Summary
stating that credibility determinations will not be disturbed unless patently wrong.
Summary of this case from Rodriguez v. R.I. D.H.S., 00-3586 (2001)Opinion
No. 99-CV-00554
June 26, 2000
MEMORANDUM OPINION AND ORDER
Before this Court are Plaintiff Wilson Warda's ("Warda" or "Plaintiff") and Defendant Commissioner Kenneth S. Apfel's ("Commissioner") cross-motions for summary judgment on Warda's appeal of the Social Security Administration's ("SSA") denial of Disability Insurance Benefits ("DIB"). For the following reasons, the Commissioner's motion for summary judgment is GRANTED and Warda's motion for summary judgment is DENIED. This case is CLOSED.
Statement of Facts
The main issue in this case is whether the Administrative Law Judge's ("ALJ") decision to deny DIB is supported by substantial evidence.
Warda was born on July 5, 1948. He acquired a sixth grade education in Iraq and subsequently worked as a machinist in a factory in the United States for 29 years. (Pl's Brief in Support of MSJ, p. 1) Although, Warda suffered a heart attack in 1992, he does is not claim that as a disability. (Dft's Memo in Support his MSJ, p. 3) Instead, Warda is citing a back injury that dates back to November 15, 1993, as the basis for his disability claim. (Pl's Brief in Support of his MSJ, p. 2)
Since his back injury, several doctors have pursued different courses of treatment. Immediately following his injury on November 15, 1993, Warda visited Dr. R.J. Ashley who ordered an MRI. The MRI revealed a central and slightly rightward herniated L5-S1 disc and mild spinal stenosis at L4-L5 and L3-L4 vertebral levels. (Pl's Brief in Support of his MSJ, p. 2) On February 18, 1994, Warda met with Dr. Kaushal who prescribed an unsuccessful course of physical therapy. (Pl's Brief in Support of MSJ, p. 3) Warda then began seeing Dr. Young, who reported that Warda could walk on his heels and toes with minimal effort, had no deficits in sensation, had normal straight leg raises, and was able to walk and sit without pain or provocation of symptoms. (Transcript, p. 13) Furthermore, Dr. Young said Warda could return to work in the future but not to his previous position. (Transcript, p. 152) Dr. Young prescribed Advil, physical therapy, an at-home exercise program, a chronic pain program, and prohibited any repetitive bending or twisting. (Dft's Memo in Support of his MSJ, p. 4-6 and Transcript, p. 151) Later, Dr. Young noted that Warda did not comply with the prescribed treatment. (Dft's Memo in Support of his MSJ, p. 5) While Dr. Young was still treating him, Warda also visited Dr. Mynatt, a psychiatrist, who diagnosed him with mild depression. Dr. Mynatt also observed that Warda had a normal gait and posture, and he did not appear uncomfortable sitting in a chair during his half hour interview. (Dft's Memo in Support of his MSJ, p. 6)
Since Warda's initial visit to Dr. R.J. Ashley, Warda has not been able to return to his prior position as a machinist. This led him to file for DIB. (Pl's Brief in Support of his MSJ, p. 2)The SSA denied Warda's application initially and on reconsideration. Consequently, Warda requested a hearing with an ALJ. (Dft's Brief in Support of his MSJ, p. 1) At the hearing for DIB in front of the ALJ, on July 10, 1997, Warda testified that he is illiterate and unable to work because of pain from the back injury. (Pl's Brief in Support of his MSJ, p. 2) However, Warda also testified that after the injury, his company created a security job for him which required a little walking and a little sitting. He performed the security job successfully until the company terminated the position for financial reasons on March 9, 1994. Since then, Warda has not participated in substantial gainful work activity. (Dft's Brief in Support of his MSJ, p. 2)
A vocational expert at the hearing testified that Warda acquired skills at his previous job that transfer to light level jobs. (Dft's Brief in Support of his MSJ, p. 1-2) The vocational expert also said that a 48 year-old man with a fifth grade formal education and some past machinist work who is able to sit for 45 minutes to an hour uninterrupted, who cannot bend a lot, who can stand for ten to fifteen minutes and lift up to ten pounds, can perform some unskilled sedentary jobs. (Pl's Brief in Support of his MSJ, p. 5)
After hearing all of the testimony, the ALJ concluded that the Plaintiff was not credible. (Pl's Brief in Support of his MSJ, p. 5) For instance, although he claimed that he could not work because of pain, Warda only occasionally used an over-the counter pain pill, did not comply with prescribed treatment, and was observed bending forward to tie his shoes without pain. (Dft's Memo is Support of his MSJ, p. 3) The ALJ also discredited Warda's claim of illiteracy because he testified to taking a written U.S. citizenship exam and written drivers license exam. Warda said that his brother and the driving instructor helped him on the license exam, but he also said he did not cheat. (Dft's Brief in Support of his MSJ, p. 2-3) In addition, Warda tried to explain the written citizenship exam by claiming that his wife taught him the answers to the exam. (Dft's Brief in Support of his MSJ, p. 3) The ALJ also found a problem with a comment Warda made to Dr. Mynatt about not being able to concentrate when reading. (Transcript, p. 17). The ALJ thought this added to the credibility problem since Warda had said he could not read. (Dft's Brief in Support of his MSJ, p. 2-3). It is unclear whether the reading Warda referred to was written in English or Arabic.
In her decision, the ALJ relied on Rule 202.17 and made the following conclusions. (Transcript, p. 17) First, the Plaintiff has not engaged in disqualifying substantial gainful activity since the alleged onset date. Second, the medical evidence establishes that the Plaintiff meets the severity of the statute. Third, the Plaintiff's impairments do not meet or equal in severity a listed impairment. Fourth, the Plaintiff cannot perform his former job. Fifth, the Plaintiff can perform a full range of unskilled light work, and is literate. Therefore, the ALJ concluded that Warda is not disabled. (Dft's Memo in Support of his MSJ, p. 8)
On July 24, 1997, the ALJ denied Warda's application for DIB. The decision of the ALJ denying the Plaintiff's application for period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. 401 et seq., stands as the final decision of the Commissioner. On December 29, 1998, the Appeals Council of the SSA denied Warda's request for review of the ALJ's decision. (Dft's Brief in Support of his MSJ, p. 1) Consequently, Warda filed a complaint alleging the he is eligible for DIB despite the ALJ's negative conclusion.
Standard for Summary Judgment
An adult applicant for Social Security benefits must show that he or she is disabled, i.e., that "he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less that twelve months." 42 U.S.C. 1362c(a)(3)(A); Bowen v. Yuckert. 482 U.S. 137, 145, 107 S.Ct. 2287, 2293, 96 L.Ed.2d 119 (1987). When considering an application for DIB and SSI, the Social Security Administration ("SSA") follows a five step process to determine whether the applicant is doing or capable of doing substantial gainful activity ("SGA"). See 20 C.F.R. § 404.1520 ("DIB"), 416.920 (SSI). The first step tests whether the applicant is currently doing SGA; if the applicant is currently doing SGA, SSA will find the applicant not disabled and will not continue the analysis. 20 C.F.R. § 404.1520(b), 416.920(b). The second step tests whether the applicant has a severe impairment, i.e., whether the applicant has any impairment or combination of impairments which significantly limits [the applicants] physical or mental ability to do basic work activities; if the applicant does not have a severe impairment (or combination of impairments) by this definition, SSA will find the applicant not disabled and will not continue the analysis. 20 C.F.R. § 404.1520(c), 416.920(c). The third step questions whether the impairment found in step two meets or equals a listed impairment in Appendix 1; if it does, then SSA will find the applicant disabled without considering age, education, and work experience. 20 C.F.R. § 404.1520(d), 416.920(d). For applicants who meet step two but not step three, then steps four (whether the impairment prevents the applicant from doing past relevant work) and five (whether the impairment prevents the applicant from doing any other work) are applied in order to determine whether the applicant can do work, even though the applicant is currently not doing so. 20 C.F.R. § 404.1520(e), (f), 416.920(e), (f). The plaintiff 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 SGA. Nelson v. Shalala, 1994 WL 461293, *2 (C.D.Ill. Feb. 10, 1994). Here, because the analysis stopped at step five, the burden of proof shifted to the Commissioner to demonstrate that there is employment in the national economy that the Plaintiff can perform.
The standard of review in a disability case is limited to determining whether the final decision of the Secretary "is both supported by substantial evidence and based on proper legal criteria." Ehrhart v. Secretary of Health and Human Services. 969 F.2d 534, 538 (7th Cir.1992). Substantial evidence is "'more than a mere scintilla. It means such relevant evidence as reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The courts role in considering the evidence is not to reweigh the evidence itself, but instead to "review the record in its entirety to determine whether substantial evidence supports the ALJ's decision." Pope v. Shalala, 998 F,2d 473, 480 (7th Cir. 1993); Dugan Sullivan, 957 F.2d 1384, 1386 (7th Cir. 1992). While the court may not "substitute its own judgment for that of the Secretary," the court "must do more than merely rubber stamp the decisions of the Secretary." Ehrhart 969 F.2d 534, 538 (7th Cir. 1992).
Analysis
Warda challenges the ALJ's ruling on three grounds: that the ALJ improperly relied upon Rule 202.17 because (1) the ALJ ignored the Vocational Expert's testimony; (2) the ALJ stated that Warda was capable of work except for "heavy lifting and repetitive bending and twisting," which is inconsistent with the ability to perform a full range of unskilled light work; (3) the ALJ ignored Warda's testimony regarding his education and ability to sit, stand and walk, went outside the record and failed to provide a reasonable justification for concluding that Warda's testimony was not credible.
The first ground, that the ALJ ignored the Vocational Expert's testimony, lacks support. The vocational expert said that a 48 year-old man with a fifth grade formal education who is able to sit for 45 minutes to an hour, who can stand for 10 to 15 minutes, with limited bending, and lifting up to ten pounds, would be able to perform sedentary unskilled jobs. The vocational expert's testimony was not relevant to the ALJ's final decision because the testimony dealt with a person capable of sitting and standing for shorter periods of time than the ALJ concluded that Warda could sit for. Furthermore, the vocational expert did not offer an opinion regarding Warda's possible limitations, but rather answered hypothetical questions. The vocational expert is supposed to identify jobs that accommodate a hypothetical individual, not the claimant. See, Maziarz v. Secretary of Health and Human Services, 837 F.2d 240, 246-47 (6th Cir. 1987). Therefore, the ALJ did not improperly ignore the vocational experts testimony.
Warda's assertion that there is a conflict between the ALJ's finding that Warda is able to perform light unskilled work and Dr. Young's order that Warda abstain from heavy lifting and repetitive bending likewise fails. The SSA's definition of light work does not involve any activity from which Warda has been prohibited from performing:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
Dr. Young prohibited work involving "heavy lifting and repetitive bending and twisting" and the definition of light work does not involve this. The definition of light work has specific weight lifting limitations and is inclusive of jobs that do not include bending and twisting. Therefore, the ALJ properly concluded that the Plaintiff can perform light work.
The Plaintiff's third ground, a challenge to the ALJ's finding that Warda was not wholly credible, also fails. "[A]n ALJ's credibility determination will not be disturbed unless it is patently wrong." Terry v. Apfel, 1998 WL 704322, at *5 (N.D.Ill. Sept. 24, 1998) (citing Diaz v. Chater, 55 F.3d 300, 308 (7tb Cir. 1995)). Thus, "we usually do not upset credibility determinations on appeal so long as they find some support in the record. . ." Id. at *5 (quoting Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994)). Warda's testimony was contradictory on the issue of his limited ability to stand and walk due to pain and his ability to read English. See, Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994) (upholding ALJ's decision to discredit a claimants claims of pain where no objective evidence supported the claimants claims and where the claimant had "contradicted his own testimony"). The ALJ did not find the Plaintiff's claims of pain credible because he used an over-the counter pill, Advil, only occasionally and did not comply with treatment. In addition, Dr. Young observed that the Plaintiff was able to bend forward to put on his shoes without any outward discomfort. Furthermore, Dr. Mynatt observed during her evaluation that the Plaintiff had a normal gait and normal posture while sitting, and that he was not uncomfortable sitting in a chair during his half hour interview, Since Warda's actions contradicted his statements, the ALJ concluded that Warda was not credible regarding how much pain he experienced.
According to Warda, the pain would limit him to sedentary work. However, the above inconsistencies led the ALJ to conclude that Warda can perform unskilled light work. Because some evidence supporting the ALJ's credibility finding regarding pain exists within the record, this court must allow the finding to stand. Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995).
Not only did the ALJ discredit the plaintiff's testimony regarding the limitations caused by his pain, the ALJ also disbelieved the Plaintiff's testimony regarding his ability to read English. The ALJ did not find the Plaintiff's claim that he could not read English credible because he took a license exam and U.S. citizenship exam, both written in English. Warda claimed his brother and the license examiner assisted him, but he also claimed he did not cheat. Because the record contains some support for the ALJ's credibility finding regarding literacy and pain, the ALJ's finding must stand. Terry v. Apfel, 1998 WL 704322, at *5 (N.D.Ill. Sept. 24, 1998)
Conclusion
For the foregoing reasons, the Commissioner's motion for summary judgment is GRANTED and Warda's motion for summary judgment is DENIED. This case is CLOSED.