Scheck, Kenneth v. Barnhart, Jo Anne B. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2107
KENNETH SCHECK,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4902—Charles R. Norgle, Sr., Judge.
____________
ARGUED OCTOBER 21, 2003—DECIDED FEBRUARY 5, 2004
____________
Before BAUER, and DIANE P. WOOD, and EVANS, Circuit
Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Kenneth
Scheck brings this appeal to challenge an administrative
law judge’s (ALJ) finding that he was not entitled to
disability insurance benefits. The Appeals Council of the
Social Security Administration denied Scheck’s appeal. Up-
on review, we find that substantial evidence supports the
decision of the ALJ and we therefore affirm.
2 No. 03-2107
BACKGROUND
In December of 1983 Scheck began experiencing back
problems. That same month, he underwent anterior cervical
fusion surgery to correct a herniated cervical disc. More
than four years later, Scheck visited the Mayo Clinic for
problems with shortness of breath, rising blood pressure,
and difficulty walking, and bending. The results from the
tests conducted at the Mayo Clinic were within normal
limits. In April of 1993, Scheck was again admitted to the
hospital with severe back pain and right leg pain. MRIs and
CT scans were performed and ultimately, Scheck underwent
a decompressive laminectomy. Scheck’s date of last insured
fell on December 31, 1994. There exists no other objective
medical evidence until 1997. However, as this evidence
deals with Scheck’s condition after his date last insured, it
will not be reiterated here.
Scheck filed for disability insurance benefits on November
13, 1997. His claim was heard by ALJ Jan E. Dutton who
found him to be capable of performing his former job as a
distribution warehouse manager. The Social Security
Administration’s Appeals Council denied Scheck’s appeal.
Therefore, the ALJ’s decision was the final decision of the
Commissioner of the Social Security Administration. Scheck
filed suit in the district court, naming the Commissioner of
the Social Security Administration, Jo Anne Barnhart, as
defendant. See 42 U.S.C. § 405(g). The lower court disposed
of the case by denying Scheck’s motion for summary
judgment and granting the Commissioner’s cross-motion.
Scheck appeals this decision.
DISCUSSION
Standard of Review
“The standard of review in disability cases limits this court
as well as the district court to determining whether the
No. 03-2107 3
final decision of the Secretary is both supported by substan-
tial evidence and based on the proper legal criteria.”
Ehrhart v. Secretary of HHS, 969 F.2d 534, 538 (7th Cir.
1992) “[T]he findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be
conclusive.” Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir.
1999) (quoting Diaz v. Chater, 55 F.3d 300, 305 (7th. Cir.
1995)). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Kepple v. Massanari, 268 F.3d 513, 516 (7th
Cir. 2001) (quoting Diaz, 55 F.3d at 305). Substantial
evidence may be less than the weight of the evidence,
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966), and
more than a scintilla, Consol. Edison Co. v. N.L.R.B., 305
U.S. 197, 229 (1938). Under this standard, the ALJ’s
decision, if supported by substantial evidence, will be
upheld even if an alternative position is also supported by
substantial evidence. Arkansas v. Oklahoma, 503 U.S. 91,
113 (1992).
Statutory Fr
amework
In order to determine whether an individual is entitled to
disability insurance benefits, the ALJ must engage in a
sequential five-step process which establishes whether or
not the claimant is disabled. The claimant must show that:
(1) he is not presently employed; (2) his impairment is
severe; (3) his impairment is listed or equal to a listing in
20 C.F.R. § 404, Subpart P, Appendix 1; (4) he is not able to
perform his past relevant work; and (5) he is unable to per-
form any other work within the national and local economy.
Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997); 20
C.F.R. § 416.920. It is undisputed that Scheck satisfies the
first two requirements—he is not employed and his back
impairments are severe within the meaning of the Social
4 No. 03-2107
Security Administration’s regulations. This, however, is not
enough to show that he is disabled. He must now show that
his impairment is equal to a listing or that he retains
insufficient residual functioning capacity to hold a job.
Impairment Meets or Equals a “Listing”—Step 3
Scheck argues that the ALJ erred in not finding him dis-
abled under section three of the five-step test. He claims
that his back condition equals a listing entitled “other
vertebrogenic disorders.” See 20 C.F.R. § 404, Subpt. P,
App. 1, Listings 1.05(c). This argument is contradicted by
the reports of two state agency physicians. Those physicians
filled out Disability Determination and Transmittal forms
and stated that Scheck was not disabled through
December 31, 1994. (R. at 90.) These forms conclusively
establish that “consideration by a physician . . . designated
by the Commissioner has been given to the question of
medical equivalence at the initial and reconsideration levels
of administrative review.” Farrell v. Sullivan, 878 F.2d 985,
990 (7th Cir. 1989); 61 Fed. Reg. 34466. The ALJ may
properly rely upon the opinion of these medical experts.
Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir. 1990). So,
substantial evidence supports a finding that Scheck did not
meet or equal a listing. Farrell, 878 F.2d at 990.
ALJ’s Duty to Minimally Articulate
Scheck next argues that the ALJ failed in her duty to
“minimally articulate his or her justification for rejecting or
accepting specific evidence of disability.” Steward v. Bowen,
858 F.2d 1295, 1299 (7th Cir. 1988) (internal citations
removed). However, “he or she need not provide a written
evaluation of every piece of evidence that is presented.” Id.
We find that the ALJ satisfied this duty to articulate.
No. 03-2107 5
In finding that Scheck did not meet or equal a listing, the
ALJ stated,
At step three of the sequential evaluation process,
the undersigned [ALJ] must consider whether the
Claimant’s impairments, either singly or in combina-
tion, revealed the same or equivalent attendant medical
findings as are recited in Appendix 1 to Subpart P of
the Social Security Administration’s Regulations No. 3,
otherwise known as the “listings.” In the instant case,
the Claimant has not contended that his medically
determinable impairments met or equaled the “list-
ings,” and the record contains no evidence which would
support such a finding.
(Br. of Plaintiff-Appellant at A-7.)
Scheck claims that “[t]he ALJ’s terse statement does not
comply with the duty to ‘minimally articulate’ a conclusion
that the record contains ‘no evidence.’ ” (Br. of Plaintiff-
Appellant at 23.) The argument can be disposed of by re-
ferring to Steward v. Bowen.
In the present case, Steward did not present any
substantial evidence to contradict the agency’s position
on the issue of medical equivalency. The opinions of
Steward’s treating physicians simply did not address
this question. Thus, the ALJ did not reject specific
evidence supporting Steward’s position that her im-
pairments meet or equal a listed impairment in favor of
the contrary opinions of the Secretary’s consulting
physicians. It was therefore unnecessary for the ALJ to
specifically articulate his reasons for accepting the
consulting physicians’ opinions on the question of med-
ical equivalency.
Stewart, 858 F.2d at 1299.
The Stewart panel’s reasoning is quite applicable here.
The ALJ did not reject any evidence. Like Stewart, there
6 No. 03-2107
was no evidence which would support the position that
Scheck met or equaled the listing. Also similar to the facts
of Stewart, the letter from Scheck’s treating physician,
Dr. Heiferman, did not address the issue of medical equiv-
alency. It was unnecessary for the ALJ to articulate her
reasons for accepting the state agency physicians’ determi-
nation of not disabled. Id.
SSR 83-20: Onset Date
Scheck claims that the ALJ violated SSR 83-20 by not
consulting a medical expert in order to determine the onset
date of his alleged disability. He argues that medical evi-
dence from after his date last insured can be related back
to the relevant time period to show disability. After wading
through the record and reviewing the relevant case law, we
find Scheck’s arguments relating to onset date to be mis-
placed. SSR 83-20 addresses the situation in which an
administrative law judge makes a finding that an individ-
ual is disabled as of an application date and the question
arises as to whether the disability arose at an earlier time.
See, e.g., Lichter v. Bowen, 814 F.2d 430, 434 (7th Cir.
1987); Campbell v. Chater, 932 F. Supp. 1072, 1075 (N.D.
Ill. 1996); SSR 83-20. The ALJ did not find that Scheck was
disabled, and therefore, there was no need to find an onset
date. In short, SSR 83-20 does not apply.
Residual Functioning Capacity—Steps 4 and 5
Having failed at step three, Scheck must show that he has
insufficient residual functioning capacity to perform his
past work. Stevenson, 105 F.3d at 1154. In making such a
determination, the ALJ must consider whether there is an
underlying “determinable physical or mental impairment
that could reasonably be expected to produce the symp-
toms.” SSR 96-7p. Once this has been established, the ALJ
No. 03-2107 7
must further evaluate the “intensity, persistence, and
functionally limiting effects of the symptoms” in order to
find whether those symptoms “affect the individual’s ability
to do basic work activities.” Id. As the ALJ noted,
“[i]nherent in such analysis, of course, is an assessment
of the Claimant’s credibility.” (Br. of Plaintiff-Appellant
at A-7.) The credibility of the claimant is then considered in
light of “the entire case record, including the objective
medical evidence, the individual’s own statements about
symptoms, statements and other information provided
by treating or examining physicians or psychologists and
other persons about the symptoms and how they affect the
individual, and any other relevant evidence in the case rec-
ord.” SSR 96-7p. This finding on credibility must be sup-
ported in the ALJ’s decision to a point where a reviewing
court can discern the weight assigned to the individual’s
statements and reasons for that weight. Id.
In this case, the ALJ found that Scheck’s medically
determinable impairments could reasonably be expected to
produce the type of symptoms discussed during the course
of his testimony. Thus, she moved on and assessed the
credibility of Scheck’s testimony by looking at the objective
medical evidence, the claimant’s testimony, and a letter
from Scheck’s surgeon. She first addressed the objective
medical evidence and noted that “there is a dearth of docu-
mentary medical evidence concerning Mr. Scheck’s symp-
toms and treatment from June 2, 1989, his alleged onset
date, to December 31, 1994, his date last insured, and in
particular from June 2, 1989 to April 14, 1993, the date of
his second surgery.” (Br. of Plaintiff-Appellant at A-10.) It
is axiomatic that the claimant bears the burden of supply-
ing adequate records and evidence to prove their claim of
disability. See 20 C.F.R. § 404.1512(c) (“You must provide
medical evidence showing that you have an impairment and
how severe it is during the time you say that you were
disabled.”); Bowen v. Yuckert, 482 U.S. 137, 146, n.5 (1987)
8 No. 03-2107
(“It is not unreasonable to require the claimant, who is in a
better position to provide information about his own medi-
cal condition, to do so.”). Scheck failed to support his claim.
While it is true that the ALJ has a duty to make a
complete record, this requirement can reasonably require
only so much. As this court noted in Kendrick v. Shalala,
“[t]he difficulty is that no record is ‘complete’—one may al-
ways obtain another medical examination, seek the views
of one more consultant, wait six months to see whether the
claimant’s condition changes, and so on. Taking ‘complete
record’ literally would be a formula for paralysis.” Kendrick
v. Shalala, 998 F.2d 455, 456 (7th Cir. 1993). Nevertheless,
the hearing transcript indicates that the ALJ attempted to
make as complete a record as possible. Speaking about
Scheck’s attempts to obtain medical records from the Mayo
Clinic, she said, “All right. I’ll give you 30 days. If there is
nothing received within 30 days I will make a decision
based on which I—what I have, which as I have indicated
already is not very much supporting an impairment prior to
the date last insured. Okay?” (R. at 46) Scheck’s attorney
simply replied “very good.” (R. at 46) Clearly, Scheck was
aware that the ALJ considered there to be “a dearth of
documentary medical evidence” and cannot fault the ALJ
for his own failure to support his claim of disability.
The ALJ next looked to the letter from Dr. Heiferman,
Scheck’s surgeon. The ALJ noted that the letter was dated
January, 1999—about four years after Scheck’s date last
insured. It was further noted that the record contained no
office notes or medical records from April 14, 1993, when
Dr. Heiferman performed surgery on Scheck, to December
31, 1994, Scheck’s date of last insured. Finally, it is not
unheard of that a personal physician “might have been
leaning over backwards to support the application for dis-
ability benefits.” Cummins v. Schweiker, 670 F.2d 81, 84
(7th Cir. 1982). We find no error in the ALJ’s credibility
determination. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000).
No. 03-2107 9
Scheck urges that the ALJ should have given more weight
to the 1999 letter from Dr. Heiferman. He cites to various
Social Security rulings and regulations which stand for the
general proposition that more weight will be given to a
treating physician’s opinion partially because of its longitu-
dinal view. See generally SSR 96-2p; 20 C.F.R.
§ 404.1527(d)(2); 20 C.F.R. § 404.1527(d)(5); SSR 96-7p. The
problem with this argument, as the ALJ noted, is that there
is no longitudinal view from Dr. Heiferman; “Dr. Heiferman
was unable to closely follow Mr. Scheck’s progress after the
April 14, 1993 surgery, due to the latter’s move to Texas.”
(Br. of Plaintiff-Appellant at A-11.) It would be exceedingly
illogical to credit a doctor’s opinion because he is more likely
to have a detailed and longitudinal view of the claimant’s
impairments when in fact, there is no detail or longitudinal
view. In other words, the very reasons the Social Security
regulations set out for giving substantial weight to a
treating physician’s opinion are absent in this case. The
ALJ’s assignment of little weight to Dr. Heiferman’s letter
was proper. See Powers, 207 F.3d at 435.
Finally, the ALJ addressed the credibility of Scheck’s
testimony and found it to be incredible. (Br. of Plaintiff-
Appellant at A-12.) In doing so, she discussed much of the
evidence that supported Scheck’s claim of disability, in-
cluding: Scheck’s daily activities; the duration, frequency,
and intensity of pain; precipitating and/or aggravating
factors; dosage and effectiveness of medication; and the
functional limitations placed on Scheck during the relevant
time period. (Br. of Plaintiff-Appellant at A-9, 10.) She also
addressed the objective medical evidence, as discussed
above. (Br. of Plaintiff-Appellant at A-10 - A-12.)
“The absence of an objective medical basis which supports
the degree of severity of subjective complaints alleged is
just one factor to be considered in evaluating the credibility
of the testimony and complaints.” Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984). The other factors to be
10 No. 03-2107
considered by the ALJ are: (1) the claimant’s daily activity;
(2) the duration, frequency, and intensity of pain; (3) the
precipitating and aggravating factors; (4) dosage, effective-
ness, and side effects of medication; and (5) functional
restrictions. Id. Clearly, the ALJ was aware of these
requirements and followed them in making her decision.
The credibility determinations of an ALJ are entitled to
special deference and we see no reason to overturn her
findings. Powers, 207 F.3d at 435. Such deference is
especially proper in light of the fact that the ALJ ade-
quately considered the Polaski v. Heckler factors.
Based on the above analysis, we hold that the ALJ did not
err in finding that Scheck retained the residual functioning
capacity to perform his past work as a distribution ware-
house manager. The ALJ considered the objective medical
evidence and the claimant’s testimony in order to determine
how his impairment affected his ability to do basic work
activities. We further hold that the ALJ used the proper
procedures in making her findings.
Conclusion
While the members of this court sympathize with
Mr. Scheck due to his condition, that condition did not rise
to the level of a disability within the context of this case.
Therefore, we find that the ALJ’s decision was supported by
substantial evidence. We AFFIRM.
No. 03-2107 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-5-04