Sample v. Shalala

• Decision Date: 21 July 1993
• Docket Number: No. 92-2770,92-2770
• Citation: 999 F.2d 1138
• Parties: , Unempl.Ins.Rep. (CCH) P 17420A Dorothy SAMPLE, * Plaintiff-Appellant, v. Donna E. SHALALA, ** Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1138

999 F.2d 1138

41 Soc.Sec.Rep.Ser. 588, Unempl.Ins.Rep. (CCH) P 17420A

Dorothy SAMPLE, ^* Plaintiff-Appellant, v. Donna E. SHALALA, ^** Secretary of Health and Human Services, Defendant-Appellee.

No. 92-2770.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 1993.

Decided July 21, 1993.

Janet F. Gerske (argued), Chicago, IL, for plaintiff-appellant.

Fred Foreman, U.S. Atty., Crim. Div., Grace M. Kim (argued), Dept. of Health and Human Services, Region V, Office of the Gen. Counsel, Michele M. Fox, Asst. U.S. Atty., Civ. Div., Appellate Section, Chicago, IL, for defendant-appellee.

Before CUMMINGS and CUDAHY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Dorothy Sample suffered from a variety of impairments, most notably recurring dizziness that she claimed severely restricted her ability to hold a job or to function day to day. In October 1988, she applied to the Secretary of Health and Human Services ("the Secretary") for disability insurance benefits pursuant to Title I of the Social Security Act, 42 U.S.C. §§ 301 et seq. An administrative law judge ("ALJ") concluded that she could perform her past relevant work as a gas station cashier, and the Secretary accordingly denied her application. In an action Sample commenced challenging the Secretary's denial, the district court entered summary judgment in favor of the Secretary. For the reasons that follow, we vacate the decision below and remand for reconsideration by the Secretary.

I.

Dorothy Sample, who was 58 at the time of the ALJ's decision, had an extensive history of medical problems dating at least back to the 1970s. The ALJ's decision comprehensively reviews the evidence pertaining to Sample's medical history. See A.R. at 9-18. ¹ Our summary of that history is less detailed here, and we will note some facts only as they become relevant to our discussion.

In her October 1988 application for disability insurance benefits, Sample stated that she was unable to engage in substantial gainful activity because of Raynaud's disease, ² heart trouble, strokes, and high blood pressure. According to Sample these impairments began on March 27, 1982. Sample had been treated for various medical problems over the course of several years. Between 1975 and 1981, for example, she was treated for complaints of chronic dizzy spells and other problems. A.R. at 12-13. She began receiving treatment at the University of Illinois ("UIC") Hospital in late 1981 for dizziness and hypertension. One UIC physician who treated her in 1987 and 1988 reported that Sample suffered from vertigo and that the symptoms appeared to be incapacitating, but that the etiology of the vertigo remained unknown despite extensive evaluation of her over several years. Reports through 1989 by UIC doctors--including a neurological report by Dr. Jesse Taber--reiterate the diagnosis of vertigo, hypertension, Raynaud's disease, degenerative joint disease, and a history of cerebral infarctions.

The ALJ's decision states that Sample's main complaints were that she experienced frequent dizzy spells and passed out "all of the time." A.R. at 12. Specifically, Sample stated that she got dizzy four or five times every day for 15 minutes to one hour. A.R. at 16. Sample said that she experienced cold spells and chest pains, that she tired easily, and that these impairments kept her largely confined to the house.

Sample, a high school graduate, worked as a cashier for an A & P grocery store from 1965 until March 27, 1982. Sample's duties at the grocery store can be characterized as exertionally light work under the complex statutory and regulatory terminology. Although Sample claims to have left the cashier job because of her impairments, she attempted to return to work in early 1984 as a cashier at an Amoco service station. The length of time Sample worked at Amoco is a matter of dispute, but wage reports indicate she was employed there for about seventeen weeks.

According to a vocational report prepared by the plaintiff, the Amoco job involved all standing or walking and lifting up to 50 pounds when helping to unload deliveries. At the hearing before the ALJ, Sample described her work at Amoco as follows:

Well, I didn't do anything but, but we--there was a little store in there we had coffee, and, and you know, stuff like that-- ... and I would pump--not pump the gas, but put the gas, you know,--give the people the gas, some of the gas.

A.R. at 45. Sample also stated in a job description form that her duties included cleaning up the station "inside [and] out." When the ALJ asked her what cleaning she did outside the station, she responded: "I didn't do anything but wipe--you had to wipe the pumps off." Id.

In a decision issued February 28, 1990, the ALJ found that Sample had not engaged in substantial gainful activity since February 1984 and that she was severely impaired by a history of hypertension, degenerative joint disease, Raynaud's disease, vertigo, diabetes, and mild bronchitis. In reaching his decision, however, the ALJ found that Sample was not credible. Her complaints of vertigo, for example, are "unsubstantiated," she "seems to exaggerate her complaints of the frequency of her attacks of dizziness" and her testimony about her limitations is not credible "in view of the fact that [she] is visited by friends and goes to church three or more times per week." A.R. at 16.

The ALJ determined that Sample's impairments did not meet or equal any impairment in the Social Security Administration's Listings of Impairments ("Listings"). Moreover, the ALJ found that Sample had the residual functional capacity for sedentary work on the date her prior insured status expired, December 31, 1988. Finally, the ALJ concluded that Sample's past relevant work as a gas station cashier did not exceed her residual functional capacity and that she was capable of performing her past relevant work. Therefore, she was not disabled and could not qualify for disability benefits.

After an Appeals Council denied Sample's request for review of the ALJ's decision, Sample filed a civil action for judicial review of the decision in United States District Court. The district court denied Sample's request for remand on the basis of new evidence she submitted. ³ The court also found that substantial evidence supported the ALJ's decision that Sample was not disabled because she could perform her past relevant work as a gas station cashier. Sample v. Sullivan, No. 91-2191 1992 WL 130294 (N.D.Ill. June 5, 1991). Sample appealed.

II.

Section 205(g) of the Act, 42 U.S.C. § 405(g), authorizes judicial review of the ALJ's decision. We must affirm the Secretary's finding of not disabled if substantial evidence supports this finding. Id. (Secretary's findings conclusive if supported by substantial evidence); Walker v. Bowen, 834 F.2d 635, 639 (7th Cir.1987). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-217, 83 L.Ed. 126 (1938)).

To qualify for disability 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 12 months." 42 U.S.C. § 423(d)(1)(A). "Physical or mental impairment" is an impairment resulting "from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). Social Security regulations set forth a five-step inquiry to determine whether a claimant is disabled. The Secretary must determine (1) whether the claimant is presently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one of the Secretary's listed impairments; (4) whether the claimant can perform her past relevant work; and (5) whether she is capable of performing any work within the economy. Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir.1992). A claimant must always satisfy the first two factors, but a finding of disability results if she has a listed impairment or can do neither her previous work nor any other work. Id.

As stated above, the ALJ determined that Sample satisfied the first two factors--that is, she had not been gainfully employed since February 1984 and was severely impaired by a history of various ailments. He nevertheless concluded that her impairments did not meet or equal a listed impairment and that she had the functional capacity for sedentary work. These findings required a conclusion that Sample was not disabled.

The plaintiff challenges the decision below on three main grounds. First, she contends that her impairments equal the Secretary's Listings--specifically, section 2.07's listing pertaining to vertigo--and that such a finding of equivalence is conclusive evidence of disability. Second, Sample argues that the district court should have remanded the case to the Secretary for consideration of additional evidence. Finally, Sample says that the ALJ erred in finding she could return to her past relevant work.

The plaintiff's first contention regarding the equivalency between her impairments and those in the Listings warrants careful consideration. Section 2.07 of the Listings provides that a claimant will be deemed disabled if she meets or equals the following criteria:

Disturbance of labyrinthine-vestibular function (including Meniere's disease), characterized by (1) a history of frequent attacks of balance disturbance (vertigo), (2) tinnitus (ringing in the ears), and (3)...