Janice S. ESTOK, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee

152 F.3d 636, 158 A.L.R. Fed. 713, 1998 U.S. App. LEXIS 17858, 1998 WL 446211
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 5, 1998
Docket98-1080
StatusPublished
Cited by405 cases

This text of 152 F.3d 636 (Janice S. ESTOK, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee) 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
Janice S. ESTOK, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee, 152 F.3d 636, 158 A.L.R. Fed. 713, 1998 U.S. App. LEXIS 17858, 1998 WL 446211 (7th Cir. 1998).

Opinion

FLAUM, Circuit Judge.

In June 1989, Janice S. Estok filed a claim for disability benefits under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), alleging that she suffered from pain in both feet (diagnosed at the time as pinched ankle nerves and tarsal tunnel syndrome), and that she had stopped working as a beautician in June 1987 due to the foot pain. After an evidentiary hearing in 1990, an administrative law judge (ALJ) concluded that Estok could perform the full range of unskilled sedentary work. In 1991, the Appeals Council denied review.

Estok filed a new claim in 1993, alleging pain in both feet (again tarsal tunnel syndrome) and scoliosis. After a March 1993 hearing, the ALJ found, in a decision dated June 13, 1994, that Estok did not qualify as disabled as of December 1992, the expiration date of her status as an insured individual. In October 1994, the Appeals Council remanded for review of additional medical evidence after Estok’s treating physician offered a retrospective diagnosis of fibromyalgia 1 “as early as 1988.” After a third hearing before an ALJ in February 1994, at which a medical expert testified, the ALJ denied the claim in a decision dated May 17, 1995, again finding that the impairments suffered by Estok prevented her from engaging in her past relevant work as a beautician, but that in light of her age (then 34 years old), education (high school and beauty school), job experience and residual functional capacity, she was capable of performing a full range of sedentary work and, furthermore, such work existed in the national economy. See 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1520(f). In 1996, the Appeals Council declined review, rendering the ALJ’s decision the final decision of the Commissioner of Social Security. 20 C.F.R. § 404.981. Estok sought judicial review, 42 U.S.C. § 405(g), and the district court affirmed the Commissioner’s decision. Estok filed this appeal, challenging the ALJ’s May 17, 1995 decision. On appeal, Estok argues that substantial evidence does not support the ALJ’s decision that as of December 31, 1992 she was still capable of performing sedentary work. 2 For the reasons given below, we affirm.

At the second and third hearings, the parties disputed the severity and date of onset of disability, ie., whether Estok was completely disabled as of December 31,1992, the last insured date. The medical history established that initially, in the mid-1980s, Estok experienced pain primarily in her feet and ankles, and she was diagnosed with tarsal tunnel syndrome. Various orthopedic surgeons treated her condition, including performing surgery on her right ankle in 1989, but the treatment and surgery did not improve the foot and ankle pain. At some point in time, Estok started to experience diffuse pain throughout her body, including pain in her hips, back, neck, arms, and hands, along *638 with headaches, sleep disturbance, and depression. These problems were manifestations of fibromyalgia, which may have been a new condition. Or, the previous diagnosis of tarsal tunnel may have been inaccurate; perhaps the foot pain was actually an early manifestation of fibromyalgia. It was not until late 1993 that she was actually diagnosed with fibromyalgia. Later, several physicians retrospectively surmised, based on their long-term treatment of Estok and the medical records, that Estok had suffered from fibromyalgia even before December 31, 1992. No doctor opined that the initial diagnosis of tarsal tunnel was incorrect, although once fibromyalgia was diagnosed, the diagnosis of tarsal tunnel was mentioned only in a historical context. In any event, at the time of the last hearing in 1995, Estok undisputedly suffered from the rheumatological disease fibromyalgia.

This court’s review focuses not on whether Estok was disabled during the relevant period, but instead on whether the ALJ’s findings were supported by substantial evidence. See Diaz v. Chater, 55 F.3d 300, 305 (7th Cir.1995). “Substantial evidence” has been defined as “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) (internal quotations omitted). The court on appeal reviews the entire record but does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 305, 308; Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.1994); Cass v. Shalala, 8 F.3d 552, 555 (7th Cir.1993).

No one disputes that Estok currently suffers from fibromyalgia and may now be totally disabled. In addition, no one questions that fibromyalgia is very difficult to diagnose, that no objective medical tests reveal its presence, and that it can be completely disabling. See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996). Estok essentially argues that the ALJ failed to recognize that a retrospective diagnosis of fibromyalgia is substantial evidence of disability during the relevant insured period.

The bottom line in this case, therefore, is that whatever the diagnosis — tarsal tunnel of the ankles and feet, or fibromyalgia throughout the body — Estok must provide sufficient evidence of actual disability before December 31,1992. Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act. The claimant must show that she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). Here, the record does not mandate a finding that Estok became disabled before the relevant period ended on December 31,1992.

We first look at the problem of using retrospective diagnoses in Social Security eases. A physician’s retrospective diagnosis is a medical opinion of the claimant’s impairments which relates back to the covered period. See, e.g., Likes v. Callahan,

Related

Ploetz v. Kijakazi
E.D. Wisconsin, 2022
Lloyd v. Kijakazi
E.D. Wisconsin, 2022
Darnell v. Kijakazi
E.D. Wisconsin, 2022
Arndt v. Kijakazi
E.D. Wisconsin, 2022
Scanlan v. Kijakazi
E.D. Wisconsin, 2022
Vanstraten v. Kijakazi
E.D. Wisconsin, 2021
Synowicz v. Kijakazi
E.D. Wisconsin, 2021
Ellis v. Kijakazi
E.D. Wisconsin, 2021
Depner v. Saul
E.D. Wisconsin, 2021
Berndt v. Saul
E.D. Wisconsin, 2021
Arrowood v. Saul
E.D. Wisconsin, 2021
Purpero v. Saul
E.D. Wisconsin, 2021
Jensen v. Saul
E.D. Wisconsin, 2021
Schaar v. Saul
E.D. Wisconsin, 2020

Cite This Page — Counsel Stack

Bluebook (online)
152 F.3d 636, 158 A.L.R. Fed. 713, 1998 U.S. App. LEXIS 17858, 1998 WL 446211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janice-s-estok-plaintiff-appellant-v-kenneth-s-apfel-commissioner-of-ca7-1998.