Luna v. Shalala

Decision Date20 April 1994
Docket NumberNo. 93-1845,93-1845
Citation22 F.3d 687
Parties, Unempl.Ins.Rep. CCH (P) 17775A Roy W. LUNA, Plaintiff-Appellant, v. Donna E. SHALALA, 1 Secretary of the Department of Health and Human Services, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Bradley W. Swearingen (argued), Moehle, Swearingen & Associates, Washington, IL, for plaintiff-appellant.

George Jackiw (argued), Dept. of Health and Human Services, Region V, Office of Gen. Counsel, Chicago, IL, K. Tate Chambers, Asst. U.S. Atty., Office of the U.S. Atty., Peoria, IL, for defendant-appellee.

Before CUMMINGS, BAUER and ESCHBACH, Circuit Judges.

BAUER, Circuit Judge.

Roy W. Luna appeals from the district court's order affirming the denial of his application for disability insurance benefits by the Secretary of the Department of Health and Human Services ("Secretary"). Luna challenges the finding of the Administrative Law Judge ("ALJ") that he was not disabled. He argues that the ALJ erred in finding that he has the residual functional capacity to perform a full range of sedentary work and in discounting his subjective complaints of pain. He also claims that the ALJ failed to solicit the opinion of a vocational expert and to seek additional medical records.

ANALYSIS

Because the Appeals Council denied review of Luna's application, the ALJ's decision became the final decision of the Secretary, 20 C.F.R. Sec. 404.981; Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir.1993), and this court will only consider evidence that was before the ALJ. Id.; Eads v. Secretary of the Dept. of Health and Human Services, 983 F.2d 815, 817 (7th Cir.1993); Micus v. Bowen, 979 F.2d 602, 606 n. 1 (7th Cir.1992). That is, Luna's company medical records submitted for the first time to the Appeals Council, though technically a part of the administrative record, cannot be used as a basis for a finding of reversible error. Wolfe, 997 F.2d at 322 n. 3; Eads, 983 F.2d at 817; Micus, 979 F.2d at 602 n. 1.

I. Residual Functional Capacity to Perform Sedentary Work

Luna contends that the Secretary did not meet her burden of proving that he has the residual functional capacity to perform a full range of sedentary work in the national economy given his age, education, and past work experience. See 20 C.F.R. Secs. 404.1520, 416.920; Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993). We will affirm the Secretary's finding if it is supported by substantial evidence, Pope, 998 F.2d at 480, 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, 1427, 28 L.Ed.2d 842 (1971); Binion v. Shalala, 13 F.3d 243, 247 (7th Cir.1994). We will not re-evaluate the facts, reweigh the evidence, or substitute our own judgment for that of the Secretary. Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir.1993).

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). 3 This court has noted that "a claimant can do sedentary work if he can (1) sit up, (2) do occasional lifting of objects up to ten pounds, and (3) occasionally walk or stand." Edwards, 985 F.2d at 338; see also Kapusta v. Sullivan, 900 F.2d 94, 96 (7th Cir.1989).

A. Objective Medical Evidence

The objective medical record supports the ALJ's finding that Luna can do sedentary work. 4 Although Luna's medical record shows a significant history of back problems with degenerative disc disease, his treating physician, Dr. Weinger, consistently found him improved after operation or treatment. Despite his chemonucleolysis treatment and a subsequent laminectomy in 1984, Luna was allowed, even before he fully recovered in 1986, to perform light duties that had a twenty-pound weight restriction and did not involve repetitive lifting or bending. When Luna was again hospitalized in January of 1987 due to acute sciatica, his condition had so improved two months later that Dr. Weinger approved his return to work with a forty-pound weight restriction.

The medical evidence that the ALJ found most pertinent was Dr. Weinger's last exam of Luna in August, 1990. Radiological findings earlier that year had disclosed degenerative disc disease and herniated nucleus pulposus that was undetected before. The doctor noted in August that Luna was "entirely within normal limits." He released Luna to light duty work with a forty-pound weight restriction and some vibration restrictions. These limited restrictions imposed by Dr. Weinger support the ALJ's conclusion that Luna was capable of performing sedentary work. Because this court does not re-evaluate the facts nor reweigh the evidence, Edwards, 985 F.2d at 336, the ALJ's reliance on Dr. Weinger's August diagnosis will not be disturbed.

In support of Luna's disability claim is Dr. Aranas' report of October, 1990. Dr. Aranas, an internist who had last examined Luna in April, 1990, completed a two-page form supplied by the Bureau of Disability Determination Services in which the doctor stated that he had diagnosed radiculopathy. He also noted that Luna had sensory loss at the S-1 distribution and back pain. When asked to describe Luna's ability to do work-related activities, Dr. Aranas stated: "none now." The ALJ found that the report was "cursory in the extreme," and that Dr. Aranas' opinion was inconsistent with Dr. Weinger's more current findings. Because Dr. Aranas was relying on his exam of Luna five months earlier and four months before Dr. Weinger's last exam and because Dr. Weinger had been treating Luna's back problem since 1984, the ALJ did not err in discounting Dr. Aranas' opinion.

B. Claimant's Own Testimony

Luna's statements of his own activities further support the ALJ's finding that he was capable of performing a full range of sedentary work. In his September, 1990 application for disability benefits, Luna stated that he could drive, prepare coffee, barbecue in a seated position, perform odd jobs, and go fishing so long as he does not sit for more than one hour. During the hearing, Luna testified that he tried to walk one mile a day, and after which he would have to sit or stand for a while or lie down. He could stand for one and a half hours and sit for one hour before experiencing pain. He could lift ten pounds, a gallon of milk, or a light grocery bag. He had no difficulty with fine manipulations such as picking up a rubber band.

Luna claims that he is unable to bend or stoop and that his wife's assistance is required in getting his pants and socks on. While the ability to bend is not required for sedentary work, Social Security Ruling 83-14 ("SSR 83-14"); see also Pope, 998 F.2d at 487, "a person would need to stoop occasionally (from very little up to one-third of the time, depending on the particular job)" to perform substantially all of the exertional requirements of most sedentary jobs. SSR 83-14. In this case, however, the ALJ found Luna's testimony concerning his inability to stoop not credible, citing Dr. Weinger's entirely normal examination of August, 1990 and Luna's ability to engage in various activities. Because the ALJ's credibility determination will not be disturbed unless it is patently wrong, Pope, 998 F.2d at 478; Herr v. Sullivan, 912 F.2d 178, 181-82 (7th Cir.1990),

the ALJ did not err in discrediting Luna's claim.

C. Subjective Complaints of Pain

Luna argues that given the history of his periodic episodes of debilitating pain since 1984, the ALJ erred in discounting his complaints of pain. In evaluating a claimant's subjective complaints of pain, the ALJ must first determine whether the pain alleged is substantiated by objective medical evidence. 20 C.F.R. Sec. 404.1529. If the allegation of pain is not supported by the objective medical evidence in the file and the claimant indicates that pain is a significant factor of his or her alleged inability to work, then the ALJ must obtain detailed descriptions of claimant's daily activities by directing specific inquiries about the pain and its effects to the claimant. Social Security Ruling 88-13 ("SSR 88-13"). She must investigate all avenues presented that relate to pain, including claimant's prior work record, information and observations by treating physicians, examining physicians, and third parties. SSR 88-13. Factors that must be considered include the nature and intensity of claimant's pain, precipitation and aggravating factors, dosage and effectiveness of any pain medications, other treatment for relief of pain, functional restrictions, and the claimant's daily activities. Id.; Pope, 998 F.2d at 485-86. See also Jones v. Shalala, 10 F.3d 522, 525 (7th Cir.1993).

The ALJ considered Luna's pain in light of the above criteria. She solicited the details of Luna's activities, the extent to which Luna could perform those activities without experiencing pain, and Luna's functional restrictions. She also asked about the effectiveness of pain medication in alleviating Luna's pain, and the extent of Luna's reliance on such medication. In light of Luna's capability to perform various activities, Dr. Weinger's entirely normal examination of Luna in August, 1990, and Luna's failure to seek further medical assistance despite his claim of incapacitating pain, the ALJ found Luna's complaints of pain exaggerated. See Herr, 912 F.2d at 181 (claimant's daily activities conflicted with her subjective complaints about fatigue and other symptoms).

The ALJ also found Luna's complaints of pain inconsistent with his minimal reliance on pain medication--Luna only took three pain pills in the two weeks prior to the hearing despite his testimony that they helped alleviate his pain. While Luna's testimony that he disliked taking any medication may have explained why such a small number of pain pills was taken, it has no effect on the...

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