Opinion
No. IP 99-1159-C-H/G
August 7, 2000.
ENTRY ON JUDICIAL REVIEW
Plaintiff Darla K. Swanson seeks judicial review of the Commissioner of Social Security's denial of her application for disability insurance benefits. An Administrative Law Judge (ALJ) found that Ms. Swanson suffers from severe impairments including degenerative joint disease of the left knee, degenerative disc disease of the lumbar spine, asthma, depression, and substance abuse. R. 29. The ALJ found, however, that Ms. Swanson was not disabled for purposes of the Social Security Act because she retained the residual functional capacity for sedentary work with the following restrictions: no left foot controls; no more than occasional bending; no squatting, crawling, or climbing; mild restrictions (avoid intensive work) on machinery; only simple and repetitive tasks; and no involvement of unusual stress. The Appeals Council denied review of the decision by the ALJ, leaving his determination as the final decision of the Commissioner. As explained below, the ALJ's decision is supported by substantial evidence and is therefore affirmed.
Background
Ms. Swanson was born on October 19, 1959. She completed the twelfth grade and worked as a nursing assistant from March 1990 through October 1994. R. 21, 94. In 1989 Ms. Swanson worked cleaning offices. The vocational expert who testified at the administrative hearing said that Ms. Swanson's past employment as an industrial cleaner was "exertionally medium and unskilled as generally performed, but exertionally light as described." R. 122. The vocational expert further testified that Ms. Swanson's employment as a nursing assistant was "exertionally medium and semi-skilled." R. 121. Ms. Swanson asserted that she was disabled because of arthritis, asthma, headaches, depression, and substance abuse. R. 123.
Ms. Swanson was 35 years old when she applied for disability benefits on March 3, 1995, alleging disability since October 15, 1994. R. 132. After her application was denied initially and on reconsideration, Ms. Swanson requested a hearing by the ALJ. After a hearing the ALJ denied her request for benefits. R. 17, 143. Ms. Swanson submitted additional evidence to the Appeals Council, which denied review on July 1, 1999. R. 3, 9. Ms. Swanson now seeks judicial review.
"Disability" Under The Social Security Act
To be eligible for disability insurance benefits, Ms. Swanson must establish that she suffered from a disability within the meaning of the Social Security Act. The Act defines "disability" as an inability to engage in substantial gainful activity by reason of a medically determinable impairment that can be expected to cause death or to last for twelve continuous months. 42 U.S.C. § 423(d)(1)(A). Ms. Swanson was disabled only if her impairments were of such severity that she was unable to perform work that she had done previously and if, based on her age, education, and work experience, she could not engage in any other kind of substantial work existing in the national economy, regardless of whether such work was actually available to her. 42 U.S.C. § 423 (d)(2)(A).
This standard is a stringent one. A claimant is not necessarily entitled to benefits even if she has substantial impairments. The Act does not contemplate degrees of disability or allow for an award based on partial disability. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir. 1985). Unlike many private insurance policies, a person may not be disabled under the Act even if she is no longer able to perform her past work or the work she feels is most suitable in terms of her skills, education, and experience. Under the statutory standard, these benefits are available only as a matter of nearly last resort.
The ALJ followed the familiar five-step analysis, set forth in 20 C.F.R. § 404.1520, to determine whether Ms. Swanson was disabled under the Act. The steps are as follows:
(1) Is the claimant engaging in substantial gainful activity? If so, he or she is not disabled.
(2) If not, does the claimant have an impairment or combination of impairments that are severe? If not, he or she is not disabled.
(3) If so, does the impairment(s) meet or equal a listed impairment in the appendix to the regulations? If so, the claimant is disabled.
(4) If not, can the claimant do his or her past relevant work? If so, he or she is not disabled.
(5) If not, can the claimant perform other work given his or her residual functional capacity, age, education, and experience? If so, then he or she is not disabled. If not, he or she is disabled.
See generally 20 C.F.R. § 404.1520. When applying this test, the burden of proof is on the claimant for the first four steps and on the Commissioner for the fifth step, if the analysis proceeds that far. Young v. Secretary of Health and Human Services, 957 F.2d 386 (7th Cir. 1992).
The ALJ found that Ms. Swanson satisfied step one because she was not engaged in substantial gainful activity. R. 21. At step two, the ALJ found that Ms. Swanson had severe impairments of degenerative joint disease of the left knee, degenerative disc disease of the lumbar spine, asthma, depression, and substance abuse. R. 29. The ALJ further found at step two that the evidence showed a "severe" mental impairment within the meaning of the Act. At step three the ALJ found that Ms. Swanson's impairments singly, or in combination, did not meet or equal the severity of the listed impairments in the appendix to the regulations. The ALJ found at step four that Ms. Swanson was not capable of returning to any of her past relevant work, but she retained the residual functional capacity for sedentary work with the following restrictions: no left foot controls; no more than occasional bending; no squatting, crawling, or climbing; mild restrictions (avoid intensive work) on driving, unprotected heights, and dangerous moving machinery; only simple and repetitive tasks; and no involvement of unusual stress. R. 38. The ALJ found that such jobs exists in significant numbers in the economy and therefore, Ms. Swanson was not disabled within the meaning of the Social Security Act. R. 39.
Standard of Review
The Social Security Act provides that if the findings of the Commissioner are supported by substantial evidence, they are conclusive as to a claimant's eligibility for the benefits in question. 42 U.S.C. § 405(g); Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997). When the Appeals Council finds no basis for further review, the ALJ's findings are treated as those of the Commissioner. Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). The courts ordinarily are not to attempt to determine whether the plaintiff is actually disabled. Books v. Chater, 91 F.3d 972, 977 (7th Cir. 1996). The court may not decide facts anew, reweigh the evidence, or substitute its judgment for that of the ALJ. Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir. 1997). However, the court must not simply rubber-stamp the decision without reviewing the evidence as a whole. Howell v. Sullivan, 950 F.2d 343, 347 (7th Cir. 1991). In reviewing the evidence as a whole, the court must look at all the relevant evidence, not only the evidence that supports the Commissioner's conclusion. Nelson, 131 F.3d at 1237. Nevertheless, if there is conflicting evidence that would allow reasonable minds to differ, the court must defer to the Commissioner's resolution of that conflict. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
The Briefing and the Issues
The court's evaluation of this case has been impaired by plaintiff's inadequate briefing. After the Commissioner filed his answer and the administrative record, the court ordered plaintiff to file her brief by December 1, 1999. Citing the press of other business, on November 30, 1999, plaintiff's counsel sought and received an extension until December 29, 1999. Again citing the press of other business, plaintiff's counsel filed on December 28, 1999, a motion seeking an extension to January 27, 2000, which was also granted.
Then, on January 23, 2000, plaintiff's counsel filed a third request for an extension to February 25, 2000, again citing the press of other business. The court granted the motion but added: "No further extensions will be granted." On February 22, 2000, plaintiff's counsel filed yet another motion for a 30-day extension, again citing the press of other business but failing to acknowledge the court's previous order that no further extensions would be granted. The court denied the last motion on February 23, 2000.
On February 25, 2000, plaintiff filed a two and a half page brief raising four distinct issues, with varying degrees of clarity. First, plaintiff erroneously claimed the ALJ had failed even to mention Ms. Swanson's alleged migraine headaches. See R. 33. Second, plaintiff claimed the Appeals Council erred by failing to consider new evidence sent to it. Third, plaintiff complained the ALJ failed to develop the record adequately by failing to obtain additional records for her mental condition. Fourth, plaintiff asserted that the ALJ's hypothetical question to the vocational expert was too vague with respect to her mental limitations.
The Commissioner filed a detailed brief in support of the ALJ's decision. Plaintiff then filed a seven-page reply brief that attempted to raise new issues. First, plaintiff conceded that the ALJ had in fact addressed her migraine headaches, but she argued for the first time that the ALJ did not "grapple with or articulate his reasoning on the issue." That is a new argument that the court deems waived by failure to raise it in the opening brief. The reply brief also argued that the Appeals Council erred in its consideration of new evidence, but plaintiff failed to cite the controlling Seventh Circuit decisions that reject her theory, discussed below. The reply brief also argued for the first time that the ALJ failed to consider sufficiently Dr. Patel's evaluation of plaintiff's medical impairments. That is also a new argument that was waived by failure to raise it in the opening brief. The reply brief finally argued that the ALJ's finding that plaintiff could perform simple, repetitive tasks was not supported by substantial evidence. That is also a new argument that was waived by failing to raise it in the opening brief.
Accordingly, the issues before the court are: (1) whether the ALJ failed to address plaintiff's alleged migraine headaches; (2) whether the Appeals Council erred in its consideration of the new records plaintiff submitted; (3) whether the ALJ failed to develop the record adequately on plaintiff's mental impairments; and (4) whether the hypothetical question to the vocational expert was sufficiently clear.
Discussion
The ALJ's opinion provides a thorough and detailed discussion of plaintiff's long and varied medical history. The ALJ found that Ms. Swanson had severe impairments of degenerative joint disease of the left knee, degenerative disc disease of the lumbar spine, asthma, depression, and substance abuse.
He also found that none of those impairments, alone or in combination, met or equaled the Listings that require an automatic finding of disability.
Section 105(a) of the Contract with America Advancement Act of 1996, Pub.L. No. 104-121, 1 110 Stat. 847 (1996), amended 42 U.S.C. § 423 (d)(2) to bar disability insurance benefits to persons whose disability is based on alcoholism and substance abuse. The amendment applies to persons like Swanson whose claims for benefits had not been finally adjudicated before March 29, 1996.
The record shows that Ms. Swanson smoked cocaine two or three times a month. R. 104-05. Her treating physicians often did not credit her complaints. Dr. Patel conducted a psychological evaluation and found that Ms. Swanson was manipulative, guarded, and histrionic, and that she was not motivated to do any kind of work or to participate actively in the evaluation. R. 257. During an emergency room visit in 1994, Dr. Jailwala noted that Ms. Swanson asked for painkillers and demanded that disability papers be filled out, and he found her complaints of depression to be highly suspicious. R. 204. In 1995 Dr. Collins noted that Ms. Swanson appeared to be a "Darvocet seeker." R. 174.
I. Migraine Headaches
Ms. Swanson contends that the ALJ erred by failing to address her testimony regarding her migraine headaches. The ALJ specifically addressed that evidence in his opinion. R. 33. Even if plaintiff had raised properly her contention that the ALJ failed to articulate why her headaches posed no limitations within the meaning of the Act, the contention is without merit.
Ms. Swanson testified she had headaches that lasted two or three days, two or three times a month, mostly in the evening and at night. R. 102. Ms. Swanson testified that the headaches caused dizziness, nausea, and sensitivity to sound. She said she went into her room, closed the door and sat or lay down, and that sometimes the headaches required medical attention. R. 102-03.
The ALJ began his evaluation of Ms. Swanson's migraine headaches by reviewing the medical evidence and testimony regarding her condition. On August 21, 1996, Ms. Swanson had a CT scan of the head that revealed an irregular closure of the cranial sutures, but no acute intracranial process was interpreted. R. 66. There was a detailed evaluation from which the ALJ found Ms. Swanson's complaints were not credible and the evidence did not support her allegations of disabling symptoms. R. 36-38. The ALJ continued his analysis by evaluating Ms. Swanson's subjective complaints in accordance with Social Security Ruling 96-7p and 20 C.F.R. § 404.1529(c)(3).
The Social Security regulations provide a two-part test for determining whether complaints of pain contribute to a finding of disability. First, the claimant must provide objective medical evidence of a medically determinable impairment or combination of impairments that reasonably could be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(a) (b). Second, once the ALJ has found an impairment that could reasonably cause the symptoms alleged, the ALJ must consider the intensity and persistence of those symptoms. 20 C.F.R. § 404.1529(c). The ALJ must weigh the claimant's subjective complaints and the relevant medical evidence, as well as any other evidence of the following:
(1) The claimant's daily activities;
(2) The location, duration, frequency, and intensity of any pain;
(3) Precipitating and aggravating factors;
(4) Type, dosage, effectiveness, and adverse side effects of any pain medication;
(5) Treatment, other than medication, for relief of pain;
(6) Any measures taken by claimant to relieve pain or other symptoms; and
(7) Other factors concerning functional limitations and restrictions.20 C.F.R. § 404.1529(c)(3). Having considered these factors, the ALJ may make a credibility determination based on the evidence as to whether this claimant acts as a person, suffering from the symptoms alleged, would act on a daily basis.
After reviewing the record, the ALJ made the following findings. On March 17, 1995, Ms. Swanson reported that she did laundry, swept, dusted, took out the trash, mopped, cooked three times a day for herself and her two children, washed dishes every day, shopped for groceries every month, and kept her grandson about every two weeks. R. 236, 237, 239. The ALJ concluded: "The fact that the claimant is able to engage in these daily activities discredits her testimony that she has pain and other functional limitations so severe that she is unable to work." R. 36. The ALJ determined that Ms. Swanson's headaches did not support a finding that her symptoms were severe enough to prevent her from engaging in many work activities, nor were compatible with the existence of a disabling impairment within the meaning of the Act. The ALJ properly applied the applicable legal standard, and substantial evidence supported his credibility determination on the issue of plaintiff's migraine headaches.
II. Additional Evidence Sent to the Appeals Council
On April 14, 1998, Ms. Swanson submitted 42 pages of additional medical records to the Appeals Council, together with a request to review the ALJ's decision. R. 9, 278-319. Ms. Swanson contends the Appeals Council erred by failing to have the additional evidence evaluated by a competent and licensed medical expert. The regulation governing the consideration of new evidence by the Appeals Council provides in relevant part:
If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, finding, or conclusion is contrary to the weight of the evidence currently in the record.20 C.F.R. § 416.1470(b).
In denying Ms. Swanson's request for review, the Appeals Council stated that it had "considered the contentions raised in your representative's brief . . . as well as the additional evidence also identified on the attached Order of the Appeals Council, but concluded that neither the contentions nor the additional evidence provides a basis for changing the Administrative Law Judge's decision." R. 3. Ms. Swanson contends that this statement by the Appeals Council is inadequate because the Appeals Council, after receiving 42 pages of new material, "failed to evidence any medical assessment or evaluation of these medical records by a competent licensed medical expert." Pl. Br. at 5.
The Seventh Circuit has spoken clearly on this issue. It has rejected Ms. Swanson's theory that such assessment was required. The Seventh Circuit has held that § 416.1470(b) "requires consideration of additional evidence when the Appeals Council grants review." Damato v. Sullivan, 945 F.2d 982, 988 (7th Cir. 1991) (emphasis in original). Where the Appeals Council denies review, however, the ALJ's decision-not the Appeals Council's denial of review-becomes the final decision of the Commissioner. Id.
Ms. Swanson also argues that, where "the Appeals Council considers new evidence, but denies review, the court's role is to consider the new report and determine whether the ALJ's decision was still supported by substantial evidence." Pl. Br. at 4. This contention conflicts with controlling Seventh Circuit law. When new material is submitted to the Appeals Council with a request for review, and review is denied, the ALJ's decision is the Commissioner's final decision that the courts review. Damato v. Sullivan, 945 F.2d 982, 988 (7th Cir. 1991). The court cannot and does not evaluate the ALJ's decision in light of the new evidence that was first presented to the Appeals Council:
He [the claimant] stakes his all on persuading us to reverse the denial of disability benefits on the ground that the administrative law judge's decision is erroneous when evaluated in light of all the evidence in the case, including evidence that the administrative law judge could not have considered because it was never submitted to him. This we cannot properly do. It would change our role from that of a reviewing court to that of an administrative law judge, required to sift and weigh evidence in the first instance, rather than limited as we are to reviewing evidentiary determinations made by the front-line fact finder.
Eads v. Secretary of Dept. of Health and Human Services, 983 F.2d 815, 817-18 (7th Cir. 1993).
The ALJ cannot be faulted for having failed to weigh evidence never presented to him. Id. at 817. Without addressing this Seventh Circuit authority, Ms. Swanson relies on two Eighth Circuit opinions, Flynn v. Chater, 107 F.3d 617 (8th Cir. 1997), and Riley v. Shalala, 18 F.3d 619 (8th Cir. 1994), to support her argument that the court should review the evidence she first submitted to the Appeals Council.
In Riley, the court stated its role was "limited to deciding whether the administrative law judge's determination is supported by substantial evidence on the record as a whole, including the new evidence submitted after the determination was made." 18 F.3d at 622. The court concluded that the record as a whole, including the newly submitted material, provided substantial support for the ALJ's decision so that a remand would be inappropriate. Id. The Eighth Circuit recognized in Riley the odd twist that this approach gave to the concept of review of an administrative agency decision: "Of necessity, that means that we must speculate to some extent on how the administrative law judge would have weighed the newly submitted reports if they had been available for the original hearing. We consider this to be a peculiar task for a reviewing court." Id. Despite these misgivings, the Eighth Circuit followed two cases in which it had held that new evidence submitted to the Appeals Council did not warrant a remand, Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992), and Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). In Eads, however, the Seventh Circuit cited and expressly declined to follow both of those cases. See 983 F.2d at 818. Needless to say, this district court is in the Seventh Circuit, and its duty on this question is clear. Ms. Swanson is not entitled to relief based on the new evidence she submitted to the Appeals Council.
In Flynn v. Chater, the Eighth Circuit simply adhered to its prior decisions and again held that new information first presented to the Appeals Council did not warrant a remand. The case adds nothing to the argument. See 107 F.3d at 622.
III. Failure to Develop Record Adequately
Plaintiff contends that the ALJ failed to develop the record adequately and should have obtained the newly submitted evidence prior to issuing his decision. This argument is an attempt to shift the blame to the ALJ for plaintiff's failure to submit the "new" records on time. In Thompson v. Sullivan, 933 F.2d 581 (7th Cir. 1991), the plaintiff appeared before the ALJ without counsel. The court explained: "Where the disability benefits claimant is unassisted by counsel, the ALJ has a duty `scrupulously and conscientiously [to] probe into, inquire of, and explore for all the relevant facts. . . .'" See also Smith v.
Secretary of Health, Education and Welfare, 587 F.2d 857, 860 (7th Cir. 1978) ("it is a basic obligation of the ALJ to develop a full and fair record"). However, Ms. Swanson has been represented by counsel at all times. When a claimant is represented by counsel, the ALJ is entitled to assume she is making her best case. E.g., Glenn v. Secretary of Health and Human Services, 814 F.2d 387, 391 (7th Cir. 1987).
The ALJ obtained and considered medical reports from multiple treating sources which supported Ms. Swanson's claim of severe symptoms, and the ALJ concluded as much. The ALJ was entitled to assume Ms. Swanson was making her best case, and the ALJ had a sufficient record before him upon which to base a decision.
IV. Hypothetical Question
The plaintiff contends that the ALJ's hypothetical question to the vocational expert was error. Plaintiff relies on an Eighth Circuit opinion to support her contention. The court held in that case, that where the question omitted limitations of deficiencies of concentration, persistence, or pace, the expert's answer was insufficient to support a finding of no disability. Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996).
The Seventh Circuit has explained that, when considering the whether a hypothetical question posed to a vocational expert is sufficient, "[a]ll that is required is that the hypothetical question be supported by the medical evidence in the record." Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534 at 540 (7th Cir. 1992), citing Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir. 1987). The ALJ referred to Dr. Patel's report to Dr. Jarmon that indicated Ms. Swanson had limitations, some serious, but she was not precluded from working. R. 259-61. "When the record supports the conclusion that the vocational expert considered the medical reports and documents, his responses are probative . . . even if the hypothetical question itself does not take into account every aspect of the claimant's impairments." Ehrhart, 969 F.2d at 540 (emphasis added).
After the hypothetical questions were posed to the vocational expert, the ALJ asked plaintiff's counsel if she had any questions for the vocational expert. Plaintiff's counsel answered, "No, Judge." R. 125-26. The ALJ did not err in his framing of the questions nor in his reliance on the vocational expert's responses.
Conclusion
Plaintiff Darla K. Swanson has shown no basis for the court to remand this case to the Commisioner for further hearings. For the foregoing reasons, the decision of the Commissioner is AFFIRMED, and final judgment will be entered immediately.
So ordered.
Final Judgement
The court having issued on this day its Entry on Judicial Review in this cause, now ORDERS, ADJUDGES, AND DECREES that the Commissioner's denial of benefits is AFFIRMED. This Entry of Judgment constitutes a final judgment pursuant to the fourth sentence of 42 U.S.C. § 405(g).