Ragsdale v. Shalala, 94-1890

• Decision Date: 27 April 1995
• Docket Number: No. 94-1890,94-1890
• Parties: A, Unempl.Ins.Rep. (CCH) P 14660B George RAGSDALE, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 816

53 F.3d 816

47 Soc.Sec.Rep.Ser. 544A, Unempl.Ins.Rep. (CCH) P 14660B

George RAGSDALE, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary, Department of Health and Human

Services, Defendant-Appellee.

No. 94-1890.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 1994.

Decided April 27, 1995.

Dorie Budlow (argued), Westmont, IL, for plaintiff-appellant.

Donna Morros Weinstein, George Jackiw (argued), Dept. of Health and Human Services, Region V, Office of the General Counsel, Daniel E. May, Office of U.S. Atty., Civ. Div., Appellate Section, Chicago, IL, for defendant-appellee.

Before GOODWIN, ^* RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

George Ragsdale appeals from the final decision of the Secretary of Health and Human Services (Secretary), denying him Disability Insurance Benefits (DIB), as well as Supplemental Security Income (SSI) under the Supplemental Security Income Program of the Social Security Act. Ragsdale's sole challenge before the district court was that the ALJ failed to include all of Ragsdale's impairments in the hypothetical questions posed to a vocational expert for the purpose of determining whether there were jobs available in the regional economy which a person with Ragsdale's restrictions could perform. The district court, relying upon this circuit's decision in Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534 (7th Cir.1992), held that even if the hypothetical question omitted certain information, the record demonstrated that prior to testifying the vocational expert had reviewed Ragsdale's medical reports, which permitted a conclusion that the vocational expert did in fact give consideration to any of Ragsdale's omitted impairments in responding to the ALJ. Ragsdale now urges this court to overrule Ehrhart. For the reasons that follow, we reject Ragsdale's invitation to overrule Ehrhart and therefore affirm the ALJ's decision to deny benefits.

I.

At the time of his administrative hearing, Ragsdale was a forty-five year old male who formerly made his living by installing commercial and residential garage doors. Ragsdale claimed that he had become totally disabled following an on-the-job accident which injured his left shoulder and prevented him from performing any heavy lifting. He further claimed that two years after his accident he was involved in a automobile accident which left him with severe back pain. Further physical complaints included mild to severe hearing loss, constant ringing in his right ear, known as "tinnitus," and drowsiness from the medications he takes for pain.

Ragsdale filed claims for DIB and SSI alleging that he was totally disabled since the time of his on-the-job accident. The Secretary denied Ragsdale's claims both initially and upon reconsideration. Following this, Ragsdale requested a hearing before an ALJ. Both Ragsdale and the Secretary agreed and the ALJ found, that Ragsdale had established his inability to perform his past work according to step four of the five-step analysis as set forth in 20 C.F.R. Secs. 404.1520 and 416.920(a)-(f).

At that point it was up to the Secretary to demonstrate that Ragsdale could still perform other work in the national economy. Allen v. Sullivan, 977 F.2d 385, 387 (7th Cir.1992). In determining whether the Secretary had met that burden, the ALJ solicited the testimony of a vocational expert. At the hearing, the ALJ asked the vocational expert to assume that a claimant could perform only light work, was unable to lift his left arm above the shoulder level, and dexterity in both hands. Given those characteristics, the ALJ asked the vocational expert whether there existed any jobs in the regional economy that such a person could perform. The vocational expert responded that based upon that hypothetical the claimant could perform hand packaging work of light products because these jobs were performed at a conveyor belt and did not require the claimant to lift his arm above waist level. The vocational expert testified that there were 10,000 such jobs in the regional economy. The ALJ posed another question to the vocational expert, this time asking him how many such sedentary jobs there were that a person with Ragsdale's left shoulder problems could perform. The vocational expert estimated that there were 1,000 such jobs. At this point the ALJ permitted Ragsdale to cross-examine the vocational expert regarding his jobs assessment. At no time did Ragsdale mention his problems with his "tinnitus," partial hearing loss, and certain other medicinal side effects; he did, however, express concern that because of his shoulder problems he would not be able to keep up with a conveyor belt. Upon further questioning from the ALJ, the vocational expert concluded that there were 5,000 such jobs that would not require the claimant to work at a conveyor belt. Based upon the vocational expert's testimony, the ALJ determined that there existed a significant number of jobs in the regional economy that Ragsdale could still perform. As a result, the ALJ found that Ragsdale was not disabled and consequently denied his application for benefits. The Appeals Council denied Ragsdale's request for review, making the ALJ's decision the Secretary's final decision.

Ragsdale next sought judicial review of the Secretary's decision in the district court. Ragsdale's chief complaint was that the ALJ did not include all of Ragsdale's impairments in the hypothetical questions posed to the vocational expert. This, Ragsdale argued, meant that the hypothetical question did not adequately describe Ragsdale's condition, which, in turn, meant that the vocational expert's response to it could not constitute substantial evidence for purposes of determining whether Ragsdale could perform other work. Ragsdale and the Secretary filed cross motions for summary judgment on this point. The district court denied Ragsdale's motion and granted summary judgment in favor of the Secretary. As the basis for its decision, the district court observed that under this circuit's decision in Ehrhart v. Secretary, 969 F.2d 534 (7th Cir.1992), and its progeny, an ALJ does not have to include every one of the claimant's impairments in his hypothetical questions. All that need be shown from the record is that before presenting his expert testimony, the vocational expert reviewed the claimant's medical evidence and was present during the claimant's administrative hearing testimony. Applying Ehrhart to Ragsdale's claim, the district court noted that "[a]ny omissions from the hypotheticals are of no import because the [vocational expert] was present throughout Ragsdale's hearing and stated that he had reviewed Ragsdale's records." Memorandum opinion at 10. The court rejected Ragsdale's argument that Ehrhart and its progeny were wrongly decided, noting that it was bound to follow the law of this circuit. Consequently, the district court concluded that the ALJ's hypothetical question was proper and thus the vocational expert's response to it constituted substantial evidence supporting the ALJ's denial of benefits. Ragsdale appeals from that decision.

II.

Ragsdale urges us to overrule Ehrhart and hold instead that an ALJ's failure to include every aspect of the claimant's impairments in the hypothetical questions posed to a vocational expert cannot be remedied simply by showing that the vocational expert reviewed the claimant's medical documents and reports prior to the hearing. In making this argument, Ragsdale faces the uphill task of overcoming existing precedent, since three unanimous panels of this court have subsequently relied upon Ehrhart in repelling challenges to the adequacy of hypothetical questions posed to a vocational expert. See, e.g., Herron v. Shalala, 19 F.3d 329, 337 (7th Cir.1994); Jones v. Shalala, 10 F.3d 522, 525 (7th Cir.1993); Cass v. Shalala, 8 F.3d 552, 555-56 (7th Cir.1993). This, however, does not automatically bar Ragsdale's challenge, because it appears that none of these previous decisions encountered a direct challenge to Ehrhart. Cf. United States v. Hill, 48 F.3d 228, 232 (7th Cir.1995) (observing that "as a practical matter an opinion that contains no discussion of a powerful ground later advanced against it is more vulnerable to being overruled that an opinion which demonstrates that the court considered the ground now urged as a basis for overruling."). We will therefore consider the arguments Ragsdale has...