Scheck v. Barnhart, 03-2107.

Citation357 F.3d 697
Decision Date05 February 2004
Docket NumberNo. 03-2107.,03-2107.
PartiesKenneth SCHECK, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Frederick J. Daley (argued), Daley, Debofsky & Bryant, Chicago, IL, for Plaintiff-Appellant.

Alfred Sanchez (argued), Social Security Administration Office of the General Counsel, Chicago, IL, for Defendant-Appellee.

Before BAUER, and DIANE P. WOOD, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

Plaintiff-Appellant Kenneth Scheck brings this appeal to challenge an administrative law judge's (ALJ) finding that he was not entitled to disability insurance benefits. The Appeals Council of the Social Security Administration denied Scheck's appeal. Upon review, we find that substantial evidence supports the decision of the ALJ and we therefore affirm.

BACKGROUND

In December of 1983 Scheck began experiencing back problems. That same month, he underwent anterior cervical fusion surgery to correct a herniated cervical disc. More than four years later, Scheck visited the Mayo Clinic for problems with shortness of breath, rising blood pressure, and difficulty walking, and bending. The results from the tests conducted at the Mayo Clinic were within normal limits. In April of 1993, Scheck was again admitted to the hospital with severe back pain and right leg pain. MRIs and CT scans were performed and ultimately, Scheck underwent a decompressive laminectomy. Scheck's date of last insured fell on December 31, 1994. There exists no other objective medical evidence until 1997. However, as this evidence deals with Scheck's condition after his date last insured, it will not be reiterated here.

Scheck filed for disability insurance benefits on November 13, 1997. His claim was heard by ALJ Jan E. Dutton who found him to be capable of performing his former job as a distribution warehouse manager. The Social Security Administration's Appeals Council denied Scheck's appeal. Therefore, the ALJ's decision was the final decision of the Commissioner of the Social Security Administration. Scheck filed suit in the district court, naming the Commissioner of the Social Security Administration. Jo Anne Barnhart, as defendant. See 42 U.S.C. § 405(g). The lower court disposed of the case by denying Scheck's motion for summary judgment and granting the Commissioner's cross-motion. Scheck appeals this decision.

DISCUSSION
Standard of Review

"The standard of review in disability cases limits this court as well as the district court to determining whether the final decision of the Secretary is both supported by substantial evidence and based on the proper legal criteria." Ehrhart v. Secretary of HHS, 969 F.2d 534, 538 (7th Cir.1992) "[T]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir.1999) (quoting Diaz v. Chater, 55 F.3d 300, 305 (7th. Cir.1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir.2001) (quoting Diaz, 55 F.3d at 305). Substantial evidence may be less than the weight of the evidence, Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966), and more than a scintilla, Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Under this standard, the ALJ's decision, if supported by substantial evidence, will be upheld even if an alternative position is also supported by substantial evidence. Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).

Statutory Framework

In order to determine whether an individual is entitled to disability insurance benefits, the ALJ must engage in a sequential five-step process which establishes whether or not the claimant is disabled. The claimant must show that: (1) he is not presently employed; (2) his impairment is severe; (3) his impairment is listed or equal to a listing in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) he is not able to perform his past relevant work; and (5) he is unable to perform any other work within the national and local economy. Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir.1997); 20 C.F.R. § 416.920. It is undisputed that Scheck satisfies the first two requirements — he is not employed and his back impairments are severe within the meaning of the Social Security Administration's regulations. This, however, is not enough to show that he is disabled. He must now show that his impairment is equal to a listing or that he retains insufficient residual functioning capacity to hold a job.

Impairment Meets or Equals a "Listing" — Step 3

Scheck argues that the ALJ erred in not finding him disabled under section three of the five-step test. He claims that his back condition equals a listing entitled "other vertebrogenic disorders." See 20 C.F.R. § 404, Subpt. P.App. 1, Listings 1.05(c). This argument is contradicted by the reports of two state agency physicians. Those physicians filled out Disability Determination and Transmittal forms and stated that Scheck was not disabled through December 31, 1994. (R. at 90.) These forms conclusively establish that "consideration by a physician ... designated by the Commissioner has been given to the question of medical equivalence at the initial and reconsideration levels of administrative review." Farrell v. Sullivan, 878 F.2d 985, 990 (7th Cir.1989); 61 Fed.Reg. 34466. The ALJ may properly rely upon the opinion of these medical experts. Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir.1990). So, substantial evidence supports a finding that Scheck did not meet or equal a listing. Farrell, 878 F.2d at 990.

ALJ's Duty to Minimally Articulate

Scheck next argues that the ALJ failed in her duty to "minimally articulate his or her justification for rejecting or accepting specific evidence of disability." Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir.1988) (internal citations removed). However, "he or she need not provide a written evaluation of every piece of evidence that is presented." Id. We find that the ALJ satisfied this duty to articulate.

In finding that Scheck did not meet or equal a listing, the ALJ stated,

At step three of the sequential evaluation process, the undersigned [ALJ] must consider whether the Claimant's impairments, either singly or in combination, revealed the same or equivalent attendant medical findings as are recited in Appendix 1 to Subpart P of the Social Security Administration's Regulations No. 3, otherwise known as the "listings." In the instant case, the Claimant has not contended that his medically determinable impairments met or equaled the "listings," and the record contains no evidence which would support such a finding.

(Br. of Plaintiff-Appellant at A-7.)

Scheck claims that "[t]he ALJ's terse statement does not comply with the duty to `minimally articulate' a conclusion that the record contains `no evidence.'" (Br. of Plaintiff-Appellant at 23.) The argument can be disposed of by referring to Steward v. Bowen.

In the present case, Steward did not present any substantial evidence to contradict the agency's position on the issue of medical equivalency. The opinions of Steward's treating physicians simply did not address this question. Thus, the ALJ did not reject specific evidence supporting Steward's position that her impairments meet or equal a listed impairment in favor of the contrary opinions of the Secretary's consulting physicians. It was therefore unnecessary for the ALJ to specifically articulate his reasons for accepting the consulting physicians' opinions on the question of medical equivalency.

Steward, 858 F.2d at 1299.

The Steward panel's reasoning is quite applicable here. The ALJ did not reject any evidence. Like Steward, there was no evidence which would support the position that Scheck met or equaled the listing. Also similar to the facts of Steward, the letter from Scheck's treating physician, Dr. Heiferman, did not address the issue of medical equivalency. It was unnecessary for the ALJ to articulate her reasons for accepting the state agency physicians' determination of not disabled. Id.

SSR 83-20: Onset Date

Scheck claims that the ALJ violated SSR 83-20 by not consulting a medical expert in order to determine the onset date of his alleged disability. He argues that medical evidence from after his date last insured can be related back to the relevant time period to show disability. After wading through the record and reviewing the relevant case law, we find Scheck's arguments relating to onset date to be misplaced. SSR 83-20 addresses the situation in which an administrative law judge makes a finding that an individual is disabled as of an application date and the question arises as to whether the disability arose at an earlier time. See, e.g., Lichter v. Bowen, 814 F.2d 430, 434 (7th Cir.1987); Campbell v. Chater, 932 F.Supp. 1072, 1075 (N.D.Ill.1996); SSR 83-20. The ALJ did not find that Scheck was disabled, and therefore, there was no need to find an onset date. In short, SSR 83-20 does not apply.

Residual Functioning Capacity — Steps 4 and 5

Having failed at step three, Scheck must show that he has insufficient residual functioning capacity to perform his past work. Stevenson, 105 F.3d at 1154. In making such a determination, the ALJ must consider whether there is an underlying "determinable physical or mental impairment that could reasonably be expected to produce the symptoms." SSR 96-7p. Once this has been established, the ALJ must further evaluate the "intensity, persistence, and functionally limiting effects of the symptoms" in order to find whether those symptoms "affect the individual's ability to do basic work activities." Id. As the ALJ noted, "[i]nherent in such analysis, of course, is an...

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