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GRINDLE v. SULLIVAN

August 15, 1991

DAHLIA GRINDLE, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Dahlia Grindle ("Grindle") seeks judicial review of a final decision of Secretary of Health and Human Services Louis Sullivan ("Secretary") denying Grindle's claim for supplemental security income ("SSI") benefits under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i), 423 and 1381(a). *fn1" As is customary in these cases, the parties have filed Fed.R.Civ.P. ("Rule") 56 cross-motions for summary judgment. *fn2" For the reasons stated in this memorandum opinion and order, Grindle's motion is granted and Secretary's is denied.

 Facts

 Grindle was born on May 16, 1927, has a high school diploma and has no relevant past work experience. She applied for supplemental security income in September 1986, alleging that she was unable to work because of diabetes, hypertension and arthritis. After her initial claim was denied by an administrative law judge ("ALJ") in January 1989, the Appeals Council reversed and remanded the case to ALJ Gilbert Drucker, who found Grindle not disabled in October 1989. That decision became Secretary's final decision in August 1990 when he denied Grindle's appeal.

 Grindle's Testimony

 Grindle's alleged difficulties stem from a host of claimed medical impairments: diabetes, bladder problems causing frequent urination and soiling of undergarments, back and leg pain, numbness of the feet and hands, arthritis, hypertension, dizzy spells, weakness and fatigue, leg cramping, neuropathy and a group of eye problems--retinopathy, blurred vision, cataracts and myopic astigmatism (R. 33-38, 42, 43, 53, 55-57, 59, 61, 119-22, 131-32, 183). Out of that assortment of claimed ills, her "primary problem is multiple joint pains related to diabetes and arthritis" (R. 13).

 Medical Evidence

 Dr. Cannan Yunez first reported on Grindle's condition in September 1986. Responding to a question about diabetes, arthritis and high blood pressure, Dr. Yunez said (R. 99):

 
The claimant does have all these as stated above. She also is obese with a height of 5' and weight of 179 pounds. . . . She also has a diagnosis of osteoarthritis of the lumbosacral spine, both knees, and shoulders. She has 40 percent restriction in range of motion in the lumbosacral spine, but very little as far as the legs and shoulders go. . . . X-rays show osteoarthritis.

 In March 1988 Dr. Yunez described Grindle as suffering from "uncontrolled diabetes mellitus" and went on to say (R. 135):

 
She also suffers from probable neuropathy consisting of leg pain and numbness. She also complains of cramping in the legs on walking which is probably related to the diabetes also. In addition to the diabetes, she suffers from generalized osteoarthritis. This particularly affects the lumbosacral spine. There are no neurological complications in the spine and there is no significant range of motion limitation due to the arthritis at this time.

 Finally, in October 1988 Dr. Yunez completed a "physical capacities evaluation" on Grindle and concluded (R. 149):

 
1. Grindle could not perform "sustained competitive work activity" under the standard (quoted in the evaluation form) that was defined in Allred v. Heckler, 729 F.2d 529, 533 (8th Cir. 1984).
 
2. "Throughout a workday and without distracting pain/discomfort" Grindle was subject to sharp limitations on her activity: maxima of two hours of sitting, ten minutes of standing, ten minutes of walking, carrying ten pounds and lifting ten pounds.
 
3. Grindle could not "operate foot controls," nor could she "do fine [or] gross manipulation," "bend over" or "squat/stoop."

 In November 1988 another treating physician, Dr. F. Boon, conducted his own physical examination of Grindle (R. 156). Dr. Boon concluded that Grindle could lift a maximum of "20-25" pounds and that she could stand and/or walk for "4-6" hours a day, "1-2" of those "without interruption."

 In April 1988 Grindle was evaluated by a consultative examiner, Dr. Colette Gordon, who after examining Grindle for 30 minutes (R. 140) found that Grindle had "no significant limitation of motion" (id.). However, she did note that Grindle's "gait was abnormal. She walked with slow cautious steps, but no limp" (R. 138). Dr. Gordon also found (R. 139):

 
There were no palpable pulses below the femorals on the left. The feet were cold, but had a normal color.

 Dr. Gordon offered no evidence or conclusions as to Grindle's ability to lift any particular amount of weight.

 At that time the same consultative service conducted an arterial blood flow evaluation and found (R. 136):

 
There is no significant additional decrease in blood flow with exercise.

 During the same evaluation Grindle was required to walk at 2 m.p.h. up a 12% grade slope. That exercise lasted one minute and ten seconds before she became fatigued (R. 136).

 In May 1988 nonexamining physician Dr. Hedra J. Triplett reviewed the consultative examination and concluded that Grindle could lift a maximum of 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk a total of 6 hours per day, sit a total of 6 hours per day, and that she had an unlimited ability to push and/or pull (including hand/or foot controls) (R. 147). *fn3" Dr. Triplett noted no other limitations and in fact opined that Grindle had the residual capacity frequently to climb, balance, stoop, kneel, crouch and crawl and that she had an unlimited capacity for reaching, handling, fingering, feeling, seeing, hearing and speaking (id.). *fn4"

 In sum, the two treating physicians concluded that Grindle could not perform the tasks required to do medium work, but the nonexamining physician found that she could perform at that level. *fn5" ALJ Drucker accepted the latter view in finding Grindle not disabled.

 Burden of Proof and Rules for the ALJ's Decision

 Section 423(d)(1)(A) defines disability as:

 Secretary (and of course the ALJ as his representative) must apply a five-step test to determine whether a claimant is disabled, as Marcus v. Sullivan, 926 F.2d 604, 606 (7th Cir. 1991) explains:

 
Step one eliminates those who are still in the workforce. 20 CFR §§ 404.1520(b), 416.920(b). Step two disqualifies claimants who do not have a "severe" impairment. §§ 404.1520(c), 416.920(c). In the third stop, the impairments of the claimant are compared to a listing ("Listing") of about 120 medical conditions which the Secretary concedes are severe enough to prevent a person from engaging in any gainful activity. §§ 404.1520(d), 416.920(d), 416.925(a). If the wage earner's impairments meet or equal a listed impairment, the wage earner is conclusively determined to be disabled. §§ 404.1520(d), 416.920(d). If the wage earner fails to establish equivalence, however, the inquiry is not over. In step four, the Secretary considers whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant can, he is disqualified. §§ 404.1520(e), 416.920(e). Finally, in step five the Secretary asks whether the claimant is able to perform other work in the national economy in view of his age, education and work experience. The claimant is entitled to benefits only if he cannot perform other work. §§ 404.1520(f), 416.920(f).

 If the assessment of an individual reaches step five -- in other words, if a claimant has a severe impairment that does not meet one of the Listings, and if he or she is not engaged in substantial gainful activity and if his or her impairment prevents the claimant from performing his or her vocationally relevant past work -- then the rules in the Medical Vocational Guidelines of Reg. Subpart P, Appendix 2 (the "grid," cited "App. § --") may come into play. Those grid rules reflect the analysis of the vocational factors of age, education and work experience in combination with the claimant's RFC.

 RFC is defined by Secretary as ( Marcus, 926 F.2d at 608, quoting SSR 83-10):

 
[a] medical assessment of what an individual can do in a work setting in spite of the functional limitations and environmental restrictions imposed by all of his or her medically determinable impairment(s).

 Or as the district court put it in Marcus, RFC measures "functional ability to stand, sit, follow instructions, lift or accomplish other of the tasks which may be necessary to engage in gainful activity" (926 F.2d at 608, quoting with approval the district court opinion at 696 F. Supp. 364, 368 (N.D. Ill. 1988)). RFC is expressed in terms of a claimant's maximum sustained work capability for either "sedentary," "light," "medium," "heavy" or "very heavy" work.

 Where an ALJ's findings of fact with respect to the vocational factors and RFC coincide with all of the criteria of a particular rule, the rule directs a conclusion of "disabled" or "not disabled." In addition, the grid takes into account the number of unskilled jobs in the national economy at the various functional levels, so that when the findings of fact coincide with a rule the existence of such jobs is established (App. § 200.00(b)). However, nonexertional limitations (such as pain, inability to grasp objects or bimanual dexterity) are not reflected in grid determinations. Hence App. § 200.00(e)(2) provides:

 
However, where an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. Also, in these combinations of nonexertional and exertional limitations which cannot be wholly determined under the rules in this Appendix 2, full consideration must be given to all of the relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor.

 In this instance ALJ Drucker found that Grindle can perform medium work. To the extent that conclusion involves factual determinations (as contrasted with any questions of law), it must be given real deference. This Court has explained that deference in these terms, speaking in the comparable context of a step four RFC inquiry ( Jones v. Bowen, 699 F. Supp. 693, 695 (N.D. Ill. 1988)):

 
An ALJ's affirmative answer must be upheld if supported by substantial evidence ( Walker v. Bowen, 834 F.2d 635, 639 (7th Cir. 1987)). That review does not call for reweighing the evidence. If reasonable minds may differ on the outcome of conflicting evidence, the ALJ's decision prevails ( id. at 640).

 As for the concept of "substantial evidence," 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), teaches that term means:

 
more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

 That definition regularly finds its way into Social Security opinions in this Circuit, whether upholding or overriding Secretary's decisions (see, e.g., Pitts v. Sullivan, 923 F.2d 561, 564 (7th Cir. 1991)).

 That procedural framework forms the matrix for consideration of the ALJ's findings. This opinion turns to that task.

 Applying the Statutory - Regulatory Framework

 Reaching his decision at step five of the five-part analysis, ALJ Drucker examined the medical evidence and the other testimony and made these findings (R. 15):

 
2. The medical evidence establishes that the claimant has diabetes mellitus with mild diabetic retinopathy and generalized arthritis, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
 
3. The claimant's testimony as to disabling multiple joint pain, neck pain, and decreased vision is not credible for the reasons stated in the body of this decision.
 
4. The claimant considering her impairments singly and in combination with each other has the residual functional capacity to perform the physical exertion requirements of work except for lifting more than 50 pounds occasionally, and lifting or carrying more than 25 pounds ...

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