Opinion
No. 99 C 4679
August 28, 2000
MEMORANDUM OPINION AND ORDER
Karen Smith is fifty-five years old and suffers from a variety of back problems, including degenerative disc disease, which have caused her to suffer back pain on and off since 1983, when she tried to lift a garbage can that was heavier than she thought. Despite her ailments, Smith worked as a secretary for 3M Company until May 1, 1986; after that she did not work outside the home at all except for about 10 days during the period from February 4, 1995 to May 6, 1995 handing out food samples at a grocery store. As a homemaker, Smith continued to suffer back pain, and she eventually underwent several surgical procedures to try to correct her problems. She had her first surgery in April 1990, her second in April 1993 and her third in August 1995. It is undisputed that each of the surgeries addressed the same condition. The dispute in this case — indeed, the issue on which this case turns — concerns whether, as Smith contends, the symptoms associated with her condition were constant and ongoing from 1986 on, or whether, as the ALJ concluded, the symptoms resolved with medical treatment, even if they later resurfaced. In either case, it is clear that by 1997 Smith's life was again disrupted by back pain, and, on February 3, 1997, Smith applied for disability insurance benefits. She stated in her application that she became disabled on May 1, 1986, the day she quit her job at 3M.
The agency denied her application initially and on reconsideration, and Smith requested a hearing before an administrative law judge. Judge John Mondi, to whom the case was assigned, held an administrative hearing in Smith's case on January 14, 1998; Smith was represented by counsel at the hearing. In a decision dated April 1, 1998, ALJ Mondi concluded that Smith was not disabled for purposes of entitlement to disability insurance benefits. The ALJ's decision became the final agency decision when the Appeals Council denied review on May 28, 1999. See 20 C.F.R. § 404.981. Smith then filed this lawsuit, seeking review of the agency's decision and an award of disability insurance benefits; both parties have moved for summary judgment.
Disability insurance benefits are available only to claimants who can establish "disability" under the terms of the Social Security Act. "Disability" means "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1)(A) (emphasis added). The social security regulations provide a five-step sequential analysis to determine whether a claimant is disabled for purposes of eligibility for disability insurance benefits: (1) the ALJ first asks whether the claimant is presently unemployed; (2) if she is, the ALJ next asks whether the claimant's impairment is severe; (3) if it is, the ALJ asks whether that impairment meets or equals one of the impairments specified in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if it does, the impairment is conclusively disabling, but if it does not, the ALJ asks whether the claimant is able to perform her past relevant work; (5) if the claimant is not able to return to her old job, the ALJ asks whether in light of the claimant's age, education, job experience and functional capacity, the claimant is capable of performing other work that exists in the national economy. See 20 C.F.R. § 404.1520(a)-(f); Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir. 1999); Anaya v. Apfel, No. 99 C 3830, 2000 WL 222640, at *6 (N.D. Ill. Feb. 24, 2000). The claimant bears the burden of establishing a disability in steps one through four. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f). See also Anaya, 2000 WL 222640, at *6. And, to recover disability insurance benefits, the claimant must generally establish that she became disabled on or before the date she was last insured (i.e., eligible for benefits), which in this case was December 31, 1991. See Hughes v. Chater, 895 F. Supp. 985, 992 (N.D. Ill. 1995) (citing Meredith v. Bowen, 833 F.2d 650, 652 n. 1 (7th Cir. 1987)).
In this case, the ALJ applied this legal framework and found that Smith had met her burden under steps one and two; he found that she was unemployed and that she suffered from a severe impairment (degenerative disc disease of the lumbosacral spine and low back pain syndrome). Record at 17. But he found that Smith could not get past steps 3 and 4; he found that her impairment did not meet or equal any of the listed impairments and that through at least December 31, 1991 Smith had the residual functional capacity to perform her past relevant work. Id. The ALJ does not appear to have addressed step 5.
Although the ALJ considered Smith's entire medical history — including records from 1992 and beyond — he did not make any finding as to whether Smith was disabled any time after December 31, 1991. Nevertheless, his decision makes clear that, as he viewed the evidence, Smith did not satisfy the disability definition through at least September 1992; after that, as the ALJ conceded, Smith's back problem resurfaced for the first time following her April 1990 surgery. See Record at 19. Whether the ALJ believes she would have satisfied the criteria spelled out in 20 C.F.R. § 404.1520(a)-(f) on or after September 1992 is anybody's guess.
Judicial review of the ALJ's decision is limited to determining whether the ALJ applied the correct legal standards in reaching a decision and whether there is substantial evidence in the record to support the findings. 42 U.S.C. § 405(g); see also Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992). Smith argues both that the ALJ applied the wrong legal standards and that his decision is not supported by substantial evidence; we first consider whether the decision was supported by substantial evidence.
The "substantial evidence" standard "requires no more than `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)). In deciding whether substantial evidence exists to support the ALJ's decision, the district court "may not decide the facts anew, re-weigh the evidence, or substitute its own judgment for that of the [ALJ]." Powers, 207 F.3d at 434-35. Although the Court must "not act as an uncritical rubber stamp of the Commissioner's decision," see Howell v. Sullivan, 950 F.2d 343, 347 (7th Cir. 1991), the Court must affirm the ALJ's decision — even if some evidence also supports the claimant's argument — if the findings and inferences reasonably drawn from the record are supported by substantial evidence. See 42 U.S.C. § 405(g); Betancourt v. Apfel, 23 F. Supp.2d 875, 879-80 (N.D. Ill. 1998) (citing Pope v. Shalala, 998 F.2d 473, 480 (7th Cir. 1993)). The Court may reverse the ALJ's decision "only if the evidence `compels' reversal, not merely because the evidence supports a contrary decision." Betancourt, 23 F. Supp.2d at 880 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
Under this standard, the Court must affirm the ALJ's decision that Smith is not entitled to disability insurance benefits. Before the ALJ and in this Court, Smith took the position that, since 1986, her symptoms have been continuous. The Court recognizes that there is evidence to support this position: Smith testified that her back pain has been persistent and that she got little relief from her surgeries, Record at 46, 49, and Dr. Tolentino, who examined Smith in December 1994, noted state that she "had been treated with physical theory, chiropractic, as well as with no long term improvement." Id. at 209 (emphasis added). And the mere fact that Smith continued through the years to seek medical help for her pain and immobility buttresses her claim somewhat.
But there is also substantial evidence to support the ALJ's conclusion that Smith was not disabled — i.e., afflicted with a severe impairment which has lasted or can be expected to last for a continuous period of not less than 12 months — prior to December 31, 1991. Shortly after her accident in 1983, Smith was examined by Dr. Lyle Johnson, who appears to have been the first to diagnose Smith with degenerative disc disease. Record at 151. Dr. Johnson recommended physical therapy and anti-inflammatory agents such as Motrin, but he did not think surgical intervention was necessary at the time. Id. at 152. It does not appear that Dr. Johnson told Smith to alter her daily activities in any significant way, nor does it appear that he told her to scale back at work. Indeed, though undeniably serious, Smith's condition could not have been disabling at that time within the meaning of the Social Security Act because it did not prevent her from engaging in substantial gainful activity (she continued to work in the same job for another three years). See 42 U.S.C. § 423(d)(1)(A) ("Disability" means "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . .
Moreover, although Smith has alleged that she became disabled the day she quit her job with 3M, she testified that she quit working on that day, not because she was physically incapable of working another day, but because, having just married her husband, she no longer needed the benefits her job provided. Record at 44. She admitted that if she had "pushed herself" she could have physically continued to do her job. Id. Thus, as of May 1, 1986, Smith, by her own admission and according to the medical records, was able to engage in substantial gainful activity and had the residual functional capacity to perform her past relevant work as a secretary.
In March of 1990, Smith saw Dr. William Roberts, who diagnosed her as having "chronic degenerative disc disease of a fairly severe degree." Record at 161. Dr. Walter Bailey, a neurosurgeon consulting with Dr. Roberts, concurred in the diagnosis, id. at 162, and they agreed that Smith should be scheduled for a "hemilaminectomy with discectomy" to try to alleviate her pain. She was operated on in April 1990, and her post-operative laboratory findings indicated that the operation "provided her with relief," though she continued to have "some achiness in her back." Id. at 165. Nevertheless, neither Dr. Roberts nor Dr. Bailey advised Smith to limit her activities in any way, and there is nothing to suggest that the "achiness" Smith was experiencing would have prevented her from engaging in substantial gainful activity if she had wanted or needed to do so, which is what she had to show to prove that she was disabled. See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1 520(a)-(f).
Smith again required surgery in April 1993, though rather than supporting her claim that her symptoms were constant from 1986 through December 31, 1991, the medical records from this period support the ALJ's finding that Smith's symptoms resolved after the 1990 surgery. The preoperative history form prepared in connection with the April 1993 surgery stated that Smith "has had problems with her back starting in 1983 when she had sudden onset of pain when cleaning up the garbage cans," which "resolved after a period of time." Record at 315. The form noted Smith's 1990 surgery, but made no mention of any problems that existed following that surgery. Id. Instead, it stated that "[in September, 1992, she had gradual onset of pain radiating into the right leg particularly laterally into the thigh and into the calf. More recently, she has had pain radiating to the left lateral calf." Id. There was nothing in the preoperative history form to suggest that Smith had any problems between April 1990, when she had the first surgery, and September 1992, when she had "gradual onset of pain." The operative report, prepared after the procedure, was entirely consistent; it stated that before the surgery Smith reported experiencing "persistent, bilateral leg pain for the last six months or so." Record at 179. (emphasis added). The report also stated that Smith's previous surgery achieved "a good result up until the last few months." Id. It is reasonable to believe that if Smith had been experiencing debilitating pain since 1986 — or at any time between her 1990 surgery and September 1992 — she would have told her doctors so and her complaints would have been reflected in the medical documents prepared at the time.
None of this is to say that Smith is or was 100% healthy at any time since 1986. She certainly demonstrated that she has suffered from back pain. However, she did not demonstrate that at any time prior to December 31, 1991, her symptoms "persist[ed] for at least 3 months despite prescribed therapy and [were] expected to last 12 months," which is what she would have had to show, inter alia, to satisfy step 3 of the legal framework set forth above. See 20 C.F.R. Part 404, Subpart P. Appendix 1, §§ 1.00(B), 1.05(C) (1998) (For a musculoskeletal system impairment to be considered "severe" within the meaning of the social security regulations, "[a)ppropriate abnormal physical findings must be shown to persist on repeated examinations despite therapy for a reasonable presumption to be made that severe impairment will last for a continuous period of 12 months." For "vertebrogenic disorders" such as Smith's, symptoms such as pain and motor loss must "persist for at least 3 months despite prescribed therapy and [be] expected to last 12 months."). Nor did she demonstrate that she was unable to perform her past relevant work, which is what she would have had to show to satisfy step 4 of the legal framework set forth above. See 20 C.F.R. § 404.1545(e) (recognizing that people suffering from back pain return to work and continue to work every day; some are capable of performing the physical demands of a medium work position, while others, because of pain, may not be capable of more than the physical demands of light work activity).
Had Smith proved that her impairment met or exceeded one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, (i.e., had she satisfied step 3) she would have been found to be disabled without having to show that she was unable to perform her past relevant work (i.e., without having to satisfy step 4). Step 4 became relevant only because Smith could not prove, at step 3, that her impairment met or exceeded one of the specific impairments listed in the regulations. See Betancourt, 23 F. Supp.2d at 880 (citing Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984)).
Even taking into account the evidence of Smith's condition post-1991, the record does not compel the conclusion that Smith's condition prior to December 31, 1991 so affected her daily life that she could not perform her past relevant work. Although Smith testified before the ALJ that her back pain limits her daily activities, she did not demonstrate that such limitations existed on or before December 31, 1991. For example, Smith testified that her husband had to assume responsibility for doing the grocery shopping, the vacuuming and carrying the laundry baskets up and down the stairs. Record at 39. But she also testified that he did not take over these chores until after her last surgery in 1995 — four years after her disability insured status expired. Id. at 40. Smith testified that she is no longer able to go to the theater, but she said she did not have to give that up until 1995 — four years after her insured status expired. Id She testified that she no longer goes to Sunday school and is only rarely able to go to church, but she admitted she did not give up these activities until 1997 — six years after her insured status expired. Id. at 40-41. Her husband testified that he has had to assume responsibility for most of the household chores, but not until after her last operation in 1995. Id. at 43.
Smith testified she could walk "not quite a mile," lift about "10 pounds," and stand for "about 20 minutes" before having to "shift and move." Record at 37. Even if these limitations had existed on or before December 31, 1991 — and the record does not show that they did — it is not altogether clear that they would have kept Smith from performing a wide range of light or sedentary work, including her past relevant work experience. See 20 C.F.R. § 404.1567(a) and (b) (explaining the physical exertion requirements for light and sedentary positions). For this reason and all of the reasons explained above, the Court finds that the ALJ's decision was supported by substantial evidence.
In addition to arguing that the ALJ's ultimate findings were not supported by substantial evidence, Smith argues that the ALJ's findings discounting Smith's credibility were not supported by substantial evidence. The ALJ found that Smith's claim of a disabling back condition existing on or before December 31, 1991 was not credible "because such symptoms are not supported by the contemporaneous medical evidence and are inconsistent with the claimant's traveling to Ethiopia for a two-year period beginning in October 1991." Record at 18. "[W]e will not disturb the Commissioner's credibility determinations so long as they find some support in the record and are not `patently wrong.'" Lanfear v. Apfel, No. 99 C 2654, 2000 WL 198791, at *4 (N.D. Ill. Feb. 14, 2000) (citing Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994)). Here, the ALJ's findings are supported by the record; as explained above, the medical evidence suggested that Smith's symptoms resolved after her April 1990 surgery and did not recur until September 1992. This inference is further supported by Smith's testimony concerning her daily activities — she testified that at least through 1995, she could care for herself, walk almost a mile, drive, cook and clean, etc., and she chose to travel to Ethiopia with her husband for two years — an ambitious adventure to say the least and not something one would expect from someone claiming to have a disabling back condition at the time. Smith argues that the ALJ wrongly inferred that life in Ethiopia was physically taxing and used the fact that Smith moved there for two years to support his finding that she was not disabled. Id. at 15. In fact, the ALJ concluded that undertaking to travel to Ethiopia — an unquestionably long trip — was more consistent with his view of the evidence that Smith's condition got better with the 1990 surgery and then got worse again around September 1992. In light of the evidence set forth above, this conclusion is not patently wrong or even unreasonable. Because the record supports the ALJ's determinations concerning the inconsistencies in Smith's testimony, and because the record supports the ALJ finding that Smith's claim of debilitating pain were inconsistent with what she was able to do and take on, the Court will not reverse or remand based on this argument.
Smith also challenges the ALJ's finding that after her 1990 surgery she experienced relief from her symptoms until September 1992; she argues that this finding is not supported by substantial evidence and that the ALJ incorrectly attributed a statement to this effect to Smith's husband. Although the ALJ does appear to have mistakenly attributed this statement to Smith's husband, the evidence nonetheless supports the finding. First, Smith herself testified that she and her husband went to Ethiopia in October 1991 and that "about a year — less than a year there — I had all this severe same, you know, symptoms again." Record at 48, 51. Additionally, the preoperative history form prepared in connection with Smith's 1993 surgery stated that the problem for which she was seeking treatment at the time began in September 1992. Id. at 315.
Finally, Smith argues that the ALJ applied an incorrect legal standard when he failed to bring in a medical advisor to assist in fixing the onset date of her disability; under Social Security Ruling 83-20, Smith argues, the ALJ was required to do so. See Brief in support of summary judgment, p. 16. As the Commissioner correctly points out, in cases such as this, SSR 83-20 applies only after the ALJ concludes that the claimant is disabled. See Perkins v. Chater, 107 F.3d 1290, 1295 (7th Cir. 1997) ("SSR 83-20 addresses the situation in which an administrative law judge makes a finding that an individual is disabled as of an application date, and the question arises whether the disability arose at an earlier time."); Marco v. Apfel, No. 97 C 6824, 1999 WL 311695, at *6 (N.D. Ill. May 13, 1999) ("SSR 83-20 applies only after the ALJ makes a finding of disability"). Smith disagrees, arguing that Cambpell v. Chater, 932 F. Supp. 1072 (N.D. Ill 1996) and Gutka v. Apfel, 54 F. Supp.2d 783 (N.D. Ill. 1999), required the ALJ to apply SSR 83-20 regardless of whether he first makes a formal finding of disability.
Contrary to Smith's assertion, the Court does not read Campbell and Gutka as being inconsistent with the holding from Perkins quoted above. In Campbell, the ALJ found that the claimant was not disabled as of the date her disability insured status expired but was disabled at the time of her disability hearing, which took place five years later. 932 F. Supp. at 1078. Given those findings, the question of when the disability arose was determinative: if the disability arose before Campbell's insured status expired, she would collect benefits; if it arose after her insured status expires, she would get nothing. Under those facts, as Judge Shadur held, it was incumbent upon the ALJ, under SSR 83-20, to enlist the aid of a medical advisor to figure out when exactly the disability arose. Id. at 1079. Gutka presented a similar situation. Although the ALJ in that case did not specifically find that the claimant was disabled at any given time, the medical evidence presented at the disability hearing was uncontroverted that at the time of the hearing, he was disabled: Gutka offered the undisputed medical opinion of his treating physician that he was disabled. Gutka, 54 F. Supp.2d at 787. Because Gutka's disability insured status had long since expired by the time of the hearing, the onset date again became the determinative factor in deciding whether he could receive disability insurance benefits. Under these facts, as in Campbell, it was improper for the ALJ not to apply SSR 83-20 and not to enlist the aid of a medical advisor to determine exactly when the disability began. Id. at 788.
The facts presented in this case differ significantly from those presented in the Campbell and Gutka cases. Unlike the ALJ in Campbell, ALJ Mondi did not find that Smith was disabled at any time before or after her date last insured. And unlike the claimant in Gutka, Smith did not present uncontroverted evidence that she was disabled at any time — whether before or after her date last insured. Unlike Gutka, Smith offered no medical opinion testimony one way or the other on the ultimate question of whether she was disabled. And the evidence she did offer — medical records, her testimony and her husband's testimony — could hardly be said to be uncontroverted on this issue.
In Campbell, Judge Shadur noted that if application of SSR 83-20 depended on the ALJ first making a finding of disability, the ruling might amount to a dead letter in the case of a claimant with a progressive impairment. 932 F. Supp. at 1077-78. But as Judge Shadur indicated, if the ALJ has determined that the claimant was not disabled at some point, there is no need to go back and determine an onset date via SSR 83-20. Id. at 1078 n. 8. That is, for all practical purposes, what happened here; the ALJ, though he did not make a specific finding, plainly did not believe Smith to be disabled through at least September 1992. See supra at 3-4. Under these facts, the Court finds that the ALJ need not have applied SSR 83-20.
CONCLUSION
For the reasons explained above, the Court affirms the ALJ's decision. The Court denies Smith's motion for summary judgment [7-1] and grants the Commissioner's motion for summary judgment [9-1]. The Clerk is directed to enter judgment in favor of the Commissioner.