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Diaz v. Chater

May 24, 1995

JULIAN DIAZ,

PLAINTIFF-APPELLANT,

v.

SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, *fn1

DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 93 C 4755--Harry D. Leinenweber, Judge.

Before FLAUM, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED APRIL 25, 1995

DECIDED MAY 24, 1995

Julian Diaz appeals from the district court's order upholding the denial of his applications for disability insurance benefits (DIB) and supplemental security income (SSI) by the Social Security Administration (SSA). Mr. Diaz challenges the SSA's finding that he is not disabled and has the residual functional capacity to perform, with certain non-exertional limitations, a full range of sedentary and light work. We affirm.

I. BACKGROUND

In 1981, Mr. Diaz, a cutting torch operator, was cutting a plate over a gas tank when the tank exploded, throwing him backwards and causing second and third degree burns over fifty to sixty percent of his body. Mr. Diaz underwent a series of burn debridement surgeries, including surgeries on his left hand, and multiple skin grafts. He did not work until 1984. Between 1984 and 1988, Mr. Diaz held a number of jobs for periods of two to nine months per job. He was laid off from his last job in January 1988, and has not engaged in gainful employment since then.

In March 1989, Mr. Diaz applied for DIB and SSI. He claimed that he was disabled because of back pain, pain from burns, numbness in his legs, damage to his nerve endings, and fatigue. His applications were denied initially and on reconsideration. After initial denials of his application by the agency, an administrative law judge (ALJ) conducted a hearing and affirmed the denial of Mr. Diaz's application. The Appeals Council vacated and remanded the case because the ALJ's findings "[did] not reflect an evaluation of the diagnosis of degenerative disc disease, established by x-ray." R.7 at 358. The Appeals Council noted that the diagnosis was confirmed provisionally by a MRI scan showing bulging discs and disc herniation. After a second hearing, a different ALJ again found Mr. Diaz not disabled. The ALJ concluded that Mr. Diaz could not perform his past relevant work, and that he was unskilled. Mr. Diaz was forty-four years old at the time of the ALJ's decision and could not read or write English. The ALJ also determined that, despite the limitations caused by Mr. Diaz's severe back condition (bone spurs and narrowing of a disc space) and burn injuries nine years earlier, Mr. Diaz had the residual functional capacity to perform a range of light and sedentary work, except for work that required moving machinery or exposure to heights and temperature extremes.

Mr. Diaz then appealed the ALJ's decision to the Appeals Council and was granted a thirty-day extension to submit additional evidence. He was given four more extensions and the last extension expired on May 20, 1993. On June 4, 1993, the Appeals Council denied Mr. Diaz's request for review, noting that it had "not received any additional evidence or contentions from [Mr. Diaz's] representative despite several extensions of time to allow submission of such material." R.7 at 72. Four days later, Mr. Diaz petitioned the Appeals Council to reopen the matter. Mr. Diaz's counsel argued that the Appeals Council failed to consider his "closing argument and the additional evidence I submitted on May 20, 1993." Id. at 8. Included with his petition to reopen was a brief dated May 20, 1993, reports from two doctors, a letter from consultative neurologist Dr. Joseph Cascino that summarized his findings contained in a prior report, a letter from a rehabilitation counselor, and a "physical capacity evaluation" prepared by the Loyola University Hand Rehabilitation Center. After considering the newly submitted evidence, the Appeals Council ruled that there was no basis to vacate its June 4, 1993 action denying review. *fn2

II. DISCUSSION

1.

Mr. Diaz contends that the SSA has failed to establish that he has the residual functional capacity (RFC) to perform a full range of sedentary and light work (except for work which requires moving machinery or exposure to heights and temperature extremes). See 20 C.F.R. secs. 404.1520, 416.920; Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) ("If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job."). Our review of the SSA's decision is limited. Cass v. Shalala, 8 F.3d 552, 554-55 (7th Cir. 1993); see also 42 U.S.C. sec. 405(g) ("The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive."). We shall affirm the SSA's finding if it is supported by substantial evidence. Pope, 998 F.2d at 480. Although a mere scintilla of proof will not suffice to uphold the SSA's findings, the standard of substantial evidence requires no more than "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Binion v. Shalala, 13 F.3d 243, 247 (7th Cir. 1994). We cannot substitute our own judgment for that of the SSA by reevaluating the facts, or reweighing the evidence to decide whether a claimant is in fact disabled. Cass, 8 F.3d at 555; Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir. 1993). Thus, the issue before this court is not whether Mr. Diaz is disabled, but rather, whether the ALJ's findings were supported by substantial evidence.

The regulations define sedentary work as requiring primarily sitting, some walking and standing, and minimal lifting. See 20 C.F.R. secs. 404.1567(a), 416.967(a). A claimant can do sedentary work if he can (1) sit up for approximately six hours of an eight-hour workday, (2) do occasional lifting of objects up to ten pounds, and (3) occasionally walk or stand for no more than about two hours of an eight-hour workday. See Edwards, 985 F.2d at 339; Kapusta v. Sullivan, 900 F.2d 94, 96 (7th Cir. 1989); Social Security Ruling 83-10. Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. A job in this category requires much walking or standing (off and on, for a total of approximately six hours of an ...


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