analysis. Plaintiff's descriptions of his past jobs were compared against job titles, descriptions and significant vocational characteristics of more than 12,000 jobs as they are commonly performed in the economy. Information concerning Plaintiff's medical history and restrictions, as well as his ability to perform reading and arithmetic computations and his lack of ability to communicate effectively in the English language also were considered.
Ms. Hoiseth noted that Dr. Goldflies had limited Plaintiff to lifting no more than 20 pounds and that he should not engage in bending, stooping or kneeling activities. She also noted Plaintiff's statement that he could sit for thirty minutes at a time and stand/walk for thirty minutes at a time. She noted that even sedentary work requires the ability to sit for six hours out of a typical eight-hour work day. Therefore, she opined, Plaintiff would require a job in which he would basically sit down, but in which he could stand and move around at will during the work day. Because Plaintiff would also be preoccupied with positioning himself to avoid pain throughout the day, in her opinion, Ms. Hoiseth opined that Plaintiff's ability to concentrate on the task at hand would be compromised in any job. (R. at 150-161.) Finding that Plaintiff, "appears to be functionally illiterate and unable to communicate effectively in English", (R. at 156),
Ms. Hoiseth opined that he is at a "distinct disadvantage" in the competitive employment market. (R. at 155.)
D. Medical Records
Plaintiff's medical records begin on December 30, 1991, when he reported to the Eastbrook Medical Center complaining of numbness in his back as a result of an alleged on-the-job injury on December 26, 1991. He was prescribed pain medication and advised not to lift more than 20 pounds. (R. at 257-263.) On February 3, 1992, Plaintiff was seen, at the request of the company's worker's compensation insurance carrier, by Dr. James Ryan for an orthopedic evaluation. Plaintiff reported that he had suffered an on-the-job injury to his back on December 26, 1991. He was seen again by Dr. Ryan on March 11, 1992, June 10, 1992, and October 11, 1993. Dr. Ryan noted that Plaintiff's MRI revealed multiple bulging discs and degenerative disease, but opined that he could return to work at his regular job. (R. at 245-254.)
On March 10, 1992, Plaintiff was examined by Dr. James C. Cohen. He told Dr. Cohen that he had injured his back while lifting an approximately 50-pound tool on February 17, 1992. Then, on March 10, 1992, the date of the examination, Plaintiff's leg gave out while he was climbing stairs and he twisted his right ankle. Plaintiff made monthly visits to Dr. Cohen and Dr. Charles Slack from March through October 1992. He was diagnosed as having a bulging or herniated disc and radiating pain and was prescribed medications for pain. (R. at 228-237.)
Dr. Slack referred Plaintiff to an eight-week work-hardening program, after which it was concluded that he could not return to his prior job but that he could perform other jobs. (R. at 296-325.)
Plaintiff first saw Dr. Mitchell Goldflies on April 21, 1992, (R. at 162), and was seen, on about a monthly basis, from October 1992 through May 11, 1995. (R. at 164-208, 210-215.) He was seen again on October 24, 1995. (R. at 209.)
During his visits to Dr. Goldflies, Plaintiff was treated mostly with moist hot packs, soft tissue massages, stretching exercises and spinal manipulations. He would complain of back pain and stiffness during almost every visit, but on some occasions, he reported improvement. He was also urged to engage in a home exercise program, but he did not adhere to it very often because of stiffness. (R. at 46-47.) On August 31, 1993, Dr. Goldflies released Plaintiff to return to work on light duty, lifting no more than 20 pounds. (R. at 278.)
On October 7, 1993, at the request of the worker's compensation insurance carrier, Plaintiff was given an orthopedic reevaluation by Dr. Ryan. Dr. Ryan noted that, during the examination, Plaintiff did complain of some pain. He opined that Plaintiff certainly could work, but that he should not lift more than 50 pounds. (R. at 252-254.) Then, less than one month later, on November 4, 1993, Plaintiff was examined, at the request of his worker's compensation attorney, by Dr. Jeffrey Coe. Dr. Coe reviewed Plaintiff's medical history since February 1992, reviewed an x-ray and MRI scan, examined Plaintiff and opined that he was permanently and totally disabled. (R. at 238-244.)
On May 25, 1995, Plaintiff underwent a physical examination by Dr. Joel M. Press, who found that he exhibited pain behavior with almost any motion, whether sitting or standing. While expressing his belief that Plaintiff had a great deal of pain, Dr. Press expressed some doubts as to whether the amount of pain exhibited could be accounted for based on the objective findings. (R. at 255-256.)
E. The ALJ's Findings
In her January 15, 1996 decision, the ALJ conceded that Plaintiff's back problems are "severe" within the meaning of the Commissioner's regulations, but found that he still retained the ability to perform work in which he would not be required to lift or carry more than five pounds, that would not involve bending and stooping, and that would allow him to change positions while he worked. (R. at 11, 15.) The ALJ acknowledged that the restrictions imposed upon Plaintiff would prevent him from performing his past work as a machine operator, but, relying on the testimony of the vocational expert, found that there are other jobs that he can perform despite those restrictions. Therefore, the ALJ found that Plaintiff was not disabled.
The ALJ cited much of the medical evidence set forth above, including the objective findings on examination by Plaintiff's treating physicians and consultative physicians, noting that his testimony regarding the severity of his pain and its effects on his ability to perform work-related functions was inconsistent with the objective medical findings by the examining physicians. The ALJ noted that Plaintiff did return to work in October 1992, and worked until January 1993, at which time he was laid off--not because he was unable to perform the work, but because of a reduction in the work force.
Standard of Review
In reviewing the Commissioner's (here the ALJ's) decision, the court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). Rather, the court must accept findings of fact that are supported by "substantial evidence," 42 U.S.C. § 405 (g)(1988), where substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Herron 19 F.3d at 333 (quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)). The ALJ must consider all relevant evidence and may not select and discuss only that evidence that favors his/her ultimate conclusion. Id. Where conflicting evidence allows reasonable minds to differ, the responsibility for determining whether a claimant is disabled falls upon the Commissioner (or ALJ), not the courts. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). See also Stuckey v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989) (the ALJ has the authority to assess medical evidence and give greater weight to that which he/she finds more credible). This Court is limited to determining whether the Commissioner's final decision is supported by substantial evidence and based upon proper legal criteria. Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 538 (7th Cir. 1992).
This does not mean that the Commissioner (or ALJ) is entitled to unlimited judicial deference, however. In addition to relying on substantial evidence, the ALJ must articulate his/her analysis at some minimal level and state his/her reasons for accepting or rejecting "entire lines of evidence," although he/she need not evaluate in writing every piece of evidence in the record. See Herron, 19 F.3d at 333; see also Young v. Secretary of Health and Human Services, 957 F.2d 386, 393 (7th Cir. 1992) (ALJ must articulate his/her reason for rejecting evidence "within reasonable limits" in order for meaningful appellate review); Guercio v. Shalala, 1994 U.S. Dist. LEXIS 2526, No. 93 C 323, 1994 WL 66102, *9 (N.D. Ill. 1994) (ALJ need not spell out every step in his/her reasoning, provided he/she has given sufficient direction that the full course of his/her decision may be discerned), (citing Brown v. Bowen, 847 F.2d 342, 346 (7th Cir. 1988)).
The Social Security regulations prescribe a sequential five-part test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520 (1994). The ALJ must consider: (1) whether the claimant is presently unemployed; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the claimant's impairment meets or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) whether the claimant is unable to perform his past relevant work; and (5) whether the claimant is unable to perform any other work existing in significant numbers in the national economy. Id.; see also Young, 957 F.2d 386, 389. A finding of disability requires an affirmative answer at either step 3 or step 5. A negative answer at any step (other than step 3) precludes a finding of disability. Id. The claimant bears the burden of proof at steps 1-4, after which the burden shifts to the Commissioner at step 5. Id.
In the instant case, the ALJ found that the Plaintiff satisfied his burden of proof as to steps 1, 2, and 4. The ALJ also found, at step 3, that Plaintiff failed to demonstrate any impairment that met or equalled the requirements in the listing.
Moving to step 5, the ALJ found that Plaintiff was capable of performing work which exists in significant numbers in the national economy. The ALJ's analysis at step 5 typically involves an evaluation of the claimant's Residual Functional Capacity ("RFC") to perform a particular category of work (i.e. sedentary, light, medium, heavy or very heavy work), in combination with an application of the Medical-Vocational Guidelines ("the Grid") to determine whether an individual of the claimant's age, education, and work experience could engage in substantial gainful activity. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1994).
The Grid is a chart which classifies a claimant as disabled or not disabled, based on the claimant's physical capacity, age, education, and work experience. Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). The Grid was promulgated to simplify the process, and improve the consistency, of disability determinations. Id. If the use of the Grid is appropriate, the Commissioner may rely upon it for determining disability, and, in such a case, the Grid alone constitutes substantial evidence sufficient to uphold the decision of the Commissioner. Id. However, use of the Grid may be inappropriate if the claimant suffers from severe non-exertional impairments which prevent the claimant from performing the work indicated by the Grid. Id. at 640-41. Thus, if non-exertional impairments are severe enough, use of the Grid is not appropriate and the courts will reverse a determination of non-disability based on the Grid. Id. at 641.
The determination as to whether use of the Grid is appropriate is a question of fact, and the ALJ's use of the Grid will be upheld if substantial evidence supports its application. Walker, 834 F.2d at 641. The fact that a claimant suffers from a non-exertional impairment does not automatically preclude utilization of the Grid; in such a case, the ALJ must determine whether the claimant's non-exertional impairments are severe enough to substantially limit the claimant's abilities. Id. "To uphold the ALJ's finding that grids may be used in a given case, we require only 'that there be reliable evidence of some kind that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities otherwise available.'" Id. (citing, Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986).)
Finding that Plaintiff is unable to lift or carry more than five pounds, that he should not perform work which requires him to bend or stoop, and that he should be allowed to change positions occasionally while working, the ALJ found that he is relegated to the performance of sedentary work.
Noting that Plaintiff was then 46 years old and illiterate in English, and that his past work was classified as "semiskilled", but that he had not acquired any skills that could be transferred to sedentary work, the ALJ opined that neither Grid Rule 201.17, which would direct a finding of "disabled", nor Grid Rule 201.19, which would direct a finding of "not disabled", should be applied. Instead, she used those rules as a framework for her decision, as authorized by 20 C.F.R. pt. 404, subpt. P, app. 2, Section 200.00(d) (1994), and, pursuant to 20 C.F.R. 404.1566(e), had a vocational expert testify at the hearing. The vocational expert testified that there are a significant number of jobs in the economy that Plaintiff can perform. The vocational expert testified that there are approximately 2,000 jobs in the Chicago metropolitan area that Plaintiff can perform, even with the restrictions found by the ALJ. (R. at 60.) The ALJ cited these jobs in finding that Plaintiff is not disabled. (R. at 14.)
The ALJ found that Plaintiff could not perform a full range of sedentary work because of her finding that he could not lift more than five pounds, his need to avoid bending and stooping and his need to be able to change positions occasionally. (R. at 15.) Because of these further limitations on performing sedentary work, the ALJ found that use of the Grid was inappropriate, since Plaintiff's specific vocational profile is not covered by the Grid. It was the ALJ's finding that Plaintiff could not perform a full range of sedentary work--a finding which was favorable to Plaintiff and with which Plaintiff agrees--which caused the ALJ not to rely on the Grid and which necessitated the testimony of the vocational expert. The vocational expert's testimony was not favorable to Plaintiff.
However, Plaintiff now argues that the ALJ committed error by not using the Grid,
since its use would have been to Plaintiff's advantage. Plaintiff's Memorandum in Support of Motion for Summary Judgment ("Pl's. Mem. in Supp.") at 3-4; Plaintiff's Answer to Defendant's Counter-Motion for Summary Judgment ("Pl's. Answer to Counter-Motion").
In this regard, Plaintiff cites two examples set forth in Section 201.00(h) of 20 C.F.R. pt. 404, subpt. P, app. 2, ("Section 201.00(h)") in which hypothetical individuals who cannot perform the full range of sedentary work--though younger individuals--may be found disabled. Neither of these examples is applicable here. The second example cited in Section 201.00(h), and the one urged by Plaintiff, involves a younger, illiterate, mildly mentally-retarded individual, whose past work consisted of unskilled agricultural field work, which he can no longer perform, and who is now unable to perform the full range of sedentary work. Because of the adverse factors (illiteracy, with mild mental retardation, and an unskilled prior work background) which further narrow the range of sedentary work for which such an individual is qualified, a finding of "disabled" would be "appropriate."
Apparently because of Plaintiff's complaints of pain and the limitations caused thereby, along with her finding that he could not lift more than five pounds--which is less than the minimum exertional level for sedentary work--the ALJ decided that use of the Grid in this case was inappropriate. The determination as to whether use of the Grid is appropriate in a given case is itself a question of fact, and such determination will be upheld so long as substantial evidence supports that determination. Walker v. Bowen, 834 F.2d at 641. There is no requirement that an ALJ's decision to apply or not apply the Grid be determined by which decision would be most favorable to a claimant. Moreover, as set forth above, had the ALJ chosen to apply a Grid rule, the most appropriate rule would have been Rule 201.19, since both the vocational expert at the hearing and Ms. Hoiseth agree that Plaintiff's past relevant work was semiskilled, rather than unskilled, and Ms. Hoiseth states that he acquired no skills that would be transferable to other work. (R. at 56, 154.) Had the ALJ applied this rule, which mandates a finding of "not disabled", she would have committed reversible error because of her finding that Plaintiff cannot perform the full range of sedentary work because he can lift only five pounds, cannot bend or stoop, and because of his need to change positions occasionally. Accordingly, the Court concludes that the ALJ's decision not to apply the Grid or Section 201.00(h) but, instead, to utilize the testimony of a vocational expert, is supported by substantial evidence. Therefore, her decision in this regard is upheld.
Plaintiff contends that the ALJ's reliance on the vocational expert's testimony--which was elicited by posing three hypothetical questions--that there are 2,000 jobs which are "available" to Plaintiff was erroneous. In this regard, Plaintiff asserts that the factual basis for the vocational expert's opinion does not fit the actual facts ultimately found by the ALJ. Pl's. Mem. in Supp. at 3. In her "findings", the ALJ found that Plaintiff is "considered to be illiterate in English for purposes of this decision." (R. at 15.) In posing her hypothetical questions to the vocational expert, however, she asked him to assume that Plaintiff "speaks and understands some functional English but is not fluent." (R. at 57.)
Plaintiff testified that he speaks and understands "a little bit" of English, (R. at 32), and Ms. Hoiseth found that he understands some English but, "considers himself to be primarily Spanish-speaking." (R. at 150.) For purposes of her analysis, however, Ms. Hoiseth found that Plaintiff, "appears to be functionally illiterate and unable to communicate effectively in English." (R. at 156.) Carol Solander Barnes, who was Plaintiff's Vocational Rehabilitation Counselor, states that he, "does speak functional English", (R. at 285, 287-288, 290), although he does not read or write, (R. at 284).
By all accounts, including Plaintiff's testimony, he is able to communicate in English, although the effectiveness thereof is questionable. Considering the testimony of Plaintiff and the reports of Ms. Hoiseth and Ms. Barnes, the ALJ's direction to the vocational expert that he assume that Plaintiff speaks and understands some functional English, but that he is not fluent therein, is supported by the record. Her finding that Plaintiff is illiterate--unable to read and write--in English is also supported by the record.
Careful review of the record reveals that the ALJ's final hypothetical was of a 46-year-old individual with a fourth-grade education; who speaks and understands some functional English but is not fluent therein; who has the same semi-skilled past work history as Plaintiff; who can lift and carry no more than five pounds; who cannot bend or stoop; who has some difficulties with concentration, so that he is unable to perform jobs that require more than moderate levels of concentration; and who would need to be able to change positions occasionally. The vocational expert, in citing the 2,000 jobs that such an individual could perform, interpreted the term "occasionally", as used by the ALJ, as the ability to change positions every 30 to 45 minutes. (R. at 57-60.) The part of the hypothetical question relating to the ability to sit for one hour before needing to change positions, and the ability to perform light work, clearly related to the first and second hypotheticals, neither of which the ALJ accepted. (R. at 57-58.) Moreover, the ALJ specifically rejected Plaintiff's testimony that he needs to change positions every hour. (R. at 13.)
Therefore, the ALJ's decision in this regard is supported by substantial evidence in the record.
Plaintiff asserts that, had the ALJ included in the hypothetical the fact that he is illiterate in English, this would have eroded the job numbers produced by the vocational expert. Pl's. Answer to Counter-Motion. He then goes on to cite a job title listed in the U.S. Department of Labor's Dictionary of Occupational Titles ("DOT") and the description thereof, and argues that the reading, writing and speaking requirements of that job title are beyond his capabilities. With respect to the other two job titles--assembly and inspection work--Plaintiff emphasizes that the vocational expert used the words "assembly work" and "inspecting work" and argues that these are "areas" of work, not jobs. Plaintiff then cites many job titles listed in the DOT and wonders whether the vocational expert was referring to these jobs in his testimony. He asserts that, had the vocational expert cited any of these specific jobs, Plaintiff could have shown that he was unable to perform any of them. Pl's. Answer to Counter-Motion. Without engaging in semantical exercises regarding job "titles" and "areas" of work, the Court notes that Plaintiff was represented by counsel at the hearing and that, when offered an opportunity to cross-examine the vocational expert regarding these matters, counsel declined to do so. (R. at 60.)
In articulating her reasons for discrediting Plaintiff's testimony regarding the limitations placed on him by his back problems, the ALJ noted that two examining physicians had indicated that Plaintiff appeared to exaggerate his symptoms during their examinations, and that there were some questions as to his motivation to work. (R. at 13, 284-294.) The ALJ noted Plaintiff's testimony and reports that he basically does nothing at home, and that he even needs assistance in dressing. She noted further, however, that Plaintiff returned to work after his initial injury, and that he was able to work--albeit at a lighter job--until he was laid off for non-medical reasons. (R. at 13.) The Court notes in this regard that, of all the doctors who have examined Plaintiff--whether at the request of his worker's compensation carrier, his worker's compensation attorney or the commissioner--none has opined that he is unable to perform any work whatsoever. The only arguable exception is Dr. Coe, who examined Plaintiff once, at the request of his worker's compensation attorney, and concluded that, "he would be unlikely to find employment in the current labor marketplace". . .and that "[he] is permanently and totally disabled for industrial purposes." (R. at 244.) This opinion, by a non-treating physician, was inconsistent with that of Dr. Goldflies, Plaintiff's treating physician.
The Court also notes the testimony of Plaintiff and his wife, as well as notations in Plaintiff's medical records, that he seeks work on almost a daily basis and that he can work in an appropriate job. (R. at 39, 44.) Dr. Goldflies, Plaintiff's primary treating physician, has not precluded him from all work and, with the exception of the February 16, 1995 letter, has opined that he can lift from 20 to 30 pounds, but that he should avoid bending and stooping.
Finally, the medical records do not indicate that Plaintiff's condition has deteriorated since his layoff, to the extent that he is now unable to even dress himself. The ALJ properly discredited Plaintiff's assertions in this regard. (R. at 13.)
Finally, Plaintiff asserts that, even accepting the vocational expert's testimony that there are 2,000 jobs in the Chicago regional economy which Plaintiff can perform, that number is not a "significant" number, considering the total population of the area. Pl's. Mem. in Supp. at 4, Pl's. Answer to Counter-Motion. In support of this argument, Plaintiff cites Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir. 1993), wherein the Seventh Circuit found that 1,400 jobs in the Milwaukee, Wisconsin area constituted a significant number of jobs. Asserting that the Milwaukee area then had a total job market of 750,000 and that the Chicago job market to which the vocational expert referred has a total job market of 6,500,000,
Plaintiff predicts that the Seventh Circuit would not find the existence of less than 12,133 jobs in the Chicago area to be significant. Pl's. Mem. in Supp. at 4, Pl's. Answer to Counter-Motion.
The Court notes that, in Lee, the Seventh Circuit cited several cases from other circuits in which it was found that between 174 jobs and 1,350 jobs constituted significant numbers. More importantly, however, the Lee court cited Nix v. Sullivan, 744 F. Supp. at 863, in which the district court found the existence of 675 jobs to be a significant number of jobs in a regional area, and which it affirmed. Lee, 988 F.2d at 794. Accordingly, the Court finds that the 2,000 jobs to which the vocational expert testified constitute a significant number of jobs.
For the reasons set forth above, the Court finds that the Commissioner's decision that Plaintiff, despite his severe impairments, retains the residual functional capacity to perform a significant number of jobs which exist in the regional economy and is, therefore, not disabled, is supported by substantial evidence in the record.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment be, and the same hereby is, denied.
IT IS FURTHER ORDERED that the Commissioner's Cross-Motion for Summary Judgment be, and the same hereby is, granted.
Dated: November 14, 1997
United States Magistrate Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the Court finds that the Commissioner's decision that Plaintiff, despite his severe impairments, retains the residual functional capacity to perform a significant number of jobs which exist in the regional economy and is, therefore, not disabled, is supported by substantial evidence in the record.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment be, and the same hereby is, denied.
IT IS FURTHER ORDERED that the Commissioner's Cross-Motion for Summary Judgment be, and the sambe hereby is, granted.