Borski v. Barnhart

33 F. App'x 220
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 5, 2002
DocketNo. 01-2270
StatusPublished
Cited by2 cases

This text of 33 F. App'x 220 (Borski 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
Borski v. Barnhart, 33 F. App'x 220 (7th Cir. 2002).

Opinion

ORDER

A great many Social Security disability cases turn on the question whether the individual seeking benefits retains the residual capacity to perform a job or jobs that exist in significant numbers in the national economy. Commonly, though not invariably, a vocational expert offers testimony about the existence of jobs that a person with limitations like those of the claimant can perform. Here, the administrative law judge heard no such evidence; he concluded on his own that claimant Daniel A. Borski, while impaired, could still do sedentary and light unskilled work. The Appeals Council of the Social Security Administration and the district court affirmed. We find, however, that on this particular record the ALJ erred in his decisions about which evidence could be used to evaluate Borski’s residual functional capacity, and which was to be excluded. In spite of the deferential standard of review that is appropriate for these cases, we conclude that this one must be remanded to the agency for further proceedings.

I

Borski suffers from a wide range of limitations. He filed his applications for [222]*222Disability Insurance Benefits and Supplemental Security Income in September 1996, at the age of 44. As of that time, he had worked for twelve years as a bartender in his father’s tavern; before that, he had been an unskilled laborer. He quit the latter job because of debilitating pain in his back and knees—pain that was documented in medical records that spanned more than twenty-five years. Among other things, he had back surgery in 1978, surgery on a fractured knee in 1982, and an effusion to his left knee in 1994. Medical examinations in 1996 and 1997 revealed articular spurring in his knees and thoracic kyphosis (a deformity of the spine). According to Dr. Daniel Romond, Borski’s treating orthopedist, these conditions made it impossible for Borski to do heavy work, but they did not exclude light work as long as it did not require “full time standing and walking or sitting.”

Other doctors came to similar conclusions. Dr. Stephen Alt oversaw a functional capacity assessment of Borski in April 1997, in conjunction with a group called ERGOS Work Recovery, Inc. Dr. Alt’s evaluation report concluded that Borski could perform light work with frequent position changes. The evaluation report indicated that Borski had trouble with prolonged periods of standing or walking, but that he could tolerate two-hour periods with occasional breaks. The report also noted that Borski attempted a stooping activity during the evaluation, but that he declined to try others because he was afraid he could not get up again from a stooped position. The report reflected this problem in a section labeled “Stooping/Bending” in which the box for “occasional” was checked and the word “Bending” was circled. It is unclear whether this notation meant to indicate that Borski could “Stoop” all of the time, or none of the time.

Dr. A. Neil Johnson, an internist who examined Borski in December 1996, found moderate crepitus (cracking sounds at the joints) in Borski’s neck, back, and knees. He too noted that Borski had trouble getting on and off the examining table, walking heel-to-toe, and raising his legs without pain; on that occasion Borski could not squat or hop. Looking at matters from another perspective, Dr. Charles Barnes, a psychologist, evaluated Borski’s cognitive abilities in May 1997. He concluded that despite Borski’s completion of the 11th grade, he had only 4th grade spelling skills, 5th grade math skills, 6th grade reading skills, and a full scale I.Q. of 78. Dr. Barnes concluded that Borski was not a good candidate for jobs requiring significant retraining or classroom time.

Borski himself testified that he could not remain on his feet or sit with his legs down for more than 20 or 25 minutes, and that he could no longer lift more than 25 pounds. He said that he could not, crouch, bend, or stoop. Friends or relatives had to help him with every-day activities such as yard work and lifting heavy bags, but he still shopped for groceries, fished once or twice a month, ran errands, talked on the telephone, and played cards. Borski’s neighbor, Lisa Nelson, corroborated his account, noting that Borski often complained of pain, walked to the grocery store with difficulty, and had trouble bending for groceries and carrying heavy bags. Nelson also reported that Borski could not sit through an entire bingo or card game without having to move around or to leave and go to bed.

Borski also proffered evidence from Stephen Weigert, whom Borski offered as a vocational expert, but the ALJ rejected Weigert’s opinion. Weigert’s report, which was based on the medical evidence and a personal interview with Borski, concluded that Borski needed to alternate be[223]*223tween standing and sitting positions more frequently than was possible in typical jobs in either the “light work” category or the “sedentary” category. Weigert concluded that in light of these positional needs, coupled with Borski’s age, limited education, and low intelligence, there was not a significant number of either sedentary or light work unskilled jobs in the national economy that Borski could perform. Noting that Weigert had mistakenly thought that Borski could not read, the ALJ rejected this opinion. The ALJ also thought that Weigert had overestimated Borski’s need for positional changes.

The ALJ also rejected Borski’s own account of his physical limitations. The ALJ believed that Borski’s every-day activities suggested greater mobility; he attached weight to the fact that Borski controlled his pain with over-the-counter medications only; he noted that Borski had not required physical therapy since 1994 (when he could sit for two to three hours and stand for eight to nine); and he found that Borski’s job as a bartender had been far more demanding than Borski later claimed. The ALJ did not call an alternative vocational expert to consider whether a person with the physical limitations the ALJ had chosen to credit would be able to perform work in the national economy; instead, the ALJ consulted the Medical-Vocational Guidelines (known as the “grid”) in 20 C.F.R. Part 404, Subpart P, Appendix 2, and decided on his own that Borski could work. The Commissioner’s final decision, after the Appeals Council chose not to disturb the ALJ’s conclusion, was to deny Borski’s two claims.

II

Our review of this decision is deferential: we ask only if the Commissioner’s decision was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 399-401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Nevertheless, we do not function as a rubber-stamp for the Commissioner, and if the ALJ failed to consider all relevant evidence, the result cannot stand. Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir.2000). Here, the ALJ was required to follow the familiar five-step process for determining whether Borski was disabled for either purpose, asking (1) whether the claimant was not presently employed or engaged in substantial gainful activity, (2) whether his impairment or combination of impairments was severe, (3) whether he met any of the impairments on the “list” in 20 C.F.R.

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Bluebook (online)
33 F. App'x 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borski-v-barnhart-ca7-2002.