Banks v. Bowen, 87C2584.

• Decision Date: 14 October 1987
• Docket Number: No. 87C2584.,87C2584.
• Parties: Fannie BANKS, Plaintiff, v. Otis BOWEN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

672 F. Supp. 310

Fannie BANKS, Plaintiff, v. Otis BOWEN, Secretary of Health and Human Services, Defendant.

No. 87C2584.

United States District Court, N.D. Illinois, E.D.

October 14, 1987.

COPYRIGHT MATERIAL OMITTED

Jan L. Kodner, Chicago, Ill., for plaintiff.

Anton R. Valukas, U.S. Atty., Eileen Marutzsky, Asst. U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Fannie Banks ("Banks") seeks judicial review of a final decision by the Secretary of Health and Human Services ("Secretary") denying Banks' claim — one based on an asserted disability beginning in December 1978 — for disability insurance and supplemental security income ("SSI") benefits under Social Security Act ("Act") §§ 216(i), 223 and 1602, 42 U.S.C. §§ 416(i), 423 and 1381a.¹ After a May 7, 1986 hearing (the "Hearing"), Administrative Law Judge ("ALJ") Donald Niersbach denied Banks' application July 18, 1986. Banks then exhausted her administrative remedies in proper sequence and brought this action against Secretary under Section 405(g).

As invariably occurs in these actions, which come to this Court on the administrative record and a decision by Secretary, the parties have filed cross-motions for summary judgment. For the reasons stated in this memorandum opinion and order, both parties' motions for summary judgment are denied, and this case is remanded to Secretary for further proceedings consistent with this opinion.

Facts

Banks, who was 57 years old at the time of the Hearing, has an eighth-grade education. She last worked as a drapery presser in 1978.² That job's physical requirements were the subject of contradictory evidence. Apparently Banks' work was limited to sliding drapes onto the pressing machine and using a button to lower the presser onto the drapery material (R. 12, 46-51).

Banks left her job in 1978 because she was laid off (R. 52), and she has not worked since then. On April 19, 1985 she applied for SSI and disability insurance benefits, claiming she had been disabled since December 1978 because of "arthritis in all joints, ulcer, HBP, bladder infection" (R. 112). Her applications were denied because the medical evidence assertedly showed she was still able to do her former work of pressing drapes (R. 126-28, 137). After those denials, Banks requested a hearing before an ALJ.

At the Hearing Banks was represented by counsel. She testified and her attorney presented oral argument. She claimed she cannot work because (R. 52):

I have too many aches and pains and swelling now.

When asked to be more specific, she claimed she had pain in her face, back, toes and shoulder as well as swollen knees. She takes medication to control her high blood pressure and water build-up, as well as for arthritis pain (R. 56-58). Sometimes she uses a walking stick (R. 59). She claimed she could sit or stand only for fifteen minutes at a time (R. 61), could walk only half a block (R. 62) and was able to lift only objects weighing less than 20 lbs. (R. 66).

In addition to Banks' testimony, ALJ Niersbach had before him the medical records from her several hospital stays and reports from her treating physician and consulting physicians. Given the nature of such cases as these, at least an outline of that medical evidence is necessary.

Banks was hospitalized for seven days in 1978 because of chest pains. At that time her EKG was normal (R. 202). She was admitted again in 1979 because of chest and back pain and in 1982 for back pain alone. On both occasions she was discharged the same day.

Dr. Chao Chen, Banks' treating physician from 1982 to the present, filled out a five-page form evaluating her medical condition (R. 168-72) and later completed a form for assessing an individual's ability to do work (R. 194-95). In addition Banks submitted another form prepared by Dr. Chen for the Illinois Department of Public Aid before her applications at issue here (R. 165-66).

In that earlier form Dr. Chen reported Banks was suffering from a urinary tract infection and arthritis. Because of those afflictions he believed Banks could not return to work, although he said she was still capable of performing "moderate physical activity" (R. 166).

Dr. Chen's later reports prepared for Secretary were similar. In one report he said Banks' only physical problem was arthritis in her back. That condition significantly reduced her range of motion. He reported no heart problems or chest pain and said she could walk without a cane. Her arthritis would make it hard for her to bend and could possibly affect sitting and standing (R. 172). Dr. Chen's second report to Secretary reflected Banks had arthritis in her "back, legs, knees, shoulder etc." (R. 194). That arthritis prevented her from standing or sitting more than one hour, walking more than two blocks and lifting more than 10 pounds. Dr. Chen opined that Banks was then disabled (R. 195).

Consulting physician Dr. N. Cay examined Banks May 21, 1985. Banks complained to him of pain in her knees, toes and back and blurred vision. Dr. Cay found a full range of motion in all Banks' joints, but x-rays showed signs of "slight to moderate degenerative arthritis of lumbosacral spine (R. 178).³ Dr. Cay diagnosed arthritis of the knees and lower back (R. 176). He offered no opinion on Banks' ability to work. At that time Banks also received an eye examination, which revealed she had impaired vision that could be partially corrected with glasses (R. 173).⁴

Dr. John Wyness prepared a residual functional capacity assessment for Banks, based only on those reports. He found her physical capacity to do work was essentially unrestricted, except that her vision problem would prevent her from performing jobs requiring acute vision (R. 182).

Applying the Statutory Framework

To establish entitlement to disability and supplemental security income benefits, a claimant must show he or she is "disabled." Sections 416(i)(1) and 423(d) define "disability" as:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months....⁵

Secretary has promulgated extensive procedural regulations for determining whether an applicant is disabled. Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir.1984) summarizes Secretary's five-step test for determining "disability":

The following steps are addressed in order. (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled. 20 C.F.R. § 404.1520 (1983).⁶

Once a claimant has demonstrated an impairment of sufficient severity to prevail at step 4, Smith v. Schweiker, 735 F.2d 267, 270 (7th Cir.1984) teaches:

The burden then shifts to the agency to show the claimant retained the residual functional capacity to perform other work in the national economy.⁷

At that fifth and final step Secretary must consider all the claimant's physical and mental impairments (Regs. §§ 404.1561, 416.961), the claimant's age (Regs. §§ 404.1563, 416.963), education (Regs. §§ 404.1564, 416.964) and work experience (Regs. §§ 404.1565 and .1568, 416.965 and .968).⁸ Toward that end the ALJ typically looks to the "Grid," medical-vocational guidelines (found at 20 C.F.R. Subpart P, Appendix 2) that balance the claimant's physical limitations against the other relevant factors (Regs. §§ 404.1569, 416.969).⁹ Before doing so the ALJ must determine what type of work a claimant is capable of performing in light of his or her impairments. Secretary's regulations define types of work using physical exertion criteria (Regs. §§ 404.1567, 416.967). Alternatively the ALJ may base the step 5 determination on other evidence, including the assessment of a vocational specialist (Regs. §§ 404.1566(e), 416.966(e)).

In all events, Secretary's decision must be upheld unless (1) the findings are not supported by substantial evidence or (2) Secretary has applied incorrect legal standards (Sections 405(g) and 1383(c)(3)). 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, 59 S.Ct. 206, 83 L.Ed. 126 (1938), has defined "substantial evidence" as:

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Secretary's Decision

After explaining the five-step disability test, ALJ Niersbach proceeded with a thorough summary of the evidence. His summary was accompanied by several short comments evaluating the evidence:

1. He noted Banks' descriptions of her former work conflicted in several respects (R. 12)

2. He found (a) Dr. Chen's report to the Illinois Department of Public Aid contradicted itself by finding Banks capable of moderate physical activity but nonetheless disabled and (b) the report lacked objective findings to support Dr. Chen's conclusions (R. 12).

3. He pointed out Dr. Chen's and Dr. Wyness' evaluations of Banks' residual functional capacity were in direct conflict. He gave Dr. Wyness' report little weight because not that of an examining physician (R. 14).

ALJ Niersbach concluded Banks suffers from mild hypertension, decreased vision and arthritis of the back and knees.¹⁰ Those impairments do not equal any of Secretary's listings (step 3). Although Banks' abilities are considerably minimized (R. 15), the ALJ found Banks' own subjective claims as to the extent of her disabilities are considerably exaggerated and are...