Rice v. Barnhart

• Decision Date: 14 September 2004
• Docket Number: No. 03-3830.,03-3830.
• Citation: 384 F.3d 363
• Parties: C. Etta RICE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 363

384 F.3d 363

C. Etta RICE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 03-3830.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2004.

Decided September 14, 2004.

Appeal from the United States District Court for the Central District of Illinois, Michael P. McCuskey, J David W. Sutterfield (argued), Effingham, IL, for Plaintiff-Appellant.

James B. Geren (argued), Social Security Administration, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

I. Background

To be eligible for disability insurance benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423, and supplemental security income under Title XVI of the Act, §§ 1382, 1382c, a claimant must prove she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 432(d)(1)(A), 1382c(a)(3)(A). The Commissioner of the Social Security Administration uses a five-step sequential analysis to ascertain whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f); Zurawski v. Halter, 245 F.3d 881, 885-86 (7th Cir.2001). Steps one and two are threshold determinations and assess first, whether a claimant is not presently working, and second, whether the complained of impairment(s) are of the required duration and significantly limit the claimant's ability to work. 20 C.F.R. §§ 404.1520(a)-(c), 416.920(a)-(c). In step three, evidence demonstrating the claimant's impairments is compared to a list of impairments presumed severe enough to preclude any gainful work. See 20 C.F.R. pt. 404, subpt. P, App. 1 ("listing of impairments"). Where an impairment meets or equals one of the listed impairments, the claimant qualifies for benefits and no further inquiry is necessary. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant is not able to qualify for benefits under step three, the analysis proceeds to steps four and five. The fourth step requires an assessment of whether the claimant's residual functional capacity¹ will allow the claimant to pursue her past work. 20 C.F.R. §§ 404.1520(e), 416.920(e). Where the impairment precludes the performance of past work, the claimant's RFC, age, education, and work experience are considered to determine if other work exists that would accommodate the claimant. 20 C.F.R. §§ 404.1520(f), 416.920(f).

Rice was born on August 13, 1945. She graduated from high school and is a certified nursing assistant. She has worked in the past as a nursing assistant and babysitter. After injuring her back while lifting a patient in an elderly nursing facility in 1985, she received disability insurance benefits between 1988 and 1994, when she returned to substantial gainful employment at a homeless shelter.

On October 29, 1998, Rice applied for disability insurance benefits and supplemental security income, claiming she became disabled on October 25, 1998 due to back and related leg pain, the result of her 1985 injury and a subsequent fall. Rice's applications were denied initially and upon reconsideration. On November 18, 1999, a hearing was held before an administrative law judge ("ALJ").

A. Testimony before the ALJ

At the hearing, Rice testified generally about her age, educational level, job history, and medical history. Specifically, she described two previous back surgeries in 1985 and 1988. She indicated that after being on disability benefits, she returned to work as a day care provider, only to suffer a fall in 1994. One month after the fall, due to a pronounced limp and an inability to lift heavy objects, Rice testified it became impossible for her to continue working as a babysitter. She was unemployed from 1994 until 1997, when she began working part-time at a homeless shelter. Her employment there, which included meal preparation, cleaning, and supervision of the clients, ended in October of 1998 when her "legs gave out," causing her to fall on the stairs. As a result, she testified, she resigned.

Rice also spoke specifically about her back and leg pain. Rice testified that the primary source of a constant, toothache-type pain, occasionally aggravated by cold weather, was her lower back. However, she described how certain activities cause pain to radiate to other parts of her body. After sitting for a certain amount of time, Rice testified that her leg will go numb. And after standing for a period of time, Rice indicated that she experiences pain between her shoulder blades and neck, as well as pain down her legs, particularly her right leg, sometimes causing numbness in her toes. Moreover, she complained that she must sleep in an upright position.

In terms of medication and other treatment for the pain, Rice indicated that for approximately one month she had been taking Tylenol-3 every six hours and that previously, she took Darvoset. To counter inflammation, she had been taking Lodine since 1997. She also indicated that she does not use a cane, brace, or other support device aside from a home-fashioned walking stick, used only occasionally in cold weather. Rice used no assistive device on the day of the hearing.

Rice also testified that she had been living by herself for the past three years. She stated that while her children assist her from time to time, she occasionally cooks for herself and does a daily load of laundry, necessitating one difficult trip up and down a flight of stairs. She also goes grocery shopping with assistance, washes dishes, and takes out the garbage. In addition, she testified that she reads and attends church services three to four Sundays a month, sings in the choir, and attends choir practices. She also stated that she enjoys watching television, although it is difficult for her to sit through an entire program. Rice testified that she is able to bathe herself, but that she has problems getting out of the bathtub and therefore takes showers. She also stated that she can dress herself and put on shoes and socks without a problem. Finally, she indicated that although she has a driver's license, she had not driven since October based upon a recommendation by her neurologist, Dr. Wayne D. Kelly.

B. Evidence submitted to the ALJ

The medical evidence submitted on behalf of Rice was extensive. However, it revealed marked differences of opinion among health care professionals. We summarize the evidence, for simplicity purposes, according to the treating physician.²

1. Dr. David L. Pohl

Dr. Pohl reported that an October 20, 1995 magnetic resonance imaging ("MRI") of Rice's lumbar spine showed postoperative changes at the L5 level. At the L5-S1 level, Dr. Pohl noted degenerative changes and scar tissue, but he also indicated that the abnormalities may be the result of a recurrent herniated nucleus pulposus (slipped disk).

2. Dr. Donald G. Rumer

Dr. Rumer examined Rice on February 4, 1997. He noted that a 1985 accident resulted in a herniated disk, which was treated with chemonucleolysis, and that, in 1998, Rice underwent a bilateral laminectomy with a total laminectomy at L5 and exploration and neurolysis of the first and second sacral nerve roots. He also made the following findings:

• positive Lesegue's sign³

• possible atrophy of the right calf, measuring sixteen inches compared to sixteen and a half inches on the left

• absent patellar reflexes

• trace Achilles reflex on left

• absent Achilles reflex on right

• tender posterior spine

He diagnosed Rice with traumatic lumbodorsal fascitis (the chronic phase of an acute lower back strain) and aggravation of postlaminectomy syndrome.

3. Dr. D. Patel

Dr. Patel, Rice's family doctor, completed a "Spinal Disorders" questionnaire upon request on November 20, 1998. In it, he noted that Rice had degenerative joint disease, but had no atrophy and could walk without assistance. He also indicated that no nerve root compression was present and that Rice did not have any limitations in her range of motion in her cervical spine or her lumbosacral spine. Dr. Patel also reported that sitting or walking for more than one-half hour worsened Rice's pain and that Rice was "unable to lift." Dr. Patel's office notes also refer to Rice's complaints of constant toothache back pain and burning pain and numbness in her right leg, for which Dr. Patel referred Rice to Dr. Wayne D. Kelly, a neurologist.

4. Dr. Wayne D. Kelly

Dr. Kelly, neurologist, treated Rice beginning in April of 1999. His records reveal the following results and diagnoses:

• April 23, 1999 exam revealed bilateral 2+ symmetrical patellar reflexes, decreased pin prick sensation in the right entire leg, positive mild weakness in the tibial anterior muscle and peroneous longus, positive lumbosacral paraspinal muscle spasm with stiffness and difficulties getting straight up out of couch, and slightly antalgic gait.

• April 30, 1999 electromyogram ("EMG") was consistent with chronic bilateral L5-S1 polyradiculopathy, with evidence of axonal involvement, as well as a (right) superimposed mild right compression/entrapment peroneal neuropathy at the fibular head, and evidence of mildly slowed nerve conduction velocity across the fibular head. No electro-physiological evidence of an underlying sensory/motor polyneuropathy.

• July 7, 1998 MRI showed left paracentric L3-4 disc herniation with compression of left L4 nerve root, a central L5-S1 disc herniation, left herniated disk at L3-4, small central herniated disk at C2-3, C3-4, and C4-5 with cervical radiculopathy, and a bone spur at C5-6.

• June 15, 1999 and August 4, 1999 Rice reported that epidural steroid injections helped reduce her back pain "a lot," but only lasted for about 2 months. She also reported difficulty sleeping, walking,...