Austin v. Barnhart

83 F. App'x 812
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 21, 2003
DocketNo. 03-1764
StatusPublished

This text of 83 F. App'x 812 (Austin v. Barnhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin v. Barnhart, 83 F. App'x 812 (7th Cir. 2003).

Opinion

ORDER

Allen Austin, a 30-year CTA employee, applied for Disability Insurance Benefits in February 1999 for the closed period of June 1994 to May 1996. His claim was denied initially, after reconsideration, and then after a hearing before an ALJ. The ALJ reached step five of the familiar analysis but concluded that Austin was not disabled because he had the functional capacity to perform the full range of sedentary work and that, according to the Medical Vocational Guidelines (the Grid), sufficient jobs existed in the national economy for someone with Austin’s functional capacity.

Austin essentially takes issue with the ALJ’s assessment that he has the functional capacity to perform the full range of sedentary work. He claims that his abilities are limited by his problems stooping and manipulating objects-so-called “non-exertional limitations.” Austin identifies at least two distinct ways in which the ALJ erred when assessing his functional capacity. He argues (1) that the ALJ improperly discredited the opinion of one of his non-treating physicians, Dr. Kasriel Tausk, who said that Austin should never stoop, and (2) that the ALJ improperly discredited his testimony of subjective complaints without making an adequate credibility determination. Because there is substantial evidence to support the ALJ’s assessment of Austin’s functional capacity and ultimate determination of disability, we affirm.

Austin has complained of back problems since June 1994, when he fell at work. He initially saw his primary care physician, Dr. Emily Chacko, and after several visits, she referred Austin to a neurosurgeon. Austin saw Dr. Chacko and two neurosurgeons, Dr. Robert Gettleman and Dr. Lawrence Ferguson, several times over the next two years about his back trouble. He also saw Dr. Kasriel Tausk, who examined him once at the request of the Bureau of Disability Determination Services. The ALJ summarized Austin’s ultimate diagnoses as cervical joint spurring, stenosis,1 and spondylosis;2 lumbar stenosis; and degenerative changes in the lumbosacral spine.

Austin’s three treating physicians gave somewhat conflicting reports regarding Austin’s functional capacities. Drs. Gettle-[814]*814man and Chacko’s reports are consistent with each other, and they both support the ALJ’s conclusions that Austin can stoop and use his hands enough to perform sedentary work. The only limitation Dr. Chacko ever suggested was that Austin not do heavy lifting or heavy pushing and pulling. Dr. Gettleman reported in 1996 that there was “still no radicular component” to Austin’s back and neck pain. That report was made outside of the claim period, but the comment suggests that no radicular component appeared in earlier visits during the claim period. Dr. Ferguson’s report, on the other hand, suggests that Austin’s abilities to stoop and grasp are limited. In December 1994 Dr. Ferguson reported that Austin’s hand grasp was “not as good,” and he cited as evidence that Austin had dropped an axe on his foot because his hands had reportedly gone numb. A year later he reported that Austin had decreased range of motion in his cervical and lumbosacral spine.

Two doctors who evaluated Austin’s functional capacity at the request of the Social Security Administration gave conflicting reports of his stooping abilities, but neither thought he had any limitations on his abilities to reach or grasp. Dr. Tausk examined Austin in November 1994 and wrote a report a year after the examination that provides Austin the most fuel for his argument on appeal. Immediately after examining Austin, Dr. Tausk reported that he had decreased range of motion in his neck and cervical spine but a full range of motion in his extremities. A year later he filled out a form evaluating Austin’s functional capacity, apparently based on his single, year-old examination, and reported that Austin could never stoop and should avoid pushing and pulling. Dr. Victoria Dow also evaluated Austin’s functional abilities, but her assessment completely contradicted Dr. Tausk. She did not examine Austin personally, but she based her assessment on his medical records. She reported that Austin could stoop occasionally and that there were no restrictions on his abilities to reach, handle, or finger.

In addition to offering medical reports to support his claim, Austin also testified before the ALJ in August 1996 and reported difficulty stooping and numbness in his extremities. He said that he climbs steps to get to his second-story apartment and occasionally feels like his legs are going to “just stop working.” When asked about any trouble cleaning his house, he responded, “Just, it, the stooping and stuff, it, after a while it, it gets to me. I mean if I, if I take my time, if I’ve got all day, I can clean up.” He also testified that he has numbness in his legs, arms, and hands, especially his right leg and hand, and the numbness does not subside with pain medication. He said he had muscle spasms in his arms and legs a couple times, and he can grasp or hold onto things, but not like he used to.

The ALJ concluded that despite Austin’s back problems and complaints of numbness, muscle weakness and muscle spasms, Austin could perform the full range of sedentary work. Regarding Austin’s ability to use his hands and arms, the ALJ discredited Austin’s complaints of “numbness and diminished use of his right upper extremity” because “clinical findings [were] constantly negative for radiculopa-thy or other nerve root irritation.” He said Austin’s problem with his right arm appears to be caused by Dequervain’s ten-osynovitis, an impairment that “does not preclude the claimant from using his right arm for limited lifting and other motions.” Regarding Austin’s ability to stoop, the ALJ discredited Dr. Tausk’s opinion that Austin should never stoop because it was “inconsistent with the objective medical evidence and findings reached by the claimant’s treating neurosurgeons” and “his [815]*815conclusions appear to be based on the claimant’s subjective allegations.”

At step five of the analysis for evaluating disability claims, the ALJ must determine whether the claimant’s residual functional capacity enables him to perform jobs in the national economy. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir.2001). If a claimant has no nonexertional limitations, that is, if he can perform the full range of work in his exertional level, the ALJ can rely on the Grid to determine whether sufficient jobs exist. 20 C.F.R. § 404.1569; 20 C.F.R. § 404.1569a(b); Luna v. Shalala, 22 F.3d 687, 691-92 (7th Cir.1994). If, however, the claimant has nonexertional limitations, which reduce the number of jobs that he can perform in his exertional level, the ALJ must pose a hypothetical to a vocational expert (VE) incorporating all of the claimant’s limitations, and the VE will then testify whether appropriate jobs exist. Zurawski, 245 F.3d at 889; see also SSR 96-9p; Luna, 22 F.3d at 691. In this case the ALJ concluded that Austin’s exertional level was sedentary and that he did not have any nonexertional limitations, so he could perform the full range of sedentary work.

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83 F. App'x 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-barnhart-ca7-2003.