Farley v. Massanari

21 F. App'x 500
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 29, 2001
DocketNo. 01-1703
StatusPublished

This text of 21 F. App'x 500 (Farley v. Massanari) 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
Farley v. Massanari, 21 F. App'x 500 (7th Cir. 2001).

Opinion

ORDER

When he was forty-one years old, Jerald Farley applied for social security disability insurance benefits claiming that he could no longer work because of chronic pain and limited movement in his back, shoulders, arms, and hands stemming from recurrent tendinitis, carpal tunnel syndrome, and tennis elbow. An administrative law judge found that Farley was not entitled to benefits because, although Farley’s impairments were severe and prevented him from returning to his former work, he could perform a significant number of jobs that existed in his state’s economy. The district court affirmed, and Farley appeals. Farley’s primary contention on appeal is that the vocational expert’s testimony concerning his ability to perform other work was ambiguous, and thus did not constitute substantial evidence to support the ALJ’s decision. We affirm.

Background

Farley was born in 1955, and he has an eleventh-grade education. For nearly fifteen years, he worked as an operator and set-up person on a plastic molding machine and as a printing press helper — jobs that frequently entailed heavy lifting and repetitive gripping. His medical problems began in 1989, when he sprained his back lifting a heavy bucket of solvent. Because of that injury, he was no longer able to perform his duties as a press helper, and his employer gave him a less strenuous position that involved inspecting, sorting, and packing bags. Nonetheless, in 1991 Farley was injured again when several boxes weighing over 300 pounds fell on top of him at work. Since that accident he has suffered from persistent pain in his shoulders, and doctors diagnosed him as having chronic rotator cuff tendinitis. Because of his back injury and the tendinitis, Farley cannot lift his arms above his head or pick up anything weighing more than four to five pounds. In 1995 Farley also began experiencing pain and numbness in his elbows, hands, wrists, and other joints. Shortly thereafter he was diagnosed with carpal tunnel syndrome affecting both wrists and hands, ulnar nerve entrapment and cupital tunnel syndrome or epicondylitis (“tennis elbow”) in both elbows, and fibromyalgia, a condition characterized by chronic joint pain.

Farley continued to work until August 1996, when his employer’s company reorganized and terminated his position. In [502]*502November 1996 Farley had surgery on both wrists to reheve his carpal tunnel syndrome. In early 1997 he also underwent surgery on his right elbow. Despite the surgeries he still experienced pain and numbness in his elbows, wrists, and hands, which made it difficult for him to write and perform tasks like opening jars and counting change. Medical reports indicate that further surgeries were not guaranteed to improve those conditions and that repetitive arm and hand motions were likely to exacerbate them.

Farley filed for disability benefits in May 1997, alleging a disability onset date of August 14, 1996, his last day of work. The application was denied, and Farley requested a hearing before an ALJ. The hearing was held in August 1998. At the hearing Farley and a vocational expert (“VE”) testified. Farley testified extensively about his medical problems and their effect on his life and ability to work. After Farley testified, the ALJ called the VE to testify regarding the type of work that Farley, given his impairments, could perform at various strength levels. The ALJ asked the VE a series of hypothetical questions for which the VE was to assume an individual of Farley’s age, education, and work experience, with the following limitations: (1) the work must not involve fine dexterity of either hand but can involve gross use of the hands, (2) the work must not involve forceful gripping or operation of vibrating tools, (3) the work must be simple and repetitive in nature, and (4) the work must not involve overhead work or unusual stress. Given those limitations the VE opined that Farley was not able to perform his previous work but could perform other unskilled jobs including sedentary cashier and surveillance monitor positions. The VE identified 3,290 and 114 of those jobs respectively.

In a decision dated November 6, 1998, the ALJ concluded that Farley was not disabled for purposes of disability benefits. The ALJ found that Farley’s impairments were severe and prevented him from performing his past work. The ALJ concluded that despite those impairments Farley retained the residual functional capacity to perform sedentary work that is simple and repetitive in nature and does not involve unusual stress, overhead reaching, repeated forceful gripping, operation of vibrating tools, or the need for fine dexterity. At the fifth step of his analysis, see 20 C.F.R. § 404.1520(f), the ALJ relied on the VE’s testimony in finding that Farley could perform a significant number of unskilled, sedentary jobs, such as a cashier or surveillance monitor, and that more than 3,400 of those jobs existed in the Indiana economy. The Appeals Council denied Farley’s request for review of the ALJ’s decision, and Farley filed a complaint in federal district court pursuant to 42 U.S.C. § 405(g). The district court affirmed the ALJ’s decision on the ground that the VE’s testimony provided substantial evidence that Farley could engage in work that existed in the economy.

Analysis

We will affirm the ALJ’s decision if it is supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). It is up to the ALJ— and not this court — to weigh the evidence, resolve conflicts, and make independent findings of fact as long as the ALJ does so reasonably. Powers v. Apfel, 207 F.3d 431, 434 (7th Cir.2000); Wolfe v. Shalala, 997 F.2d 321, 326 (7th Cir.1993).

[503]*503Farley argues that the VE’s testimony concerning the jobs that he could perform at the sedentary-strength level was ambiguous, and thus does not constitute substantial evidence to support the ALJ’s finding at the fifth step. When asked to identify jobs that someone with Farley’s age, education, work experience, and particular limitations could perform at the sedentary level, the VE initially identified 3,290 cashier positions and 4,322 assembler positions. The parties do not dispute that the VE then went on to retract his testimony regarding the assembler positions. But they dispute whether, based on the following testimony, the VE also retracted his testimony regarding the cashier positions:

At the sedentary level with regard to cashiers, there are 3,290. Assemblers, there are 4,322.... Let me rethink that, because at the sedentary level I think almost all of those are going to have repetitive gripping. Let me exclude that category. There would be the position of, of a surveillance-type monitor, or a surveillance guard, 114. I think that pretty much would identify the sedentary level with those restrictions.

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