Opinion
Cause No. IP00-0856-C-T/G
August 6, 2001
Entry Reviewing Commissioner's Decision
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Plaintiff, James Blue, seeks judicial review of the Social Security Administration's (SSA) final decision denying him Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). He argues that the Commissioner erred by concluding that he was not disabled. Having reviewed the Commissioner's decision, the record, and the parties' briefs, the court decides as follows.
I. Factual and procedural background
Mr. Blue was born July 1, 1953. (R. at 75.) He has completed the eleventh grade. (R. at 117.) He has worked as a truck driver, a maintenance worker in a sewage disposal plant, and as a janitor. (R. at 115.) He was released from his janitorial position with Wal-Mart in March of 1996 for allegedly stealing a can of soda. (R. at 33.) He has not worked since being released from Wal-Mart. (Id.)
Mr. Blue applied for SSI on July 29, 1997, (R. at 208-10), and for DIB on August 14, 1997, (R. at 75-77), alleging disability since March 1, 1996. His applications were denied on October 23, 1997. (R. at 212-16.) He was appointed an attorney, M. Michele Hampton, on November 3, 1997. (R. at 26.) He was granted an Administrative Law Judge (ALJ) hearing on September 8, 1998. (R. at 21-25.) During the September 29, 1998, ALJ hearing, Mr. Blue complained of problems with his knees, back, arms, stomach and diabetes. (R. at 10-20.) The ALJ found that Mr. Blue was not disabled. (Id.) Mr. Blue filed a Request for Review of Hearing Decision/Order. (R. at 7-9.) The Appeals Council denied his Request for Review on November 25, 1998, (R. at 5-6), and so the ALJ's decision became the final decision of the Commissioner.
Mr. Blue has a history of problems with his hands and wrists. (See, e.g., R. at 191, 205-06). On September 23, 1997, Chi Meng Gan, M.D., in a consultative internal medicine examination, noted that Mr. Blue complained of problems with his hands and wrists. (R. at 189.) Dr. Gan observed that Mr. Blue's right wrist was not swollen and that his finger joints were normal. (R. at 191.) He also noted that Mr. Blue's wrist movement ability was diminished and his hand grip strength was limited, particularly in his right hand, but his fine finger movement was normal. (Id.) He further noted that Mr. Blue had mild osteoarthritis in both wrists, probably more on the right compared to the left, (id), and that with surgical or medical treatment, these joints would respond well. (R. at 192.)
On January 15, 1998, Joseph Grady, M.D., in a consultative exam of Mr. Blue, noted that Mr. Blue had told him that he had right carpal tunnel syndrome, he has had left carpal tunnel syndrome but had carpal tunnel release surgery, his left wrist was doing well, and he was experiencing pain in his right wrist. (R. at 202.) He noted that Mr. Blue said that he tended to drop things occasionally, (id.), and wore a right wrist splint which helped somewhat. (R. at 206.) He also observed that Mr. Blue's fine motor skills were preserved with the ability to pick up coins, do and undo buttons, and do and undo zippers. (R. at 205.) He concluded that Mr. Blue had full range of motion of all joints in both hands (id.), had limited motion with his wrists, (id.), had no joint swelling, erythema or instability (R. at 204), had negative Tinel's and Phalen's signs on examination, (R. at 206), and did not have thenar atrophy. (Id.) Dr. Grady did not confirm Mr. Blue's allegation that he had carpal tunnel syndrome. (R. at 205-06.)
"Erythema" is "[r]edness of the skin due to capillary dilatation." STEDMAN'S MEDICAL DICTIONARY ("STEDMAN'S") 594 (26th ed. 1995).
"Tinel's sign" is "a sensation of tingling, or of `pins and needles,' felt in the distal extremity of a limb when percussion is made over the site of an injured nerve; it indicates a partial lesion or early regeneration in the nerve." STEDMAN'S 1619.
"Phalen's maneuver" is "(for detection of carpal tunnel syndrome), the size of the carpal tunnel is reduced by holding the affected hand with the wrist fully flexed or extended for 30 to 60 seconds." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 985 (28th ed. 1994).
"Thenar atrophy" is a wasting of "the fleshy mass on the lateral side of the palm; the radial palm; the ball of the thumb[.]" STEDMAN'S 165, 560.
On March 3, 1998, Steve Kissel, M.D., Mr. Blue's primary physician, reported on examination that Mr. Blue had right carpal tunnel syndrome. (R. at 221.)
On September 10, 1998, John E. Garber, M.D., an orthopaedic specialist, examined Mr. Blue's hands and wrists and confirmed Dr. Kissel's diagnosis of carpal tunnel syndrome, worse on the right. (R. at 228-29.) Dr. Garber noted that Mr. Blue had a positive Phalen's on his right wrist but a negative Tinel's on his left (R. at 228), that he had limited right wrist movement, (id.), that he had some arthritis of the distal radial ulnar joint and diffuse arthritis in the wrist on both sides, (id.), and that he used splints due to the prolonged pain from the carpal tunnel syndrome. (R. at 229.) Dr. Garber concluded that an electromyogram (EMG) was necessary. (Id.)
"Electromyogram" is a "graphic representation of the electric currents associated with muscular action." STEDMAN'S 553.
On October 14, 1998, an EMG was performed on Mr. Blue, which revealed that Mr. Blue had "polyneuropathy with superimposed carpal tunnel syndrome," and that decompression would probably affect Mr. Blue's waking up at night. (R. at 227.)
"Polyneuropathy" is a "nontraumatic generalized disorder of peripheral nerves, affecting the distal fibers most severely with proximal shading. . . ." STEDMAN'S 1404.
Mr. Blue also has a history of diabetes. (See, e.g., R. at 180, 181.) On September 23, 1997, Dr. Gan noted that Mr. Blue's diabetes was not well controlled, but with the loss of weight and diet control it would improve. (R. at 192.) On January 15, 1998, Dr. Grady noted that Mr. Blue had "some decreased sensation to light touch and vibration in both of his feet in a stocking distribution which would be consistent with some diabetic neuropathy." (R. at 205-06.) On March 3, 1998, Dr. Kissel noted that Mr. Blue had admitted to poor compliance but had "minimal medical follow-up within the last year." (R. at 221.)
"Diabetic neuropathy" is "a generic term for any diabetes mellitus-related disorder of the peripheral nervous system, and some cranial nerves." STEDMAN'S 1205.
The record contains several SSA forms completed by state agency reviewing physicians. On October 16, 1997, W.S. Tucker, M.D., completed a Physical Residual Functional Capacity Assessment (PRFCA) for Mr. Blue (R. at 194-201), in which he determined that Mr. Blue was able to lift and/or carry no more than twenty pounds occasionally and no more than ten pounds frequently, was able to stand and/or walk for at least two hours in an eight hour work day, and was able to sit for about six hours in an eight hour work day. (R. at 195.) He further noted that Mr. Blue had limited gross manipulation and reaching abilities but unlimited finger manipulation and skin receptors. (R. at 197.) Dr. Tucker also found that Mr. Blue could not do work requiring the use of a firm grasp pinch "as in carpentry, plumbing, truck driving, etc." (Id.) On October 21, 1997, Dr. Tucker completed a SSA-831-C3 Disability Determination and Transmittal Form, in which he concluded that Mr. Blue was not disabled. (R. at 56-57.)
On February 2, 1998, H. Marciniak, M.D., affirmed Dr. Tucker's PRFCA of Mr. Blue. (R. at 201). On February 9, 1998, Dr. Marciniak completed a SSA-831-C3 Disability Determination and Transmittal Form in which he also found that Mr. Blue was not disabled. (R. at 58-59.)
During the ALJ hearing on September 29, 1998, a vocational expert, Ray Burger, testified that a person with Mr. Blue's impairments, as described by the ALJ, would be able to perform work that exists in sufficient number in the Indiana economy despite his or her impairments. (R. at 50.)
In his decision, issued November 25, 1998, the ALJ found that:
2. The claimant has not engaged in substantial gainful activity since the alleged onset date of disability.
3. The medical evidence establishes that the claimant has "severe" impairments consisting of knee problems, carpal tunnel syndrome, and arthritis; that he has nonsevere impairments consisting of non-insulin dependent diabetes; and that he does not have an impairment of combination of impairments listed in or equal to, one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's subjective complaints and allegations concerning the severity of his impairments are disproportionate and less than fully credible when evaluated under the guidelines of 20 C.F.R. § 404.1529, 416.929 and Social Security Ruling 96-7p.
5. The defendant retains the residual capacity to perform less than a full range of sedentary work with limited grip strength but no limitation in manipulative ability of fingers.
6. The claimant is unable to perform his past relevant [work].
. . .
10. Based on an exertional capacity for sedentary work, and the claimant's age, education and work experience, Medical-Vocational Rule 201. 19 would direct a conclusion of "not disabled".
11. Considering that the claimant's residual functional capacity for a full range of sedentary work is reduced by the limitations set forth in Finding No. 5 above, there are a significant number of jobs in the state economy that he can perform as testified to by the vocational expert. A representative sampling of these jobs are: general office clerk (1,000); assembly (4,237), and hand packers (584).
12. Considering that the claimant is able to perform a significant number of jobs in the national economy despite his limitations, a finding of "not disabled" is appropriate using Rule 201. 19 as a framework for decisionmaking.
(R. at 19-20.) The ALJ concluded that Mr. Blue was not entitled to DIB or SSI benefits because he was not disabled. (R. at 20.)
II. Legal Standard
Judicial review of the Commissioner's decision is quite limited. See Cass v. Shalala, 8 F.3d 552, 554-55 (7th Cir. 1993). The standard of review for any finding of fact is whether the finding is supported by substantial evidence. 42 U.S.C. § 405(g) ("The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive. . ."); see also Books v. Chater, 91 F.3d 972, 977 (7th Cir. 1996). 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). When reviewing an ALJ's decision, "[a] federal court may not decide facts anew, reweigh the evidence, or substitute its judgment for that of the [Commissioner]." Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). However, "if the [ALJ] commit[ed] an error of law, reversal is required without regard to the volume of evidence in support of the factual findings." Id. Furthermore, "[a]lthough a written evaluation of each piece of evidence or testimony is not required, neither may the ALJ select and discuss only that evidence that favors his ultimate conclusion." Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) (internal citations omitted); see also Binion, 108 F.3d at 788.
III. Analysis
Mr. Blue alleges three errors in the Commissioner's decision. The court will review these allegations individually.
1. Mr. Blue's RFC
Mr. Blue alleges that substantial evidence does not support the ALJ's residual functional capacity (RFC) determination because the ALJ did not sufficiently consider the implications of his hand and wrist impairments. A claimant's RFC is what he or she can do despite his or her limitations. 20 C.F.R. § 416.945(a). This includes the limitations caused by all impairments, whether severe or not. 20 C.F.R. § 416.945(e). This court will review the ALJ's RFC determination to see "whether [the ALJ] considered all of the relevant evidence, made the required determinations, and gave supporting reasons for his decisions." Waite v. Bowen, 819 F.2d 1356, 1360 (7th Cir. 1987).
Mr. Blue argues that, in making his RFC determination, the ALJ neglected three bodies of evidence which were compiled after the completion of the latest PRFCA. Mr. Blue first argues that the ALJ erred because he did not consider Dr. Garber's September 1998 report that indicated that Mr. Blue suffered from arthritis and carpal tunnel syndrome. However, in his report, Dr. Garber only specified one work limitation from Mr. Blue's hand and wrist impairments, which was Mr. Blue's limited wrist flexibility, and the ALJ listed limited wrist flexibility in his RFC. Since Dr. Garber's report did not suggest new impairments or contradict the ALJ's RFC determination, it is consistent with the ALJ's RFC. In addition to being consistent with the ALJ's RFC, Dr. Garber's report is also cumulative of the existing evidence since the only wrist impairments Dr. Garber diagnosed in it were arthritis and carpal tunnel syndrome, and Dr. Kissel's had already diagnosed Mr. Blue with carpal tunnel and Dr. Gan had already diagnosed him with arthritis in the wrists.
Next, Mr. Blue claims that the ALJ erred because he did not consider the results of the EMG, which documented polyneuropathy with superimposed carpal tunnel syndrome. This, too, is unconvincing because the EMG did not reveal any work limitations at all, much less any that were inconsistent with the ALJ's RFC. The results from the EMG are also cumulative with existing evidence since the impairments that the EMG revealed, carpal tunnel and polyneuropathy, were already diagnosed by Dr. Kissel and Dr. Grady, respectively.
Finally, Mr. Blue contends that the ALJ did not consider his subjective characterization of his impairment as preventing him from lifting a coin from a table and forcing him to drop things. However, this characterization of the limitations from Mr. Blue's hand and wrist impairments is entirely consistent with the ALJ's determination of limited grip strength. In conclusion, the evidence Mr. Blue cites in arguing that the ALJ erred in his RFC determination is both cumulative and consistent with the ALJ's RFC determination. Therefore, substantial evidence supports the ALJ's RFC determination.
2. The effects of Mr. Blue's diabetes
Mr. Blue also alleges that the ALJ erred by finding that his diabetes was not a severe impairment and in failing to consider his diabetes in combination with Dr. Grady's finding that he exhibited decreased sensation to light touch and vibration in both feet in a stocking distribution which would be consistent with some diabetic polyneuropathy.
As a general rule, if a claimant can mitigate the work limitations caused by his impairments to such a degree that the claimant would no longer be disabled, the claimant's failure to do so without good cause precludes a finding of disability. See Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994) (affirming the ALJ's refusal to consider the effect of claimant's pain on his ability to work when claimant refused to take adequate dosage of mediation to mitigate the pain without good cause); Ehrhart v. Sec'y of Health Human Servs., 969 F.2d 534, 538 (7th Cir. 1992) ("[an ALJ] may not find total disability when a claimant inexcusably refuses to follow a prescribed course of medical treatment that would eliminate his total disability."); 20 C.F.R. § 416.930(b) ("If [the claimant] do[es] not follow the prescribed treatment without a good reason, [the ALJ] will not find [the claimant] disabled. . . .").
With respect to diabetes specifically, if a claimant's diabetes may be controlled by dietary or medical treatment, that alone is sufficient grounds to preclude a finding of disability that is dependent on the claimant's diabetes. See Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996) (holding that claimant's diabetes mellitus, hypertension and ulcers could not be considered disabling because the claimant conceded that they were controllable by diet and medication); Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir. 1980) (finding that claimant's diabetes and other impairments "were controlled or controllable by treatment and were not incapacitating illnesses."); Boisvert v. Callahan, 997 F. Supp. 183, 185, 187 (D.Mass. 1998) (affirming ALJ's finding that claimant was not disabled with respect to diabetes and her diabetic symptoms including diabetic neuropathy, because the diabetes was correctable and the symptoms were caused by poor compliance with her medical regimen). In the instant case, the evidence indicates that Mr. Blue could control his diabetes through diet but he failed to do so. Therefore, a finding of disability based on Mr. Blue's diabetes would not be appropriate because his diabetes is controllable and he has failed to control it by dietary compliance.
Moreover, even considering Mr. Blue's argument regarding his diabetes and diabetes combined with other impairments, the medical evidence of Mr. Blue's diabetes does not indicate disability. Mr. Blue alleges that the ALJ failed to consider Dr. Grady's findings regarding his diabetes. However, Dr. Grady suggested nothing more than that his findings could be consistent with diabetic neuropathy. Dr. Grady observed that Mr. Blue's gait and station were normal despite multiple surgeries, (R. at 204), that he had no apparent muscle atrophy, no muscle spasm, and was able to stand on his heels and toes. (Id.) These observations do not compel this court to find error in the ALJ's disability determination. Cf. 20 C.F.R. pt. 404, subpt. P., app. 1, § 9.08(A) (listing for diabetes mellitus as with "[n]europthay demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station.") (cross-reference omitted). For the above reasons, the ALJ did not err in making his disability determination regarding Mr. Blue's diabetes and diabetes combined with other impairments.
3. The equivalency of Mr. Blue's impairment(s) to a listing
Finally, Mr. Blue alleges that the ALJ erred in his duty to receive a medical opinion regarding equivalency into the record. The Defendant urges this court to consider this claim waived because Mr. Blue made this claim in the "Standard of Review" section of his brief and did not renew the argument in his "Discussion" section. However, the case that the Defendant cited in support of this proposition, Ehrhart, made its determination in the context of appellate review of a district court decision, and therefore, is inapplicable to the present case. See Ehrhart v. Sec'y of Health Human Servs., 969 F.2d 534, 536 n. 5 (7th Cir. 1992) (holding that claimant had waived one of his issues on appeal "because it [was] a no show in the body of the [appellate] brief.") There is no strict requirement in this court that an argument be placed in a particular section of a brief to be considered. Of course, it would have been much more helpful to include a discussion of this point in the argument section of the brief. Nonetheless, the court does not consider the failure to place it there as a waiver.
Once an ALJ has determined that a claimant is not performing substantial gainful activity and has a severe impairment, the ALJ must evaluate whether the claimant's impairment or combination of impairments meet or equal a listed impairment. See Bowen v. Yuckert, 482 U.S. 137, 141 (1987). In order to satisfy this requirement, an ALJ must seek a medical opinion. See Fox v. Heckler, 776 F.2d 738, 740 (7th Cir. 1985); 20 C.F.R. § 404.1526(b), 416.926(b). An ALJ may satisfy his duty to obtain a medical opinion of equivalency by the presence of "[t]he signature of a State agency medical or psychological consultant on an SSA-831-U5 (Disability Determination and Transmittal Form) . . . [or] . . . various other documents on which medical and psychological consultants may record their findings . . ." SSR 96-6p; accord Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir. 1990) (finding that disability examination by a state agency physician from two months after the claimant filed for benefits satisfied the requirement of a medical opinion regarding equivalency in the record); Waite v. Bowen, 819 F.2d 1356, 1360 (7th Cir. 1987). However, if new medical evidence is submitted after the medical opinion of equivalency has been formulated, and if the ALJ decides that the new evidence may change the reporting physician's determination that the claimant's impairments do not equal a listing, the ALJ must order a new medical opinion of equivalency. See SSR 96-6p; see also Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988). Consistent with the above analysis, this court will review whether (1) the ALJ received an opinion on equivalency into the record, if so, (2) whether that opinion was sufficiently up to date, and (3) whether he adequately addressed the issue of equivalency in his opinion.
In the instant case, the record contains two SSA-831-C3 Disability Determination and Transmittal Forms, signed by physicians, the most recent dated February 9, 1998. (R. at 56-58.) With these documents, the ALJ has satisfied the requirement to receive a medical opinion regarding equivalency into the record. See, e.g., Scott, 898 F.2d at 524.
The ALJ has also satisfied his duty to maintain an updated medical opinion regarding equivalency. Although evidence has been submitted since the latest opinion of equivalency was conducted, none of this new evidence contradicts the latest opinion's finding that Mr. Blue's impairments do not equal a listing. See Steward, 858 F.2d at 1299 (finding that an updated medical opinion of equivalency was not necessary because none of the evidence contradicted the existing medical opinions of equivalency). Therefore, the latest medical opinion on equivalency was sufficiently up to date.
Finally, the ALJ addressed the issue of equivalency in his opinion, in which he stated:
The claimant does not satisfy the requirements at step three. His impairments, whether considered individually or in combination, are not attended by medical signs or laboratory findings which meet or equal in severity any listed impairment found in the Appendix 1, Subpart P, Regulations No. 4 (the Listing of Impairments).
(R. at 15) (emphasis added). The court in Waite found that a similar statement satisfied the ALJ's requirement to address the issue of equivalency in his opinion: "`The medical evidence establishes that the claimant has a loss of motor and sensory function of the left arm, but he does not have an impairment, or a combination of impairments listed, or medically equal to one listed in Appendix 1, Subpart P, of Social Security Regulations No. 4.'" 819 F.2d at 1359 (emphasis in original). Accordingly, this court finds that the ALJ adequately addressed the issue of equivalency in his opinion. Since the ALJ obtained the appropriate documentation, this documentation was sufficiently current, and the issue of equivalency was sufficiently addressed in the ALJ's opinion, the ALJ, contrary to Mr. Blue's contentions, has satisfied the requirement for obtaining and discussing a medical opinion regarding equivalency.
IV. Conclusion
The court finds that Mr. Blue has failed to give this court a valid reason to reverse or remand. Substantial evidence supported the ALJ's determination of Mr. Blue's RFC. Also, the ALJ adequately addressed Mr. Blue's diabetes in his opinion and fulfilled his duty regarding the question of equivalency.
For the above reasons, the Commissioner's decision is AFFIRMED.