Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. IP 80-833-C--S. Hugh Dillin, Chief Judge.
Eschbach, Flaum, and Easterbrook, Circuit Judges. Flaum, Circuit Judge, concurring.
EASTERBROOK, Circuit Judge.
A person who suffers an injury on the job usually gets compensation according to the extent of the loss. If the injury forces the person to move to a less demanding but less remunerative job, either the workers' compensation system or the tort system will afford relief. The greater the reduction in income, the greater the compensation. A person who loses 30% of his earnings potential will be rated 30% disabled under workers' compensation or recover a tort judgment equal to the present value of 30% of his future earnings. This reflects the fact that the loss from injury is a matter of degree.
Not so with the system of disability insurance under the Social Security Act, 42 U.S.C. § 423. A person is "disabled" or not; there are no degrees. And a person is not disabled unless he is "not only unable to do his previous work but cannot . . . 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). A person with a partial disability for purposes of workers' compensation is "not disabled" under the Social Security Act, and even a person entitled to collect substantial damages because he cannot find any employment may be deemed "not disabled."
Wendell L. Stephens, Sr., was injured on the job in 1972. While lifting a heavy load he felt his left hip pop. For the next six years he worked on and off. He would work for as much as seven months at his job as an attendant in a warehouse, then take time off to rest his back. He experienced pain and visited hospitals. He received workers' compensation benefits covering up to 50% of his average wage, and he may have had a rated disability of 15%. (The record is not clear on the rating.) He quit work entirely in 1978. The administrative law judge (ALJ) found that Stephens is unable to do his old work or any other than sedentary work. But because Stephens was only 39 years old at the time of the hearing and had a ninth-grade education, the ALJ found him not disabled under the Grid, a set of rules that translate age, impairment, and other characteristics into a finding of disability or no disability. The Appeals Council declined to review the decision, and the district court found the decision supported by substantial evidence.
Stephens's case highlights the difficulties created by a statute that requires the ALJ to give a yes-or-no evaluation of a medical problem. The more complex the task, the more arbitrary any effort to sort the results into just two bins. Disability cases raise questions of medicine (what is wrong with Stephens, and will it get worse?), of psychology (how much pain does Stephens suffer, and what effect does the pain have on his ability to work?), of vocational education (just what can a person in Stephens's position do?), and of practical economics (what jobs are available for people who can do whatever Stephens can do?). An effort to sort a million people with a million personal histories and ten thousand different ailments into just two bins -- "disabled" and "not disabled" -- ensures "arbitrary" action. It is arbitrary in the sense that many people called "not disabled" must look almost exactly like many people called "disabled." It is arbitrary in the sense that many combinations of ailments and personal situations do not fit well in any category, let alone one of the only two permitted by statute. See Heckler v. Campbell, 461 U.S. 458, 468, 76 L. Ed. 2d 66, 103 S. Ct. 1952 (1983) (sustaining the Grid as a way to make this process more uniform); Cummins v. Schweiker, 670 F.2d 81, 83-84 (7th Cir. 1982).
When Congress calls on the Executive Branch to perform a million discretionary and unavoidably arbitrary acts, it becomes very tempting for the Judicial Branch to point out the element of arbitrariness that affects a fair number of cases and to order the task done again. Certainly there is no shortage of arbitrariness in disability cases. But the very nature of the task calls for modesty. Courts cannot enlarge the number of permissible outcomes. We cannot take a person whose ailments foreclose 75% of all gainful employment (or reduce his expected income by 75%) and order the award of 75% benefits. Only Congress has that choice. When any outcome is imprecise and hence arbitrary, a court must accept a decision of the agency if that decision follows the agency's rules. The governing statute, 42 U.S.C. § 405(g), limits the review of factual findings by providing that the "findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive". We agree with the district court that the ALJ's findings are supported by substantial evidence, and we therefore affirm.
The record contains reports by at least eleven medical professionals. The two reports most strongly supporting Stephens come from Dr. L. S. McCallister, a general practitioner who attends Stephens, and Orval Keller, Stephens's chiropractor. Dr. McCallister reported that Stephens has a severe limitation on motion of the spine, is unable to bend comfortably, and cannot bear stress in the lumbo-sacral area without severe pain. Dr. McCallister concluded that Stephens is disabled. Keller also diagnosed an injury to Stephens's spinal cord that produces pain when Stephens bends his back. He concluded that Stephens can do no pushing or lifting and therefore is disabled. Several other medical reports attest to limitations on Stephens's motion and to the pain that drove him to hospitals; Stephens gave testimony about the limitations and the pain.
Dr. David Reich, a resident in neurology at Indiana University, rendered one of several contrary reports. Dr. Reich found that Stephens has full mobility in his arms and legs and not much pain with normal motion. He found no evidence of disc slippage but some mild hip disease. After the hearing, the ALJ sent Stephens to three more professionals. Dr. Lee M. Cattell, an orthopedic surgeon, examined Stephens fully. Cattell found some tenderness of the muscles, and the lumbo-sacral area but a full range of motion without pain. He found Stephens's spine normal. Stripped of medical jargon, Dr. Cattell's report said that there were no physiological restrictions on Stephens's movement and that he could work eight hours a day without much discomfort, so long as the work did not call for more than occasional lifting of weights exceeding 50 pounds. Dr. E. Carl Hann, a neurologist, performed a full exam and found the same tenderness but no measurable abnormal performance and no distress when Stephens performed hip maneuvers. G. Matt Howard, a chiropractor, concluded that irritation of the spinal nerve by intrusions from bone causes some muscle spasms and that Stephens cannot do physical labor, but that he was not otherwise disabled. Howard opined that Stephens "has a 30 percent total impairment of the whole man".
The ALJ found that Stephens cannot return to his old job doing manual tasks in the warehouse but can do sedentary work. The record supports this conclusion, though it does not compel it. The medical evidence was conflicting; the medical reports were all based on first-hand examinations by evidently competent professionals; someone had to resolve the conflict, and under the statute that someone is the Secretary's delegate.
The ALJ's opinion sets out all of these reports (and others), and we are confident that he overlooked nothing. Indeed, he approached the job with care, ordering three additional examinations after the hearing. Stephens nonetheless maintains that we must remand the case because the ALJ did not specifically address his complaints of pain. He points out that this court has required ALJs to make specific findings when they reject evidence supporting a claimant. E.g., Garfield v. Schweiker, 732 F.2d 605, 609-10 ...