Cullotta v. Bowen, 86 C 4340.

• Decision Date: 11 May 1987
• Docket Number: No. 86 C 4340.,86 C 4340.
• Parties: Salvatore CULLOTTA, Plaintiff, v. Otis BOWEN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

662 F. Supp. 1161

Salvatore CULLOTTA, Plaintiff, v. Otis BOWEN, Secretary of Health and Human Services, Defendant.

No. 86 C 4340.

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

May 11, 1987.

Mark S. Schaffner, Potter & Schaffner, Chicago, Ill., Randall J. Zromkoski, Blachly, Tabor, Bozik & Hartman, Valparaiso, Ind., for plaintiff.

Linda Wawzenski, Asst. U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Salvatore Cullotta ("Cullotta") seeks judicial review of a final decision by the Secretary of Health and Human Services ("Secretary") denying Cullotta's claim for disability insurance and supplemental security income benefits. Cullotta applied for benefits under Social Security Act ("Act") §§ 216(i), 223 and 1602, 42 U.S.C. §§ 416(i), 423 and 1381a,¹ claiming he had become disabled February 23, 1979. After a September 9, 1985 hearing (the "Hearing"), Administrative Law Judge ("ALJ") John Evans denied Cullotta's application January 30, 1986. Cullotta then exhausted his 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. Unless some special reason calls for different treatment, this Court always gives the claimant the first and last word on the issues. Inexplicably here (in light of the strong points made in Secretary's responsive memorandum) Cullotta's counsel opted to waive the filing of a reply memorandum (the scheduled last word). For the reasons stated in this memorandum opinion and order, Cullotta's motion is denied and Secretary's is granted.

Facts

Cullotta, who was 41 at the time of the Hearing, has an eighth grade education, but his ability to read and write is apparently limited (R. 216).² From 1965 until 1979 he worked for a poultry company, loading and driving their delivery trucks. That job required him to lift boxes weighing as much as 85 pounds and involved considerable standing and bending, as well as calling for the use of his legs to operate the footpedals on the trucks (R. 53-55). Cullotta stopped working February 23, 1979 because of his "back condition," headaches, numbness in his legs and blackouts (R. 326).

Although the record is not wholly clear, Cullotta apparently first injured his back in an automobile accident in 1976. That condition was aggravated by two more automobile accidents in 1977 (R. 456) and when he attempted to lift a box at work in 1978 (R. 55).³ According to Cullotta's treating physician Dr. Sheldon Schwartz, Cullotta has been hospitalized three times because of his back pain and has tried various combinations of drugs and physical therapy to relieve his pain (R. 456-57). During his 1979 hospital stay, myelography and epidural venography were performed on Cullotta.⁴ Because the latter procedure was "suggestive of disc herniation," Dr. Oscar Sugar decided surgery was appropriate (R. 150). During the surgery Dr. Sugar found no disc herniation but did try to correct several compressed nerve roots (R. 182).

Cullotta claims that surgery and Dr. Schwartz's later non-surgical attempts to alleviate his back pain have been unsuccessful (R. 72). In February 1980 (shortly after his surgery) Cullotta first applied for disability benefits, listing "back and leg problems" as the cause of his inability to work (R. 98). After an initial denial of benefits, Cullotta asked and received a hearing. At that March 3, 1981 hearing, ALJ Larry Miller found Cullotta suffered from back pain caused by spinal stenosis and radiculopathy and was unable to perform his former work as a truck driver.⁵ However, ALJ Miller found Cullotta was still able to perform light work and was therefore not disabled (R. 213-20). That decision became final after the Appeals Council declined Cullotta's request for a review. Cullotta did not seek judicial review of that final decision.

Cullotta again applied for disability benefits December 15, 1981, claiming the same impairments (R. 226). That application too was initially denied. Again Cullotta asked for a hearing. ALJ Dale Garwal conducted the hearing September 19, 1983 and affirmed the denial of benefits on February 5, 1984 because he found Cullotta retained the capacity to perform sedentary work (R. 314-19).⁶ Once again the Appeals Council declined Cullotta's request for review (it ruled June 6, 1984), and once again he did not seek judicial review.

Undaunted, on September 28, 1984 Cullotta applied for benefits a third (and most recent) time, claiming back pain, leg pain and "bad headaches" that sometimes cause him to pass out (R. 326). At the Hearing before ALJ Evans (following the denial of benefits), Cullotta testified:

1. His condition prevents him from sitting in one place for more than 20-35 minutes, from standing for more than 40 minutes and from walking more than one block (R. 60-61, 64).

2. He often has headaches but had not passed out for two to three months (R. 59, 62).

3. He walks with a cane and often needs assistance in dressing and bathing himself (R. 64, 70).

4. He does no work around the house because of his pain and his tendency to drop things when his hands become numb (R. 67-68).

5. His pain is "strong enough to draw tears to his eyes" (R. 69).

6. He believes he could not work for an eight-hour day because his condition often forces him to lie down to relieve his pain (R. 71).

In support of his application Cullotta submitted the medical evidence that had already been examined and evaluated by ALJs Miller and Garwal, an updated report from Dr. Schwartz and a report from Dr. Marvin Gold. ALJ Evans also obtained a residual functional capacity ("RFC") assessment of Cullotta prepared by Dr. Vidya Madala and a report from neurological surgeon Dr. Jonas Byla.

Dr. Schwartz reported Cullotta suffers from a real "physical ailment" that causes him a great deal of pain (R. 459). He found Cullotta's range of motion in his lumbosacral spine significantly reduced and said Cullotta "cannot lift, bend or carry object more than 20 lbs" (R. 450). But he also said Cullotta can walk unassisted (R. 449).

Dr. Gold, a specialist in fractures and orthopedic surgery, examined Cullotta December 12, 1985 and found him to be "significantly impaired with a failed back syndrome. He has neurological impairment." Dr. Gold was the first physician to find evidence of carpal tunnel syndrome and "pseudarthrosis of an attempted fusion procedure." He opined Cullotta's ability to sit, walk, stand or lift is extremely limited (R. 469-70).

Dr. Byla, who had examined Cullotta only two months before Dr. Gold, submitted strikingly different findings. Although Dr. Byla believed Cullotta was in fact in pain, he could detect no "neurological objective findings" to support Cullotta's claims. Dr. Byla pointed to several inconsistencies in Cullotta's complaints and noted Cullotta refused to walk without a cane and "refused to move in any direction because of alleged pain." Dr. Byla put no limitations on Cullotta's ability to work (R. 463-66).

Dr. Madala's RFC assessment is dated February 5, 1985, at least six months before the other medical reports. Dr. Madala thus based his assessment on the medical evidence submitted by Cullotta in support of his earlier applications. He found Cullotta had a limited ability to lift up to 20 pounds and could stand or sit for six hours per eight-hour workday. Dr. Madala believed Cullotta had the ability to climb, stoop or kneel occasionally (R. 451).⁷

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....⁸

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).⁹

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.¹⁰

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).¹¹ 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). 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...