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SCHMIDT v. CALLAHAN

February 13, 1998

GEORGE W. SCHMIDT, Plaintiff,
v.
JOHN J. CALLAHAN, Acting Commissioner of Social Security, Defendant



The opinion of the court was delivered by: CASTILLO

 This is the plaintiff George W. Schmidt's second attempt in his long and unsuccessful quest to secure social security disability benefits in the federal courts. In his first appearance before this Court, Schmidt successfully obtained a remand. Schmidt v. Shalala, No. 94 C 5627, slip op. (N.D. Ill. Sept. 29, 1995) (" Schmidt I "). Schmidt seeks review of the defendant's final decision denying him disability insurance benefits pursuant to 42 U.S.C. § 405(g). In this action, Schmidt asks this Court to set aside the Commissioner's unfavorable disability determination and to award him attorney's fees. Alternatively, Schmidt requests a remand for further proceedings based upon the Administrative Law Judge's ("ALJ") errors. Schmidt's second appearance has not fared as well as his first because our review of the record indicates that we must affirm the ALJ's findings.

 Currently before the Court are the parties' cross-motions for summary judgment. See Fed. R. Civ. P. 56. In his motion, Schmidt asserts that he is entitled to summary judgment or remand because: 1) the ALJ erred when he failed to reopen the determination of the first application; 2) the ALJ improperly relied upon interrogatory answers of a medical expert whom the claimant was not permitted to cross-examine; 3) the ALJ's determination that Schmidt was not credible was based upon objective criteria and was erroneous; and 4) the ALJ's reliance upon certain evidence and rejection of other evidence constitutes reversible error. Conversely, the Commissioner contends that summary judgment in favor of the defendant is appropriate because the decision to deny benefits is supported by substantial evidence and the ALJ did not otherwise commit reversible error.

 FACTUAL HISTORY

 The following facts have been drawn from the Certified Copy of the Administrative Record ("R.") and this Court's unpublished opinion issued in Schmidt I. After graduating from college, Schmidt began working at Montgomery Ward as a store manager in 1954. In 1968, Schmidt joined the Singer Company as the marketing manager for North America. (R. 1177). When he left in 1972, he was vice president of Singer's operations in Europe, the U.S., and Canada. The DuPlan Corporation, a New York Stock Exchange textile company, then hired Schmidt as president and C.E.O to oversee the company's downsizing efforts. (R. 1178). DuPlan fired him two years later, with three years remaining on his five-year contract. (R. 1178).

 Schmidt returned to Montgomery Ward as a store manager in 1974. Schmidt acknowledged that his new position was something of a demotion, but he was apparently unconcerned with this reduction in stature, recalling that he "could do the work in my hip pocket." Schmidt was promoted to district manager, and then senior vice-president for Wards. (R. 165-169, 172). He stated that in his various positions, he established selling policies, and made real estate, financial, employment, and personnel decisions. (R. 173). In 1981, Schmidt retired from Wards at the age of 56, either because his employer strongly suggested such a course of action (R. 830, 834), or because of his poor health (R. 171), or some combination of these factors. *fn1"

 On October 17, 1986 *fn2" , Schmidt filed his first application for benefits under the Act, alleging disability with an onset date of March 28, 1996. After initial and reconsidered denials, Schmidt requested a hearing before an ALJ. The request was granted and Schmidt's hearing was held on October 8, 1987. ALJ John Mondi issued a decision denying Schmidt's application for benefits on January 29, 1988. (R. 221-28). The Appeals Council denied Schmidt's request for review on May 19, 1988 (R. 306-07). Schmidt appealed to the Federal District Court and then the Seventh Circuit Court of Appeals. Both courts upheld the ALJ's denial of benefits. See Schmidt v. Sullivan, No. 88 C 4964 (N.D. Ill. May 19, 1989); Schmidt v. Sullivan, 914 F.2d 117 (7th Cir. 1990), cert. denied, 502 U.S. 901, 116 L. Ed. 2d 230, 112 S. Ct. 278 (1991).

 On December 7, 1989, Schmidt filed his second application for benefits, alleging the same onset date of March 28, 1986. (Schmidt I at 3,4). His new application, however, contained evidence of a psychological impairment, and additional documentation of his heart condition. His claim was denied initially and upon reconsideration, after physicians and disability examiners for the state agency determined that he was not disabled. Id. Schmidt then requested and received a second hearing, which was held before ALJ Arthur Adler on March 19, 1991. Id. ALJ Adler denied Schmidt's request for benefits on January 22, 1992. Id. The Appeals Council, however, remanded the case on July 26, 1992, providing the ALJ with specific instructions for reviewing Schmidt's claim. Id..

 On remand, a supplemental hearing was held before ALJ Irving Stillerman on April 20, 1993. In a pattern that must have been all too familiar to the claimant, ALJ Stillerman denied Schmidt's application for benefits in a decision dated October 14, 1993. Id. The Appeals Council then denied Schmidt's request for review, rendering ALJ Stillerman's ruling the final decision of the Commissioner. (R. 5-6). Undeterred, Schmidt appealed the determination to this Court for review. Schmidt claimed that ALJ Stillerman erred in refusing to reopen the case in light of "new and material evidence" and that ALJ Stillerman's disability determination was not based upon substantial evidence.

 This Court rejected Schmidt's contention that ALJ Stillerman erred in refusing to reopen his case, finding that Schmidt failed to sustain his burden of demonstrating an error of law "so clear and arbitrary as to amount to an abuse of discretion." Schmidt I at 26-27 (quoting Butterick Co. v. Will, 316 F.2d 111, 113 (7th Cir. 1963)). However, we remanded the action due to ALJ Stillerman's failure to consider Schmidt's entire medical history. Specifically, this Court found that ALJ Stillerman's opinion did not adequately address the psychological and emotional components of Schmidt's condition, and did not properly reference Schmidt's angina pain in the assessment. In addition, we directed the ALJ on remand to determine whether the newly tendered evidence was in fact "new and material" so as to justify not affording the previous rulings denying benefits res judicata effect.

 Following remand, a hearing was held before ALJ Edward L. Kohler on May 2, 1996. At the hearing, Vocational Expert ("VE") Sally Hart testified that the plaintiff was capable of performing a number of low-stress jobs readily available in the local economy. VE Hart explained that the plaintiff could transfer skills acquired in his previous positions to the jobs of cashier, payroll clerk, billing clerk, accounting clerk, appointment clerk, or information clerk. Schmidt interjected that he did not have direct experience with record keeping, accounting, payroll, etc. (R. 1243-44). Schmidt explained that he went right into management, and that he looked only "at the bottom number . . . . Somebody puts those together, I look at the bottom line. . . . I look at how factories are going. I deal with labor negotiations. I don't do payroll." (R. 1244).

 On cross-examination, VE Hart acknowledged that Schmidt could not do any of these jobs if he experienced back pain after 20 to 40 minutes, which would require 5 to 15 minutes of stretching to alleviate. (R. 1238-39). VE Hart agreed that if Schmidt was able to concentrate for only 30 to 45 minutes, requiring a 5 to 10 minute break to regroup, he was not qualified for these positions (R. 1239-40). Specifically, VE Hart stated that if Schmidt had a limited ability to maintain attention and concentrate, whether caused by fatigue, or a mental or psychological impairment, such a condition "would preclude any employment." (R. 1228-29).

 The ALJ then heard the testimony of James Miller, a Certified Rehabilitation Counselor. Miller attempted to rebut VE Hart's testimony by explaining that all of the jobs VE Hart listed were in the Clerical and Kindred industry, not the Retail industry. Because Schmidt's experience was within the Retail industry, Miller reasoned that Schmidt's job skills were irrelevant to the jobs listed by VE Hart. (R. 1128). Miller conceded, however, that jobs within the retail industry carried varying levels of stress.

 On November 23, 1996, ALJ Kohler issued his opinion. ALJ Kohler noted that Schmidt had acquired enough credits to receive insurance until December 21, 1989. After reviewing the evidence, ALJ Kohler concluded that giving the original benefits determination res judicata effect was unwarranted. However, ALJ Kohler found that, based upon the first application dated September 29, 1986, none of Schmidt's impairments or a combination thereof constituted a disability. Kohler stated that he believed Schmidt exaggerated his alleged symptoms, and therefore discounted certain conclusions reached by his examining physicians. Ultimately, Kohler determined that while Schmidt was unable to return to his previous employment, he could perform a number of jobs that existed in the marketplace.

 On January 7, 1997, the Appeals Council stated that the ALJ's decision would become the Commissioner's final administrative decision. (R. 808). Schmidt filed a timely Complaint for Judicial Review of the Commissioner's final decision February 10, 1997.

 Medical History

 The medical records presented to ALJ Kohler were extensive and included the following medical data and diagnostic results.

 Hospital Records from Northwestern Memorial Hospital, Dr. Lee F. Rogers, dated 12-20-84.

 Dr. Rogers interpreted the Diagnostic Radiology Report and determined that

 
Two views of the chest show the heart to be of normal size. There was a tortuous ascending and descending aorta. The pulmonary vascularity is normal. The lung fields are free of infiltrate and effusion. There is a granuloma seen in the right mid lung field. There is an area of what appears to be pleural thickening at the lateral portion of the right mid chest wall around the fourth rib. (R. 407).

 Office and Hospital Records of Dr. Martin Brandfonbrener, Schmidt's cardiologist from 9-17-84 to present.

 According to Dr. Brandfonbrener's testimony, "in 1984, [Schmidt] had occasional central substernal pain associated with left arm soreness; this occurred playing handball, requiring him to slow down." (R. 793) Upon examination, Dr. Brandfonbrener determined that Schmidt suffered from hypertension, coronary atherosclerosis, and possible peripheral arteriosclerosis. (R. 498-99). On August 27, 1984, plaintiff underwent a stress test that showed

 
He had achieved a pulse rate of 160, at which point he developed shoulder pain and fatigue and the stress test was terminated due to those symptoms. He has some isolated atrial premature beats. The electrocardiogram was read as consistent with ischemia despite functional capacity being above average. The blood pressure response, however, was excessive rise in blood pressure [sic] during exercise. At the termination of the exercise, his blood pressure was 20 over 120 millimeters of mercury. It was thought at that time, that the combination of his high blood pressure and coronary problems led to angina with electrocardiographic confirmation. (R. 793-94).

 On December 21, 1984, plaintiff underwent a coronary arteriogram which found the left coronary artery to be normal and the right coronary artery to have "three sequential 30% obstructions." (R. 794). In addition, the arteriogram led Dr. Brandfonbrener to conclude that

 
The proximal left anterior descending coronary artery had less than 30% but the mid-segment had 50-60% and the lesion was quite long. Toward the distal end of the plaque, the narrowing in the left anterior descending artery was 60% and the disease involved a narrowing of the second diagonal artery. The circumflex coronary artery had a 30% obstruction and the left ventricular angiography showed a suggestion of left ventricular hypertrophy. (R. 794).

 At this time plaintiff was treated with anti-anginals and blood pressure medication.

 In September of 1986, plaintiff underwent a cerebral angiogram "showing the right carotid occlusion of about 80%. (R. 794). At this time, plaintiff was complaining of angina, mostly at rest, occurring twice a week." (R. 794). The physical examination indicated plaintiff had developed a "fourth heart sound as well as a Grade 1 systolic apical murmur" as well as a blood pressure level of 160 over 100. (R. 794). The doctor placed Schmidt on blood thinner, Cardizem, and Persantine to treat his condition. On September 19, 1986, plaintiff had a thallium stress test in which

 
Patient achieved 84% of his maximum predicted heart rate. Stress images reveal a questionable area of decreased apical perfusion noted only on the anterior view. Redistribution images reveal a similar pattern of distribution of perfusion, with again a question of slight improvement in this apical region. Compared with the previous study dated 8/27/84, there has been no significant interval change. IMPRESSION: Thallium myocardial perfusion study without definite evidence of exercise-induced ischemia. (R. 554).

 In reviewing the results of this stress test, Dr. Brandfonbrener noted that plaintiff's functional capacity "has remained above average due to his long history of high level physical activity in which he engaged prior to developing his illness." (R. 795).

 Dr. Brandfonbrener said, though documentation of the actual test is absent in the record, that plaintiff had a repeat Thallium treadmill test on July 30, 1987, which showed plaintiff as suffering from

 
A clear lack of blood supply, or ischemia, and there was a resting hypertension of 162 over 108 before the exercise started which rose to a maximum systolic of 206 and a maximum diastolic of 116. Thallium showed apical defect with definite redistribution meaning an apical infarct or apical thinning. (R. 795-96).

 In August of 1987, plaintiff saw Dr. Brandfonbrener due to complaints of chest tightness, occurring several times a week, usually at the start of exercise and similar to his prior chest pain. (R. 594, 795). At this visit, the doctor recorded that plaintiff suffered from central substernal discomfort, lasting five to six minutes, when discussing an ill family member. (R. 594, 795). Schmidt's blood pressure was elevated to 140 over 96; there was irregular heart rhythm, and there was an "S4 and a grade One-half over six systolic murmur." (R. 594, 795).

 When Dr. Brandfonbrener saw Schmidt on February 16, 1988, one day after plaintiff had lost consciousness after playing handball and was taken to the Holy Family Hospital Emergency Room, (R. 566), Schmidt's blood pressure was 138 over 86; he had a "fourth heart sound, regular rhythm and a Grade 1 systolic apical murmur." (R. 796). In March of 1988, plaintiff complained of having "trouble organizing his thoughts and financial affairs which produced a sensation of high blood pressure." (R. 796). His blood pressure was 108 over 66 and the physical examination "revealed some edema; there was regular rhythm and the lungs were clear." (R. 796).

 In March of 1989, Schmidt reported less frequent angina, but worse pain, mostly at rest. (R. 589, 797). Plaintiff claimed to continue to playing handball, but at a less vigorous pace, with marked episodes of fatigue. (589, 797). His physical examination showed his blood pressure "well controlled" at 106 over 76. (R. 589, 797). While plaintiff complained of dizziness, disorientation and slight lightheadedness at times in June of 1989, his blood pressure remained controlled at 112 over 78. (R. 588, 797). In November of 1989, plaintiff was seen two times due to an increase in the frequency of his angina and complaints of "shortness of breath on attempting handball, the inability to walk fast, some nighttime cough, some mild edema and lightheadedness with some disorientation." (R. 586-87, 797). Schmidt's blood pressure was 142 over 94, rhythm was regular, the lungs were clear, and there were no murmurs or extra heart sounds. (R. 586, 797). This time, however, plaintiff complained of chest pains "on effort" rather than at rest; therefore, Dr. Brandfonbrener scheduled another thallium stress test. (R. 586, 797). The results of the stress test were as follows:

 
The patient achieved 86% of maximum predicted heart rate. Compared to the prior study of 1-5-89, there is again noted a subtle, predominantly fixed defect involving the inferolateral region. On the current examination, there is also a suggestion of mild reversible ischemia in the low anteroseptal and apical region, somewhat better visualized on the planar images. There is abnormal wash-out in this region, representing interval change compared to the prior examination. (R. 427).

 On February 14, 1990, Dr. Brandfonbrener noted that Schmidt's symptoms had changed. (R. 585, 797). "The tightness in his chest would last for one to two hours, and involve the entire front portion of the chest bilaterally. It was less on effort and more on worry and frustration." (R. 797). On March 4, 1990, Dr. Brandfonbrener recorded in the patient progress notes that "stress sets him [Schmidt] off - TIAs X2." (R. 584). Due to the change in symptoms, Schmidt underwent a repeat heart catheterization on March 8, 1990. (R. 454-59, 797). The results of that test were as follows:

 
The right coronary artery had three successive lesions as previously noted, of 30% or less, and the acute marginal branch had at its origin 70% blockage. The proximal left anterior descending had 30% narrowing and, in the mid segment, along lesion with calcification was estimated to be 50%. The second diagonal had 30-35% narrowing and the circumflex had proximal 30% narrowing as well as first obtuse marginal branch showing 30% narrowing. There was possible left ventricular hypertrophy and a decrease in left ventricular compliance. (R. 797).

 Dr. Brandfonbrener again examined Schmidt in May of 1990. (R. 583). While the doctor's progress notes from that examination begin with the statement that Schmidt "Feels Better," (R. 583), he also recalls that plaintiff was having some questionable left parasternal discomfort, (R. 798). At this appointment, plaintiff's blood pressure was elevated to 150 over 100 with "regular rhythm and a fourth heart sound was again heard." (R. 798).

 In a Cardiac Report submitted to the Bureau of Disability Determination Services on May 17, 1990, Dr. Brandfonbrener stated that plaintiff suffered from chest pains "on emotional stress and physical activity," (R. 425), and that the precipitating factor to ...


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