Caviness v. Apfel, IP 97-945-C H/G.

• Decision Date: 22 April 1998
• Docket Number: No. IP 97-945-C H/G.,IP 97-945-C H/G.
• Parties: Alys CAVINESS, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security,<SMALL><SUP>1</SUP></SMALL> Defendant.
• Court: U.S. District Court — Southern District of Indiana

4 F.Supp.2d 813

Alys CAVINESS, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security,¹ Defendant.

No. IP 97-945-C H/G.

United States District Court, S.D. Indiana, Indianapolis Division.

April 22, 1998.

COPYRIGHT MATERIAL OMITTED

Philip J. Caviness, Holt, Fleck & Free, Noblesville, IN, for Plaintiff.

Gerald A. Coraz, Office of U.S. Atty., Indianapolis, IN, for Defendant.

ENTRY ON JUDICIAL REVIEW

HAMILTON, District Judge.

This is an action for judicial review of the decision of the Commissioner of Social Security to deny plaintiff Alys Caviness's application for disability insurance benefits and supplemental security income. After finding that Ms. Caviness suffers from severe impairments but is capable of substantial gainful activity, an Administrative Law Judge (ALJ) denied her claim. The Appeals Council denied review leaving the ALJ's determination as the final decision of the Commissioner. As explained below, the ALJ's decision must be vacated and remanded. Even under the deferential standard of judicial review that applies to such decisions under the Social Security Act, the ALJ's decision is not supported by substantial evidence.

Background

Alys Caviness was born on June 20, 1963, and was 31 years old when she applied for benefits in May 1995. She has completed high school and some college. At the time of the hearing before the ALJ, Ms. Caviness was taking courses as a junior at Ball State University in Muncie, Indiana. She has past relevant work as a proof-reader, a receptionist, a collections specialist, a data clerk, a manager, and a sales clerk. She claims she has been disabled since April 1991 because of severe chronic bronchiectasis and chronic sinusitis. She has suffered from these conditions since childhood, and they have caused repeated lung infections, fatigue, shortness of breath, coughing and neck strain. The ALJ found that Ms. Caviness suffers from medically severe impairments but that she remains capable of substantial gainful activity at the light exertional level with additional non-exertional environmental restrictions because she needs clean air. Ms. Caviness challenges the ALJ's finding that her impairments do not meet or equal one of the automatically disabling impairments listed in the Social Security Administration regulations, his determination about the credibility of her complaints, his decision not to give controlling weight to the opinion of her treating physician, and his finding that she can perform a significant number of jobs in the economy.

Standard of Review

The Social Security Act provides that if the findings of the Commissioner are supported by substantial evidence, they are conclusive as to a claimant's eligibility for the benefits in question here. 42 U.S.C. §§ 405(g), 1383(c)(3); Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir.1997). When the Appeals Council finds no basis for further review, as it did here, the ALJ's findings are treated as those of the Commissioner. Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.1994). The court reviews the ALJ's findings to determine whether they are supported by substantial evidence in the record as a whole. Perkins, 107 F.3d at 1296. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir.1997), quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). If substantial evidence in the record supports the Commissioner's (here, the ALJ's) findings, the court must affirm the decision unless the Commissioner committed an error of law. Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir.1997); Binion v. Chater, 108 F.3d 780, 782 (7th Cir.1997).

The courts are not to attempt to determine whether the plaintiff is actually disabled. Books v. Chater, 91 F.3d 972, 977 (7th Cir.1996). The Commissioner or his designate, the ALJ, is responsible for weighing the evidence, resolving material conflicts, making independent findings of fact, and deciding the case accordingly. See Perales, 402 U.S. at 399-400, 91 S.Ct. 1420; Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986). The court may not decide facts anew, reweigh the evidence, or substitute its judgment for that of the ALJ. Nelson, 131 F.3d at 1234. The court must not, however, simply rubber-stamp the decision without critically reviewing the evidence as a whole. Howell v. Sullivan, 950 F.2d 343, 347 (7th Cir.1991). In considering the record as a whole, the court must look at all the relevant evidence, not only the evidence that supports the Commissioner's conclusion. Nelson, 131 F.3d at 1237. The court must therefore consider "whatever in the record fairly detracts from [the] weight" of the Commissioner's determination. Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.1986). Nevertheless, where "conflicting evidence allows reasonable minds to differ," the court must defer to the Commissioner's resolution of that conflict. Binion, 108 F.3d at 782.

Discussion

To be eligible for benefits, Ms. Caviness must establish that she suffers from a disability within the meaning of the Social Security Act. The Act defines "disability" as an inability to engage in substantial gainful activity by reason of a medically determinable impairment that can be expected to last for twelve continuous months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Ms. Caviness is disabled only if her impairments are of such severity that she is unable to perform work that she has done previously and if, based on her age, education, and work experience, she could not engage in any other kind of substantial work existing in the national economy, regardless of whether such work is actually available to her. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). This standard is a stringent one. A claimant is not necessarily entitled to benefits even if he or she has substantial impairments. These benefits are paid for with taxes, including taxes paid by many people who work despite serious physical or mental impairments and for whom working is quite difficult and painful. Before tax dollars are available to support someone applying for benefits, it must be clear that the claimant has a severe impairment and cannot perform virtually any kind of work. The Act does not contemplate degrees of disability or allow for an award based on partial disability. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir.1985). Also, unlike many private disability insurance policies, a person may not be disabled under the Act even if she is no longer able to perform her past work or the work she feels is most suitable in terms of her skills, education, and experience. Under this statutory standard, these benefits are available only as a matter of nearly last resort.

The ALJ followed the familiar five-step analysis set forth in 20 C.F.R. §§ 404.1520 and 416.920 to determine whether Ms. Caviness is disabled. The steps are as follows:

(1) Is the claimant engaging in substantial gainful activity? If so, he or she is not disabled.

(2) If not, does the claimant have an impairment or combination of impairments that are severe? If not, he or she is not disabled.

(3) If so, does the impairment(s) meet or equal a listed impairment in the appendix to the regulations? If so, the claimant is disabled.

(4) If not, can the claimant do his or her past relevant work? If so, he or she is not disabled.

(5) If not, can the claimant perform other work given his or her residual functional capacity, age, education, and experience? If so, then he or she is not disabled. If not, he or she is disabled.

See generally 20 C.F.R. §§ 404.1520, 416.920. The burden of proof is on the claimant for the first four steps and on the Commissioner for the fifth step if the analysis proceeds that far. Brewer v. Chater, 103 F.3d at 1391; Young v. Secretary of Health and Human Services, 957 F.2d 386, 389 (7th Cir.1992).

At step one of the analysis, the ALJ found no evidence that Ms. Caviness has engaged in substantial gainful activity since her alleged onset date of April 15, 1991. At step two, the ALJ found that her impairments significantly limit her ability to perform basic work activities and are therefore "severe." At step three, however, the ALJ found that Ms. Caviness's impairments do not meet or equal in severity any of the automatically disabling impairments listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1. At steps four and five, the ALJ determined her residual functional capacity (RFC), finding that Ms. Caviness is capable of work at the light exertional level but that she must avoid excessive exposure to dust, fumes, smoke, allergens, pollen, animal hair, extremes of temperature or humidity, and that she is limited to working in a clean air environment. The ALJ therefore found that Ms. Caviness is unable to perform her past relevant work but that she can perform a significant number of jobs in the economy, including cashier, information clerk, ticket agent, order clerk, file clerk, and telemarketer. Accordingly, the ALJ concluded that she is not disabled. R. 35-36.

A. The ALJ's Step-Three Finding

Ms. Caviness first challenges the ALJ's finding that her impairments do not meet or equal in severity any of the automatically disabling impairments listed in the regulations at 20 C.F.R., Pt. 404, Subpt. P, App. 1. Disabling bronchiectasis is defined in the regulations at Listing 3.07, which requires that the condition be demonstrated by "appropriate imaging techniques" and further requires:

A. Impairment of pulmonary function due to extensive disease. Evaluate under the appropriate criteria in 3.02;

Or

B. Episodes of bronchitis or pneumonia or hemoptysis (more than blood-streaked sputum) or respiratory failure (documented according to 3.00C), requiring physician intervention, occurring at least once every 2 months or at least six times in a year. Each inpatient hospitalization for longer than 24 hours for treatment counts as two episodes, and an...