DeFrancesco v. Bowen, No. 88-1810

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore WOOD, POSNER and MANION; POSNER
Citation867 F.2d 1040
Docket NumberNo. 88-1810
Decision Date08 February 1989
Parties, Unempl.Ins.Rep. CCH 14514A Donald P. DeFRANCESCO, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.

Page 1040

867 F.2d 1040
24 Soc.Sec.Rep.Ser. 516, Unempl.Ins.Rep. CCH 14514A
Donald P. DeFRANCESCO, Plaintiff-Appellant,
v.
Otis R. BOWEN, Secretary of Health and Human Services,
Defendant-Appellee.
No. 88-1810.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 6, 1989.
Decided Feb. 8, 1989.

Page 1041

Frederick J. Daley, Frederick J. Daley, Ltd., Chicago, Ill., for plaintiff-appellant.

Barbara M. King, Asst. U.S. Atty. and Anton R. Valukas, U.S. Atty., Chicago, Ill., for defendant-appellee.

Before WOOD, POSNER and MANION, Circuit Judges.

POSNER, Circuit Judge.

The district court upheld the Social Security Administration's denial of Donald DeFrancesco's claim for disability benefits. 679 F.Supp. 785 (N.D.Ill. 1988). The appeal requires us to decide whether the administrative law judge was justified in finding that DeFrancesco is not totally disabled.

In 1986, when the disability hearing was held, DeFrancesco (who has a high school education) was 50 years old, 6 feet tall, and 200 pounds in weight. He had been a truck driver until quitting work in 1984. In 1970 and 1974 he had suffered heart attacks caused by coronary artery disease, and later he experienced an episode of congestive heart failure. Between his two heart attacks he developed diabetes, for which he takes insulin, but his diabetes is not well controlled and the level of sugar in his blood is very high. He has two common complications of diabetes: "peripheral neuropathy," which has produced diminished sensation in his feet, and "intermittent claudication"--pain in his legs due to a diminished supply of blood to them.

The witnesses at the hearing were DeFrancesco, his son, and Dr. Abramson, retained by the Social Security Administration as its medical advisor for the case (see 20 C.F.R. Sec. 404.1526(c)). Abramson had not examined DeFrancesco, but he had read the reports of doctors who had; he had read DeFrancesco's hospital records; and he asked DeFrancesco questions at the hearing. DeFrancesco was represented by counsel, and there was no opposing counsel; social security disability hearings ordinarily are not adversarial.

DeFrancesco (backed up by his son) testified that he cannot lift an object that weighs more than 30 pounds, that even slight exertion causes him to have chest pains, that he cannot walk more than a block without having to stop until the pains abate and the numbness in his feet diminishes, that he gets frequent cramps in his legs, that he cannot stand for more than ten or fifteen minutes at a time, that he has slight numbness in his hands and arms, and that because of the numbness in his feet he cannot drive more than 17 miles at

Page 1042

a stretch. Sometimes while driving he mixes up the brake and the gas pedal; and sometimes while walking or standing he loses his balance, although he has never fallen. Dr. Abramson was skeptical about the chest pains. He pointed out that while the type of pain described by DeFrancesco was consistent with DeFrancesco's history of coronary artery disease, the reports of examining doctors did not mention complaints about chest pains and the doctors had not prescribed nitroglycerin or any other treatment for pain due to coronary artery disease. Abramson acknowledged, however, that DeFrancesco has coronary artery disease, as well as uncontrolled diabetes with peripheral neuropathy and intermittent claudication, and that his coronary artery disease prevents DeFrancesco from doing "medium work," which the social security regulations define as work that requires lifting up to 50 pounds.

Some medical conditions, including severe manifestations of coronary artery disease and of diabetes, are deemed disabling per se. See 20 C.F.R. pt. 404, subpt. P, App. 1, Secs. 4.00(e), 9.08. But since Dr. Abramson's uncontested testimony was that DeFrancesco's heart disease and diabetes fell short, it became necessary to consider DeFrancesco's residual capacity for work. The administrative law judge asked Abramson whether DeFrancesco could perform "a job that require[s] a good deal of walking or standing or even if it involved sitting most of the time would require some pushing and pulling of arm or leg controls." Abramson replied: "I think he could do that. He has no difficulty sitting and no real difficulty standing and he [could] sit/walk this one block and stop and repeat that. There's no objection to that. And his arms he has not complained of other than saying that his hands are somewhat numb. But he hasn't mentioned that he drops things with his hands or anything like that." When asked whether DeFrancesco could stand or walk for six hours out of an eight-hour workday, day in and day out, Abramson answered: "I don't see why he couldn't no.... [I]f he has intermittent claudication it occurs after a block or so and he is able to stop and get rid of it. And as far as the neuropathy is concerned I don't see that would interfere as long he doesn't fall. And he says he has not fallen." When asked, "What about stopping and resting after walking a block?," Abramson replied, "Well he might get more tired than someone who is normal ... [but] peripheral neuropathy is not untowardly affected by sitting or standing if the person can do it. In other words if he doesn't know where his feet are then he can't stand.... [H]e says he does know where his feet are or he would have been falling. He could never walk a block if he didn't know where his feet were."

Under the Medical-Vocational Guidelines (the "grid") that the Social Security Administration uses in cases such as these to determine whether a claimant for disability benefits is totally disabled from working (benefits are not available under the statute for a person who is only partially disabled), a person of DeFrancesco's relatively advanced age, limited educational background, and semi-skilled work experience is deemed totally disabled if he is unable to do "light work." See 20 C.F.R. pt. 404, subpt. P, App. 2, Sec. 201.00(g). A younger, better-educated person whose former work had required greater skill would not be deemed totally disabled if he retained the physical ability to do sedentary work, but the grid recognizes that sedentary work is not a realistic option for someone of DeFrancesco's age and background. Light work requires greater movement and exertion than sedentary work (although less than medium...

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65 practice notes
  • Caviness v. Apfel, No. IP 97-945-C H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • April 22, 1998
    ...character, or fortitude in seeking medical treatment is not a defense to a claim for disability benefits."), citing DeFrancesco v. Bowen, 867 F.2d 1040, 1044 (7th Cir.1989); Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir.1989) (ALJ should consider in first instance whether lack of financial r......
  • Ehrhart v. Secretary of Health and Human Services, No. 91-3561
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 3, 1992
    ...refuses to follow a prescribed course of medical treatment that would eliminate his total disability. § 416.930(b); DeFrancesco v. Bowen, 867 F.2d 1040, 1043 (7th Cir.1989) (citing Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir.1988)); Blacha v. Secretary of Health and Human Services, 927 ......
  • King v. Colvin, Case No. 11 C 2842
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 31, 2013
    ...treatment for her vision impairment. She cites cases like Craft v. Astrue, 539 F.3d 668 (7thPage 17Cir. 2008) and Defrancesco v. Bowen, 867 F.2d 1040 (7th Cir. 1989), in which the ALJ failed to inquire why the claimant had not pursued treatment. That's not the case here, because the ALJ did......
  • Magray v. Shalala, Civ. A. No. 93-C-257.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 30, 1995
    ...F.2d 682 (7th Cir.1985) (per curiam), because the relevant portion of the decision had already been overturned in DeFrancesco v. Bowen, 867 F.2d 1040 (7th Cir.1989), and because the Nelson court was unaware of the social security Accordingly, I find that Judge Gorence's decision is correct ......
  • Request a trial to view additional results
65 cases
  • Caviness v. Apfel, No. IP 97-945-C H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • April 22, 1998
    ...character, or fortitude in seeking medical treatment is not a defense to a claim for disability benefits."), citing DeFrancesco v. Bowen, 867 F.2d 1040, 1044 (7th Cir.1989); Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir.1989) (ALJ should consider in first instance whether lack of financial r......
  • Ehrhart v. Secretary of Health and Human Services, No. 91-3561
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 3, 1992
    ...refuses to follow a prescribed course of medical treatment that would eliminate his total disability. § 416.930(b); DeFrancesco v. Bowen, 867 F.2d 1040, 1043 (7th Cir.1989) (citing Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir.1988)); Blacha v. Secretary of Health and Human Services, 927 ......
  • King v. Colvin, Case No. 11 C 2842
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 31, 2013
    ...treatment for her vision impairment. She cites cases like Craft v. Astrue, 539 F.3d 668 (7thPage 17Cir. 2008) and Defrancesco v. Bowen, 867 F.2d 1040 (7th Cir. 1989), in which the ALJ failed to inquire why the claimant had not pursued treatment. That's not the case here, because the ALJ did......
  • Magray v. Shalala, Civ. A. No. 93-C-257.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 30, 1995
    ...F.2d 682 (7th Cir.1985) (per curiam), because the relevant portion of the decision had already been overturned in DeFrancesco v. Bowen, 867 F.2d 1040 (7th Cir.1989), and because the Nelson court was unaware of the social security Accordingly, I find that Judge Gorence's decision is correct ......
  • Request a trial to view additional results

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