*fn1,The opinion of the court was delivered by: Wood, Circuit Judge.,ROBERT S. FILUS, PLAINTIFF-APPELLANT, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE." />

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Robert S. Filus v. Michael J. Astrue

September 7, 2012 *fn1

ROBERT S. FILUS, PLAINTIFF-APPELLANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:11-CV-00106-Roger B. Cosbey, Magistrate Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.

SUBMITTED AUGUST 28, 2012

Before POSNER, ROVNER, and WOOD, Circuit Judges.

Robert Filus, a 50-year-old former truck driver, has twice applied for disability benefits under the Social Security Act, claiming that back problems have left him incapable of gainful employment. An administrative law judge concluded that Filus could perform some light work and denied his most recent application. Because substantial evidence supports the ALJ's decision, we affirm the denial of benefits.

Filus first applied for disability insurance benefits and supplemental social security income in December of 1997, claiming that he had been disabled by back pain since August 1996 because of a car accident. See 42 U.S.C. §§ 423(d), 1382c(a)(3). After a hearing, the Commissioner found that Filus could perform a restricted range of light work and denied his application in October 1999. Filus did not appeal.

Four years later, in 2003, Filus applied for benefits again, asserting that new evidence showed that since 1996 his back pain disabled him. In 1999 he had visited a neurologist, Dr. Steven Schroeder, who observed that Filus had limited range of motion in his lower back and decreased sensation in his left leg. Then in 2004 Filus met with Dr. Rudy Kachmann to treat him for his lower back pain. An MRI suggested degenerative disc disease and mild disc bulges. Dr. Kachmann described Filus as "disabled" with "failed back syndrome" (a term that refers to persistent back pain after surgery, though Filus had not had surgery) and recommended that Filus attempt "job retraining for light work." Four months later two state-agency physicians concluded differently. They thought that Filus could perform medium work; frequently climb, balance, or stoop; and occasionally kneel, crouch, crawl, or climb ladders, ropes, and stairs.

At a hearing on his application in 2007, Filus testified that he could complete housework, prepare simple meals, feed the birds in his yard, and climb stairs for 10 or 15 minutes at a time. He also testified that he walked his dogs for five minutes three times a day, went shopping, drove occasionally, and visited his parents twice a month. Filus rated his pain at three out of ten on the day of the hearing and acknowledged that he could work if he "took a lot of pain pills and the steroids" but stated that he did not use pain medication.

After the hearing, the ALJ engaged another medical examiner, who concluded that Filus had no limitations in standing, walking, reaching, handling, feeling, or fingering. The examiner, Dr. Venkata Kancherla, observed that Filus could walk with a normal gait, recline flat, sit up, squat, and get on and off the exam table unassisted. He found that Filus had limited range of motion in his lower back and painful range of motion in his hips but normal sensation, reflexes, and muscle strength. Dr. Kancherla also found that Filus could lift and carry 20 pounds frequently; occasionally climb, kneel, crouch, crawl, or stoop; push and pull with his legs with some limitation; and stand, walk, and reach.

The ALJ ruled that Filus was not disabled and denied his application for benefits, but the Appeals Council remanded the case for the ALJ to consider updated treatment records and the limiting effects of Filus's symptoms. The additional evidence consisted of another opinion from Dr. Kachmann, to whom Filus had returned for a second visit. Dr. Kachmann wrote that Filus could sit or stand (or combine the two) for a maximum of 30 minutes. Filus could not frequently alternate positions; could only occasionally kneel, crawl, crouch, or bend; and could never climb ladders, ropes, or scaffolds. Dr. Kachmann diagnosed him once again with failed back syndrome, describing it as secondary to advanced lumbar degenerative disc disease.

Two non-treating physicians also examined Filus. The first, Dr. Kooros Sajadi, opined that Filus could sit, stand, and walk continuously for up to 2 hour stretches, with those stretches limited to 6 hours daily. He noted tenderness in Filus's lumbosacral area, and an x-ray revealed degenerative disc space narrowing and arthritic changes. He said that Filus could lift and carry 20 pounds continuously and 50 pounds occasionally; reach, push, pull, perform postural activities, and operate foot controls without limitation; and climb stairs, ramps, ladders, and scaffolds continuously. He diagnosed Filus with low back pain resulting from degenerative arthritis of the lumbar spine and degenerative disc disease. The second physician, Dr. James Owen, noted that Filus's strength, sensation, and coordination were normal, but that Filus cried during a range-of-motion test, got on and off the exam table with obvious discomfort, and experienced pain with squatting, walking on his heels and toes, and tandem walking. Dr. Owen diagnosed Filus with persistent back pain associated with L5 radiculopathy and concluded that he would have severe difficulty traveling, lifting, handling, and carrying. He recommended possible surgery.

Filus again appeared before an ALJ in 2009. He estimated that he could walk, stand, or sit for up to 30 minutes before he needed to change position to relieve pain. He also testified that epidural injections had relieved his lower back pain temporarily but that physical therapy was unavailing. According to Filus, stress and movement aggravated his pain, with sitting and rising from a seated position being particularly difficult. Filus also testified that he could get in and out of a truck (but not a car), lift (but not carry) a gallon of milk, do housework including sweeping and laundry, and that he regularly drove to the store for groceries and cigarettes.

A vocational expert testified that about 7,500 light, unskilled jobs were available to a person who had the residual functional capacity that the ALJ found for Filus: the ability to perform light work with an option to sit or stand at 30-minute intervals; frequently balance or stoop; occasionally kneel, crouch, crawl or bend; and avoid climbing ladders, ropes, and scaffolds. These jobs included positions as a booth cashier and bench assembler. The vocational expert acknowledged that no jobs were available to Filus if his pain were as severe as he claimed.

The ALJ found that Filus was not disabled and denied benefits. Applying the familiar five-step evaluation process, see 20 C.F.R. § 404.1520(a), the ALJ concluded that (1) Filus had not engaged in substantial gainful activity since his alleged onset date; (2) his degenerative disc disease was a severe impairment; (3) this impair- ment did not meet or medically equal the definition of any impairment listed in 20 C.F.R. pt. 404, subpt. P, App. 1; (4) Filus was incapable of performing his past work; and (5) he nevertheless had the residual functional capacity noted above.

The ALJ explained which opinions he had accepted and which he had discounted in reaching these conclusions and why. The ALJ rejected Dr. Kachmann's conclusion that Filus is "disabled," even though he is a treating physician, because that opinion is reserved to the Commissioner and in any case is inconsistent with "other substantial evidence in the record." The ALJ did not specify that evidence, but Filus himself agreed that by alternating between sitting and standing in 30-minute intervals, he could relieve his pain. The ALJ discounted Dr. Kachmann's conclusion that Filus was disabled because he had only limited contact with Filus: They met just twice over three years, and the ALJ described the second exam as "cursory" and lacking clinical testing. Finally, the ALJ explained, Dr. Kachmann diagnosed Filus with failed back syndrome even though Filus had never had back surgery. The ALJ also gave little weight to Dr. Owen's opinion that Filus has severe difficulties with common tasks because it was inconsistent with other ...


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