Estok v. Apfel, 98-1080

• Decision Date: 05 August 1998
• Docket Number: No. 98-1080,98-1080
• Citation: 1998 WL 446211,152 F.3d 636
• Parties: , Unempl.Ins.Rep. (CCH) P 16057B Janice S. ESTOK, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 636

152 F.3d 636

57 Soc.Sec.Rep.Ser. 782, Unempl.Ins.Rep. (CCH) P 16057B

Janice S. ESTOK, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee.

No. 98-1080.

United States Court of Appeals Seventh Circuit.

Argued July 8, 1988.

Decided Aug. 5, 1998.

Terry R. Boesch, Amy N. Kendt (argued), Valparaiso, IN, for Plaintiff-Appellant.

Andrew B. Baker, Jr., Office of the United States Attorney, Dyer, IN; Kathryn Beverly (argued), Social Security Administration, Office of the General Counsel, Chicago, IL, for Defendant-Appellee.

Before ESCHBACH, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

In June 1989, Janice S. Estok filed a claim for disability benefits under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), alleging that she suffered from pain in both feet (diagnosed at the time as pinched ankle nerves and tarsal tunnel syndrome), and that she had stopped working as a beautician in June 1987 due to the foot pain. After an evidentiary hearing in 1990, an administrative law judge (ALJ) concluded that Estok could perform the full range of unskilled sedentary work. In 1991, the Appeals Council denied review.

Estok filed a new claim in 1993, alleging pain in both feet (again tarsal tunnel syndrome) and scoliosis. After a March 1993 hearing, the ALJ found, in a decision dated June 13, 1994, that Estok did not qualify as disabled as of December 1992, the expiration date of her status as an insured individual. In October 1994, the Appeals Council remanded for review of additional medical evidence after Estok's treating physician offered a retrospective diagnosis of fibromyalgia ¹ "as early as 1988." After a third hearing before an ALJ in February 1994, at which a medical expert testified, the ALJ denied the claim in a decision dated May 17, 1995, again finding that the impairments suffered by Estok prevented her from engaging in her past relevant work as a beautician, but that in light of her age (then 34 years old), education (high school and beauty school), job experience and residual functional capacity, she was capable of performing a full range of sedentary work and, furthermore, such work existed in the national economy. See 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f). In 1996, the Appeals Council declined review, rendering the ALJ's decision the final decision of the Commissioner of Social Security. 20 C.F.R. § 404.981. Estok sought judicial review, 42 U.S.C. § 405(g), and the district court affirmed the Commissioner's decision. Estok filed this appeal, challenging the ALJ's May 17, 1995 decision. On appeal, Estok argues that substantial evidence does not support the ALJ's decision that as of December 31, 1992 she was still capable of performing sedentary work. ² For the reasons given below, we affirm.

At the second and third hearings, the parties disputed the severity and date of onset of disability, i.e., whether Estok was completely disabled as of December 31, 1992, the last insured date. The medical history established that initially, in the mid-1980s, Estok experienced pain primarily in her feet and ankles, and she was diagnosed with tarsal tunnel syndrome. Various orthopedic surgeons treated her condition, including performing surgery on her right ankle in 1989, but the treatment and surgery did not improve the foot and ankle pain. At some point in time, Estok started to experience diffuse pain throughout her body, including pain in her hips, back, neck, arms, and hands, along with headaches, sleep disturbance, and depression. These problems were manifestations of fibromyalgia, which may have been a new condition. Or, the previous diagnosis of tarsal tunnel may have been inaccurate; perhaps the foot pain was actually an early manifestation of fibromyalgia. It was not until late 1993 that she was actually diagnosed with fibromyalgia. Later, several physicians retrospectively surmised, based on their long-term treatment of Estok and the medical records, that Estok had suffered from fibromyalgia even before December 31, 1992. No doctor opined that the initial diagnosis of tarsal tunnel was incorrect, although once fibromyalgia was diagnosed, the diagnosis of tarsal tunnel was mentioned only in a historical context. In any event, at the time of the last hearing in 1995, Estok undisputedly suffered from the rheumatological disease fibromyalgia.

This court's review focuses not on whether Estok was disabled during the relevant period, but instead on whether the ALJ's findings were supported by substantial evidence. See Diaz v. Chater, 55 F.3d 300, 305 (7th Cir.1995). "Substantial evidence" has been defined as "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, 28 L.Ed.2d 842 (1971) (internal quotations omitted). The court on appeal reviews the entire record but does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 305, 308; Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.1994); Cass v. Shalala, 8 F.3d 552, 555 (7th Cir.1993).

No one disputes that Estok currently suffers from fibromyalgia and may now be totally disabled. In addition, no one questions that fibromyalgia is very difficult to diagnose, that no objective medical tests reveal its presence, and that it can be completely disabling. See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996). Estok essentially argues that the ALJ failed to recognize that a retrospective diagnosis of fibromyalgia is substantial evidence of disability during the relevant insured period.

The bottom line in this case, therefore, is that whatever the diagnosis--tarsal tunnel of the ankles and feet, or fibromyalgia throughout the body--Estok must provide sufficient evidence of actual disability before December 31, 1992. Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act. The claimant must show that she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). Here, the record does not mandate a finding that Estok became disabled before the relevant period ended on December 31, 1992.

We first look at the problem of using retrospective diagnoses in Social Security cases. A physician's retrospective diagnosis is a medical opinion of the claimant's impairments which relates back to the covered period. See, e.g., Likes v. Callahan, 112 F.3d 189, 190-91 (5th Cir.1997); Vogt v. Chater, 958 F.Supp. 537 (D.Kan.1997). The ALJ believed that the retrospective diagnosis offered on remand from the Appeals Council was too speculative.

The key medical opinion focused on by the parties and the ALJ was provided by Dr. Brian Mandell, a rheumatologist in Cleveland, Ohio. Dr. Mandell wrote on January 5, 1994 that he had examined Estok on December 27, 1993 and diagnosed her condition as fibromyalgia. He began by stating that he would not "review in detail the entire past history," but that she had experienced "pain in both feet since 1987"; and she had "noted the onset of some stiffness in the low back in the Fall of 1993" (emphasis added). Estok also reported "an abnormal sleep pattern for many years, since the birth of [her] last child" in 1988, and she reported a "progressive loss of energy." Dr. Mandell's examination of Estok that day revealed:

[Patient exhibited] significant trigger point tenderness in the calf muscles with foot flexion, with diffuse tenderness to both feet. Patient also had diffuse symmetrical trigger points in the anserine, lateral greater than medial elbow, periscapular, trapezius, occiput, gluteal, trochanteric, and second costrachondral area. Reflex sympathetic dystrophy on her feet, was ruled out. Also ruled out was hypothyroidism.

Based on this "clinical presentation and testing," he diagnosed fibromyalgia.

Eight months later, on August 25, 1994, when the case was pending before the Appeals Council, Dr. Mandell provided a retrospective viewpoint that Estok had suffered from fibromyalgia prior to the expiration of her insured status; unlike his original assessment, he now pointed to the significance of the medical history prior to the "Fall 1993" period. After noting that Estok went through years of "complicated and often times repeated evaluations before finally being diagnosed with having fibromyalgia," he states:

[I]t is my opinion that her underlying symptomatology has been characteristic of fibromyalgia for several years prior to my initial consult with her [on December 27, 1993], perhaps as far back as 1988, according to the medical records and reports that I have reviewed. (Emphasis added.)

In support of this diagnosis, Dr. Mandell pointed to the following symptoms: a "several year history of bilateral pain in her lower extremities"; a "history of diffuse pain beginning in the right hip and gluteal area, then spreading into multiple areas including both hips and calves"; "intermittent headaches and neck pain"; "progressive stiffness in the low back area"; "tingling in her hands radiating greatest on the middle finger with intermittent bluish dis-colorization of the feet and fingers"; "abnormal sleep patterns"; and a "progressive loss of energy."

This retrospective diagnosis was confirmed by another physician who had treated Estok during the insured period. Dr. Bruce J. Thoma, an orthopedic surgeon and foot/ankle specialist who treated Estok from 1988 through July 1992, wrote on June 27, 1995 that he agreed with Dr. Mandell's (August 25, 1994) opinion that the "original symptoms [of foot and leg pain] were the beginning of a clinical crescendo...