of Health &
Human Servs., 814 F.2d 387, 389 (7th Cir. 1987))); D’Augustino v. Colvin, No. 15-CV-6083,
2016 WL 5081321, at *4 (W.D.N.Y. Sept. 16, 2016) (collecting cases) (remanding case where
the ALJ failed to adequately develop the record concerning the possibility that the claimant was
functionally illiterate); Mendoza, 2016 WL 6441603, at *6 (remanding case so that the
Commissioner could assess the claimant’s literacy); Graham v. Colvin, No. 12-2325, 2014 WL
721950, at *3 (W.D. Ark. Feb. 26, 2014) (remanding case for development of the record,
including standardized testing, as to the claimant’s literacy); O’Neel v. Colvin, No. CV-11-0368WFN, 2013 WL 1774674, at *3 (E.D. Wash. Apr. 25, 2013) (remanding case for development of
the record as to the claimant’s literacy); Truckey, 2011 WL 5101883, at *8 (remanding case
where the ALJ failed to provide any grounds upon which his literacy determination could be
evaluated). This may require additional findings of fact as to Banks’s actual level of reading
ability, a consultative examination and standardized testing, and more precise VE testimony as to
the educational demands of the identified jobs.8 See Carbaugh, 2016 WL 792299, at *4 (“Where
a claimant has raised an issue of potential illiteracy, the ALJ has an obligation to develop the
record to determine the claimant’s literacy level.” (citation omitted)).
Because the case will be remanded for further development of the record as to Banks’s literacy, the Court
need not reach Banks’s remaining arguments.
For the foregoing reasons, the decision of the Commissioner is REVERSED, and the case
is REMANDED to the Commissioner for further proceedings in accordance with this Opinion
and Order. The Clerk is directed to enter a judgment in favor of Banks and against the
Entered this 28th day of March 2017.
/s/ Susan Collins
United States Magistrate Judge
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