Crist v. Bowen

• Decision Date: 23 March 1988
• Docket Number: Civ. No. L 87-68.
• Parties: Carolyn C. CRIST, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Indiana

682 F. Supp. 412

Carolyn C. CRIST, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.

Civ. No. L 87-68.

United States District Court, N.D. Indiana, Hammond Division at Lafayette.

March 23, 1988.

Margret G. Robb, Lafayette, Ind., for plaintiff.

David H. Miller, Asst. U.S. Atty., Fort Wayne, Ind., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This is an action related to those provisions of the Social Security Act which provide for establishment of a period of disability and payment of disability insurance benefits where the requirements specified therein have been met. 42 U.S.C. §§ 416(i) and 423. The jurisdiction of this court to review the final decision of the Secretary is stated at 42 U.S.C. § 405(g).

The plaintiff filed application for benefits on December 9, 1985, alleging an onset date of April 15, 1983. Her application was denied both initially and on her request for reconsideration. On September 15, 1986, a hearing was held before Administrative Law Judge (ALJ) Castelli, who issued his decision on October 28, 1986, finding specifically as follows:

1. The claimant met the disability insured status requirements of the Act on April 15, 1983, the date the claimant stated she became unable to work, and continues to meet them December 31, 1988.

2. The claimant has not engaged in substantial gainful activity since April 15, 1983.

3. The medical evidence establishes that the claimant has severe back pain and asthma, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

4. The claimant's subjective complaints with regard to pain and restricted or limited daily activities are not supported by the objective medical evidence or by her pain regimen and despite her subjective complaints, she retains the residual functional capacity to perform at least sedentary work activity.

5. The claimant has the residual functional capacity to perform the physical exertion and non-exertional requirements of work except for walking or standing for extended periods of time, lifting or carrying more than 10 pounds, working in an environment where she would be subject to excessive dust, fumes, air pollutants and other lung irritants, and necessity to alternately sit or stand as she desires for comfort (20 CFR 404.1545 and 416.945).

6. The claimant is unable to perform her past relevant work as department head who was required to stock shelves but in all probability could perform similar types of work she did in the past as a cashier.

7. The claimant's residual functional capacity for the full range of sedentary work is reduced by walking or standing for extended periods of time, lifting or carrying more than 10 pounds, working in an environment where she would be subject to excessive dust, fumes, air pollutants and other lung irritants, and necessity to alternately sit or stand as she desires for comfort.

8. The claimant is 48 years old, which is defined as younger individual (20 CFR 404.1563 and 416.963).

9. The claimant has a high school education (20 CFR 404.1564 and 416.964).

10. The claimant does not have any acquired work skills which are transferable to the skilled or semi-skilled work activities of other work (20 CFR 404.1568 and 416.968).

11. Based on an exertional capacity for sedentary, and the claimant's age, education, and work experience, Section 404.1569 of Regulations No. 4 and 416.969 of Regulations No. 16, and Rule 201.21, Table No. 1, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."

12. Although the claimant's additional non-exertional limitations do not allow her to perform the full range of sedentary work, using the above-cited rule as a framework for decision-making, there are a significant number of jobs in the national economy which she could perform. Examples of such jobs are: cashier in a department store.

13. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

The plaintiff requested review by the Appeals Council. Upon denial, the decision of the ALJ became the final decision of the Secretary and appealable to this court. Both sides have filed motions for summary judgment and the issues have been fully briefed. Therefore, the matter is ripe for ruling.

I.

Where the ALJ's findings and conclusion have been affirmed as the final decision of the Secretary, the ALJ's opinion as to disability must be upheld if it is supported by substantial evidence on the record as a whole. Walker v. Bowen, 834 F.2d 635 (7th Cir.1987); Smith v. Schweiker, 735 F.2d 267, 270 (7th Cir.1984), taking into account "whatever in the record fairly detracts from its weight." Sears v. Bowen, 840 F.2d 394 (7th Cir.1988), quoting Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir.1986).

Substantial evidence is "`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, 217, 83 L.Ed. 126 (1938); Sears v. Bowen, 840 F.2d 394, 397-98 (7th Cir.1988); Bauzo v. Bowen, 803 F.2d 917, 912 (7th Cir.1986). Although substantial evidence means more than a "mere scintilla", Richardson, 402 U.S. at 401, 91 S.Ct. at 1427, it is "something less than the weight of the evidence." Delgado v. Bowen, 782 F.2d 79 (7th Cir. 1986), quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966).

The specific issue here is whether the ALJ properly used the Grid to determine that the plaintiff retained the residual functional capacity (RFC) for past work as a cashier or for other sedentary work despite exertional and non-exertional limitations. The overriding issue, however, is whether substantial evidence supports the ALJ's finding of a capacity for any sedentary work on a sustained basis. For the reasons set forth below, this court finds against the Secretary and for the plaintiff.

II.

In determining whether or not a claimant is disabled, the Secretary has adopted a five-step sequential evaluation process, which has been summarized as the following inquiry: (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 in the national 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 at step (3) will lead to a finding that the claimant is not disabled. 20 C.F.R. § 404.1520; Veal v. Bowen, 833 F.2d 693, 695 n. 2 (7th Cir. 1987).

The first, second, and third steps of the analysis are not at issue here. Having determined that the claimant did not engage in "substantial gainful activity" (SGA) since the alleged onset date, the ALJ appropriately skipped over step two due to the status of the law at that time. In his findings, however, he acknowledged that the plaintiff's back pain and asthma were considered severe. Because he did not find that the plaintiff's condition met or equaled the listing of impairments, the ALJ progressed to a consideration of the plaintiff's residual functional capacity (RFC) for engaging in basic work activities. He concluded that Mrs. Crist retained a capacity,

... to perform physical exertion and non-exertional requirements of work except for walking or standing for extended periods of time, lifting or carrying more than 10 pounds, working in an environment where she would be subject to excessive dust, fumes, air pollutants and other lung irritants, and necessity to alternately sit or stand as she desires for comfort.

Although the ALJ recognized medical evidence and subjective complaints which reflected that Mrs. Crist is unable to sit for extended periods of time, he did not specifically find this limitation. The omission is apparently explained in Finding Four, which concluded that the subjective complaints of pain and restricted activity were not supported by objective medical evidence or by her pain regimen. Despite the above rather lengthy list of limiting factors recognized by the ALJ, and subjective complaints not expressly found to be lacking in credibility, the ALJ concluded that the plaintiff "in all probability could perform similar types of work she did in the past as a cashier." At this point the ALJ appeared to have decided the case at step four. This court finds that the conclusions seemingly related to step four of the process were unsupported by substantial evidence, contrary to the evidence, and contrary to law.

At level four of the sequential analysis, the burden of proof remains with the plaintiff. See, e.g., Sears v. Bowen, 840 F.2d 394 (7th Cir.1988). Mrs. Crist, therefore, was required to present substantial evidence of being unable to return to her prior work.

The record indicates that the plaintiff was, at the time of her hearing, forty-eight years old, having been born on March 12, 1938. She testified that both her weight and height tend to fluctuate, due respectively to a thyroid problem and spine curvature. At the hearing the plaintiff stated that she was four feet three inches and weighed 138 pounds, but that she had lost about one inch in height each year over the last three years, and had weighed between 138 and 150 pounds since January of 1986.

The alleged weight and height changes are supported by the medical records of a series of treating and examining physicians. A June 6, 1983 report of Dr. Dyer, a chiropractor, registered a height of four feet, six inches. In a report by Dr. Henney dated November 10, 1985, Mrs....