McCurrie v. Astrue

401 F. App'x 145
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 29, 2010
DocketNo. 10-1707
StatusPublished
Cited by5 cases

This text of 401 F. App'x 145 (McCurrie 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
McCurrie v. Astrue, 401 F. App'x 145 (7th Cir. 2010).

Opinion

ORDER

Billy McCurrie applied for supplemental disability insurance benefits, claiming disability due to a degenerative condition affecting his back, legs, and hands. The Social Security Administration denied his claim after an administrative law judge (ALJ) declared McCurrie’s impairments to be severe but not disabling. The district court upheld the Commissioner’s denial of benefits and McCurrie appeals.

McCurrie filed this third application for supplemental security income in August 2005, claiming disability ultimately attributable to degenerative back problems related to a 1989 work-related accident. At a hearing before an ALJ in November 2007, he alleged that his symptoms included low-back, hand, and leg pain as well as intermittent grip and mobility issues. At the time of his hearing, McCurrie was 54 years old, had a 10th-grade education, and had previous experience as an unskilled laborer, including work as a janitor.

The medical records McCurrie provided in support of his application extend back to January 2002, when state agency doctors evaluated him in response to an earlier disability application. One doctor, an orthopedist, noted that an x-ray of McCurrie’s back showed mild degenerative changes but no compression fractures. Based on this examination, state agency doctors concluded that McCurrie could frequently lift 25 pounds, and could stand, walk, or sit for six hours a day — a finding consistent with the ability to perform light work.

The medical records from 2002 thru 2007 are sporadic and consist largely of doctors’ notes from multiple emergency room visits. Though several examinations cite back tenderness, doctors who examined McCurrie during this period generally found him to have a full range of spinal motion and normal neurological exam re-[147]*147suits. An x-ray taken of McCurrie’s lumbar spine during this period did show some degenerative facet joint disease and joint space narrowing, but doctors characterized these results as normal. ER doctors’ notes during this period also reflect one visit where McCurrie’s blood-alcohol level was more than three times over the legal limit for driving a vehicle in Illinois. He explained the high reading, not very convincingly, by saying he only consumed a small quantity of beer that day. On two other visits to the ER he sought only shelter and left without treatment.

In April 2007, McCurrie visited a nurse practitioner for a physical. The nurse practitioner also found that McCurrie had a normal range of motion and strength in all four extremities with no joint pain. McCurrie complained of pain with movement only in the upper right extremity.

That same month, Dr. James Elmes, an orthopedist, examined McCurrie at the ALJ’s request. In recounting his medical history, McCurrie told Elmes that his earlier x-rays (which he did not present to Elmes for review) revealed that he had a healed vertebral fracture. McCurrie described his back pain as usually ranging between 7 and 10 on a 0-to-10 scale. McCurrie also described a 3-year history of hand pain with pain intensity between 4 and 7 on a similar scale. Elmes noted McCurrie’s statement that he could sit for an hour, walk three blocks, and stand for half an hour to an hour. He could lift up to 15 and pull up to 17 pounds.

Elmes’s physical examination revealed a “slightly antalgic,” but otherwise “normal heel-to-toe gait.” McCurrie complained of pain on heel and toe standing and on walking while leaning on a counter for support. Elmes found no significant muscle atrophy, strong motor function, and symmetrical deep tendon reflexes. The examination did reveal some sensory defects. McCurrie exhibited a slightly reduced range of spinal and knee motion and he displayed some back and mild neck tenderness. Elmes, however, characterized McCurrie’s fíne motor coordination as “fairly normal.” McCurrie performed practical tasks easily, but reported that his hands cramped up after a few minutes of writing. McCurrie’s range of motion in the shoulders, elbows, and wrists was normal, and his grip strength was 55 pounds on the right and 35 pounds on the left. Elmes indicated McCurrie could reach, handle, finger, and feel only occasionally.

In September 2007, McCurrie visited the Fantus Clinic. The doctor examining him there noted reduced muscle strength and neurological complaints, but provided no treatment.

At his hearing, McCurrie testified that he was unable to work because of low back, hand, and leg pain. He also testified that he could only walk two or three blocks before having to sit and rest and that, though it was not prescribed by a doctor, he found it necessary to use a cane for four years because his legs often “gave out” beneath him (he cited 20 incidents over 6 years). He characterized his arm pain as “constant” and testified that his hands and fingers would occasionally seize and “spread out,” requiring hour-long breaks before subsiding. The ALJ questioned McCurrie about several credibility issues, including his alcohol use, occasional shelter-seeking behavior, sporadic work history, discrepant accounts of his initial back injury, and unreliable testimony regarding the testing McCurrie had undergone.

The testimony of a medical expert at the hearing, Dr. Ronald Semerdjian,1 focused in part on the distinction between the limi[148]*148tations supported by available objective medical evidence, and the limitations that required reliance on McCurrie’s subjective testimony. In particular, the ALJ asked Semerdjian to assess which of Dr. Elmes’s findings were supported by objective evidence and which relied primarily on McCurrie’s subjective reports. Semerdjian concluded that, considering the available objective evidence alone, McCurrie was capable of light work; if McCurrie’s subjective testimony was believed, however, he probably was not. Semerdjian also stated that the available objective evidence did not support the need for a cane despite McCurrie’s claim that he needed one. Without further testing, Semerdjian testified that he could not be sure about the effects of the degenerative changes in McCurrie’s spine.

Semerdjian also testified that the imaging studies in the administrative record were inconsistent with McCurrie’s assertions that he had fractured his back. Semerdjian emphasized that the available imaging studies “just show[ed] degenerative joint disease, which can be consistent with age” with relatively normal neurological findings. Semerdjian stated that balancing and stooping might be affected based on these objective findings, but that there should be no additional manipulative limitations.

Finally, a vocational expert testified that an applicant like McCurrie — who has limited education and is 54 years of age — could do a range of light work including housekeeping, general assembly, and simple inspection work. The need to use a cane or the inability to use hands occasionally, however, would eliminate those jobs. The VE also testified that if McCurrie were limited to carrying 15 pounds or could stand only up to an hour, he would be limited to sedentary work, likely directing a finding of disability given McCurrie’s profile.

The ALJ proceeded through the five-step sequential evaluation process, 20 C.F.R. § 416.920(a)(4), concluding that McCurrie was not disabled.

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401 F. App'x 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccurrie-v-astrue-ca7-2010.