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United States District Court, Northern District of Illinois

January 30, 2003


The opinion of the court was delivered by: Zagel, Judge


Plaintiff, Allen Austin, seeks judicial review of a final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 416, 423. On February 1, 1995, Mr. Austin applied for DIB, alleging disability based on an injury to his back and cervical and lumbar stenosis. Mr. Austin's disability claim was denied and following a de novo hearing, ALJ Ewald L. Moerke, Jr. issued a decision finding that Mr. Austin was not disabled because he could perform a significant number of jobs in the national economy. On October 20, 1998, the Appeals Council denied Mr. Austin's request for review, thereby making the ALJ's decision the final decision of the Commissioner. Now, pursuant to 42 U.S.C. § 405(g), Mr. Austin seeks judicial review of the ALJ's decision. In order to be found disabled, Mr. Austin must demonstrate that his physical or mental limitations prevent him from not only doing his previous work, but any other kind of gainful employment existing in the national economy considering his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A). The findings of the Commissioner as to any fact that is supported by substantial evidence are conclusive. 42 U.S.C. § 405(g). Substantial evidence is more than mere scintilla, adequate to support a conclusion made by a reasonable mind. Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). Although I am to review the record in its entirety, I cannot substitute my judgment for the Commissioner's by reevaluating the facts or re-weighing the evidence to decide whether Mr. Austin is in fact disabled. Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). I am limited to determining whether the ALJ's findings are supported by substantial evidence and whether the ALJ applied the correct legal standards. Griffith v. Callahan, 138 F.3d 1150, 1152 (7th Cir. 1999), overruled on other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999).

Mr. Austin argues that the substantial evidence shows that he is in fact disabled and that there were no vocational jobs available to him. Mr. Austin also contends that because there were nonexertional limitations which restricted his employment opportunities, the ALJ's use of the grid is prohibited. Primarily, Mr. Austin asserts that the ALJ improperly disregarded the reports of Dr. Kasriel Tausk, the physician who examined Mr. Austin at the request of the state disability examiners, and Professor Irvin J. Roth, the vocational expert. It was Dr. Tausk's opinion that Mr. Austin could not sit for more than four hours and stand for one hour, and Professor Roth told the ALJ that there are no jobs for anyone whose work hours are so limited. Mr. Austin believes that clearly, the ALJ's decision cannot be based on substantial evidence in light of these assessments. Since Professor Roth's opinion was based on Dr. Tausk's assessment of Mr. Austin's work limitations, it is Dr. Tausk's opinions that are at issue. Mr. Austin admits that with respect to the other physicians who examined him, "none of these physicians reached any specific medical findings which materially differed with Dr. Tausk's findings." Thus, Mr. Austin's argument is that Dr. Tausk's findings, which are the only physician's opinions specifically addressing his work limitations, articulate the assessments of the other physicians with respect to his work limitations. However, to draw such inferences from the opinions of four other physicians is tenuous. After looking at the assessments of all physicians, it was the ALJ's determination that substantial evidence weighed against the restrictiveness of Dr. Tausk's opinion, and I find nothing in the record to indicate otherwise. It is undisputed that Dr. Tausk only examined Mr. Austin once, and while his report may have been the most detailed of all examining physicians, it is difficult to accept Mr. Austin's insistence that Dr. Tausk's opinion be given the most weight, particularly in light of the fact that Dr. Emily Chako, who was his treating physician, examined Mr. Austin 15 times. The allegedly clear significance of Dr. Tausk's opinion is also undermined by Mr. Austin's request for a second opinion after being examined by Dr. Tausk. Also, because Dr. Tausk is not a treating physician, his opinion cannot be given controlling weight. 20 C.F.R. § 404.1527(d).

Finally, briefly addressing Mr. Austin's argument that the ALJ did not consider the aggregate of his ailments, the record indicates that with respect to his hypertension, the condition was aggravated by Mr. Austin's non-compliance with his medication. Thus, while the ALJ should consider the cumulative effects of Mr. Austin's ailments, the ALJ also may consider Mr. Austin's own contribution to those effects, and the record does not indicate that the ALJ refused or failed to consider the aggregation of Mr. Austin's ailments. Because I find that the ALJ's findings are supported by substantial evidence, summary judgment is granted with respect to the Commissioner and denied with respect to Mr. Austin.


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