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Zalewski v. Heckler

decided: April 23, 1985.


Appeal from the United States District Court for the Western District of Wisconsin. No. 83 C 592--John C. Shabaz, Judge.

Bauer, Coffey, and Flaum, Circuit Judges.

Author: Flaum

FLAUM, Circuit Judge.

The plaintiff John M. Zalewski brought this action in the district court following an administrative law judge's denial of his application for disability benefits and supplemental security income under the Social Security Act. The district court affirmed the denial. On appeal, we affirm the decision of the district court for the reasons set forth below.


Since his birth in September 1945, John M. Zalewski has suffered from various physical and mental problems. Zalewski contracted polio before reaching the age of two and was subsequently forced to undergo fifteen operations on his legs and to use braces and crutches for thirteen years. Shortly after graduating from high school, Zalewski was indicted in the shooting death of a seventy-eight year old man, but found not guilty by reason of insanity. Following his acquittal in 1966, Zalewski was committed to Central State Hospital in Waupun, Wisconsin. Upon his discharge in 1973, the doctors diagnosed Zalewski as having a passive-aggressive personality and Klinefelter's Syndrome.*fn1 Zalewski has been convicted of issuing worthless checks and theft since his release.

In May 1978, the Social Security Administration terminated child's disability benefits which Zalewski had been receiving since 1975 after finding that he had become engaged in substantial gainful activity. From 1978 to 1980, Zalewski held several jobs, but none of these lasted for more than three or four months because his employer would always find him physically unable to handle the work. These jobs included working as an inspector, a maintenance worker, a common laborer, and a truck driver for a cement contractor. In September 1979, Zalewski applied for disability benefits, supplemental security income, and child's insurance benefits, but the Social Security Administration denied his request.

On November 6, 1980, Zalewski again applied for disability benefits, supplemental security income, and child's insurance benefits pursuant to sections 202, 223, and 1602 of the Social Security Act by claiming that he was experiencing disabling back and leg problems. 42 U.S.C. §§ 402(d), 423, 1381a (1982). The Social Security Administration denied this application both initially and upon Zalewski's request for reconsideration. Although Zalewski requested a hearing on the denials, he failed to appear at the scheduled hearing, and the administrative law judge ("ALJ") dismissed his case. Upon Zalewski's request for a review, the Appeals Council of the Social Security Administration vacated the dismissal on February 9, 1982, and remanded Zalewski's case to an ALJ.

On September 21, 1982, Zalewski appeared and testified at a hearing held in Wausau, Wisconsin to determine if he was entitled to disability benefits. On January 31, 1983, the ALJ issued a decision denying Zalewski's application for disability benefits on the ground that the medical and other evidence submitted relating to his physical impairments and psychiatric or nonexertional limitations revealed that Zalewski retained the residual functional capacity for sedentary work.*fn2 Zalewski's request for review of the ALJ's decision was denied by the Appeals Council on May 26, 1983, and the ALJ's decision thus became the final decision of the Secretary of the Department of Health and Human Services ("Secretary"). Zalewski sought judicial review in federal district court, and the district court affirmed the Secretary's decision in an opinion on February 16, 1984. The district court concluded that substantial evidence supported the ALJ's conclusion that Zalewski was not disabled. On appeal, Zalewski contends that substantial evidence does not support the ALJ's determination that Zalewski was not disabled and that the ALJ did not make proper credibility findings as required by this circuit in Zblewski v. Schweiker, 732 F.2d 75 (7th Cir. 1984).


The Social Security Act provides that the Secretary must make findings of fact and decisions as to the rights of an individual applying for disability insurance benefits. 42 U.S.C. § 405(b)(1) (1982). In cases where the Secretary has rendered a decision that is unfavorable in whole or in part to the individual, the Act requires the Secretary to include in the decision a statement of the case, in understandable language, discussing the evidence and stating the Secretary's determination and the reasons for the decision. Id. After a final decision by the Secretary, the individual is allowed to seek review in a civil action brought in federal district court. 42 U.S.C. § 405(g) (1982). In reviewing the decision, the district court must consider the Secretary's factual findings as conclusive if supported by "substantial evidence," id., which the Supreme Court has defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); International Union of Operating Engineers v. NLRB, 755 F.2d 78, 81 (7th Cir. 1985). An appellate court also must affirm the Secretary's decision as long as the findings are supported by substantial evidence and the Secretary has applied the correct legal standards. Halvorsen v. Heckler, 743 F.2d 1221, 1225 (7th Cir. 1984).

The issue before this court is whether there is substantial evidence in the record to support the Secretary's conclusion that because Zalewski retains the residual functional capacity for sedentary work, he is not disabled. In deciding a disability case, the ALJ's determination must be based upon a fair and impartial presentation of all of the medical evidence that is credible, supported by clinical findings, and relevant to the particular issue. Taylor v. Schweiker, 739 F.2d 1240, 1243 (7th Cir. 1984). The Social Security Act defines the term "disability" as an "inability 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 than twelve months."*fn3 42 U.S.C. § 423(d)(1)(A) (1982). Furthermore, the Act states that an individual shall be considered disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423(d)(2)(A) (1982). The regulations accompanying the Social Security Act define "sedentary work" as work which "involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 404.1567(a) (1984). The definition also provides that although a sedentary job is defined as one involving sitting, a certain amount of walking and standing may also be required occasionally. Id.

In the present case, the medical evidence concerning Zalewski's physical impairments supports the Secretary's decision that Zalewski can perform sedentary work. For example, after Zalewski sustained hairline fractures when a motorcycle fell on his left foot, he was examined on October 12, 1979, by Dr. Stoddard, an orthopedic surgeon referred by the Department of Health and Human Services. He reported that Zalewski had complained of an aching back since he had discarded his left-leg brace and shoe elevator many years earlier. Dr. Stoddard noted that upon physical examination, Zalewski was able to engage in a full range of motion without any pain of the cervical spine and was able to raise his legs at a ninety-degree angle while sitting and an eighty-five degree angle while lying. Dr. Stoddard concluded that Zalewski would be unable to squat or lift heavy objects as a result of his leg deformities and consequent decreased strength.

Another disability evaluation was conducted by Dr. Newton, a neurological specialist, on December 12, 1980. Dr. Newton examined Zalewski's lumbar spine and found it "unremarkable." The doctor noted that Zalewski could bend forward and touch the floor as well as raise his legs at a ninety-degree angle. Dr. Newton also noted that Zalewski's upper extremity motor, reflex, and sensory examination was normal. He concluded that Zalewski's leg and foot problems would prevent him from performing any job that required him to be standing, walking, or doing repeated bending, stooping, and lifting. Based on Dr. Newton's findings, a medical consultant, Dr. Nilsson, concluded that Zalewski's residual functional capacity would permit him to perform ...

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