Ehrhart v. Secretary of Health and Human Services

• Decision Date: 03 August 1992
• Docket Number: No. 91-3561,91-3561
• Citation: 969 F.2d 534
• Parties: , Unempl.Ins.Rep. (CCH) P 16830A, 3 NDLR P 58 Wallace E. EHRHART, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 534

969 F.2d 534

38 Soc.Sec.Rep.Ser. 96, Unempl.Ins.Rep. (CCH) P 16830A,

3 NDLR P 58

Wallace E. EHRHART, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 91-3561.

United States Court of Appeals, Seventh Circuit.

Argued July 7, 1992.

Decided Aug. 3, 1992.

Kenneth F. Laritz, argued, Warren, Mich., Gerald Benjamin, Southfield, Mich., for plaintiff-appellant.

Deborah M. Leonard, Office of the U.S. Atty., Fort Wayne, Ind., Robert C. Stephens, argued, Denise McDuffie Martin, Department of Health and Human Services, Region V, Office of the Gen. Counsel, Chicago, Ill., for defendant-appellee.

Before CUDAHY, COFFEY, and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Wallace Ehrhart appeals from a decision of the Secretary of Health and Human Services (Secretary) denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. The Appeals Council denied Ehrhart's request for review. Adopting the magistrate judge's recommendation, the district court affirmed the decision of the Administrative Law Judge (ALJ) and granted summary judgment for the Secretary. Ehrhart argues on appeal that the Secretary's decision is not supported by substantial evidence. He also challenges the ALJ's consideration of evidence provided by vocational experts. We affirm.

I.

Ehrhart was fifty-three years old at the time of his 1989 hearing. He has a high school education and worked for Fisher Body from October 1956 through December 1983. As a production control clerk, he wrote production schedules, took inventories, and checked production. At the hearing, Ehrhart testified that he received medical retirement beginning in December 1983 as a result of his depression and loss of memory.

Since that date Ehrhart has not engaged in substantial gainful activity. A heart condition and depression, he maintains, prevent him from returning to work. He filed for disability insurance benefits in August 1988 after the denial of two previous applications in 1984. He has had two angioplasties ¹ as well as triple heart bypass surgery, which was performed in August 1988. Degenerative arthritis of the spine afflicts Ehrhart as well. He testified that he has suffered from depression, anxiety, and nervousness. Against his physician's orders, he has discontinued medication to control his depression and heart condition. He is able to sit for two hours, stand for two hours, and lift twenty to thirty pounds. While he is able to walk two or three miles a day at a slow gait, exertion results in chest pains.

The ALJ posed a hypothetical question to Dr. L. Fisher, a vocational expert, at the hearing. He asked whether Ehrhart could perform any skilled or semi-skilled, light jobs given his age, education, work experience, and ability to perform only low-stress, light work that does not involve extremes of temperature, crowds, repetitive pushing, pulling, climbing, or complex instructions. Dr. Fisher replied that Ehrhart could work as a general office clerk or undertake a sedentary job such as a timekeeper, payroll, or production clerk. In the region, 3,883 light jobs were available, according to Dr. Fisher, in addition to 710 of the sedentary variety.

Although the medical evidence established that Ehrhart has severe coronary artery disease as well as a personality disorder, the ALJ ruled that Ehrhart's ailments, individually or in combination, do not meet or equal any impairment contained in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, Appendix 1 (1991). The ALJ found Ehrhart's subjective complaints to be credible, but determined that he maintained the residual functional capacity to perform the full range of sedentary and light work, with certain limitations. Taking into account Ehrhart's age, education, past work experience, and residual functional capacity for light work, the ALJ consulted the Medical-Vocational Guidelines (grids) and rules, which suggested that Ehrhart did not have a disability as defined by the Act. See Part 404, Subpart P, Appendix 2, Table Nos. 1 and 2, Rules 201.15, 202.15. Then, after considering the vocational expert's testimony that Ehrhart could perform numerous light jobs, the ALJ found him not disabled.

In a motion for summary judgment, Ehrhart asserted that his disability was based on heart disease, a personality disorder, severe and chronic pain, arthritis, and the combination of these ailments. The district court denied the motion, instead granting the Secretary's cross-motion for summary judgment and affirming the decision of the ALJ. Ehrhart appeals from that decision.

II.

Ehrhart has raised a plethora of issues on appeal. ² In addition to four arguments he enumerates in his "Statement of Issues", he embarks on a discussion of several others in the body of his brief. ³ One such issue has been preserved on appeal. The Secretary cites three other unlisted issues and argues that all are waived. We agree. ⁴ So too has Ehrhart waived one of the four specifically listed arguments. ⁵

What survives for our review, then, are three issues: First, whether substantial evidence supports the Secretary's decision, in particular with regard to Ehrhart's nonexertional impairments. Second, whether the ALJ posed a proper hypothetical question to the vocational expert at the hearing. ⁶ Third, whether the ALJ improperly weighed the testimony of the vocational expert who appeared at the hearing.

A. Relevant Standards

The standard of review in disability cases limits this court as well as the district court to determining whether the final decision of the Secretary is both supported by substantial evidence and based on the proper legal criteria. Young v. Secretary of Health and Human Services, 957 F.2d 386, 388 (7th Cir.1992); Prince v. Sullivan, 933 F.2d 598, 601 (7th Cir.1991); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir.1987); 42 U.S.C. § 405(g). Substantial evidence means " 'more than a mere scintilla' " of proof, instead requiring " '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) (citation omitted); Anderson v. Bowen, 868 F.2d 921, 923 (7th Cir.1989). In our reviewing capacity, however, we may not reweigh the evidence or decide whether a claimant is disabled. Stuckey v. Sullivan, 881 F.2d 506, 508 (7th Cir.1989). Nor may the court substitute its own judgment for that of the Secretary. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986). By the same token, we must do more than merely rubber stamp the decisions of the Secretary. Veal v. Bowen, 833 F.2d 693, 696 (7th Cir.1987).

The Act entitles applicants to disability insurance benefits if they are under age 65, disabled, and insured. 42 U.S.C. § 423(a). In determining that Ehrhart is not disabled, the Secretary employed the familiar five-step analysis. See, e.g., Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987); Stuckey v. Sullivan, 881 F.2d 506, 508 (7th Cir.1989); 20 C.F.R. §§ 404.1520, 416.920 (1991). This appeal focuses on the fourth and fifth steps of the five-part inquiry. At the fourth level, the Secretary must determine whether the claimant is able to perform his past work. If yes, the Secretary concludes that there is no disability. §§ 404.1520(e), 416.920(e). If the claimant cannot perform his past job, the Secretary considers whether the claimant is suited for other positions in the national economy, taking into account his residual functional capacity, age, education, and work experience. If he is unable to perform other work, he will be deemed disabled. If other appropriate work opportunities exist, the Secretary will not find the claimant disabled. §§ 404.1520(f), 416.920(f).

B. Substantial Evidence

Ehrhart broadly objects to the decision of the ALJ. But his decision to forego prescribed medications that might improve his health by itself could justify the ALJ's conclusion. The Secretary may not find total disability when a claimant inexcusably 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 F.2d 228, 231 (6th Cir.1990); cf. Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir.1990). Ehrhart told the ALJ that besides taking aspirin, he had discontinued prescribed medications for his heart condition and depression. Certified Transcript of Administrative Record (hereinafter Tr.) 45, filed June 10, 1992. Objective medical evidence reviewed by the ALJ indicated, however, that these medicines were providing relief and controlling his impairments.

Despite this uncontested fact, Ehrhart makes a sweeping claim disputing the substantiality of evidence underlying the ALJ's decision. In particular, he takes exception to the ALJ's determination that while he is not disabled, his "subjective complaints are well supported by the medical evidence of record, making his testimony credible." Tr. 17. This finding--described by Ehrhart as "somewhat disturbing and confusing", Appellant's Brief, filed Dec. 13, 1991, at 21--hardly qualifies as the paradox he believes it to be. Ehrhart's testimony about his ailments and impairments were not of the objective sort, but rather were subjective complaints supported by the medical evidence in the record. But even objective medical evidence of a claimant's pain, which the ALJ must consider, does not mandate a finding of disability. Meredith v. Bowen, 833 F.2d 650, 654 (7th Cir.1987). There is nothing anomalous, then, about an ALJ finding a claimant's testimony to be generally credible yet still determining that the claimant is not physically or mentally limited in the manner he claims to be. Cf. Imani v. Heckler, 797 F.2d...