Veal v. Bowen

• Citation: 833 F.2d 693
• Decision Date: 16 November 1987
• Docket Number: No. 86-2968,86-2968
• Parties: , Unempl.Ins.Rep. CCH 17,682 Lillie VEAL, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 693

833 F.2d 693

19 Soc.Sec.Rep.Ser. 624, Unempl.Ins.Rep. CCH 17,682

Lillie VEAL, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Defendant-Appellee.

No. 86-2968.

United States Court of Appeals Seventh Circuit.

Argued March 31, 1987.

Decided Nov. 16, 1987.

Frederick J. Daley, Frederick J. Daley, Ltd., Chicago, Ill., for plaintiff-appellant.

Donald P. McDougall, Asst. Regional Counsel, Chicago, Ill., for defendant-appellee.

Before RIPPLE, MANION, Circuit Judges, and PELL, Senior Circuit Judge.

RIPPLE, Circuit Judge.

In this case, the appellant, Lillie Veal, asks us to review the denial of social security disability benefits for the period September 30, 1983 through April 25, 1985. Ms. Veal filed two applications for benefits with the Secretary of Health and Human Services (the Secretary). The Secretary denied the first application, the subject of this appeal, in June 1983. The second application, filed on April 25, 1985, ultimately was granted and Ms. Veal was awarded benefits from that date; those benefits are not in dispute here. For purposes of disability insurance benefits, Ms. Veal was last insured on September 30, 1983. Appellee's Br. at 2. Consequently, in this present action, Ms. Veal is seeking benefits from September 30, 1983 through April 25, 1985.

At an administrative hearing, an administrative law judge (A.L.J.) denied Ms. Veal benefits because he decided that she was able to perform her former occupation. Ms. Veal then unsuccessfully appealed to the Department of Health and Human Services Appeals Council (the Appeals Council) and, later, to the United States District Court for the Northern District of Illinois. The district judge affirmed the decision of the Secretary. We now affirm the judgment of the district court.

I Background

Ms. Veal commenced this action by filing with the Secretary, on June 9 and 10, 1983, applications for Title II benefits (disability insurance) and Title XVI benefits (supplemental security income) under the Social Security Act (SSA), 42 U.S.C. Secs. 416(i), 423, 1382 and 1382c. Ms. Veal contends that the onset date of her disability was May 1981 when she began suffering from gallstones, a uterus problem, high blood pressure and a blood disease. R. 7 at 72. The Secretary denied both her initial application and her subsequent reconsideration request. R. 7 at 89, 92, 99 and 101. Ms. Veal then requested a hearing before an A.L.J. on November 27, 1984.

At the time of the hearing, Ms. Veal was a 55-year-old woman with a tenth-grade education. She was five-feet-seven inches tall and weighed 180 pounds. Ms. Veal was last employed with Home Health Care of Springfield, Illinois in May 1981 as a home health care worker. In this capacity, Ms. Veal cared for the infirm at their homes. Her duties included fixing meals, giving baths, doing cleaning and laundry, and occasionally assisting handicapped patients around the house. Appellant's Br. at 4. At her administrative hearing, Ms. Veal specifically complained of double vision, shortness of breath, occasional insomnia, nervousness, swelling in her knees, ankles and hands, arthritis in her right hand, a fibroid tumor in her uterus, gallstones, headaches, dizziness, back and kidney pain, a blood disease and high blood pressure. Tr. of Nov. 27, 1984 at 6-8, 14, 20 and 23; R. 7 at 38-40, 46, 52 and 55. The A.L.J. issued his written opinion on January 24, 1985; he denied Ms. Veal benefits on the ground that she could perform her former relevant work as a home health care worker. Appellant's App. at 2 (A.L.J. Decision).

Ms. Veal subsequently filed an appeal with the Appeals Council, which found no basis for further review of the determination of the A.L.J. The A.L.J.'s decision thus became the final determination of the Secretary. Appellant's App. at 8. After thus exhausting all of her administrative remedies, Ms. Veal appealed to the district court. ¹ Both Ms. Veal and the Secretary filed motions for summary judgment. In ruling on the cross-motions for summary judgment on October 3, 1986, the district judge affirmed the decision of the Secretary on the ground that the A.L.J. did not abuse his discretion and that his determination was supported by substantial evidence. R. 19; R. 24 at 3.

After Ms. Veal docketed her case in the district court, the Secretary notified her that he had found her disabled from the date of the filing of her second application. Specifically, the Secretary found Ms. Veal completely disabled as of April 25, 1985 due to a combination of physical impairments. R. 26, Ex. G. The district court was not apprised of this decision nor of the information which had been submitted to support it. However, when the case reached this court, Ms. Veal filed a motion to supplement the record with this additional evidence. This motion initially was granted on December 30, 1986. On January 16, 1987, the Secretary filed a motion and supporting memorandum requesting this court to vacate the order to supplement the record. In a further order dated February 9, 1986, the motion to vacate was referred to the panel assigned to decide this case.

II Decision of the Administrative Law Judge

In holding that Ms. Veal was not entitled to any benefits, the A.L.J. noted that the proper method for evaluation of disabilities is provided for under Social Security Administration Regulation Nos. 4 and 16, 20 C.F.R. Secs. 404.1520(b), 416.920(b) (1987). He also noted that a claimant's impairment must be projected either to result in death or to last for a continuous period of not less than twelve months. In making his determination as to whether Ms. Veal was disabled, the A.L.J. followed a five-step sequential inquiry specified in the regulations. ² A.L.J. Decision at 2. In this case, the sequential inquiry was focused on step four: "If you [a claimant] can still do this kind of [past relevant] work, we will find that you are not disabled." 20 C.F.R. Secs. 404.1520(e), 416.920(e) (1987); see A.L.J. Decision at 2. In finding that Ms. Veal was capable of doing her past relevant work, the A.L.J. compared the subjective complaints of Ms. Veal with the objective medical evidence adduced by Dr. Stanley Rabinowitz, a consultative physician, and Dr. Robert Watkins, Ms. Veal's treating physician. ³ A.L.J. Decision at 3-4. After listing Ms. Veal's complaints as high blood pressure, blood disease, a back problem, gallstones, arthritis in her right hand, and shortness of breath, the A.L.J. set forth his findings of fact.

Concerning the high blood pressure, the A.L.J. determined that, although Ms. Veal had severe diastolic hypertension, it was controlled by medication as of January 18, 1984. As to the chronic lower back pain, the A.L.J. found that the objective medical evidence in the record did not support Dr. Watkins' diagnosis of a possible herniated disk. Likewise, the A.L.J. found no objective evidence to support Ms. Veal's claim of arthritis in her right hand. In regard to the complaint of cholelithiasis or gallstones, the A.L.J. determined that calcifications on x-rays possibly supported the existence of gallstones, but that Ms. Veal already was on a diet for this problem. Id. at 3-5.

The A.L.J. then noted that no evidence existed at all to support Ms. Veal's complaint of shortness of breath. The A.L.J. further determined that the diagnoses of Dr. Watkins were inconsistent with other objective medical findings and, therefore found that his evaluation of Ms. Veal was not binding. Finally, the A.L.J. made a determination that, in light of the contrary medical evidence, the subjective symptoms of Ms. Veal were not credible. As a result, the A.L.J. concluded that none of Ms. Veal's physical impairments, either individually or in combination, prevented her return to her past occupation as a home health care worker in which she did some heavy lifting and prolonged walking, standing or sitting. Id. at 5-6. The A.L.J. then denied Ms. Veal's claim and she sought further review in the Appeals Council. The Appeals Council found no basis for further review of the A.L.J.'s determination. Further review was sought in the district court. The district court affirmed the decision of the Secretary on the ground that the A.L.J.'s determination was based on substantial evidence. R. 24 at 3.

III Discussion

There are two issues before us in this case: first, whether the decision of the A.L.J. is supported by substantial evidence; and second, whether we should vacate this court's previous order allowing Ms. Veal to supplement the record.

A. Substantial Evidence

1. Contentions of the Parties

Ms. Veal contends that the record does not support a finding that, at the time in question, she was able to do her past relevant work, or the work of her former occupation as defined in the national economy by the United States Department of Labor's Dictionary of Occupational Titles (DOT). Therefore, Ms. Veal submits that this court cannot sustain the determination of the A.L.J. because his ruling is not supported by substantial evidence. Specifically, Ms. Veal argues that she lacks the residual functional capacity to perform her past work as a home health care worker. Ms. Veal asserts that, considering all of her impairments cumulatively, the A.L.J. erred in not finding her disabled under the SSA. Ms. Veal further contends that the A.L.J. erroneously dismissed the reports of her treating physician, Dr. Watkins, as unsupported by objective medical evidence. Appellant's Br. at 5-21.

The Secretary asserts that Ms. Veal retained the residual functional capacity to do her former work as a home health care worker and, consequently, that there was ample evidence to support the A.L.J.'s determination that Ms. Veal was not disabled. The Secretary also contends that Ms. Veal failed to produce any objective medical evidence to support her subjective claims of physical impairment. Similarly, the Secretary asserts that nothing in the...