Books v. Chater

• Decision Date: 01 August 1996
• Docket Number: No. 95-2794,95-2794
• Citation: 91 F.3d 972
• Parties: , Unempl.Ins.Rep. (CCH) P 15540B Dweaine BOOKS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 972

91 F.3d 972

51 Soc.Sec.Rep.Ser. 333, Unempl.Ins.Rep. (CCH) P 15540B

Dweaine BOOKS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security Defendant-Appellee.

No. 95-2794.

United States Court of Appeals Seventh Circuit.

Argued Jan. 19, 1996.

Decided Aug. 1, 1996.

Michael S. Sperling (argued), Milwaukee, WI, for Dweaine Books.

Thomas P. Schneider, Office of the U.S. Atty., Milwaukee, WI, Mary Thorson (argued), Dept. of Health and Human Services Region V, Office of the General Counsel, Chicago, IL, for Shirley S. Chater, Commissioner of Social Security.

Before POSNER, Chief Judge, and KANNE and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Since injuring his back, Dweaine Books has applied several times to the Social Security Administration for disability benefits, and each time he has been denied. After the most recent denial, and an administrative law judge's subsequent affirmance of that denial, Books filed suit in the Eastern District of Wisconsin seeking review of the administrative determination. Finding the ALJ's decision to be supported by substantial evidence, the district court granted summary judgment in favor of the Commissioner. Books now appeals to this court, and we affirm.

I. HISTORY

Dweaine Books was born on June 28, 1937, and he attended school through part of the ninth grade. Books injured his back in December 1982 while on the job at Wisconsin Centrifugal Company, a foundry for which he had worked nearly twenty years. For the majority of those years, Books worked as a machine operator, running a turn lathe in the company's die shop. The job required heavy lifting, and Books had been injured while attempting to use chains and a hydraulic hoist to place a half-ton steel die into a lathe for machining.

After the injury, Books's internist, Dr. O'Mara, referred him to an orthopedist, Dr. Pruscha, and Books was admitted to the Memorial Hospital at Oconomowoc, Wisconsin. On April 27, 1983, Books underwent an epidural chymopapain injection. When the injection did not relieve his pain, Dr. Pruscha performed a lumbar laminectomy and diskectomy on June 14, 1983, during which herniated portions of two of Books's discs were removed.

On June 30, 1983, Books filed for disability insurance benefits, which were denied in November 1983. Books declined to appeal the denial and returned to work, this time as a chipper, a job requiring him to clean out machines and then shovel and haul heavy metal chips. However, in January of 1986, when a new owner took over Wisconsin Centrifugal, Books was laid off.

Books continued to complain of intermittent lower back pain--for example, in August 1986, while chopping wood and working around the house, he strained his lower back and was treated with Motrin. Books also complained of knee problems during the summer of 1987, and X-rays revealed minor degenerative changes in the joint. Dr. Pruscha instructed him to avoid excessive squatting and placed him on an isometric exercise program.

On May 7, 1987, Books again applied for a period of disability and for disability insurance benefits, which were again denied. He filed a timely request for review, and a hearing was held on April 15, 1988, before ALJ Eric J. Curtis. Written statements were obtained from Books's physicians, Drs. O'Mara and Pruscha. In a short statement, Dr. O'Mara expressed his belief that Books was "completely and permanently disabled because of his persistent back pain and degenerative arthritis to the right knee." Dr. Pruscha, on the other hand, submitted a full functional capacity evaluation, in which he opined: (1) that during an eight-hour day, Books would be able to walk, stand, and sit for two to four hours each; (2) that Books could safely lift up to twenty pounds frequently and up to fifty pounds occasionally; (3) that Books should avoid excessive or repeated bending; (4) that pushing and pulling should be performed only with proper body mechanics; (5) that whether and how often Books would require rest periods during the day would depend on his activity level; and (6) that with regard to his knee, Books had "a normal gait pattern" and "essentially no leg symptoms."

After the hearing, ALJ Curtis issued an opinion on July 28, 1988, affirming the SSA's denial of benefits. ALJ Curtis determined that Books was not engaged in substantial gainful employment and that he suffered from a severe impairment that prevented him from resuming the type of heavy lifting work he had previously performed while working for Wisconsin Centrifugal. In such cases, where the claimant can no longer perform his past work, the SSA's regulations require that factors including the claimant's age, education, and past work experience be considered along with his residual functional capacity to determine if he can perform some other job. 20 C.F.R. §§ 404.1520(f), 416.920(f). After reviewing all the evidence, ALJ Curtis determined that Books retained the residual capacity to perform a full range of unskilled "light work," as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), and therefore that he was not disabled within the meaning of the Social Security Act.

The following year, on January 30, 1989, Books filed for a period of disability, disability insurance benefits, and supplemental security income. His applications were denied by the SSA, both initially and on reconsideration, so on July 25, 1989, Books filed a request for a hearing. The hearing was scheduled for April 4, 1990, before ALJ Robert L. Bartelt, Jr.

In the interim, Books continued to visit Dr. O'Mara for the pain in his lower back and knee, and Dr. O'Mara referred him to a neurosurgeon, Dr. Lloyd. After examining Books on March 13, 1989, Dr. Lloyd reported his belief that Books might be experiencing "chronic low back and bilateral leg pain secondary to lumbar facet arthrosis." Dr. Lloyd ordered CT and bone scans, after which he noted some disc bulging in the lower back, as well as "[d]egenerative changes involving both knees and the right wrist." As treatment, Dr. Lloyd administered a lumbar facet injection of depo prednisolone and lidocaine. Unfortunately, Dr. Lloyd's findings do not include an estimation of the range of tasks Books could be expected to perform safely, nor an opinion as to the extent of Books's disability.

For use at the hearing before ALJ Bartelt, Dr. O'Mara completed a functional capacity evaluation of Books on February 26, 1990. Dr. O'Mara stated his belief that in an eight-hour workday, Books could only stand or sit for up to one hour each. He opined that Books could occasionally lift up to ten pounds, but he stated that Books was utterly incapable of lifting more than ten pounds, working above the shoulder level, bending, twisting, turning at the waist, squatting, crawling, climbing, pushing, or pulling. Dr. O'Mara concluded that because of the bulging disc in Books's lower back, as well as the arthritis in both his knees, Books was 100 percent disabled.

At the SSA's request, Books was also examined by Dr. Beaumont, a consulting physician, on May 18, 1990. Dr. Beaumont noted that Books suffered from pains in his lower back, left knee, and right wrist resulting from osteoarthritis, degenerative changes in the patellofemoral joints, and moderate arthritic changes of the radial carpal joint, respectively. He also diagnosed obesity, hypertension, mild depression, and a variety of other minor afflictions. Dr. Beaumont reported that "[Books] seems to have some difficulty squatting and lifting, however [he] seems to be able to stand and walk and grasp without much difficulty. [Books's] overall condition could be significantly improved if [he] would lose weight to ideal body weight and get into a regular disciplined exercise program." As for functional capacity, Dr. Beaumont concluded that Books could lift up to ten pounds frequently and twenty pounds occasionally. He further determined that in an eight-hour workday, Books would be able to sit for five hours and for up to forty-five minutes at a time, stand for six hours and for up to one hour at a time, and walk for four hours and for up to one-half hour at a time.

At the hearing before ALJ Bartelt, Books testified that he lived in constant pain. He explained that due to his lower back pain, he had difficulty climbing the stairs to his second-floor apartment, his back stiffened up after only twenty minutes in a car, he had difficulty putting on his clothes and shoes in the morning, and he had trouble sleeping in his bed at night, often having to lie on the floor to straighten his back out. Books stated that he could stand for only ten to fifteen minutes at a time, could sit for only forty-five minutes at a time, and had to lie down for two to three hours a day to alleviate his pain. He complained that his knees would give out after walking only half a block and that his wrist pain gave him trouble when lifting even the lightest items, such as a glass of milk. He also testified that he often felt dizzy and had trouble remembering or concentrating which hindered his ability to have conversations and to read (which he said he did extensively). He complained of anxiety, nervousness, and depression, and explained that he rarely left his room.

Despite this bleak testimony, Books also testified that he did not take any serious prescription pain medication (he takes three relatively mild painkillers) and that he did not participate in physical therapy for either his back or his knees. He testified that he did some household chores, prepared his meals, shopped for groceries, attended church twice a week, visited with his family and friends, and occasionally drove his car. Books's brother also testified at the hearing, and he substantially reiterated Books's testimony concerning his activities and limitations.

In an opinion dated February 20, 1991, ALJ Bartelt issued his decision affirming the SSA's denial of benefits. ALJ Bartelt first noted that in the ...