Shauger v. Astrue

• Decision Date: 22 March 2012
• Docket Number: No. 11–3232.,11–3232.
• Citation: 675 F.3d 690,177 Soc.Sec.Rep.Serv. 428
• Parties: Virgil M. SHAUGER, Plaintiff–Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

177 Soc.Sec.Rep.Serv. 428

675 F.3d 690

Virgil M. SHAUGER, Plaintiff–Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.

No. 11–3232.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 29, 2012.Decided March 22, 2012.

Dana Wayne Duncan (argued), Attorney, Duncan Disability Law, SC, Wisconsin Rapids, WI, for Plaintiff–Appellant.

Niranjan Emani (argued), Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant–Appellee.

Before BAUER, ROVNER and WOOD, Circuit Judges.

BAUER, Circuit Judge.

Virgil M. Shauger, a 50–year–old former welder who suffers from a nerve disorder that impairs his vision, challenges the denial of his application for Social Security disability benefits. An Administrative Law Judge (“ALJ”) disbelieved Shauger's testimony about the severity of headaches caused by his condition, and on that basis found him not disabled. Because this adverse credibility determination is not supported by substantial evidence, we return the case to the agency for further proceedings.

I. BACKGROUND

Shauger operated a welding company in Milwaukee, Wisconsin, from 1989 to 2004. He was forced to sell his business in April 2004 after the symptoms of his disorder had worsened. Shauger was living in Florida in 2007 when he applied for disability insurance benefits, alleging onset in April 2004. Medical records of his vision problems date back to late 1988 when, at age 27, he first sought treatment for symptoms including double vision, eye strain, and facial numbness. Shauger had experienced similar symptoms six months earlier, but that initial bout had cleared after a few days and so he did not think more about it. After a battery of tests, Shauger was diagnosed in 1988 with abducens nerve palsy of the left eye. This disorder, commonly known as sixth nerve palsy, describes a paralysis of the muscle controlling lateral eye movements. See Dorland's Illustrated Medical Dictionary 1365 (32d ed.2012).

The treatment for sixth nerve palsy depends on the cause. Several causes are common among adults, including head trauma, infection, diabetes, brain aneurism, multiple sclerosis, and tumors. See Loyola University Chicago Stritch School of Medicine, Sixth Nerve Palsy, http:// www. stritch. luc. edu/ depts/ ophtha/ adult_ strabismus/ sixth_ nerve_ palsy. htm (last visited Mar. 19, 2012); U.S. National Library of Medicine, Medline Plus, Cranial Mononeuropathy VI, http:// www. nlm. nih. gov/ medlineplus/ ency/ article/ 000690. htm (last visited Mar. 19, 2012). Symptoms of sixth nerve palsy often include double vision, head aches, and pain around the eye. See The University of California–Irvine Gavin Herbert Eye Institute, Neuro–Ophthalmology, http:// www. eye. uci. edu/ neuroophtha lmology. html# AbducensNerve (last visited Mar. 19, 2012); U.S. National Library of Medicine, Medline Plus, Cranial Mononeuropathy VI, http:// www. nlm. nih. gov/ medlineplus/ ency/ article/ 000690. htm (last visited Mar. 19, 2012). Because the treatment varies by etiology, physicians typically start by giving patients a barrage of tests to determine the cause of the palsy. See U.S. National Library of Medicine, Medline Plus, Cranial Mononeuropathy VI, http:// www. nlm. nih. gov/ medlineplus/ ency/ article/ 000690. htm (last visited Mar. 19, 2012). Some cases of sixth nerve palsy go away on their own, and others may persist. Id.

Shauger speculates that his palsy stems from head trauma suffered in 1988 when he fell 13 or 14 feet on a welding job, and landed on the left side of his face on the concrete. His first symptoms surfaced after this accident. In 1988 and 1989, his doctors ran several clinical tests to determine the cause of his palsy, including an MRI and an angiography. No specific cause ever was found. Shauger continued working and did not seek treatment again until 1996, after his vision problems had worsened and he started experiencing headaches. Shauger had tried several types of glasses, but the headaches persisted. A neurologist confirmed the previous diagnosis of left sixth nerve palsy (he described Shauger's affliction as “rather remarkable”), but further testing again failed to identify the root cause. An ocular examination in 1998 showed that Shauger's palsy was marked by hypertropia and diplopia. Hypertropia is a misalignment of the eye, and diplopia is double vision. Dorland's Illustrated Medical Dictionary 525, 898 (32d ed.2012). In July 2007, a month before he applied for disability benefits, Shauger consulted an optometrist who concluded that he still suffered from double vision and prescribed glasses. The Commissioner of Social Security contends that this doctor prescribed prism glasses, which can help correct double vision by shifting the image entering the affected eye and allowing for coordinated vision with less lateral movement in that eye. American Optometric Association, Strabismus, http:// www. aoa. org/ x 4700. xml (last visited Mar. 19, 2012). The eyeglasses prescription is indecipherable, though Shauger has not disputed the Commissioner's interpretation.

After Shauger filed his disability claim in August 2007, several other doctors evaluated his condition. Dr. Martha Pollock, an internist, examined Shauger in October at the request of the Florida Department of Health and confirmed the diagnosis of left sixth nerve palsy. Two other doctors then reviewed Shauger's medical records for the state agency. The first, an ophthalmologist, opined that prism glasses should minimize or eliminate Shauger's double vision in all gazes except directly to the left. Even so, the ophthalmologist advised Shauger should avoid concentrated exposure to hazardous conditions no matter how successful prism glasses might be. The second doctor, an OB/GYN, opined that Shauger, due to his balance difficulties, always should avoid ladders, ropes, and scaffolds and only rarely should climb ramps or stairs. This consultant also recommended that Shauger avoid even moderate exposure to hazardous machinery.

The agency denied Shauger's disability claim initially and on reconsideration, and he received a hearing before an ALJ in July 2009. Shauger testified that he last worked in 2004 when he was forced to sell his company because of his impaired vision. At the time of the hearing, Shauger still suffered from double vision, and he explained that he must turn his head to the left in order to focus his eyes. Looking straight ahead, he said, causes eye strain and burning, watery eyes. Headaches set in after 15 minutes of trying to focus, so he cannot read or watch TV for more than brief periods. He testified that most days he suffers two or three severe headaches lasting 30 to 45 minutes each, which force him to lie down and shut his eyes with a cool compress on his forehead. Shauger explained that he relied on ibuprofen and eye drops but did not take any prescription medications. He testified that several times he had tried covering the affected eye with a patch but he saw no improvement in his balance or depth perception. When asked by his attorney whether he continued to see eye specialists and neurologists, Shauger answered that he did not because he had been told there was nothing more they could do.

The ALJ also solicited testimony from an internist and a vocational expert. Dr. Sami Nafoosi had reviewed Shauger's medical records and listened while he testified but did not examine Shauger. He asserted that Shauger's disorder does not meet or equal a listing but does prevent him from taking jobs requiring depth perception, especially positions requiring exposure to heights, heavy machinery, or open water. Dr. Nafoosi's direct testimony spans less than two pages of the hearing transcript, and he did not even mention Shauger's complaints of disabling headaches. When cross-examined about that subject, Dr. Nafoosi conceded that sixth nerve palsy “could result in headache” but asserted, without explanation, that Shauger's headaches would not be severe enough to require unscheduled breaks during the course of the workday or “further limit him.” The ALJ asked no follow-up questions. The vocational expert acknowledged that Shauger cannot perform his past work of welding but suggested that a person of Shauger's age, education, work experience, and limitations is qualified for available jobs including “dining room attendant,” “kitchen helper,” and “laundry worker.” The vocational expert conceded, though, that Shauger is unemployable if his headaches require unscheduled, 30–minute breaks two or three times daily. He also conceded that there could be a significant erosion of potential job options if Shauger has difficulty working in small, narrow places like a kitchen.

One month after the hearing, Shauger initiated a consultation with Dr. Maxim Gorelik, an ophthalmologist. Dr. Gorelik echoed the prior diagnosis of left sixth nerve palsy, and stated that double vision and depth perception prevent Shauger from safely working in an environment that requires hand-eye coordination. Dr. Gorelik also opined that prism glasses might provide some relief. Shauger's lawyer forwarded Dr. Gorelik's report to the ALJ.

In January 2010 the ALJ rejected Shauger's disability claim, concluding that he could transition from welding to other work. Applying the required five-step analysis, see 20 C.F.R. § 404.1520(a)(4), the ALJ determined that (1) Shauger had not engaged in substantial gainful activity from his alleged onset in 2004 through his date last insured in 2007, (2) his left sixth nerve palsy constitutes a severe impairment, (3) this impairment does not meet or equal a listed impairment, (4) Shauger could not perform his past relevant work of welding through the date last insured, and (5) there exist jobs in the economy he still could perform. The ALJ said little about Shauger's headaches. She wrote that Shauger “complains of headaches” but reasoned that they must be...