Arbogast v. Bowen

• Decision Date: 26 October 1988
• Docket Number: No. 87-2751,87-2751
• Citation: 860 F.2d 1400
• Parties: , Unempl.Ins.Rep. CCH 14269A Brita ARBOGAST, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant- Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1400

860 F.2d 1400

23 Soc.Sec.Rep.Ser. 561, Unempl.Ins.Rep. CCH 14269A

Brita ARBOGAST, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services,

Defendant- Appellee.

No. 87-2751.

United States Court of Appeals, Seventh Circuit.

Argued June 13, 1988.

Decided Oct. 26, 1988.

Agustin G. Garcia, Agustin G. Garcia, P.C., Chicago, Ill., for plaintiff-appellant.

Donna L. Calvert, Asst. Reg. Counsel, Dept. of Health and Human Services, Chicago, Ill., for defendant-appellee.

Before WOOD, Jr., EASTERBROOK, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Brita Arbogast appeals the denial of her application for social security disability insurance benefits. An Administrative Law Judge (ALJ) determined that Mrs. Arbogast was not disabled under section 223(d)(1) of the Social Security Act, 42 U.S.C. Sec. 423(d)(1). The Department of Health and Human Services Appeals Council (Appeals Council) modified the factual findings of the ALJ but otherwise affirmed his decision. That action constituted the final decision of the Secretary of Health and Human Services (Secretary). On judicial review, the district court affirmed the decision of the Secretary because, in the court's judgment, the Secretary's decision was supported by substantial evidence in the record. We agree and therefore affirm the judgment of the district court.

I Background

Mrs. Arbogast, at the time of her most recent administrative hearing, was a sixty-two year old high school graduate. From 1980 until September 1982, prior to her claimed disability, Mrs. Arbogast was employed as a receptionist in a beauty salon. In 1981, a hyperthyroid condition left Mrs. Arbogast with impaired muscle function in her eyes. She ultimately left her employment because of the deterioration of her vision. Specifically, Mrs. Arbogast testified before the ALJ that she suffered from eye-muscle imbalance, double vision, lack of depth perception, excessive tearing, and headaches.

On September 22, 1983, Mrs. Arbogast filed her application for disability insurance benefits. Her application was denied twice at the administrative level. A hearing then was conducted before an ALJ. The ALJ denied the claim because he found that by "[u]sing an eye patch, thereby creating monocular vision, the claimant retains the capacity to perform any task involved in her past relevant work...." R. 6 at 9. The Appeals Council affirmed. Mrs. Arbogast then sought judicial review before the district court. Both parties filed motions for summary judgment. However, the district court remanded the case for further factfinding. Although the ALJ found that Mrs. Arbogast's double vision was alleviated by the use of an eye patch, the court was concerned by the ALJ's failure "to consider consequences of such a course of action alluded to in the testimony, most particularly plaintiff's description of her tearing when she attempted to read with one eye." Arbogast v. Heckler, No. 85 C 3974, memorandum and order at 3 (N.D.Ill. Mar. 27, 1986); R. 14 at 3. Accordingly, the court instructed the ALJ on remand to make an explicit finding "as to the nature of the plaintiff's tearing problem and its effect on her total condition." Id. at 5.

On remand, the same ALJ conducted a de novo review of Mrs. Arbogast's claims and found that the alleged excessive tearing "is not a significant problem and that [Mrs. Arbogast] can dry her tears during the course of the day without significant interference with her activities of her past relevant work...." R. 19 at 161. The Appeals Council modified two of the factual findings of the ALJ, made additional findings, and affirmed the ALJ's decision. Mrs. Arbogast again appealed to the district court. The court granted the Secretary's motion for summary judgment, and denied Mrs. Arbogast's cross-motion for summary judgment. The court noted that "[b]y plaintiff's own testimony, the tearing problem is episodic and is aggravated by reading for a period of time. Again, the relevant work is in a beauty salon, and it does not require prolonged reading. The medical records do not indicate the tearing to be a significant problem." Arbogast v. Bowen, No. 85C3974, memorandum and order at 1-2 (N.D.Ill. Oct. 8, 1987); R. 37 at 1-2 [hereinafter Mem. order]. It then concluded that "plaintiff has [not] carried her heavy burden of overturning the ALJ's determination that she can perform her past relevant work." Id. at 2.

II Discussion

A. Contentions of the Parties

Mrs. Arbogast generally contends that the denial of her benefits is not supported by substantial evidence. Specifically, she raises two challenges: First, that the ALJ and the Appeals Council employed a defective analysis in reviewing her claim because they failed to compare the physical demands of her former work with her current capabilities after considering all relevant medical evidence; and second, that the ALJ failed to explicate a "minimal level of articulation" to support his decision concerning her subjective complaints.

The Secretary contends that the decision of the Appeals Council is supported by substantial evidence. In particular, he submits that the ALJ and the Appeals Council properly considered all of the evidence under the appropriate analysis. He also argues that the ALJ is not required to make explicit findings concerning the credibility of a claimant's subjective complaints. The thrust of the Secretary's submission is that the burden to prove disability rests on Mrs. Arbogast; the Secretary does not have to disprove disability.

B. Analysis

1.

As an initial matter, we note that we review the judgment of the district court. Imani v. Heckler, 797 F.2d 508, 510 (7th Cir.), cert. denied, 479 U.S. 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986); Schaefer v. Heckler, 792 F.2d 81, 84 (7th Cir.1986). In so doing, like the district court, we review the final decision of the Secretary to ensure that his decision was supported by substantial evidence. Ray v. Bowen, 843 F.2d 998, 1001 (7th Cir.1988); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir.1987); Bauzo v. Bowen, 803 F.2d 917, 921 (7th Cir.1986); see also 42 U.S.C. Sec. 405(g). The Secretary, in turn, has delegated his authority to make final decisions to the Appeals Council. See 20 C.F.R. Secs. 404.900, 404.981, 416.1400, 416.1481. We therefore review the decision of the Appeals Council rather than the decision of the ALJ. Bauzo, 803 F.2d at 921; see Parker v. Bowen, 788 F.2d 1512, 1516-17 (11th Cir.1986) (en banc); Parris v. Heckler, 733 F.2d 324, 326 (4th Cir.1984). However, in this case, the Appeals Council explicitly adopted, as modified, the opinion of the ALJ. Accordingly, we must review the decision of the ALJ as modified by the Appeals Council.

In reviewing the decision of an ALJ, we previously have noted that, "[u]nless there has been an error of law," we cannot overturn his factual findings "if the findings are supported by substantial evidence." Veal v. Bowen, 833 F.2d 693, 696 (7th Cir.1987); see Waite v. Bowen, 819 F.2d 1356, 1360 (7th Cir.1987); Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986) (per curiam). Substantial evidence refers to that quantum of " 'relevant evidence [that] 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, 83 L.Ed. 126 (1938)), "taking into account 'whatever in the record fairly detracts from its weight.' " Sears v. Bowen, 840 F.2d 394, 398 (7th Cir.1988) (quoting Bauzo, 803 F.2d at 923)); accord Ray, 843 F.2d at 1001. "Although this court may not interject its own judgment for that of the administrative law judge, McNeil v. Califano, 614 F.2d 142, 145 (7th Cir.1980), we must not simply rubber stamp his decision in the absence of a critical review of the evidence. Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir.1984)." Veal, 833 F.2d at 696.

2.

In addressing a claimant's contention that she is disabled under the Social Security Act, we previously have summarized the agency regulations, see 20 C.F.R. Secs. 404.1520, 416.920, as requiring the factfinder to follow a sequential five-step inquiry. ¹ Here, the first three steps of the sequential inquiry are not in dispute. Accordingly, we proceed directly to step four: Is Mrs. Arbogast unable to perform her former occupation of beauty salon receptionist? In determining whether a claimant is unable to perform his or her former occupation,

the [factfinder] is required to decide whether the claimant "retains the [residual functional capacity] to perform:

1. The actual functional demands in job duties of a particular past relevant job; or

2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy."

Orlando v. Heckler, 776 F.2d [209,] 215 [ (7th Cir.1985) ] (emphasis in original) (quoting Social Security Ruling 82-61 (1980)). This task necessarily entails a comparison of the physical demands of the claimant's past relevant work with her present mental and physical capacity. Bauzo v. Bowen, 803 F.2d 917, 925 (7th Cir.1986); Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir.1984).

Veal, 833 F.2d at 697. The claimant bears the burden of establishing that she is unable to return to her past relevant work. Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987); Sears, 840 F.2d at 399.

3.

In this case, Mrs. Arbogast essentially contends that the Secretary employed a defective analysis in addressing the step four inquiry. She argues that the ALJ failed to consider that her job as a beauty salon receptionist required her to shampoo and dye hair, which aggravated her visual impairment by causing excessive tearing. ² She also asserts that the ALJ and Appeals Council failed to consider all of the relevant medical evidence concerning her inability (1) to "maneuver[ ] in an environment," and (2) to...