KENNETH SCHECK, Plaintiff-Appellant, v. JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 03-2107
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 21, 2003—DECIDED FEBRUARY 5, 2004
Before BAUER, and DIANE P. WOOD, and EVANS, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 4902—Charles R. Norgle, Sr., Judge.
In December of 1983 Scheck began experiencing back problems. That same month, he undеrwent anterior cervical fusion surgery to correct a herniated cervical disc. More than four years later, Scheck visited the Mayo Clinic for problems with shortness of breath, rising blood pressure, and difficulty walking, and bending. The results from the tests conducted at the Mayo Clinic were within normal limits. In April оf 1993, Scheck was again admitted to the hospital with severe back pain and right leg pain. MRIs and CT scans were performed and ultimately, Scheck underwent a decompressive laminectomy. Scheck‘s date of last insured fell on December 31, 1994. There exists no other objective medical evidence until 1997. However, as this evidence deals with Scheck‘s condition after his date last insured, it will not be reiterated here.
Scheck filed for disability insurance benefits on November 13, 1997. His claim was heard by ALJ Jan E. Dutton who found him to be capable of performing his former job as a distribution warehouse manager. The Social Security Administration‘s Appeals Council denied Scheck‘s appeal. Therefore, the ALJ‘s decision was the final decision of the Commissioner of the Social Security Administration. Scheck filed suit in the district court, naming the Commissioner of the Social Security Administration, Jo Anne Barnhart, as defendant. See
DISCUSSION
Standard of Review
“The standard of review in disability cases limits this court as well as the district court to determining whether the
Statutory Framework
In order to determine whether an individual is entitled to disability insurance benefits, the ALJ must engage in a sequential five-step process which establishes whether or not the claimant is disabled. The claimant must show that: (1) he is not presently employed; (2) his impairment is severe; (3) his impairment is listed or equal to a listing in
Impairment Meets or Equals a “Listing“—Step 3
Scheck argues that the ALJ erred in not finding him disabled under section three of the five-step test. He claims thаt his back condition equals a listing entitled “other vertebrogenic disorders.” See
ALJ‘s Duty to Minimally Articulate
Scheck next argues that the ALJ failed in her duty to “minimally articulate his or her justification for rejecting or accepting specific evidence of disability.” Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988) (internal citations removed). However, “he or she nеed not provide a written evaluation of every piece of evidence that is presented.” Id. We find that the ALJ satisfied this duty to articulate.
At step three of the sequential evaluation process, the undersigned [ALJ] must consider whether the Claimant‘s impairments, either singly or in combinаtion, revealed the same or equivalent attendant medical findings as are recited in Appendix 1 to Subpart P of the Social Security Administration‘s Regulations No. 3, otherwise known as the “listings.” In the instant case, the Claimant has not contended that his medically determinable impairments met or equalеd the “listings,” and the record contains no evidence which would support such a finding.
(Br. of Plaintiff-Appellant at A-7.)
Scheck claims that “[t]he ALJ‘s terse statement does not comply with the duty to ‘minimally articulate’ a conclusion that the record contains ‘no evidence.‘” (Br. of Plaintiff-Appellant at 23.) The argument can be dispоsed of by referring to Steward v. Bowen.
In the present case, Steward did not present any substantial evidence to contradict the agency‘s position on the issue of medical equivalence. The opinions of Steward‘s treating physicians simply did not address this question. Thus, the ALJ did not reject specific evidenсe supporting Steward‘s position that her impairments meet or equal a listed impairment in favor of the contrary opinions of the Secretary‘s consulting physicians. It was therefore unnecessary for the ALJ to specifically articulate his reasons for accepting the consulting physicians’ opinions on the question of medical equivalency.
The Stewart panel‘s reasoning is quite applicable here. The ALJ did not reject any evidence. Like Stewart, there
SSR 83-20: Onset Date
Scheck claims that the ALJ violated SSR 83-20 by not consulting a medical expert in ordеr to determine the onset date of his alleged disability. He argues that medical evidence from after his date last insured can be related back to the relevant time period to show disability. After wading through the record and reviewing the relevant case law, we find Scheck‘s arguments relating to onset date to be misplaced. SSR 83-20 addresses the situation in which an administrative law judge makes a finding that an individual is disabled as of an application date and the question arises as to whether the disability arose at an earlier time. See, e.g., Lichter v. Bowen, 814 F.2d 430, 434 (7th Cir. 1987); Campbell v. Chater, 932 F. Supp. 1072, 1075 (N.D. Ill. 1996); SSR 83-20. The ALJ did not find that Scheck was disabled, and therefore, therе was no need to find an onset date. In short, SSR 83-20 does not apply.
Residual Functioning Capacity—Steps 4 and 5
Having failed at step three, Scheck must show that he has insufficient residual functioning capacity to perform his past work. Stevenson, 105 F.3d at 1154. In making such a determination, the ALJ must consider whether there is an underlying “determinable physical or mental impairment that could reasonably be expected to produce the symptoms.” SSR 96-7p. Once this has been established, the ALJ
In this case, the ALJ found that Scheck‘s medically determinable impairments could reasonably be expected to produce the type of symptoms discussed during the course of his testimony. Thus, she moved on аnd assessed the credibility of Scheck‘s testimony by looking at the objective medical evidence, the claimant‘s testimony, and a letter from Scheck‘s surgeon. She first addressed the objective medical evidence and noted that “there is a dearth of documentary medical evidence concerning Mr. Scheck‘s symptoms and treatment from June 2, 1989, his alleged onset date, to December 31, 1994, his date last insured, and in particular from June 2, 1989 to April 14, 1993, the date of his second surgery.” (Br. of Plaintiff-Appellant at A-10.) It is axiomatic that the claimant bears the burden of supplying adequate records and evidence to prove their claim of disability. See
While it is true that the ALJ has a duty to make a complete record, this requirement can reasonably require only so much. As this court noted in Kendrick v. Shalala, 998 F.2d 455, 456 (7th Cir. 1993), “[t]he difficulty is that no record is ‘complete‘—one may always obtain another mеdical examination, seek the views of one more consultant, wait six months to see whether the claimant‘s condition changes, and so on. Taking ‘complete record’ literally would be a formula for paralysis.” Id. Nevertheless, the hearing transcript indicates that the ALJ attempted to make as complete a record as possible. Speaking about Scheck‘s attempts to obtain medical records from the Mayo Clinic, she said, “All right. I‘ll give you 30 days. If there is nothing received within 30 days I will make a decision based on which I—what I have, which as I have indicated already is not very much supporting an impairment prior to the date last insured. Okay?” (R. at 46) Scheck‘s attorney simply replied “very good.” (R. at 46) Clearly, Scheck was aware that the ALJ considered there to be “a dearth of documentary medical evidence” and cannot fault the ALJ for his own failure to suppоrt his claim of disability.
The ALJ next looked to the letter from Dr. Heiferman, Scheck‘s surgeon. The ALJ noted that the letter was dated January, 1999—about four years after Scheck‘s date last insured. It was further noted that the record contained no office notes or medical records from April 14, 1993, when Dr. Heifеrman performed surgery on Scheck, to December 31, 1994, Scheck‘s date last insured. Finally, it is not unheard of that a personal physician “might have been leaning over backwards to support the application for disability benefits.” Cummins v. Schweiker, 670 F.2d 81, 84 (7th Cir. 1982). We find no error in the ALJ‘s credibility determination. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
Finally, the ALJ addressed the credibility of Schеck‘s testimony and found it to be incredible. (Br. of Plaintiff-Appellant at A-12.) In doing so, she discussed much of the evidence that supported Scheck‘s claim of disability, including: Scheck‘s daily activities; the duration, frequency, and intensity of pain; precipitating and/or aggravating factors; dosage and effectiveness of medication; and the functional limitations placed on Scheck during the relevant time period. (Br. of Plaintiff-Appellant at A-9, 10.) She also addressed the objective medical evidence, as discussed above. (Br. of Plaintiff-Appellant at A-10 - A-12.)
“The absence of an objeсtive medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The other factors to be
Based on the above analysis, we hold that the ALJ did not err in finding that Scheck retained the residual functioning capacity tо perform his past work as a distribution warehouse manager. The ALJ considered the objective medical evidence and the claimant‘s testimony in order to determine how his impairment affected his ability to do basic work activities. We further hold that the ALJ used the proper procedurеs in making her findings.
Conclusion
While the members of this court sympathize with Mr. Scheck due to his condition, that condition did not rise to the level of a disability within the context of this case. Therefore, we find that the ALJ‘s decision was supported by substantial evidence. We AFFIRM.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—2-5-04