Diaz v. Chater

• Decision Date: 24 May 1995
• Docket Number: No. 94-2763,94-2763
• Citation: 55 F.3d 300
• Parties: , Unempl.Ins.Rep. (CCH) P 14631B Julian DIAZ, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, * Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 300

55 F.3d 300

48 Soc.Sec.Rep.Ser. 29, Unempl.Ins.Rep. (CCH) P 14631B

Julian DIAZ, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security,^* Defendant-Appellee.

No. 94-2763.

United States Court of Appeals Seventh Circuit.

Argued April 25, 1995.

Decided May 24, 1995.

Frederick J. Daley, Marcie E. Goldbloom, Chicago, IL, Edward J. Lonergan, Boston, MA (argued), for Julian Diaz.

Michael C. Messer, Dept. of Health and Human Services, Region V, Office of Gen. Counsel, Chicago, IL (argued), for Shirley S. Chater.

Before FLAUM, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Julian Diaz appeals from the district court's order upholding the denial of his applications for disability insurance benefits (DIB) and supplemental security income (SSI) by the Social Security Administration (SSA). Mr. Diaz challenges the SSA's finding that he is not disabled and has the residual functional capacity to perform, with certain nonexertional limitations, a full range of sedentary and light work. We affirm.

I BACKGROUND

In 1981, Mr. Diaz, a cutting torch operator, was cutting a plate over a gas tank when the tank exploded, throwing him backwards and causing second and third degree burns over fifty to sixty percent of his body. Mr. Diaz underwent a series of burn debridement surgeries, including surgeries on his left hand, and multiple skin grafts. He did not work until 1984. Between 1984 and 1988, Mr. Diaz held a number of jobs for periods of two to nine months per job. He was laid off from his last job in January 1988, and has not engaged in gainful employment since then.

In March 1989, Mr. Diaz applied for DIB and SSI. He claimed that he was disabled because of back pain, pain from burns, numbness in his legs, damage to his nerve endings, and fatigue. His applications were denied initially and on reconsideration. After initial denials of his application by the agency, an administrative law judge (ALJ) conducted a hearing and affirmed the denial of Mr. Diaz's application. The Appeals Council vacated and remanded the case because the ALJ's findings "[did] not reflect an evaluation of the diagnosis of degenerative disc disease, established by x-ray." R.7 at 358. The Appeals Council noted that the diagnosis was confirmed provisionally by a MRI scan showing bulging discs and disc herniation. After a second hearing, a different ALJ again found Mr. Diaz not disabled. The ALJ concluded that Mr. Diaz could not perform his past relevant work, and that he was unskilled. Mr. Diaz was forty-four years old at the time of the ALJ's decision and could not read or write English. The ALJ also determined Mr. Diaz then appealed the ALJ's decision to the Appeals Council and was granted a thirty-day extension to submit additional evidence. He was given four more extensions and the last extension expired on May 20, 1993. On June 4, 1993, the Appeals Council denied Mr. Diaz's request for review, noting that it had "not received any additional evidence or contentions from [Mr. Diaz's] representative despite several extensions of time to allow submission of such material." R.7 at 72. Four days later, Mr. Diaz petitioned the Appeals Council to reopen the matter. Mr. Diaz's counsel argued that the Appeals Council failed to consider his "closing argument and the additional evidence I submitted on May 20, 1993." Id. at 8. Included with his petition to reopen was a brief dated May 20, 1993, reports from two doctors, a letter from consultative neurologist Dr. Joseph Cascino that summarized his findings contained in a prior report, a letter from a rehabilitation counselor, and a "physical capacity evaluation" prepared by the Loyola University Hand Rehabilitation Center. After considering the newly submitted evidence, the Appeals Council ruled that there was no basis to vacate its June 4, 1993 action denying review. ¹

that, despite the limitations caused by Mr. Diaz's severe back condition (bone spurs and narrowing of a disc space) and burn injuries nine years earlier, Mr. Diaz had the residual functional capacity to perform a range of light and sedentary work, except for work that required moving machinery or exposure to heights and temperature extremes.

II DISCUSSION

1.

Mr. Diaz contends that the SSA has failed to establish that he has the residual functional capacity (RFC) to perform a full range of sedentary and light work (except for work which requires moving machinery or exposure to heights and temperature extremes). See 20 C.F.R. Secs. 404.1520, 416.920; Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993) ("If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job."). Our review of the SSA's decision is limited. Cass v. Shalala, 8 F.3d 552, 554-55 (7th Cir.1993); see also 42 U.S.C. Sec. 405(g) ("The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive."). We shall affirm the SSA's finding if it is supported by substantial evidence. Pope, 998 F.2d at 480. Although a mere scintilla of proof will not suffice to uphold the SSA's findings, the standard of substantial evidence requires no more than "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); Binion v. Shalala, 13 F.3d 243, 247 (7th Cir.1994). We cannot substitute our own judgment for that of the SSA by reevaluating the facts, or reweighing the evidence to decide whether a claimant is in fact disabled. Cass, 8 F.3d at 555; Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir.1993). Thus, the issue before this court is not whether Mr. Diaz is disabled, but rather, whether the ALJ's findings were supported by substantial evidence.

The regulations define sedentary work as requiring primarily sitting, some walking and standing, and minimal lifting. See 20 C.F.R. Secs. 404.1567(a), 416.967(a). A claimant can do sedentary work if he can (1) sit up for approximately six hours of an eight-hour workday, (2) do occasional lifting of objects up to ten pounds, and (3) occasionally walk or stand for no more than about two hours of an eight-hour workday. See Edwards, 985 F.2d at 339; Kapusta v. Sullivan, 900 F.2d 94, 96 (7th Cir.1989); Social Security Ruling 83-10. Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. A job in this category requires much walking or standing (off and on, for a total of approximately six hours of an eight-hour workday), and, if sitting, it involves some pushing and pulling of the arms or legs. See 20 C.F.R. Secs. 404.1567(b), 416.967(b); Herron v. Shalala, 19 F.3d 329, 332 n. 7 (7th Cir.1994).

The ALJ relied on both medical and nonmedical evidence in assessing Mr. Diaz's RFC to do light and sedentary work. ² Medical reports from two hospitals where Mr. Diaz was treated as an outpatient indicate that Mr. Diaz had full range or near full range of motion of the spine and full upper extremity strength, and that Mr. Diaz's skin grafts have healed well. Additionally, Dr. Cascino, a neurosurgeon who conducted a consultative neurological examination of Mr. Diaz in 1991, concluded that Mr. Diaz did not have a neurological condition. Dr. Cascino reported that Mr. Diaz could lift five to possibly ten pounds for one-third of an eight-hour day. His report also noted that Mr. Diaz could walk two blocks, although he fatigued easily and must sit frequently. Dr. Cascino further noted that Mr. Diaz had a good hand/fist formation on the right side but not the left side, and that the hand/fist formations on both sides revealed good strength. Additionally, Dr. Cascino opined that Mr. Diaz could manipulate his fingers and thumb well with normal stereognostic sense, but noted that Mr. Diaz's impairments affected his ability to reach, push, and pull. Dr. Trafimow, who conducted an orthopedic consultative examination in 1992, opined that Mr. Diaz had no clear muscle weakness and no clear loss of muscle flexibility. He also noted that Mr. Diaz had a normal gait and weightbearing ability and did not need or use any ambulatory assistive device.

Further supporting the ALJ's RFC assessment is Mr. Diaz's testimony that he thought he could lift twenty pounds with his right hand from a sitting position and lift ten pounds with his left hand. He also stated that he could stoop and lift twenty pounds with both hands, although stooping would be painful. When asked whether he could perform a job where he could sit at least six hours per workday and would not have to lift more than ten pounds, Mr. Diaz responded that he could try, but that he would have to move around while sitting. Mr. Diaz also testified that he could walk for three blocks, although he must then rest before walking an additional three blocks. He reported that he had not driven a car for more than ten miles in the six months prior to the hearing. Mr. Diaz stated that he took public transportation to the hearing. Mr. Diaz further testified that he did odd jobs around the house, and estimated that he could stand for one hour at a time. Mr. Diaz complained, however, of pain in his back and legs, and of difficulty bending the little finger and thumb on his left hand.

Although Mr. Diaz was laid off from his last job, he stated that, even if he had not been laid off, he would have had to stop working because of the increasing pain in his back and legs. The ALJ also noted that, during the four years Mr. Diaz was working, he had worked as a lawn cutter for approximately two months. The job required walking for four hours, standing for three hours, sitting for one hour, occasional bending, and frequent lifting of up to ten pounds. Mr. Diaz had also worked as a cutting torch operator for periods of four to nine months. The job required two hours of...