Wallschlaeger v. Schweiker, 82-1847

• Decision Date: 05 April 1983
• Docket Number: No. 82-1847,82-1847
• Citation: 705 F.2d 191
• Parties: Margaret WALLSCHLAEGER, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 191

705 F.2d 191

1 Soc.Sec.Rep.Ser. 402

Margaret WALLSCHLAEGER, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.

No. 82-1847.

United States Court of Appeals Seventh Circuit.

Argued March 1, 1983.

Decided April 5, 1983.

Craig Allan Willette, Rockford, Ill., for plaintiff-appellant.

James W. Miles, Dept. of Health & Human Services, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, and WOOD and POSNER, Circuit Judges.

POSNER, Circuit Judge.

We are asked to set aside a district court decision affirming the denial of a claim for Social Security disability benefits. As a young woman Mrs. Wallschlaeger had her thyroid gland removed and in the course of the operation her vocal cords became partially paralyzed. The paralysis did not significantly affect her speech as one might expect but did narrow the airway in the throat and make breathing difficult--how difficult is a question we shall come to in due course. Despite her affliction she continued doing light factory assembly work off and on till sometime in 1965 (the operation had been in 1957) and she bore three children. She has declined to undergo surgery that might ameliorate her condition.

She applied for disability benefits in 1977, was denied them through the various tiers of the Social Security claims system, and then appealed to the federal district court under 42 U.S.C. Sec. 405(g). The magistrate who heard the case by agreement of the parties upheld the administrative law judge's finding that "the testimony of the claimant and the medical evidence of record also indicate that the claimant's breathing problem is not severe enough to preclude substantial gainful work activity of a sedentary classification such as the claimant has previously performed or for which she would have some transferrable skills," but the magistrate thought she might be psychologically impaired and remanded the case to the Social Security Administration to take evidence on that question. The case was assigned to another administrative law judge; a psychologist and psychiatrist submitted reports; and after reviewing the evidence from the previous hearing plus the reports submitted on remand, the administrative law judge found that she was not disabled, and the magistrate and the district judge upheld his finding.

Disability means, so far as is relevant here, "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment," 42 U.S.C. Sec. 423(d)(1)(A), of "such severity that [the applicant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ...," 42 U.S.C. Sec. 423(d)(2)(A). If we ask simply whether there is substantial evidence, see 42 U.S.C. Sec. 405(g), that Mrs. Wallschlaeger is not disabled within the meaning of the statute--postponing for a moment our entry into the byzantine labyrinth of the Social Security Administration's regulations--our answer must be "yes."

We can put to one side any suggestion of mental impairment; although the evidence put in on remand shows that Mrs. Wallschlaeger is of below-average IQ and has various neuroses such as anxiety and hypochondria, there is no convincing evidence that these conditions are disabling. The only serious issue is whether the breathing problem caused by the 1957 thyroidectomy is disabling. On this the evidence is conflicting. Several doctors opined, though without much elaboration (e.g., "This patient is unable to perform any activity that would require any degree of physical exertion, therefore being disabled"), that her breathing problem was disabling. One, Dr. Lewis, did not report any disabling impairment; and the psychiatrist who interviewed her, observing among other things that she became angry at some of his questions yet exhibited no difficulty in breathing, concluded that she was "largely malingering."

The reason for the conflict in the evidence is that while everyone agrees that Mrs. Wallschlaeger has a partial paralysis of the vocal cords that has narrowed the airway to her lungs, the extent of her breathing difficulty apparently cannot be, or at least has not been, determined by objective tests, but only by observing her. The opportunity to observe her is one of the inestimable advantages that the first administrative law judge in this case had over us.

The administrative law judges were entitled to take into account the fact that Mrs. Wallschlaeger has managed to function as a wife and mother for 20 years despite her breathing impairment, and came through three pregnancies during this period with no difficulty. (She has been married seven times altogether, and has raised 10 children.) Moreover, she did light factory work for six months as late as 1965, eight years after the thyroid operation. There is no indication that her breathing has gotten worse since 1965; so if she was able to do light work then, she should be able to do it now. She is not immobilized. "This patient's typical day [reported the psychiatrist on the basis of his interview with her] consisted of the following: On the Sunday prior to the interview, she claimed that she walked around and waited on people in a flea market for a friend. At this job she takes their money and plays a record player. She said that she sold junk dishes, candy, fudge, brownie[s] which she makes at home. She said that she can fix meals, read the paper[,] make beds and is quite proud of making her own clothes, by sewing. She also claimed to make quilts. She also goes to the C.I.O. Hall to help with bingo games, where she pops popcorn and makes sandwiches, claiming that she gets $6.00 and is allowed to play bingo. She said that she goes grocery shopping with a sister, goes to relief office, the food stamp place, and also belongs to the Eagles' Club. At the club she said that she [waits?--transcript is illegible] tables when they have an affair. She also claimed to have gone to a Christmas Party last week and had a good time. She said that she also belongs to the Baltic Club and goes to meetings occasionally. She said that she attends several club meetings at least once a month." The psychologist who examined Mrs. Wallschlaeger reported that her greatest ambition in life was "getting my SSI [supplemental security income, the technical name for the class of benefits that includes the disability benefits she is seeking in this case] through," and that one of her "three wishes" was "to get her SSI before she dies." Two administrative law judges, a federal magistrate, and a federal district judge have found no basis for deeming her disabled.

Her main argument on appeal to this court is that no vocational expert testified that jobs similar in their requirements of skill and exertion to the light factory work that she did before she stopped working in 1965 still exist in the national economy and that her disability claim could not be rejected without such testimony. The argument, a complex one, begins with 20 C.F.R. Sec. 416.969, which introduces the "grid" that the Social Security Administration uses these days to determine disability. The grid is a matrix of factors for determining automatically whether an individual disabled from doing his previous work is able to do other work. Cummins v. Schweiker, 670 F.2d 81, 82 (7th Cir.1982). Among the factors is the applicant's previous work experience, defined in 20 C.F.R. Sec. 416.965(a) as experience acquired in a job held within the last 15 years. Ignoring, as shall we, the question whether the application for disability benefits stops the running of the 15-year period, in which event Mrs. Wallschlaeger's last employment would be relevant work experience under the regulation, she asks us to find that the agency should have rated her work experience as nil because it took place more than 15 years ago, and she argues that such a rating, together with the other factors in the grid matrix, would dictate a finding of disability.

Some of the...