Powers v. Apfel, PLAINTIFF-APPELLANT

• Decision Date: 20 March 2000
• Docket Number: No. 99-2513,PLAINTIFF-APPELLANT,DEFENDANT-APPELLEE,99-2513
• Parties: (7th Cir. 2000) Judy K. POWERS,, v. Kenneth S. APFEL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 431

207 F.3d 431 (7th Cir. 2000)

Judy K. POWERS, PLAINTIFF-APPELLANT, v. Kenneth S. APFEL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT-APPELLEE.

No. 99-2513

U.S. Court of Appeals, Seventh Circuit

Argued January 6, 2000

Decided March 20, 2000

Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. NA 98-134-C H/G--David F. Hamilton, Judge.

William E. Jenner (argued), Jenner & Auxier, Madison, IN, for Plaintiff-Appellant.

Maureen D. O'Brien (argued), Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before Coffey, Flaum and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Judy K. Powers suffers pain from several physical ailments, which forced her to quit her job in housekeeping at an Indiana state-operated mental health facility. However, her application for Social Security disability benefits was denied because the evidence of her disability and her suitability to work was not clear cut. Based on a determination by an administrative law judge ("ALJ" or "hearing officer"), the Social Security Administration (the "Agency") denied her claim for disability benefits under the Social Security Act, 42 U.S.C. sec.sec. 416(i), 423(d) (the "Act"). She appeals that decision on the ground that the hearing officer's decision was not supported by substantial evidence. After reviewing the evidence presented at the hearing, we affirm.

I. History

Powers worked for eighteen years as an aide and housekeeper at Muscatatuck State Hospital. She quit her job on February 20, 1995. At the time, Powers was 46 years old and had a GED but no vocational training or other work experience. Her work was characterized as "unskilled, medium work" with no transferable skills. She suffered from a variety of health conditions that made it difficult and painful for her to work.

Her symptoms included feeling tired all the time despite sleeping thirteen hours a day with two two-hour naps; hip, back and leg pain; breathing problems and shortness of breath. She could only sit or stand in the same position for ten minutes at a time, could walk only a short distance before becoming short of breath and could lift a gallon of milk once, but not repetitively. She could not stoop, squat, bend at the waist, climb, push or pull without pain. She took painkillers and other medications, which afforded her partial relief. She engaged in very few activities, including driving to the grocery store twice a week and to a shopping mall once a month, watching television, doing crossword puzzles and reading. She did some light work around the house, such as washing dishes, laundry and cooking. However, her mother did most of the housework, and Powers said she felt like doing nothing most of the time. She stopped driving because of concentration and memory problems.

Her condition stemmed from several physical disorders for which she received treatment prior to February 1995. Powers had been diagnosed in 1993 with diabetes mellitus, which was controlled by medication. She had surgery for carpal tunnel syndrome in July 1994, and later that year, she was re-diagnosed with chronic obstructive pulmonary disease, which her physician, Dr. James Sublett, characterized as in stable condition. Dr. Thomas Eckert, her family doctor, treated her for acute sciatic pain in 1992, 1993 and 1994, and in June 1994, Dr. Larry Olson diagnosed Powers as having degenerative disc disease of the cervical spine. She underwent physical therapy, which relieved the pain. In July 1994, Dr. Marlene Aldo-Benson, a rheumatology specialist, diagnosed fibromyalgia, a condition characterized by pain and stiffness in the muscles, tendons and soft tissue. In September 1994, Aldo-Benson diagnosed Powers with trochanteric bursitis, an inflammation affecting the femur, and noted a flare-up of her fibromyalgia.

In February 1995, Eckert recommended that Powers not work for one month due to the fibromyalgia, but that period lengthened when she showed no improvement. By October 1995, Powers continued to complain of fatigue and general malaise and believed she could not work. Eckert noted that she had gained weight and emphasized to her the relationship between her diet and her other conditions. In January 1996, Eckert classified Powers as permanently disabled due to the fibromyalgia and pulmonary problems. Eckert recommended a pain clinic, but Powers did not go regularly because it was too far away. In March 1996, Powers complained of severe left hip pain, for which Aldo-Benson recommended a physical therapist. Powers claimed she could not see the physical therapist, however, because of the distance she would need to travel to get there. Dr. Michael Cronen, an osteopath, examined her for the first time in March 1996. Cronen found no sensory or motor deficits in Powers' upper or lower extremities, and a magnetic resonance image of her lumbar spine revealed no disc disruptions. Cronen recommended nerve blocks, but Powers reported no improvement in April 1996. A pain clinic she attended that year provided her some relief.

Powers also suffered from depression, which Eckert diagnosed in 1992 but for which she received no care. As part of her application for Social Security disability benefits, Powers was examined by psychologist R. Karkut, Ph.D., who confirmed the diagnosis of "major depression, single episode-mild." In June 1995, Dr. Greer prescribed Prozac, and Powers reported that it helped her depression. At the hearing, Powers testified that she had crying spells two or three times a day, but also said she was not totally forthright with Karkut about the extent of her depression because she did not want to appear "crazy."

The administrative law judge addressed three conditions that could be considered disabilities under the regulations: chronic obstructive pulmonary disease, fibromyalgia and depression. Because her depression was diagnosed as relatively minor and did not affect her ability to perform basic work functions, it was ruled not to qualify as a severe impairment. Powers failed only one test for pulmonary sufficiency. That test did not comply with some regulations connected to the administration of the test and therefore was not counted. Finally, under the regulatory definition of a musculoskeletal condition, Powers' fibromyalgia failed to qualify as an impairment.

The ALJ then determined Powers' residual functional capacity. Based on her testimony and that of her doctors, the ALJ determined that 1) Powers could lift up to ten pounds frequently, 2) Powers needed to be able to switch between sitting and standing on the job (a sit/stand option), and 3) Powers' pain and depression had no impact on her concentration, persistence or pace of work. The hearing officer further determined that Powers' testimony about her ability to work was not fully credible because of the following:

[I]nconsistencies in the claimant's testimony regarding her activities of daily living, the fact that her symptoms cannot be reasonably expected given the objective medical evidence, especially her problems with concentration, and the fact that the claimant is taking no medications for severe pain and that she can sit for much longer periods than she alleges.

The hearing officer partly based this credibility determination on his observation that Powers sat for much longer than ten minutes during the hearing itself and had sufficient concentration ability to read and watch television for long periods of time.

Despite this, the ALJ determined that Powers suffered from pain, shortness of breath and depression that made it impossible for her to work at her old job. The ALJ then shifted the burden to the Commissioner to show that work appropriate for her physical ability and vocational qualifications existed in significant numbers in the national economy. The ALJ consulted with Timothy Janikowski, a Ph.D. and vocational expert, who based his opinion on published and unpublished research and data collected from state and federal databases, labor market surveys, interviews and labor economists. Janikowski testified that for a hypothetical worker of Powers' age, education and work background who is capable of lifting ten pounds and required a sit/stand option, there were about 42,000 jobs in the regional economy, including watchman/security guard (7,100 jobs regionally), assembly (5,000-6,000 jobs) and cashier (30,000 jobs). Adding to the hypothetical the factor of mild to moderate pain which had no impact on concentration, persistence or pace, Janikowski testified that all the listed jobs would accommodate such a person. Based on the medical testimony, credibility determination and Janikowski's opinion, the ALJ found Powers capable of performing work that exists in significant numbers in the national economy and therefore not disabled within the meaning of the Act.

After exhausting administrative appeals, Powers filed suit under 42 U.S.C. sec. 405(g) in the United States District Court for the Southern District of Indiana. District Judge David Hamilton affirmed the ALJ's decision, and Powers appealed.

II. Analysis

Powers contends on appeal that the ALJ's decision regarding her credibility and the ALJ's reliance on the vocational expert's opinion were not supported by substantial evidence. The Agency's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. sec. 405(g). "Although a mere scintilla of proof will not suffice to uphold the SSA's findings, the standard of substantial evidence requires no more than'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Because the Commissioner is responsible for weighing the evidence, resolving conflicts and...