SILSBY v. APFEL, (C.D.Ill. 2000)

CUDMORE, MAGISTRATE JUDGE

The Plaintiff Lloyd Silsby appeals from the Social Security Administration's (SSA) final decision denying his application for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 416(i), 423(d). Silsby brings this appeal pursuant to 42 U.S.C. § 405(g). The parties have filed cross motions for summary judgment or affirmance pursuant to Local Rule 8.1(D). The parties have consented to United States Magistrate Judge Byron Cudmore, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the motions are granted in part and denied in part. The matter is remanded to the ALJ for further consideration. The Court finds that the ALJ must further consider the question of whether the SSA has met its burden of showing that Silsby can perform a significant number of jobs available in the national economy.

Silsby was born in September, 1941, and has an eighth grade education. He worked as a meat cutter, and was in an accident at a meat packing plant in 1979. Silsby has suffered severe back pain ever since the 1979 accident. In 1987 the meat packing plant where Silsby worked closed, and he has not worked since. Silsby's eligibility for disability benefits expired on December 31, 1992.

In addition to the back pain, Silsby has experienced numbness, pain, and loss of strength in his hands. In 1985, Silsby had carpal tunnel surgery on each wrist. He had cubital tunnel surgery in 1987 and 1988 to relieve pressure on the ulnar nerve as they pass through his elbows. His doctors determined that these surgeries have improved his medical situation. He has full range of elbow motion, has lost some grip strength, and has experienced difficulty with heavy use of his hands.

Silsby is also obese. He is 5' 11" tall. In 1980 he weighed 265 lbs. In December, 1992, he weighed in excess of 300 lbs. The doctors examining Silsby between 1980 and 1992 concluded that his weight contributed to his back pain. Silsby also has hypertension. He has numbness and weakness in his right thigh and weakness in his left knee. Dr. Jerome Levy in 1982 opined that Silsby had permanent soft tissue damage in his left knee and back. Dr. Donald Pearson diagnosed his thigh problem in 1986 as meralgia paresthetica, which is abnormal sensation on the outer thigh caused by entrapment of the lateral femoral cutaneous nerve. Dr. Pearson found no nerve root disease. Dr. Pearson also found Silsby had normal reflexes and strength. He advised Silsby to lose weight to relieve his back pain.

In March, 1992, Dr. Glen Weisgerber diagnosed Silsby with otitis media (inflammation of the middle ear). In September, 1992, Silsby complained of intermittent ear aches since March, 1992, plus nausea and vertigo. Dr. Weisgerber diagnosed Silsby with acute labyrinthitis (inflammation of the inner ear) and vertigo. Dr. Weisgerber also diagnosed Silsby with an irregular heart beat and bursitis in the right shoulder. However, after a January, 1993, examination, Dr. Weisgerber reported that Silsby had full motion of his lower back and right shoulder, no neurological deficits, and nearly normal grip strength.

In April, 1993, Dr. B. Rock Oh, a state agency medical consultant, reviewed Silsby's medical records and opined that, as of December, 1992, Silsby could perform the exertional requirements of medium work. In October, 1993, Dr. Weisgerber opined that Silsby suffered from bilateral carpal tunnel syndrome; left ulnar neuropathy, chronic low back pain, mild right lateral cutaneous neurothapy; chronic atrial fibrillation, and morbid obesity.

The first hearing on Silsby's disability benefits claim occurred on December 27, 1993. Silsby appeared pro se. At the beginning of the hearing, the ALJ explained to Silsby that he was entitled to have a lawyer represent him. The ALJ explained that Silsby could secure a lawyer on a 25% contingency fee basis. He then asked Silsby whether he wanted to get a lawyer. Silsby stated that he did not want a lawyer. The hearing then proceeded.

Silsby testified that he suffered back and shoulder pain, weakness in his legs and knees, and pain and weakness in his arms and hands. He took Tylenol with codeine for the pain. He also took additional, regular Tylenol when the pain was severe. Silsby also took Diazide and Lotensin regularly. He did not explain the purpose of these medications. Silsby testified that he relieved the pain in his right arm, elbow and shoulder by regularly placing his right arm in a sling. Silsby is right handed.

Silsby also testified concerning his daily activities. He lived with his wife and adult son. He dressed himself, except that he had difficulty tying his shoes. He avoided steps. He did not help with laundry because that required going down into the basement. He sat or laid down most of the day. He did no housework except cleaning the few dishes he used during the day. He would heat up leftovers, but otherwise did not cook. He occasionally pushed a cart at the grocery store. He said he could walk a maximum of 1 block if he went slowly. He did no yard work. He could sit at the outdoor picnic table and do maintenance work on a push lawn mower. He could stand comfortably for no more than 15 minutes at a time. He could sit for half an hour, but then his back hurt and his legs began to go numb. He would then lie on the floor with his feet up.

After Silsby finished describing his ailments, the ALJ asked Silsby twice if he had any other conditions that kept him from doing what he wanted to do. Silsby said no, except the pain in his back sometimes went "around to the front of my body, makes me feel like I'm going to throw up or I have a hernia. That's about it." Silsby did not mention any problems with his hearing, his ears or with dizziness.

A vocational expert also testified at the 1993 hearing. The ALJ asked the expert a series of hypothetical questions to identify the number of jobs available to a person with the following characteristics: (1) age 45 to 52 years old; (2) eighth grade education; (3) work history identical to Silsby's; (4) exertional capacity limited to a full range of light work, but (i) may only occasionally stoop, pull, push, or climb ramps or stairs, (ii) may never climb ladders, ropes or scaffolds, (iii) has a little more than 80 percent of normal grip strength in both hands, (iv) may not engage in overhead reaching, and (v) must avoid concentrated exposure to extreme cold. The expert opined that such a person could do light duty work in positions such as phone order clerk, food checker, order filler, laundry worker, dryer attendant, and surveillance monitor. The limitations eliminated other possible light duty positions such as a gate tender or parking lot attendant. The expert said that there were: (1) 6,538 phone order clerk jobs in Illinois and 259 such jobs in the sub region of Illinois in which Silsby resided; (2) 40,504 food checker jobs in Illinois and 1,806 in the sub region; (3) 11,915 order filler jobs in Illinois and 237 in the sub region; (4) 13,550 laundry worker positions in Illinois and 780 in the sub region; (5) 670 dryer attendant positions in Illinois and 114 in the sub region; and (6) 53,484 surveillance monitor jobs in Illinois and 692 positions in the sub region.

The ALJ then asked the expert to assume that the person must frequently place his right elbow, his dominant side, in a sling. The expert said,

If it was frequently (placing the dominant arm in a sling), this would affect trying to work as a phone order clerk or even a food checker if one is a very dominant right-handed versus left-handed or ambidextrous. So that would be a significant impact on the phone order clerk, even on the order filler. Although I think an order filler could be done with either hand other than — and then since it's frequently, there would still be a necessity for using that right hand. So it would have some impact on the order filler and, of course, the food checker. I've already eliminated the others to my knowledge here except for the surveillance monitor. That would not have any real impact on whether the and is in a sling or not. So that's about all that would be left.

The ALJ issued a decision dated May 4, 1994, finding that Silsby was not eligible for disability benefits. The ALJ went through the 5 step analysis required by the regulations. He concluded that Silsby did not suffer a severe impairment under Step 2 of the analysis. 20 C.F.R. § 404.1520(c), 416.920(c). The only possible impairment would be obesity combined with either: (1) hypertension or (2) pain and limitation of motion in either the lumbar spine or weight bearing joints. Appendix A Listing 9,09A. The ALJ determined that Silsby was sufficiently overweight to qualify, but the regulations also required loss of full range of motion. All of the medical evidence indicated that Silsby did not suffer a loss of full range of motion. Silsby had hypertension, but the listing required a diastolic pressure in excess of 100. Silsby's diastolic pressure had equaled, but never exceeded 100.

The ALJ concluded that Silsby demonstrated that he could not return to his prior work as a meat cutter. The burden of proof then shifted to the SSA to establish that Silsby could perform a significant number of jobs available in the national economy. The ALJ concluded that the vocational expert's opinion established that Silsby could perform gainful employment that existed in the national economy. The ALJ stated,

The expert gave the following examples of semiskilled jobs that would be available to such an individual and to which skills from meatcutting would transfer (the number within Illinois is in parentheses): telephone order clerk (6,538), food checker filler (40,504), and retail and wholesale hotel and restaurant order filler (11,915). The expert also cited the following unskilled jobs (again, the number within Illinois is in parentheses): laundry worker (13,550) and dryer attendant (670). Therefore, the undersigned concludes that a substantial number of jobs are available to the claimant [Silsby], and that he is not disabled.

The ALJ's decision concluded that Silsby was not entitled to disability insurance benefits.

Silsby requested in 1996 that his case be reopened to consider new evidence. Beginning in 1994, Dr. Lisa Benning began treating Silsby for Meniere's disease. Silsby suffered increasingly from spells of loss of hearing in one ear, tinnitus or ringing in the ears, dizziness, vomiting and veering to one side. Dr. Benning reviewed Silsby's medical records and opined that Silsby's Meniere's disease began in March, 1992, when he went to Dr. Weisgerber for his various ear related problems. Dr. Weisgerber reviewed Dr. Benning's deposition and concurred that the onset of Silsby's Meniere's disease began in March, 1992.

The SSA reopened Silsby's case. The new hearing occurred on August 22, 1997. This time Silsby was represented by counsel. Silsby and his wife testified at that time. Silsby also submitted the deposition of Dr. Benning and the statement of Dr. Weisgerber's concurring the statement discussed immediately above. Silsby testified that he receives a shot of Compazine to control his nausea, and he takes Vicodin for pain. Silsby testified he cannot drive; he cannot walk in a straight line because he veers off to the left; and, he cannot dress himself without assistance. Further, that he must lie down whenever the spells of dizziness come. This occurs daily. Silsby testified he sometimes has no hearing in one ear, and that his vision "floats off to the right". Silsby said the symptoms started back in 1992, but he thought it was a pinched nerve. Silsby said his problems with his back, knees and arms has also gotten worse. He also gained weight. He now weighs 435.5 lbs. Mrs. Silsby corroborated Silsby's testimony.

After the hearing, the ALJ again determined that Silsby was not eligible for disability insurance benefits. The ALJ agreed that Meniere's disease would render Silsby disabled, but found that Silsby did not establish that he had Meniere's disease before his eligibility for insurance benefits expired on December 31, 1992. The ALJ also found no new evidence to show that Silsby's obesity rendered him disabled. The ALJ discounted Dr. Benning's opinion, and Dr. Weisgerber's belated corroboration as speculative hindsight.

Silsby unsuccessfully appealed through the administrative process, and then filed a timely appeal with this Court.

This Court reviews the ALJ's decision to determine if it is supported by substantial evidence. Substantial evidence is, "such relevant evidence as a reasonable mind might accept as adequate" to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court finds that the ALJ's decision is supported by substantial evidence, except with respect to whether SSA met its burden in the 1993 hearing to establish that Silsby could perform a significant number of jobs in the national economy.

The ALJ found in his 1993 decision that the expert concluded that Silsby could perform a number of semi skilled and unskilled jobs existing in the national economy. The expert, however, stated that if Silsby needed to place his dominant side arm in a sling frequently, then his ability to perform most of the listed jobs would be affected. The ALJ did not explain how he considered this aspect of the expert's opinion in concluding the SSA had met its burden on this issue. The ALJ's hypothetical questions to the ALJ also did not address Silsby's testimony that he needed to lie down with his feet up after sitting for 30 minutes. The ALJ must explain why he did not consider this part of Silsby's testimony or why he omitted the factor from the questions to the vocational expert. The case therefore must be remanded for a hearing to reconsider this issue.

The ALJ's opinion is affirmed in all other respects. Silsbly argues that the ALJ was bound by Dr. Benning's and Weisgerber's 1996 opinions that Silsby had Meniere's disease commencing in March, 1992. Silsby claims that such opinions must be given controlling weight in this matter, citing SSA Policy Interpretation SSR 96-2, Giving Controlling Weight to Treating Source Medical Opinions. That Policy Interpretation states that physician opinion must be given controlling authority if the opinion:

1. is from a treating source;

2. is well supported by medically acceptable clinical and laboratory diagnostic techniques; and

3. is not inconsistent with other substantial evidence in the case record.

Dr. Benning was not a treating source at any time prior to December 31, 1992. Thus, her opinion of Silsby's condition in 1992 does not come from a treating source. Further, her opinion that Silsby had Meniere's disease before December 31, 1992 (and so before his right to disability benefits expired), is not based on any clinical or laboratory diagnostic techniques. Dr. Weisgerber's after-the-fact corroboration is similarly not based on any diagnostic techniques. The ALJ thus was not bound by those opinions.

Further, evidence in the record supports the ALJ conclusion that Silsby did not establish that he had Meniere's disease prior to the expiration of his right to benefits. He complained only of back pain and joint numbness and pain. He said nothing about dizziness. The medical record indicates that he had some temporary inner ear problems, but not Meniere's disease. Silsby complains that the ALJ failed to develop the record. The Court disagrees. The ALJ asked Silsby twice whether he had any other conditions that limited his activities. Silsby told him no. The ALJ sufficiently developed the record.

The ALJ also properly found that Silsby did not suffer from a severe impairment as a result of his obesity, as defined in the SSA regulations. He was obese and suffered pain as a result, but he did not have any limitations on his range of motion in either the lumbar spine or his load bearing joints. Silsby again complains that the ALJ did not sufficiently develop the record on this point. Again, the Court disagrees. The medical reports consistently found no such limitations in Silsby's range of motion. The ALJ's decision is supported by substantial evidence.

Last, Silsby complains that the ALJ did not consider the impact of his Meniere's disease on the question of whether he could perform a significant number of jobs in the national economy. As the ALJ properly concluded that Silsby did not prove the existence of his Meniere's disease prior December 31, 1992, the ALJ was not required to consider that disease's impact on Silsby's ability to work at that time.

Ergo, the Commissioner's Motion for Summary Affirmance (d/e15) is ALLOWED in part and DENIED in part. The Plaintiff's Motion for Summary Judgment (d/e 10) is ALLOWED in part and DENIED in part. The ALJ's decision is affirmed in all respects other than whether the SSA met its burden of establishing that Silsby could perform a significant number of jobs in the national economy prior to the time his eligibility for disability benefits expired on December 31, 1992. This case is remanded for further hearings on this issue.

IT IS THEREFORE SO ORDERED.

ENTER: July 5, 2000