Pugh v. Bowen

Decision Date20 March 1989
Docket NumberNo. 87-2752,87-2752
Citation870 F.2d 1271
Parties, Unempl.Ins.Rep. CCH 14586A Harvey PUGH, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Jeffrey A. Rabin, Pfeffer Becker & Cerveny, Ltd., Chicago, Ill., for plaintiff-appellant.

Linda E. Tucker, Asst. Regional Counsel, Dept. of Health and Human Services, Chicago, Ill., for defendant-appellee.

Before MANION and KANNE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

KANNE, Circuit Judge.

Harvey Pugh filed an action in the district court seeking judicial review of the Secretary's final decision upon his application for disability benefits. The Secretary awarded disability benefits to Pugh. However, Pugh disagrees with the Secretary regarding the disability's date of onset. The district court granted the Secretary's motion for summary judgment and Pugh appeals. We affirm.

I. BACKGROUND

Harvey Pugh worked at the Nalco Chemical Company for approximately eighteen years. His job required him to lift materials which sometimes weighed as much as 100 pounds, operate levers, and shovel and rake materials on the floor, as well as mix chemicals and set scales. In March of 1982, Pugh left his job permanently after suffering a blackout episode at work, apparently caused by emphysema.

On October 27, 1982, Pugh filed his first of three applications for a period of disability and disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. Secs. 416(i), 423. He alleged that he became disabled and unable to work as of March 31, 1982, at age 48, due to "emphysema" and "hypertension." This application was denied at the initial determination level of administrative consideration and was not appealed.

Pugh filed a second application for disability benefits on September 16, 1983. It contained the same allegations as his first application. This application was denied at both the initial and the reconsideration levels of administrative consideration. Pugh subsequently requested a hearing before an Administrative Law Judge. However, the ALJ dismissed the request on September 26, 1985, when Pugh failed to appear at the hearing. This order was not appealed, either to the administrative appeal body or federal court.

This case involves Pugh's third application for a period of disability and disability insurance benefits filed on April 19, 1985. He again alleged that he became disabled and unable to work as of March 31, 1982, because of emphysema and high blood pressure. His claim again was denied at the initial and reconsideration levels of consideration. Subsequently, Pugh requested a hearing before an Administrative Law Judge.

On April 7, 1986, an ALJ conducted a hearing upon Pugh's application which Pugh and his attorney attended. The ALJ heard testimony from Pugh, his friend, Gail Denise Alford, and Richard J. Hamersma, a vocational expert. He also considered additional vocational evidence, as well as medical evidence from treating physicians and nonexamining medical experts. This evidence covered Pugh's physical condition and vocational aptitude from March, 1982, through November, 1985.

After the ALJ conducted the hearing, but prior to issuing a decision, Pugh requested the ALJ to "reopen" his second application and reconsider the Secretary's prior decision. He alleged that the regulations allow for reopening within one year of the initial determination for any reason, 20 C.F.R. Sec. 404.988(a), and within four years of the decision upon a showing of "good cause," 20 C.F.R. Sec. 404.988(b). Pugh contended that "new and material evidence" existed to support his assertion that the ALJ should exercise his discretion to reconsider the Secretary's prior decision. 20 C.F.R. Sec. 404.986(a)(1).

The ALJ issued his decision on June 11, 1986. He found that Pugh has not engaged in "substantial gainful activity" since March 31, 1982. He also found that Pugh presently suffers from "severe chronic obstructive pulmonary disease and hypertension." He further found that prior to November 2, 1985, Pugh had the residual functional capacity to perform "light" work activities. The ALJ noted that although Pugh may have experienced some discomfort and periodic pain prior to November of 1985, his condition was not so severe as to preclude the performance of all substantial gainful activity. However, since November 2, 1985, Pugh's disabling impairment has met the Listing of Impairments ("Listing 3.02 of Appendix 1, Subpart P, Regulations No. 4"). He therefore is presumed disabled and entitled to benefits as of that date.

The ALJ also stated in his decision that because he had determined that the disability's onset date was November, 1985, rather than March of 1982, as the second application alleged, it "would not be appropriate" to reopen the prior application. He also stated that reopening the second application was "unwarranted."

On December 2, 1986, Pugh filed an appeal with the Appeals Council. The Appeals Council adopted the ALJ's ruling as the Secretary's final decision.

On February 2, 1987, Pugh filed for review of the Secretary's decision in federal district court. He asserted that the ALJ erroneously refused to reopen the prior application. Furthermore, substantial evidence did not support the ALJ's finding that November 2, 1985, was the onset date of his disability rather than March 31, 1982. Pugh argued that the ALJ improperly relied solely upon Pugh's ability to meet the regulations' Listing of Impairments rather than the totality of the subjective testimony and the medical and vocational evidence.

On September 3, 1987, Judge Zagel found that the district court was without jurisdiction to review the ALJ's decision not to reopen the prior application, citing Califano v. Sanders, 430 U.S. 99, 107-09, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977), and Watters v. Harris, 656 F.2d 234, 238 (7th Cir.1980). Pugh v. Bowen, 670 F.Supp. 812, 813 (N.D.Ill.1987). He also held that the Secretary's decision was supported by substantial evidence. He then granted the Secretary's motion for summary judgment and denied Pugh's motion for summary judgment.

II. THE APPEAL

The parties do not dispute that Pugh currently is disabled. Pugh only appeals the established onset date of his disability. Pugh contends that the ALJ refused to apply the provisions of Social Security Ruling 83-20 to determine the onset date of his disability. He argues that when the requisite analysis is performed substantial evidence does not exist to support the ALJ's determination that November 2, 1985 was the onset date of his disability, rather than March 31, 1982, when he left his job at the Nalco Chemical Company. Pugh believes that the ALJ improperly determined the onset date based solely upon Pugh's ability to meet the disability "Listings," and refused to take into account vocational factors, symptoms, and subjective testimony. We address his contentions below.

A. Standard of Review 1

The Social Security Act specifically provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. Sec. 405(g); see also Arbogast v. Bowen, 860 F.2d 1400, 1403 (7th Cir.1988); Ray v. Bowen, 843 F.2d 998, 1001 (7th Cir.1988); Walker v. Bowen, 834 F.2d 635, 639 (7th Cir.1987); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir.1987). 2 We "may not decide the facts anew, reweigh the evidence or substitute our own judgment for that of the ALJ." Meredith v. Bowen, 833 F.2d 650, 653 (7th Cir.1987) (citation omitted). We therefore may reverse the ALJ's holding only if he has made an error of law. See, e.g., Steward v. Bowen, 858 F.2d 1295, 1297 (7th Cir.1988); Veal v. Bowen, 833 F.2d 693, 696 (7th Cir.1987); Waite v. Bowen, 819 F.2d 1356, 1360 (7th Cir.1987); Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986). With these limitations in mind, we turn to the issues presented in this appeal.

B. The ALJ's Decision

In Lichter v. Bowen, 814 F.2d 430, 434-37 (7th Cir.1987), we held that an ALJ is required to apply the analysis outlined by Social Security Ruling 83-20 ("SSR 83-20") to determine the onset date of an applicant's disability. 814 F.2d at 434-37. To determine the onset date of "disabilities of a nontraumatic origin," such as Pugh's disability, SSR 83-20 requires an ALJ to consider three factors.

First, an ALJ should consider the individual's allegations regarding the onset date. SSR 83-20 at 95 ("[T]he starting point in determining the date of onset of disability is the individual's statement as to when disability began."); Lichter, 814 F.2d at 434. Second, the ALJ should consider the applicant's work history. SSR 83-20 at 95 ("The date the impairment caused the individual to stop work is frequently of great significance in selecting the proper onset date."); Lichter, 814 F.2d at 434. Third, the ALJ should consider all medical and other relevant evidence. SSR 83-20 at 94, 95-96; Lichter, 814 F.2d at 434.

The ALJ must weigh these factors in light of SSR 83-20's other directives. An "individual's allegation or the date of work stoppage is significant in determining onset only if it is consistent with the severity of the condition[s] shown by the medical evidence." SSR 83-20 at 94 ("Policy Statement"). However, "in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided on medical grounds alone) before onset can be established. In such cases, consideration of vocational factors can contribute to the determination of when the disability began...." SSR 83-20 at 96. Nevertheless, "the medical evidence serves as the primary element in the onset determination" and the date chosen "can never be inconsistent with the medical evidence of record." Id. at 95; Lichter, 814 F.2d at 434.

The ALJ did not refer to SSR 83-20...

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