Neave v. Astrue

• Decision Date: 31 August 2007
• Docket Number: No. 07-C-301.,07-C-301.
• Parties: Joel NEAVE, Plaintiff, v. Michael ASTRUE, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

507 F.Supp.2d 948

Joel NEAVE, Plaintiff, v. Michael ASTRUE, Commissioner of the Social Security Administration, Defendant.

No. 07-C-301.

United States District Court, E.D. Wisconsin.

August 31, 2007.

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COPYRIGHT MATERIAL OMITTED

Mitchell M. Hagopian, Disability Rights Wisconsin, Madison, WI, for Plaintiff.

Brian E. Pawlak, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Defendant.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

Plaintiff Joel Neave applied for social security disability benefits, claiming that he was unable to work due to a back injury and depression. The Social Security Administration ("SSA") denied his application, as did an Administrative Law Judge ("ALJ) after a hearing. The Appeals Council then denied his request for review, leaving the ALJ's decision as the final decision of the SSA on plaintiffs application. See Giles v. Astrue, 483 F.3d 483, 486 (7th Cir.2007). Plaintiff now seeks judicial review of the ALJ's decision under 42 U.S.C. § 405(g).

I. APPLICABLE LEGAL STANDARDS

A. Judicial Review

The court's task on judicial review is limited to determining whether the ALJ's decision is "supported by substantial evidence and based on the proper legal criteria." Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir.2004) (internal quote marks omitted). Substantial evidence is such relevant evidence as a reasonable person could accept as adequate to support a conclusion. Cannon v. Apfel, 213 F.3d 970, 974 (7th Cir.2000). Thus, where conflicting evidence would allow reasonable minds to differ as to whether the claimant is disabled, the responsibility for that decision falls on the ALJ. Binion v. Chater, 108 F.3d 780, 782 (7th Cir.1997). However, in order to take advantage of this deferential standard, the ALJ's decision must demonstrate the path of his reasoning, and the evidence must lead logically to his conclusion. While the ALJ need not evaluate in writing every piece of evidence, his decision also must be sufficient to assure the court that he considered the important evidence. Rohan v. Chater, 98 F.3d 966, 971 (7th Cir.1996). Even if the evidence in the record supports the decision, the court cannot uphold it if the ALJ failed to build an accurate and logical bridge between the evidence and the result. Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996). Likewise, if the ALJ commits an error of law, the court "may reverse without regard to' the volume of evidence in support of the factual findings." White v. Apfel, 167 F.3d 369, 373 (7th Cir.1999). The ALJ commits such an error if he fails to comply with the SSA's regulations and rulings for evaluating disability claims. See Prince v. Sullivan, 933 F.2d 598, 602 (7th Cir.1991).

B. Disability Standard

The SSA has adopted a sequential five-step test for determining whether a claimant is disabled. Under this test, the ALJ must determine: (1) whether the claimant is presently engaged in substantial gainful activity ("SGA")¹; (2) if not, whether the claimant has a severe impairment or combination of impairments;² (3) if so, whether any of the claimant's impairments are listed by the SSA as being presumptively disabling;³ (4) if not, whether the claimant possesses the residual functional capacity ("RFC") to perform his past work;⁴ and (5) if not, whether the claimant is able to perform any other work. Skinner v. Astrue, 478 F.3d 836, 844 n. 1 (7th Cir.2007).

The claimant carries the burden of proof at steps one through four, but if he reaches step five, the burden shifts to the SSA to establish that the claimant is capable of performing other work in the national economy. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir.2001). The SSA may carry this burden either by relying on the testimony of a vocational expert ("VE"), who evaluates the claimant's ability to work in light of his limitations, or through the use of the "Medical-Vocational Guidelines" (a.k.a. "the Grid"), 20 C.F.R. Pt. 404, Subpt. P, App. 2, a chart that classifies a person as disabled or not disabled based on his exertional ability, age, education and work experience. However, the ALJ may not rely on the Grid and must consult a VE if non-exertional limitations (e.g., pain, or mental, sensory, postural or skin impairments) substantially reduce the claimant's range of work. E.g., Masch v. Barnhart, 406 F.Supp.2d 1038, 1041-42 (E.D.Wis.2005).

II. FACTS AND BACKGROUND

A. Plaintiffs Work History, Injury and Social Security Application

Plaintiff began working as a chipper/grinder at a foundry in 1979. On January 17, 2000, he injured his back lifting a piece of steel and missed work for about four months before returning in a part-time, light duty capacity, sweeping and cleaning bathrooms. In January 2001, plaintiff's doctor cleared him for full-time light duty. He worked full-time in the light duty cleaning job from January 5, 2001 through March 2002, when he was again reduced to part-time hours. Plaintiff worked about twenty-four hours per week until July 15, 2002, when his employer laid him off permanently. (Tr. at 41; 54-55; 306-07.)

Plaintiff applied for social security benefits on December 11, 2002, alleging a disability onset date of July 15, 2002. (Tr. at 45.) In accompanying reports, plaintiff indicated that he could not speak, read or write English (Tr. at 72) and had a third grade education (Tr. at 79). He indicated that he was unable to work due to constant low back pain, which limited his ability to lift and bend, and that he believed his employer laid him off due to his back problems and restrictions. (Tr. at 73; 87; 91.) He wrote that his past work as a chipper/grinder required him to stand and walk eight' hours per day and lift up to twenty-five pounds frequently, up to fifty pounds occasionally. (Tr. at 74.)

In a separate report, plaintiff's wife wrote that he had difficulty bathing, tying his shoes and cutting his toe nails due to his condition, and spent most of his time at home. (Tr. at 99; 102.) She wrote that he was no longer active due to his back pain (Tr. at 99), had become depressed since his injury and tended to isolate himself (Tr. at 100; 102). Plaintiff's county benefits specialist also completed a report, in which she indicated that plaintiff was in pain, depressed and isolated himself. She stated that he tried to help with the cooking but did little else around the house and engaged in no hobbies or activities. (Tr. at 105; 107.) She also wrote that plaintiffs memory was poor, and he often forgot what he was saying or where he put things. (Tr. at 108.)

The SSA denied plaintiff's claim initially (Tr. at 25; 27) and on reconsideration (Tr. at 26; 31). Plaintiff requested a hearing (Tr. at 35), and on October 5, 2005 he appeared with counsel before ALJ Robert Bartelt (Tr. at 36).

B. Hearing Testimony

Plaintiff testified, through an interpreter, that he was born in Mexico and left school in the fourth grade to help his father work. He stated that he could not read or write in English and just a little in Spanish. (Tr. at 317-18.) He indicated that after he hurt his back at work he received various forms of treatment, but no longer saw a doctor because he did not have insurance. He indicated that in lieu of treatment he stood up, walked around, laid down and used ice to relieve the pain. (Tr. at 321.) He indicated that his pain had worsened in the past year. (Tr. at 322.) He also stated that he felt sad and cried because he could not work, and that he took medication for depression. (Tr. at 322.) Plaintiff testified that he was able to cook and do some light cleaning, but that he was no longer able to work, play pool or go dancing with his wife. (Tr. at 324.) Plaintiffs wife testified that he had been depressed, tearful, at times suicidal, and did not tend to his personal hygiene. (Tr. at 330.) The ALJ did not summon a VE to the hearing.

C. Medical Evidence

1. Treatment Records

Following his back injury in January 2000, plaintiff treated with Drs. Foster and Noonan, participating in physical therapy and work hardening. (Tr. at 135.) On August 31, 2000, plaintiff saw Dr. James Stoll, who, after conducting further tests, did not recommend surgery but instead referred plaintiff to the Columbia Hospital pain management program. (Tr. at 135.) In October 2000, plaintiff advised the Columbia pain physician, Dr. James Lincer, that he experienced significant low back pain, radiating down the left leg. He also reported feeling depressed and irritable with low energy. (Tr. at 135.) Dr. Lincer diagnosed chronic pain syndrome with depression, anxiety and somatization (Tr. at 137), chronic low back pain, and significant anxiety and depression (Tr. at 138). Dr. Lincer noted that plaintiff may benefit from steroidal injections, as anti-inflammatory medicines had not helped. He found plaintiff to be a good candidate for pain management, recommending a full-time six week program. (Tr. at 138.)

Plaintiff was also evaluated by John Galbraith, Ph.D., for the Columbia chronic pain management program. Plaintiff reported doing little around the house, but walked about thirty minutes per day and was able to complete most self-care without assistance. On examination, plaintiffs mood was depressed and his affect mildly restricted. He did display pain behaviors such as standing periodically. Plaintiff described his mood as down, frustrated and at times angry, with frequent crying spells. (Tr. at 140.) He also reported recent difficulty with attention, concentration and short-term memory. Dr. Galbraith noted that plaintiffs MMPI-2 test profile was probably invalid, which may reflect lack of motivation or negativism. He wrote: "It is quite likely that this patient has exaggerated existing symptoms and malingering or an attempt to obtain secondary gain must be considered." (Tr. at 141.) Plaintiff scored 38 on the Beck Depression Inventory, consistent with severe levels of depression, and 34 on the Beck...