Pope v. Shalala, 92-1084

Citation998 F.2d 473
Decision Date30 August 1993
Docket NumberNo. 92-1084,92-1084
Parties, Unempl.Ins.Rep. (CCH) P 17430A Elnora G. POPE, Plaintiff-Appellant, v. Donna E. SHALALA, * Secretary of Health and Human Services, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Judith M. Haller, Legal Services of Northwest Indiana (argued), Gary, IN, for plaintiff-appellant.

Orest S. Szewciw, Asst. U.S. Atty., Catherine A. Seagle (argued), Dyer, IN, for defendant-appellee.

Before CUDAHY and EASTERBROOK, Circuit Judges, and WILL, Senior District Judge. **

WILL, Senior District Judge.

Elnora Pope filed an application for Supplemental Security Income (SSI) with the Secretary of Health and Human Services (Secretary) pursuant to Title XVI of the Social Security Act (Act), 42 U.S.C. §§ 1382 et seq., alleging disability due to a back impairment. The Secretary denied her application after an administrative law judge (ALJ) held that, despite her complaints of back pain, she was not disabled and thus not entitled to benefits. Pope appealed the decision and the district court affirmed. We affirm.

I.

Elnora Pope is currently forty-eight years old and has a high school education plus two years of college. She was employed from 1975-82 as a statistical clerk and a secretary. Her work required her to lift from twenty-five to fifty pounds, which is classified as light to medium levels of lifting. Prior to that she worked as a laborer cleaning ditches, sweeping and shoveling. She has no acquired work skills transferable to skilled or semi-skilled work activities. She alleges that she has been unable to work since she injured her back in April, 1984.

A. Procedural Background

Pope filed this claim for SSI on October 18, 1984. Her application was initially denied, as was her request for reconsideration, and she requested an administrative hearing. Pope was represented by counsel at the subsequent hearing before the ALJ held on April 24, 1985. On June 26, 1985, The ALJ concluded that she was not entitled to benefits. The Appeals Council, however, held that the evidence was inconclusive and remanded the case back to the ALJ to develop the record. The ALJ was instructed specifically to obtain a consultative neurological examination, a medical assessment of the claimant's ability to do work-related activities and records from Pope's June, 1985, hospitalization. On remand, the ALJ again held that the claimant was not entitled to benefits because the evidence indicated that she could perform sedentary work. 1 On May 8, 1987, the Appeals Council upheld the finding of the ALJ, and his ruling became the final decision of the Secretary.

Pope timely filed suit in the district court on July 13, 1987, for judicial review of the Secretary's decision pursuant to 42 U.S.C. § 405(g). On November 4, 1991, the district court denied plaintiff's motion for summary judgment and granted judgment for the Secretary on the ground that the ALJ's decision was based on substantial evidence.

B. Statutory and Regulatory Framework

In order to qualify for SSI benefits, a claimant must be "disabled." The Act defines "disabled" as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). A "physical or mental impairment" is further defined as "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. § 1382c(a)(3)(C).

Social Security regulations outline a five-step inquiry to be followed in determining whether a claimant is disabled. 20 C.F.R. § 416.920(a)-(f). The Secretary must determine in sequence: (1) whether the claimant is currently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform her past work; and (5) whether the claimant is capable of performing any work in the national economy. Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir.1992). Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir.1984).

C. Evidence Before the ALJ

At the hearing, Pope testified that after her April, 1984, injury, she suffered from intermittent low back pain. She also stated that she experienced numbness in her legs after sitting or standing for prolonged periods, followed by severe pain and muscle spasms. She testified that she was unable to bend or lift anything and thus could not return to her past work. She spent her days reading, watching television and performing light chores such as cooking. She also readied her children for school and drove for short distances. Pope also noted that she was blind in her right eye since birth.

The medical records produced at the hearing show that Pope was admitted to St. Mary Medical Center on April 12, 1984, where she was diagnosed with severe back pain due to a small herniated disc, degenerative arthritis and a history of asthma. She was treated with anti-inflammatories and analgesics with little relief. X-rays of the lumbosacral spine were negative except for minimal degenerative changes, and x-rays of the hips showed some degenerative changes. A lumbar CT scan showed osteoarthritic changes and arteriosclerosis of the abdominal aorta. A lumbar myelogram revealed a small right lateral herniated disc at L3-L4. An epidural block was performed on April 30, 1984, which resulted in significant relief. A CT scan taken on July 12, 1984, was normal, with no evidence of disc protrusion or stenosis.

Pope was admitted to the Methodist Hospital on September 23, 1984, alleging severe low back pain for the past five months. Upon examination there was right paravertebral muscle spasm. Lasegue's sign 2 was positive bilaterally and there was cross-over pain from left to right. Deep tendon reflexes and motor power were unremarkable. A myelography and CT scan proved negative, with only a mild lateral bulge into the right at L3/4. Electromyogram and nerve conduction studies showed essentially no abnormality and no strong evidence of disc herniation. She was diagnosed with chronic lumbosacral strain and responded well to conservative treatment.

In his November 15, 1984, report, Dr. Richard Oni found that Pope suffered from recurrent lumbosacral strain and had responded well to an epidural block administered six weeks earlier. There was no evidence of joint abnormality and she retained a full range of motion throughout her joints. Her pain and muscle spasms had resolved. She was advised not to lift more than five pounds or engage in work involving bending or climbing.

On January 2, 1985, Dr. Tony Anigbo reported that EMG evidence indicated that Pope had apparent S1 radiculopathy. 3 The results of the CT scan and a lumbar myelogram had been negative. She had no definite sensory loss, and only minimal reflex loss limited to her right ankle. Her back had allegedly worsened, and her second nerve block injection resulted in only six weeks without pain.

Treating physician Dr. Aghaji reported on January 9, 1985, that Pope had asthmatic bronchitis, allergic rhinitis, a herniated lumbar disc, a small fibroid uterus and status post a hemorrhoidectomy. He stated that her asthma attacks had stopped, and that she had a limited range of motion of her lumbar spine secondary to pain. There was no evidence of motor, sensory or reflex loss, or muscle weakness and she could walk unassisted. Spinal surgery was anticipated, but had not yet been performed.

Pope was admitted to Methodist Hospital on January 11, 1985, where a myelogram of the lumbar spine was negative. She was diagnosed with low back pain and she responded well to conservative treatment. She was readmitted on February 20, 1985, complaining of severe low back pain with radiation to her right leg and difficulty walking. Repeated CT scans and x-rays of the lumbosacral spine and a total myelogram indicated only a minimal extradural defect at L4-L5. Back pain was thought to stem from involvement of the right sacroiliac. Her discharge diagnosis was severe radiating pain to the right leg and arthritis of the sacroiliac joint and lumbosacral spine.

Dr. Krishman Potti reported on March 15, 1985, that the claimant had a severe disability involving her leg due to a herniated disc. She had been advised to wear Ted hose in order to preclude the possible development of bloodclots in the pulmonary artery.

In an April, 1985, report, Dr. J.F. Bicalho found that Pope was experiencing pain in her back, right hip and leg due to a small herniated disc in the lumbar region. At that time, she was wearing a corset and undergoing intensive physical therapy. He opined that she was unable to perform any physical activity, including prolonged walking or standing, lifting, housework or any form of work activity.

Upon remand from the Appeals Council, additional evidence was received. Records from Pope's June, 1985, hospitalization indicated that she complained of low back pain radiating down her right leg. She was put into traction and started on an aggressive but carefully designed medication regimen. A chest x-ray of the bones found at the junction of the spinal column and pelvis was negative, as was a CT scan of the pelvis.

A July 9, 1985, report by Dr. Potti stated that she had a severe disability. He described her as bedbound and needing a wheelchair, opining that she was...

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