Getch v. Astrue

• Decision Date: 13 August 2008
• Docket Number: No. 07-2631.,07-2631.
• Citation: 539 F.3d 473
• Parties: Charles E. GETCH, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

539 F.3d 473

Charles E. GETCH, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 07-2631.

United States Court of Appeals, Seventh Circuit.

Argued April 22, 2008.

Decided August 13, 2008.

Barry A. Schultz (argued), Evanston, IL, for Plaintiff-Appellant.

James B. Geren (argued), Social Security Administration, Chicago, IL, for Defendant-Appellee.

Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Charles Getch appeals the order of the district court upholding the Social Security Administration's denial of his application for Disability Insurance Benefits. Mr. Getch contends that the Administrative Law Judge ("ALJ"), who denied his application for benefits, erred in concluding that environmental conditions at his former workplace did not prevent him from resuming his past work as a seam welder. Mr. Getch also contends that the ALJ failed to consider the combined impact of his health problems and erred in finding his testimony not fully credible. Finally, Mr. Getch argues that the Social Security Appeals Council erred in concluding that new evidence did not warrant rehearing before the ALJ. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand for further proceedings before the agency.

I BACKGROUND

A.

Mr. Getch, who is presently 58, underwent emergency triple bypass surgery in 1998. He returned to his job as a seam welder several months later. In December 1999, while he was lifting heavy objects at work, Mr. Getch fractured his sternum at the site of the sternotomy that had been performed during his bypass surgery. Mr. Getch underwent a second surgery to reconstruct the broken sternum in March 2000, but that surgery was unsuccessful.

In October 2000, Mr. Getch visited a pain clinic, complaining of a grinding and popping sensation in his chest. Mr. Getch rated his pain during the day at 2 or 3 out of 10, with 10 representing extreme pain, although he reported that the pain grew worse with coughing or sneezing and kept him awake at night. Over the next year, Dr. Looyenga, a cardiologist, monitored Mr. Getch for further cardiac problems; he also treated his chest pain with Celebrex and cortisone shots. In June 2001, Dr. Looyenga concluded that Mr. Getch was in good cardiac health. Early in 2002, however, Dr. Looyenga wrote a letter to another of Mr. Getch's treating physicians Dr. Daly, informing him of Mr. Getch's ailments and noting that Mr. Getch had been unemployed since early 2000 because of his inability to perform strenuous activities.

In November 2001, Mr. Getch visited Dr. Geha, the chief of cardiothoracic surgery at the University of Illinois at Chicago. After examining Mr. Getch and reviewing his medical records, Dr. Geha concluded that Mr. Getch's sternum remained fragmented but otherwise his cardiac health had returned to normal. Dr. Geha did not believe that another operation would relieve Mr. Getch's sternum pain, and instead he recommended that Mr. Getch "switch to a type of job that avoids extremely heavy and strenuous activity and pulling on the upper extremities." A.R. at 121-22. He observed that, with "proper conditioning," Mr. Getch likely could return to a "reasonable level of activity." Id.

Despite Dr. Geha's opinion that he might be able to return to a job that did not involve strenuous activity, Mr. Getch did not return to work. In December 2002, Mr. Getch filed an application for disability benefits with the Social Security Administration. He claimed an onset of disability date of January 6, 2000 — shortly after he fractured his sternum. His application was referred to the Disability Determination Bureau (the "state agency").

At the request of the state agency, another physician, Dr. Mahawar, examined Mr. Getch in January 2003. Mr. Getch told Dr. Mahawar that he suffered from gout, which causes joint swelling and pain, although the record does not contain any prior medical evidence supporting a gout diagnosis. Mr. Getch stated that his gout caused him throbbing pain every other month because he had stopped treating it with medication after experiencing unpleasant side effects. Mr. Getch also reported problems with recurring chest pain, but he told Dr. Mahawar that cortisone injections prescribed by Dr. Looyenga and a pain clinic were helping to keep the pain in check. After examining Mr. Getch, Dr. Mahawar reported that his chest, heart, motor strength and range of motion were all normal, and that, although Mr. Getch walked with a slight limp, he did not require any assistance to move around. Dr. Mahawar did not observe symptoms of gout, including joint effusion, joint redness or soft-tissue swelling.

Two other state-agency physicians then reviewed Dr. Mahawar's report and Mr. Getch's medical records. They concluded that Mr. Getch could lift and carry 20 pounds occasionally and 10 pounds frequently, that he could stand or walk for 6 hours in an 8-hour work day, and that he occasionally could balance, stoop, kneel, crouch, crawl and climb ramps and stairs. The physicians concluded, however, that Mr. Getch never could climb ladders, ropes or scaffolds. They also recommended that Mr. Getch avoid concentrated exposure to extreme heat and cold, but they did not identify any other environmental limitations.

In January 2003, Mr. Getch also met, at the request of the state agency, with a psychologist, Dr. Walters. Mr. Getch told Dr. Walters that he currently had fleeting thoughts of suicide but had not made plans to kill himself. He stated that he frequently felt helpless and hopeless, could not sleep at night, suffered from anxiety and constantly worried about the future. Despite his depression, however, Mr. Getch reported that he was able to groom, bathe and dress himself; that he occasionally cooked for himself; that he was able to fold clothes and shop for groceries; that he spent most of the day watching television, reading the newspaper, playing video games and surfing the internet; that he could drive; and that he helped his children with their homework after school. Dr. Walters diagnosed Mr. Getch with unspecified depressive disorder and generalized anxiety disorder. Two state-agency psychologists then reviewed Dr. Walters' report, along with Mr. Getch's medical records, and concluded that his depression and anxiety did not significantly interfere with his ability to work.

On the basis of the state agency's report, the Social Security Administration denied Mr. Getch's claim, initially in February 2003 and on reconsideration in June 2003. Mr. Getch timely requested a hearing before an ALJ.

Throughout 2003, primary-care physician Dr. Daly and cardiologist Dr. Looyenga continued to treat Mr. Getch's chest pain. In a November 2003 letter to Mr. Getch's lawyer, Dr. Daly opined that Mr. Getch was "disabled at present" due to coronary artery disease, the sternum fracture, gout, and situational anxiety and depression. A.R. at 208. Dr. Looyenga also completed a Cardiac Residual Functional Capacity Questionnaire in November 2003. He observed that Mr. Getch suffered from coronary artery disease and hypertension that caused chest pain, anginal equivalent pain, shortness of breath and fatigue. Dr. Looyenga discounted the possibility that Mr. Getch was malingering and opined that his physical limitations prevented him from holding even "low stress" jobs or completing simple work tasks. He stated that Mr. Getch could walk only one city block without rest or severe pain, could stand fewer than 2 hours and sit for no more than 4 hours during an 8-hour work day, could never lift anything heavier than 10 pounds and rarely anything weighing less than 10 pounds, and never could twist, stoop, crouch or climb. Dr. Looyenga left blank the form's questions regarding potential environmental restrictions.

B.

1.

At a hearing before an ALJ in August 2004, Mr. Getch testified that he continued to experience chest pain, which caused shortness of breath and prevented him from sleeping. He also stated that his gout caused foot and joint swelling so severe that sometimes he could not walk. Mr. Getch stated that his health problems had made him so depressed that he ate to the point of obesity.

Mr. Getch also testified regarding his work history. Before he fractured his sternum, he had worked as a seam welder for a company that makes cable for antennas and cellular-phone towers. Mr. Getch stated that he did not perform the welding himself; instead, he watched a video monitor to assess whether a machine properly welded pieces of cable together. He further testified that, in his position as a seam welder, he did not have to lift or carry more than 10 pounds, he could alternate between standing and sitting whenever he wished, and he could sit more than 50 percent of the work day. Mr. Getch also stated, however, that smoke and chemical fumes inside the plant at which he had worked often made him cough; he also testified that the plant had no air conditioning or heating, leading to extreme temperature variations which exacerbated his chest pain.

Thomas Grzesik, a vocational expert, also testified at the hearing. The ALJ asked Mr. Grzesik to consider whether Mr. Getch could perform his previous work, assuming that Mr. Getch could lift and carry 10 pounds frequently and 20 pounds occasionally and that he needed to be able to sit more than half the day. Mr. Grzesik opined that, even given those limitations, Mr. Getch would be able to perform his past work as a seam welder. When the ALJ asked whether all positions for seam welder involve exposure to extreme temperatures or chemical fumes, Mr. Grzesik replied: "It would depend on the process. It would depend on the nature of the industry.... I would say probably 50 percent of the work would not." A.R. at 327.

Not satisfied with the medical record, the ALJ requested that Mr. Getch undergo a post-hearing examination by a cardiologist. The state...