Opinion
98 C 1905
July 24, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Jerlene Ward ("Ward") has appealed the denial of her claim for supplemental security income. Before the Court are the parties' cross-motions for summary judgment. For the reasons provided in this Memorandum Opinion and Order, the Court denies plaintiffs motion, grants defendant's motion, and terminates this case.
Procedural History
On March 11, 1994, Ward applied for supplemental security income ("SSI") alleging disability as of March 3, 1993, due to lower back and digestive problems. (R. 32.) Her claim was denied initially and on reconsideration. (R. 28-30.) At Ward's request, a hearing was held on October 22, 1996. (R. 142.) At the hearing, Ward and a medical expert, Irving Slott, M.D., testified. (R. 142-90.) On April 17, 1997, Administrative Law Judge ("ALJ") Bonny S. Barezky found that Ward was not "under a disability" as defined under the Social Security Act, and thus she was not entitled to SSI. (R. 6-14; see also 42 U.S.C. § 423 (d)(1)(A).) On January 30, 1998, the Appeals Council concluded that there was no basis under the Social Security Administration regulations for granting her request for review of the ALJ's decision. (R. 3.) Therefore, the ALJ'S decision stands as the final decision of the Commissioner of Social Security. ( Id.; see 20 C.F.R. § 416.1481.) On March 27, 1998, Ward brought the instant action.
Statement of Facts
At the time of the administrative hearing, Ward was a thirty-seven-year-old female. (R. 87.) She has had fourteen years of education, which includes two years of college. ( Id.) She has four school-aged children, including three sons and a daughter. (R. 163.) She has no recent work history. ( Id.) She is 66 1/2 inches tall, and she testified that she weighs 230 pounds. (R. 96, 187.)
On weekdays when school is in session, Ward wakes up at 6:00 a.m., awakens her four children, and prepares them for school. (R. 174.) She cooks breakfast for her children once a week, but otherwise they eat cereal or go straight to school. (R. 175.) After the children go to school, she makes breakfast for herself ( Id.) After breakfast, she rests, and then she makes the children's beds, sweeps the floor, and straightens up the house. (R. 175-76.) During the day, sometimes she visits her mother for about an hour, walks to the neighborhood store, sits and watches television, or walks to the playground and sits. (R. 178-81.) Ward testified that she can walk a city block, but then she gets tired and needs to rest. ( Id.) After resting and drinking from a water bottle that she keeps with her, she can continue walking. ( Id.)
At night, she makes dinner for herself and the kids. (R. 180.) She shops for groceries, and her children help her carry and put away the groceries. (R. 181.) The children take turns removing the trash and each family member, including Ward, takes turns doing the laundry and dishes. (R. 176-77, 181.) Ward usually goes to sleep around 10:00 p.m. (R. 177.)
For the past fifteen years, Ward has had symptoms of gastro esophageal reflux or peptic ulcer disease, which causes nausea and vomiting as well as regurgitation of food when she eats. (R. 95, 149.) Although she has had these symptoms, however, she has not experienced any weight loss or anorexia as a result of her symptoms. (R. 95.) On October 22, 1996, Irving Slott, M.D., who testified at the hearing as a medical expert, stated that the medical records show that Ward has not had any weight loss. (R. 188.) Even Ward admitted that she has not noticed any weight loss. (R. 187.) In addition, Ward testified that her condition has been treated with medication, specifically Zantac, Prilosec, Propulsid, and Mylanta. (R. 150-51.)
With regard to Ward's complaints about lower back pain, on November 16, 1994, Donald Rabor, M.D., reported that Ward "has some tenderness on palpation but has no limitation in range of motion and no evidence of neurological problems." (R. 97.) The medical records show that x-rays were taken of Ward's lumbosacral and cervical spine on September 19, 1994 at St. Bernard Hospital. (R. 81.) According to Dr. Coeller, the x-rays were negative as to fracture or dislocation. ( Id.) On September 26, 1995, at the request of Dr. Benitez, Ward's treating physician, another x-ray was taken of Ward's lumbosacral spine at Mount Sinai Hospital. (R. 129.) The x-ray showed: (1) "[d]egenerative changes at L4-5 as evidenced by narrowing of the intervertebral disc space and anterior spurring;" "[m]inimal facet arthropathy at L4-5;" and "ununited ossification centers of the transverse processes of L1." (R. 129.) Dr. Benitez treated Ward's back condition with Zostrix, an analgesic cream, Methocarvamol, a muscle relaxant, and Tylenol. (R. 152-53.) In addition, Dr. Lin prescribed Diflunisal, a non-steroidal anti-inflammatory drug for pain that is equivalent to Motrin. ( Id.)
Ward testified that she has had back problems since the 1980s. Ward testified that she experiences back pain twice or three times per week and that the pain lasts a day but the soreness will last a little longer. (R. 157-58.) She testified that she does not always take medicine and that "sometimes I just, you know, get a hot towel . . . . I try to get a hot towel and kind of do that or I rub it down [with analgesic cream like Ben-Gay]." (R. 157-58.) Sometimes she gets someone to massage her back. (R. 160.) Ward stated that especially when it rains, her back bothers her when she gets up from laying down in the morning. (R. 157.) The sharp pain of her lower back often radiates on both sides to the level of spine that is just above her waistband. (R. 160.) She testified that "one time I couldn't even walk. I had to go to the emergency room." ( Id.) The medical records show, and Ward stated, that she never underwent surgery and was never hospitalized for her back problems. (R. 172.) She has not participated in physical therapy since 1994.
The ALJ noted that Ward sat throughout the one-and-a-half hour meeting without any problems. (R. 12.) She also observed that Ward walked out of the hearing room without any impairment or difficulty. ( Id.)
The ALJ made the following findings of fact:
1. The claimant has not engaged in substantial gainful activity since she filed her application on March 11, 1994.
2. The medical evidence establishes that the claimant has severe impairments of gastroesophageal reflux and low back pain, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix I, Subpart P, Regulations No. 4.
3. The claimant's subjective complaints and alleged limitations find no support in the objective medical record to show she is incapable of performing sedentary work.
4. The claimant is more than capable of performing sedentary work. There are no nonexertional limitations as described in 20 C.F.R. § 416.945.
5. The claimant has no past relevant work.
6. The claimant has the residual functional capacity to perform the full range of sedentary work pursuant to 20 C.F.R. § 416.967.
7. The claimant is only forty years old, which is defined as a "younger individual" pursuant to 20 C.F.R. § 416.963.
8. The claimant has two years of college education.
9. In view of the claimant's age and residual functional capacity, the issue of transferability of work skills is not material.
10. Section 416.969 of Regulations No. 16 and Rule 201.27, Table No. 1 of Appendix 2, Subpart P. Regulations No. 4, direct a conclusion that, considering the claimant's residual functional capacity, age, education, work experience, she is not disabled.
11. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision, pursuant to 20 C.F.R. § 416.920 (f).
Discussion
This court's review is limited to determining whether the Secretary's final decision "is both supported by substantial evidence and based on the proper legal criteria." Ehrhart v. Secretary of Health Human Servs., 969 F.2d 534, 538 (7th Cir. 1992). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In reviewing the Secretary's final decision, the court may not reweigh the evidence or reconsider credibility determinations made by the ALJ's. Herr v. Sullivan, 912 F.2d 178, 180 (7th Cir. 1990). Thus, "the critical question here is not whether the Claimant is actually disabled, but rather whether substantial evidence supports the ALJ'S conclusion that the Claimant is not disabled." Marco v. Apfel, No. 97 C 6824, 1999 WL 311695, at *4 (N.D. Ill. May 13, 1999). If reasonable minds could disagree as to whether an individual is disabled, a court must affirm the Secretary's decision. Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
The Social Security Act authorizes disability benefits for those who are unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(A). To determine whether an adult claimant is disabled under the Act, the ALJ must address the following questions in sequential order:
(1) Is the claimant presently unemployed?
(2) Is the claimant's impairment or combination of impairments severe?
(3) Do his or her impairments meet or exceed any of the specific impairments listed in 20 C.F.R. Pt. 404, Subpt. P., App. I which the Secretary acknowledges to be conclusively disabling?
(4) If the impairment has not been listed by the Secretary as conclusively disabling, given the claimant's residual functional capacity, is the claimant unable to perform his or her past relevant work?
(5) Is the claimant unable to perform any other work in the national economy given his or her age, education and work experience?20 C.F.R. § 416.920 (a)-(f); Young v. Secretary of Health Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). "A negative conclusion at any step (except for step three) precludes a finding of disability." Young, 957 F.2d at 389. "An affirmative answer at steps one, two or four leads to the next step. An affirmative answer at steps three or five results in a finding of disability." Id. "[P]laintiff has the burden of production and persuasion on steps one through four, and the burden shifts to SSA on step five to show ability to engage in some other type of [work]." Terry v. Apfel, No. 97 C 3369, 1998 WL 704322, at *1 (N.D.Ill. Sept. 24, 1998).
In Ward's case, the ALJ found that she was not presently employed (step one) and that she had severe impairments of gastroesophageal reflux and low back pain (step two). However, the ALJ found that she did not have an impairment or combination of impairments listed in or medically equal to one listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (step three). Next, the ALJ found that Ward had no past relevant work (step four). Finally, the ALJ determined that Ward had a residual functional capacity ("RFC") to perform the full range of sedentary work (step five), and found that due to her RFC, age, education, and work experience, she was not disabled.
In Ward's case, the ALJ answered the inquiry at step three in the negative. Therefore, the Court begins its analysis there.
There is substantial evidence in the record to support the ALJ's finding that Ward's conditions did not meet or exceed the specific impairments listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1. The Court addresses her digestive and lower back problems in turn.
In order to qualify as having "stricture, stenosis, or obstruction of the esophagus" or "peptic ulcer disease," a claimant must show, among other things, evidence of weight loss, which, in the case of a female of Ward's height, would require her to weigh 106 pounds. See 20 C.F.R. Pt. 404, Subpt. P. App. 1, §§ 5.03, 5.08. Because Ward weighs 230 pounds and she admits that she has not noticed any weight loss, her gastroesophageal reflux or peptic ulcer disorder does not meet or equal the listed impairments in section 5.03 or 5.08.
Ward argues that "Dr. Slott notes that Ward had two disabling stomach conditions, namely, strictures, stenosis or obstruction of the esophagus under listing 5.03 and peptic ulcer disease under 5.08 (R. 184)." (Pl.'s Mot. Summ. J. at 7.) Upon review of the hearing transcript, Ward has misinterpreted Dr. Slott's testimony and has read it out of context. Dr. Slott clearly testified that both conditions require weight loss and that Ward had experienced no weight loss. (R. 188.) Ward also argues that the ALJ should have had a gastroenterologist examine Ward to determine whether her condition met or exceeded the listed impairments of the digestive system. (Pl.'s Mot. Summ. 3. at 6.) Ward and Dr. Slott's testimony that she had not experienced any weight loss clearly made the need for such an examination moot.
With regard to her lower back problems, Ward argues that the ALJ'S decision that she did not have an impairment or combination of impairments listed in or medically equal to one listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 was not supported by substantial evidence because (1) the ALJ and Dr. Slott incorrectly interpreted the x-ray findings without medical expertise; and (2) the ALJ failed to obtain a final report from Dr. Slott or an orthopedic consultative examiner. The Court disagrees.
Dr. Slott testified that the x-rays taken of Ward's lumbosacral spine on September 19, 1994, were negative. (R. 184.) Dr. Slott's testimony is clearly supported by the x-ray report of Dr. Coeller, the emergency physician, who reported that the x-rays were negative for fracture and dislocation. (R. 81.) The Court rejects Ward's attempt to describe Dr. Coeller's report as "preliminary" because the record does not support an inference that another final report existed or was forthcoming. Further, the Court rejects the insinuation that the x-ray report has no evidentiary value merely because it was not prepared by a radiologist. To find otherwise would be to nullify probative evidence in many cases merely because the bustling atmosphere of the emergency room is such that a radiologist may not always be available to write an x-ray report.
Further, Ward argues that the ALJ'S interpretation of x-rays taken on September 26, 1995, was improper and thus her decision was not supported by substantial evidence. In her decision, the ALJ stated: "X-rays taken of the claimant's lumbosacral spine on September 26, 1995, showed degenerative changes and minimal facet arthropathy at L4-5." (R. 11.) Upon review of the record, it is obvious that the ALJ did not interpret the x-ray, but merely restated the radiologist's interpretation of the x-ray. (R. 129.) Thus, it is clear that the ALJ neither ignored the September 26, 1995 x-ray nor interpreted for himself what the x-ray film meant. Moreover, there was no need for further reports or examinations because there is substantial evidence in the record to support the ALJ'S finding that Ward's back condition did not meet or exceed one of the listed disorders of the spine.
There are three disorders of the spine that the Secretary has listed as conclusively disabling: (1) "Arthritis manifested by ankylosis or fixation of the cervical or dorsolumbar spine at 30° or more of flexion measured from the neutral position . . ."; (2) "Osteoporosis, generalized (established by x-ray) manifested by pain and limitation of back motion and paravertebral muscle spasm. . ."; and (3) "[o]ther vertebrogenic disorders." 20 C.F.R. Pt. 404. Subpt. P, App. 1, § 1.05.
There is substantial evidence in the record that Ward's dorsolumbar spine is not fixed or immobile at 30° or more of flexion and that she does not suffer from osteoporosis which limits her back motion. Donald Rabor, M.D., a consultative examiner, reported that she "has some tenderness on palpation but has no limitation in range of motion and no evidence of neurological problems." (R. 97.) Dr. Benitez, Ward's treating physician, reported on March 7, 1996 (which is notably after the September 26, 1995 x-ray) that when she examined Ward "tenderness [was] elicited on bending the body at 450" (R. 131.) There is no evidence in the record that osteoporosis or ankylosis limits Ward's back motion.
Further, there is substantial evidence in the record that Ward's back condition does not qualify under "other vertebrogenic disorders." To qualify for that spine disorder, a claimant must establish that she has "significant motor loss with muscle weakness and sensory and reflex loss." Id. § 1.05(C)(2). The record shows that Dr. Rabor examined Ward's musculoskeletal abilities and stated:
Examination reveals a full painless range of motion in degrees of all joints. . . . Gait and ability to bear weight were normal without the use of an assisting device. . . . The claimant is able to walk on toes, on heels, squat and rise, hop independently on both lower extremities, and walk a tandem gait without difficulty.
(R. 97.) Dr. Rabor also performed a neurologic examination on Ward and stated: "Strength, sensation and deep tendon reflexes were symmetric and within normal limits throughout. There was no evidence of cervical or lumbar nerve root compression or peripheral neuropathy." ( Id.) Ward testified that she is able to walk to the neighborhood store (R. 179), walk to the playground (R. 181), prepare meals (R. 175. 179-80), sweep the floors (R. 176), make the children's beds (R. 176), go grocery shopping (R. 179), and do the laundry when it is her turn (R. 176). Because the administrative hearing was held on October 22, 1996, Ward clearly testified as to her abilities after the September 26, 1995 x-ray. In addition, the ALJ observed that Ward sat throughout the one-and-a-half hour meeting without any problems. (R. 12.) She also observed that Ward walked out of the hearing room without any impairment or difficulty. ( Id.) Accordingly, there is substantial evidence in the record to support the ALJ's finding that Ward's lower back problem did not meet or equal the listed spine disorders in section 1.05.
Having found the ALl's finding at step three is supported by substantial evidence, the Court continues to step four. The ALJ determined that Ward had a residual functional capacity to perform the full range of sedentary work. "Sedentary work involves primarily sitting and minimal lifting." Edwards v. Sullivan, 985 F.2d 334, 339 (7th Cir. 1993); see 20 C.F.R. § 404.1567 (a), 416.967. "[A] claimant can do sedentary work if he can (1) sit up, (2) do occasional lifting of objects weighing up to ten pounds, and (3) occasionally walk or stand." Kapusta v. Sullivan, 900 F.2d 94, 96 (7th Cir. 1989). "For a claimant to be considered not disabled, he must be able to perform sedentary work "for more than a brief period.'" Husbands v. Chater, No. 94 C 5280, 1996 WL 153879, at *3 (N.D. Ill. Apr. 1, 1996) (quoting Rousey v. Heckler, 771 F.2d 1065, 1071 (7th Cir. 1985)).
According to Dr. Rabor's report, Ward is capable of sitting for long periods of time and walking. (R. 96.) Ward testified that she is able to walk a city block, walk to the neighborhood store, walk to the playground and sit on a bench for periods of time, sit and watch television, drive a ear, sweep the floor and straighten up her home, prepare meals, and do laundry when it is her turn. (R. 174-81.)
Further, the ALJ's finding that Ward's subjective complaints of pain are inconsistent with the record (including the testimony at the hearing) is supported by substantial evidence. Dr. Rabor stated that Ward's gastroesophageal reflux disease or peptic ulcer disease "has been fairly well controlled with her current medications." (R. 97.) With regard to her back condition, Dr. Rabor found that: (1) "[t]here was no evidence of cervical or lumbar nerve root compression or peripheral neuropathy" and (2) she was able to "walk on toes, on heels, squat and rise, hop independently on both lower extremities, and walk a tandem gait without difficulty"; and (3) "she has some tenderness on palpation but has no limitation in range of motion." ( Id.) Dr. Slott testified that the September 19, 1994 x-ray did not provide objective evidence for Ward's subjective symptoms. (R. 184.) Further, the record shows that the September 26, 1995 x-ray report was insufficient to trigger an immediate follow-up visit with Dr. Benitez because Ward did not see Dr. Benitez until six months later. ( Compare R. 129 with R. 131.) In addition to listening to Ward's testimony about the activities she could perform, the ALJ observed that Ward sat through the one-and-a-half hour hearing without any problems and walked out of the hearing room without any impairment or difficulty. These kinds of observations by an ALJ are "credibility determinations and are entitled to considerable weight." Kelley v. Sullivan, 890 F.2d 961, 964 (7th Cir. 1989). The Court finds that the ALJ made a credibility assessment of Ward's subjective complaints of pain, which the Court will not reconsider because it finds "some support in the record." Edwards, 985 F.2d at 338.
Thus, there is substantial evidence that Ward could perform sedentary work and that her alleged pain would not interfere with her ability to work. However, because Ward has no past relevant work, the ALJ could not compare Ward's residual functional capacity to past relevant work, and thus the ALJ appropriately continued to step five.
With regard to step five, there is substantial evidence in the record establishing that Ward was not prevented from doing other work. "The ALJ must evaluate the claimant's Residual Functional Capacity (`RFC') to perform a particular category of work. . . , in combination with an application of the Medical-Vocational Guidelines ("the Grid') to determine whether an individual of the claimant's age, education, and work experience could engage in substantial gainful activity." Zurawski v. Apfel, No. 99 C 2819, 2000 WL 656640, at *8 (N.D. Ill. Mar. 29, 2000). "The grid is a chart which classifies a claimant as disabled or not disabled, based on the claimant's physical capacity, age, education, and work experience." Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). "[T]he disabling extent of a claimant's pain is a question of fact for the ALJ, and if pain is found not to interfere with the claimant's ability to work, then the grids may be used." Edwards, 985 F.2d at 339. "If use of the grid is appropriate, the Secretary may rely upon it in determining disability. In such a case, the grid alone constitutes substantial evidence sufficient to uphold the decision of the Secretary." Walker, 834 F.2d at 640.
As discussed above, there is substantial evidence for the ALJ's finding that Ward's pain did not interfere with her ability to perform sedentary work. Thus the use of the grid was appropriate. Given (1) Ward's residual functional capacity to perform sedentary work; (2) her age, 39; (3) her education, which is high school graduate or more; and (4) previous work experience, which is unskilled or none, the ALJ correctly applied Rule 201.27 of Table No. 1 in finding that Ward was not disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2. The ALJ's correct use of the grid, alone, is substantial evidence that is adequate to affirm the ALJ's final decision.
Conclusion
For the foregoing reasons, the Court grants defendant's motion for summary judgment [25-1], denies Ward's motion for summary judgment [27-1], and terminates this case.