Eskew v. Astrue

462 F. App'x 613
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 2, 2011
DocketNo. 10-3951
StatusPublished
Cited by14 cases

This text of 462 F. App'x 613 (Eskew v. Astrue) 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
Eskew v. Astrue, 462 F. App'x 613 (7th Cir. 2011).

Opinion

[614]*614ORDER

Debbie Eskew seeks review of the denial of her application for disability insurance benefits. She argues that the administrative law judge committed a series of analytical and factual errors while applying the five-step test used to determine eligibility for benefits. Because the ALJ’s assessment of Eskew’s credibility was patently wrong, we reverse and remand for further proceedings.

Eskew maintains that she is disabled by a combination of several impairments, including asthma; abnormal heart rhythms; bronchitis; early cataracts; chronic obstructive pulmonary disease (COPD); depression; diabetes; emphysema; inflammation of the esophagus; pneumonia; and lymph nodes in her lungs. She claims that she became disabled in March 2005, when she was hospitalized after complaining of chest pain, a persistent cough, and difficulty breathing. She was diagnosed with severe COPD, pneumonia, and anxiety. Shortly after this hospitalization, Eskew applied for unemployment benefits, for which her treating physician, Dr. Martin Brauweiler, prepared a note stating that she had been able to work since early March, adding that she had been unable to do work requiring her to lift more than 20 pounds or be around smoke.

In early 2006 Eskew reported to an emergency room complaining of chest pain and told the attending physician that she had not been taking albuterol because her COPD had been “okay.” Her condition improved after she received treatment. A CT scan taken at the hospital revealed a mass on her lung, and she was strongly urged to return for a follow-up in two weeks, but the record shows no such visit.

During an emergency room visit in March 2006, she reported being unable to afford her medications and was directed by her doctor to contact a local free clinic. She apparently did not do so. Three months later she reported to an emergency room doctor that the free clinic would not help her because she was still on Medicaid, and she could not find a local provider who would accept Medicaid. Her Medicaid coverage expired one week later, and since then she has received treatment from the free clinic.

In August 2006 Dr. Virgilio Pilapil, a state-agency medical consultant, reviewed Eskew’s medical records. He concluded that she could lift 20 pounds occasionally and 10 pounds frequently, and could stand for about 6 hours in an 8-hour workday or sit for the same amount of time.

At a hearing before an ALJ to determine her eligibility for benefits, Eskew was asked about her daily activities and the reasons for several hospital visits. She testified that, even with her medication, she still became winded walking short distances, had difficulty breathing on humid days, and was unable to do laundry. She reported being unable to stand in place for longer than ten minutes. A vocational expert testified that Eskew could no longer perform her prior relevant work and, that if a person with her impairments were limited to light work that did not involve exposure to dust and smoke or more than occasional climbing of ramps and stairs, such a person could work as a cashier, receptionist, courier, or general office clerk.

The ALJ concluded that Eskew was not disabled under the Social Security Act. Applying the five-step process that governs review of disability determination, 20 C.F.R. § 404.1520(a), the ALJ found that Eskew had not engaged in gainful employment since the alleged onset date (step 1); that she had a severe impairment (COPD) (step 2); that she did not meet a listed impairment under Listing 3.02A (step 8); that she could not perform her prior relevant work but that she had the residual [615]*615functional capacity (RFC) to perform light duty work (step 4); and that her RFC would allow her to perform other jobs existing in significant numbers (step 5). In concluding that she could perform light duty work, the ALJ stated that he found her testimony “not entirely credible,” noting gaps in her pursuit of treatment and inconsistencies in her testimony regarding her ability to afford treatment. He noted that the medical evidence in the record belied the degree of seriousness with which she described her level of impairment. The Appeals Council denied her request for review. The magistrate judge, proceeding with the parties’ consent, later granted summary judgment for the agency.

On appeal, Eskew faults the ALJ for (1) failing to consider all of her impairments at step 2; (2) ignoring medical records which showed that her condition met the requirements of Listing 3.02A — thereby qualifying her automatically for disability benefits; (3) overlooking whether her impairments, acting in combination, constituted the functional equivalent of Listing 3.02A; (4) improperly discrediting her testimony; (5) finding her capable of light work at step 4 without addressing countervailing evidence; and (6) posing a hypothetical to the vocational expert at step 5 that failed to accurately describe her impairments.

We review the ALJ’s decision directly. Simila v. Astrue, 573 F.3d 503, 513 (7th Cir.2009). We do not displace the ALJ’s judgment by reconsidering facts or evidence, or by making independent credibility determinations. Id. Instead, we review the ALJ’s decision to determine whether it is supported by substantial evidence. Myles v. Astrue, 582 F.3d 672, 676 (7th Cir.2009).

Eskew first argues that the ALJ erred by failing to assess the combined severity of her impairments at step 2, and she insists that this oversight tainted his analysis at later steps. Step 2 requires the ALJ to determine whether the claimant has a “severe medically determinable physical or mental impairment ... or a combination of impairments that is severe....” 20 C.F.R. § 404.1520(a)(4)(ii). But step 2 is also a threshold step and “[a]s long as the ALJ determines that the claimant has one severe impairment, the ALJ will proceed to the remaining steps of the evaluative process.” Castile v. Astrue, 617 F.3d 923, 926-27 (7th Cir.2010). The ALJ here determined that Eskew’s COPD was a severe impairment, and proceeded accordingly to the remaining steps of the analysis.

Eskew next argues that the ALJ erred at step 3 by finding that her condition did not meet Listing 3.02A. Under that listing, if a person suffering from COPD has a forced expiratory volume in one second (FEV1) at a particular value, she automatically qualifies for benefits. 20 C.F.R. Pt. 404, Subpt. P, App. 1. § 3.02(A). FEV1 is measured through use of an instrument called a “spirograph” both before and after the patient inhales a “bronchodilator” medication. See § 3.00(E). Both measurements produce FEV1 values, but only the highest post-bronchodilator result is used to assess the severity of the respiratory impairment. See id. For a person of Eskew’s height, an FEV1 value at or below 1.25 qualifies for benefits. See § 3.02(A) tbl.l. According to Eskew, an August 2006 spirograph in which she produced an FEV1 of 1.15 should have satisfied the Listing, but was ignored by the ALJ. But she mischaracterizes this spiro-graph result. The 1.15 reading was an inapplicable prebronchodilator result; her highest post-bronchodialator result from the August 2006 spirograph was 1.85.

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Bluebook (online)
462 F. App'x 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eskew-v-astrue-ca7-2011.