Scott v. Heckler, 84-2950

• Decision Date: 22 July 1985
• Docket Number: No. 84-2950,84-2950
• Citation: 768 F.2d 172
• Parties: , Unempl.Ins.Rep. CCH 16,228 Johnson SCOTT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 172

768 F.2d 172

10 Soc.Sec.Rep.Ser. 264, Unempl.Ins.Rep. CCH 16,228

Johnson SCOTT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 84-2950.

United States Court of Appeals Seventh Circuit.

Argued April 25, 1985.

Decided July 22, 1985.

Jan L. Kodner, Chicago, Ill., for plaintiff-appellant.

Jeffrey Teske, Asst. Regional Counsel, Dept. of Health and Human Services, Chicago, Ill., for defendant-appellee.

Before BAUER and WOOD, Circuit Judges, and FAIRCHILD, Senior Judge.

BAUER, Circuit Judge.

This is an appeal from an order of the district court affirming the Secretary of Health and Human Services's (Secretary) reversal of the Administrative Law Judge's (ALJ) grant of disability benefits to plaintiff. We reverse and remand for reinstatement of the ALJ's award of disability benefits to the plaintiff.

I.

Plaintiff, a 54-year-old functionally illiterate male with a fourth grade education, worked as a shipping and receiving clerk for the Rotary Paper Manufacturing Company for ten years between 1969 and 1979 until he dislocated his right arm in September 1979. Plaintiff's primary duty at Rotary was to load and unload trucks and to sometimes drive a fork lift. Plaintiff testified that his work required him to stand and walk most of the time and to sit occasionally. Tr. 32. Plaintiff testified that his job required frequent bending and reaching. Plaintiff was sometimes required to lift rolls of paper in excess of 50 pounds and to push objects weighing between 250 and 500 pounds. Plaintiff's job required only physical labor and no inventory or other tasks which his illiteracy would make impossible. Prior to his employment at Rotary, plaintiff was employed steadily as a shipping and receiving clerk for other companies. Since the dislocation of his arm, plaintiff has subsisted on general assistance of $144 per month and food stamps. Plaintiff is divorced and lives alone in a second floor apartment on Chicago's south side.

In December 1981, and August 1982, plaintiff filed applications for disability insurance and Supplemental Security Income (SSI) benefits, describing his disability as high blood pressure, a heart condition and an inability to use his right arm. The Social Security Administration denied both of plaintiff's applications in decisions dated April 14, 1982, and November 30, 1982, and also denied plaintiff's request for reconsideration on March 10, 1983. Plaintiff timely requested and received a hearing before the ALJ on July 14, 1983.

At his hearing plaintiff testified that he is able to stand only 10-15 minutes before experiencing problems with his legs. Tr. 34-5. He gets pains in his chest and sides and cannot walk more than 1/2 block. Tr. 34, 132. He can climb only 1/2 flight of stairs before needing to stop. Tr. 35. He gets chest pains and headaches from sitting or lying down for a long time. Tr. 35. The chest pains linger, like a "pin sticking in [his] chest." Tr. 46. Plaintiff is able to lift 5-10 pounds, but if he tries to lift more, his arms and legs give out. He has problems raising his right knee and right arm. Tr. 36, 37. Plaintiff also suffers from dizziness and severe headaches, which wake him in the night, his head "busting open." Tr. 37, 45. The headaches occur every day. Tr. 45.

Plaintiff used to take walks for recreation, but had to give these up in October 1983 because his legs would give out. Tr. 39-40. He had exercised his arm by squeezing a ball in his hand but gave it up because "it hurt me so bad." Tr. 50. Plaintiff's daughter comes weekly to clean and cook for him and to drive him to the grocery store. He waits in the car while she shops, however, because he cannot walk the entire trip through the store. Tr. 39, 48, 127. Plaintiff testified that he goes with his daughter just to get out of the house. Tr. 25.

Between 1977 and 1983 five doctors treated plaintiff, or reviewed his records. The reports of these doctors were admitted into evidence by the ALJ and considered by him in making his decision. Six reports from Dr. Rubio, plaintiff's treating physician, were admitted into evidence, dating from June 1977 to June 24, 1983. One report from Dr. Carasig dated March 17, 1982, was admitted into evidence. A report from Grant Hospital, where plaintiff was hospitalized for severe cluster headaches and anemia, dated July 1982 also was admitted. Dr. Panopio, who performed a consultative examination of the plaintiff at the request of the Administration on November 19, 1982, also submitted a report taken into evidence. Finally, a report by Dr. John A. Wyness, who never treated or examined the plaintiff, but who reviewed the medical evidence on January 20, 1983, also was admitted into evidence.

All of the physicians examining the plaintiff concurred in finding that from at least May 1979, plaintiff suffered from uncontrolled hypertension, despite medication. Plaintiff's blood pressure during this period ranged from 110/80 to 180/120. Doctors Rubio, Carasig and Panopio noted the plaintiff's complaints of chest pains. Dr. Rubio noted in June 1983, that plaintiff suffered from coronary insufficiency and that the chest pain was cardiac related, and as early as 1977 had diagnosed plaintiff as having coronary artery disease, cardiomegaly and an abnormal EKG. Grant Hospital and Dr. Panopio in March and November of 1982 also found plaintiff to have abnormal EKGs. Dr. Rubio found in January 1982 that the chest pain was precipitated by walking and could be eased by rest. Dr. Rubio did not, however, report that plaintiff was suffering chest pains in August or October 1982 when he was contacted by phone by an Administration adjudicator. The absence of chest pain may have been due to plaintiff's hospitalization at this time for cluster headaches and anemia.

Doctors Rubio, Carasig, and Panopio all identified plaintiff's arm and shoulder problems. In June 1983, Dr. Rubio noted that plaintiff had a history of shoulder dislocation beginning at least in May 1979, when he was hospitalized for pain in his shoulder and arms. The reports indicate that one arm was tender during this hospitalization. X-rays, tonograms and bone scans indicated greater tuberosity of the humerus, sclerosis and dense, increased bone activity. A gallium scan, however, revealed no abnormality in the region. Tr. 182-193. Dr. Rubio did not find evidence of a limitation of limb movement due to the pain.

Both Drs. Carasig and Panopio found plaintiff's limb movement limited. Dr. Carasig found that plaintiff suffered from degenerative osteoarthritis and had a reduced grip strength in his right arm. Dr. Panopio found that plaintiff's right shoulder and arm had a slightly limited range of motion forward to 120 degrees and back to 20 degrees. Dr. Panopio also found in November 1982 that plaintiff had a mild limp which slightly restricted his ability to walk and a slight lateral deviation of 5 degrees in the right leg. In January 1982 and again in June 1983, Dr. Rubio by contrast, found that plaintiff had a normal gait.

Dr. Wyness did not examine the plaintiff, but based on his review of plaintiff's medical record, found that plaintiff suffered from hypertension, chest pain due to coronary insufficiency, back pain and headaches. Dr. Wyness concluded, however, that plaintiff retained the ability occasionally to lift and carry 50 pounds, frequently lift and carry 25 pounds, do an unlimited amount of pushing, pulling, and reaching, and a limited but frequent amount of climbing, stooping, balancing, kneeling, crouching, and crawling. He also found that the plaintiff could stand or walk a total of 6 hours a day.

The ALJ considered the evidence presented through the testimony and exhibits and made the following findings.

The medical evidence establishes that the Claimant has coronary artery disease, severe hypertension, osteoarthritis of the right shoulder and the right knee....

Claimant's testimony regarding functional restrictions of his right shoulder and right knee is supported by the medical evidence of record and is therefore generally credible....

The Claimant has the residual functional capacity to perform the physical exertion requirements of work except for standing and walking for prolonged periods of time, bending, stooping, squatting or lifting more than ten pounds frequently, or 20 pounds occasionally.

The ALJ concluded that the plaintiff was unable to perform his past work as a shipping clerk, classified as "medium" work, but that he could do "light" work. After considering vocational factors, however, the ALJ found that the regulations required that petitioner be found to have been disabled since November 4, 1982.

On December 8, 1983, the Appeals Council on its own motion reviewed the ALJ's decision under 20 C.F.R. Secs. 404.970(a)(3) & 416.1470(a)(3), which provide that a case will be reviewed if the findings or conclusions of the ALJ are "not supported by substantial evidence." The Appeals Council reviewed the entire record and found:

The claimant has the following impairments: hypertension, chest pain, degenerative arthritis of the right shoulder and right knee.

The claimant is not engaging in substantial gainful activity.

The claimant has a severe impairment.

The claimant's impairment is not of the severity to meet or equal the Listings.

The claimant has the residual functional capacity to perform work-related functions except for work involving lifting more than 25 pounds frequently or 50 pounds occasionally.

The claimant's past relevant work as a shipping and receiving clerk did not exceed the above limitations.

The claimant's allegation of severe and disabling pain is not credible in view of the medical documentation.

The Appeals Council concluded therefore that the petitioner had never been disabled.

Plaintiff sought review in the district court. The district court granted the Secretary's motion for summary judgment, holding that...