Howell v. Sullivan
| Citation | 950 F.2d 343 |
| Decision Date | 15 October 1991 |
| Docket Number | No. 90-3664,90-3664 |
| Parties | , Unempl.Ins.Rep. (CCH) P 16391A, 2 NDLR P 214 Dennis HOWELL, Plaintiff/Appellant, v. Louis W. SULLIVAN, M.D., Defendant/Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Kenneth D. Rose (argued), Anna, Ill., for plaintiff-appellant.
Laura J. Jones, Asst. U.S. Atty., Benton, Ill., Denise McDuffie Martin (argued), Dept. of Health and Human Services, Region V, Office of the General Counsel, Chicago, Ill., for defendant-appellee.
Before BAUER, Chief Judge, and CUMMINGS and WOOD, Jr., Circuit Judges.
Dennis Howell applied for disability insurance benefits and supplemental social security income on June 18, 1987, alleging an onset of disability due to back pain since November 23, 1984. The claim was denied initially, upon reconsideration, and after a hearing before an Administrative Law Judge ("ALJ"). The Appeals Council denied Howell's request for review. Howell sought judicial review in the United States District Court. The matter was referred to a United States Magistrate Judge. The magistrate judge heard oral argument without briefs and recommended remanding the matter for further administrative development and consideration by the Secretary. The Secretary objected to the magistrate judge's report and recommendation and requested that the district court affirm the administrative decision. After reviewing de novo the portions of the magistrate judge's report and recommendation to which the Secretary objected, 28 U.S.C. § 636(b), the district court rejected the magistrate judge's report and recommendation and affirmed the Secretary's decision. Howell filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), which the district court denied. Howell now appeals the ALJ's decision.
At the time of the hearing, Howell was 44 years old and had not worked since 1984. Though he had been a poor student, he had an eighth grade education and was literate in English. He had worked as a tuckpointer/bricklayer. Howell testified that he had a constant burning sensation in his lower back and complained of chest pains that had occurred weekly for several years. He stated that he could stand for 15 to 20 minutes, sit for about an hour, walk only about a block, and lift no more than 12 pounds. As for his mental condition, Howell testified that he felt nervous and depressed. He also testified that for the past five years he drank alcohol everyday--approximately three six-packs of beer a day. In fact, before the hearing he drank one beer and three glasses of vodka to help ease the back pain. Twice he was convicted of driving under the influence of alcohol and consequently lost his driving privileges. However, he stated that he had never lost a job due to his drinking nor had he experienced unusual problems with his family because of it. Howell's wife and minister testified that he had formerly been more active, but now he sits around and is irritable.
After the conclusion of the hearing, Howell renewed his request for a psychological evaluation in light of his depression and heavy alcohol consumption. The ALJ took that request under advisement.
Howell was treated in May and June of 1987 by Dr. Ritter, an orthopedic surgeon. Dr. Ritter's notes indicate that Howell had fallen off a barn when he was 12 years old, injuring his tail bone. Dr. Ritter also noted that Howell had no pain or numbness in his legs although he had limited restriction of flexion to 75 degrees. His straight leg raising was negative for sciatica and his knee and ankle reflexes were normal. Howell's motor strength and sensation were normal, but there was some tightness of the paralumbar muscles. X-rays of the lumbar spine showed narrowing, some sclerotic changes, and some early degenerative changes. However, the upper lumbar spine appeared normal. Dr. Ritter concluded that Howell was not a good candidate for surgery but that he should seek help through vocational rehabilitation for training in a less strenuous job. Dr. Ritter opined that Howell's taking of occasional aspirin was reasonable. A CT scan that was performed on July 7, 1987 showed degenerative disc disease at discs L4/L5 and L5-S1 with some posterior bulging.
Dr. Rodriguez, Howell's treating physician, reported in July 1987 that Howell had a history of ruptured discs and of chest pain that occurred about twice a week and was unrelated to exertion. Howell's blood pressure was slightly elevated, and he became short of breath. He was treated for hypertension and with analgesics for back pain. Dr. Rodriguez noted that Howell was able to walk without the assistance of a device and that he had 70 degrees of flexion and 10 degrees of extension in the lower back.
On July 13, 1987, Howell was hospitalized for chest pain that radiated to his left shoulder and neck. The physical examination taken at the hospital indicated that his blood pressure and heart sounds were of good quality. An examination of his extremities was negative. The electrocardiograms and chest X-rays taken during his hospital stay were normal. Howell was released from the hospital the following day.
In August and September 1987, two physicians for the Social Security Administration reviewed Howell's medical records. According to their assessments, Howell could lift and/or carry 50 pounds. They opined that Howell could stand and/or walk for six hours in an eight-hour day and that he could sit for six hours in an eight-hour day. They further assessed that Howell was not limited in his ability to push, pull, reach, handle, finger, feel, see, hear, and speak and that he could frequently climb, balance, stoop, kneel, crouch, and crawl.
In September 1987, Dr. Rodriguez reported that Howell had problems with low back pain and numbness in his legs and that consequently he walked in a bent position. Dr. Rodriguez also noted frequent episodes of chest pain. Dr. Rodriguez concluded that Howell was totally and permanently disabled. In January 1988, because of Howell's complaints of chest pain, Dr. Rodriguez advised Howell to see a cardiologist (which Howell never did). Dr. Rodriguez concluded at that time that Howell would not be able to perform a job that required bending, stooping, walking, or standing for two hours and lifting.
To determine whether Howell suffered from a disability as defined in the Social Security Act, the ALJ applied the standard five-step sequential analysis. Herr v. Sullivan, 912 F.2d 178, 180 n. 1 (7th Cir.1990). The ALJ found that Howell had not engaged in gainful employment since November 22, 1984. He also found that the evidence established that Howell had chronic low back pain, intermittent chest pain, and hypertension, but that Howell did not have an impairment or a combination of impairments that met or equaled in severity the requirements of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("listings"). The ALJ further found that Howell was unable to return to his past relevant work as a bricklayer. The ALJ's ultimate finding that Howell was not disabled occurred at the fifth step of the evaluation. Deeming that Howell's subjective complaints were not consistent with other evidence in the record and thus not credible, the ALJ found that Howell had the residual functional capacity to perform a full range of sedentary work and that Howell did not have any significant nonexertional impairment. Because of Howell's residual functional capacity, his age, education, and work experience, the Medical Vocational Guidelines ("grid") directed a conclusion that Howell was not disabled and therefore not entitled to either disability insurance benefits or supplemental social security income. 20 C.F.R. Part 404, Subpart P, Appendix 2, Rules 201.18 and 201.19 of Table No. 1.
In coming to his conclusion, the ALJ denied Howell's request for a psychological evaluation. The ALJ noted that it is the responsibility of a claimant to prove that he is disabled by presenting medical evidence that includes complete and detailed clinical and laboratory findings and that Howell had not done so. The ALJ stated that it was not his responsibility to develop a diagnosis by going on a "fishing expedition" for mental impairments.
In reviewing a decision by the Secretary, a court must review all of the evidence in the record. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986). Because the Appeals Council found no basis for further review, the ALJ's findings stand as those of the Secretary. Veal v. Bowen, 833 F.2d 693, 694 (7th Cir.1987). Unless the Secretary has committed an error of law, this court may not overturn his factual findings as long as they are supported by substantial evidence. 42 U.S.C. § 405(g); Arbogast v. Bowen, 860 F.2d 1400, 1403 (7th Cir.1988). Substantial evidence means "relevant evidence [that] 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). Although an appellate court may not reweigh the evidence or substitute its judgment for the Secretary's, Stuckey v. Sullivan, 881 F.2d 506, 508 (7th Cir.1989), we may not simply rubber-stamp the Secretary's decision without a critical review of the evidence. Veal, 833 F.2d at 696.
On appeal to this court, Howell contends that the Secretary's findings were not supported by substantial evidence. He alleges that the Secretary erred: 1) by concluding that Howell's physical impairments do not preclude him from performing sedentary work; 2) by ignoring Howell's mental impairments; and 3) by employing the grid.
Howell argues that his physical limitations, i.e., his back and chest pain, as noted by his family physician, Dr. Rodriguez, prevent him from engaging in...
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