Wendell L. Stephens, Sr. v. Margaret Heckler, Secretary of Health and Human Services

766 F.2d 284, 1985 U.S. App. LEXIS 20156, 54 U.S.L.W. 2052

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 21, 1985
• Docket: 84-1994
• Status: Published

Opinions

EASTERBROOK, Circuit Judge.

A person who suffers an injury on the job usually gets compensation according to the extent of the loss. If the injury forces the person to move to a less demanding but less remunerative job, either the workers’ compensation system or the tort system will afford relief. The greater the reduction in income, the greater the compensation. A person who loses 30% of his earnings potential will be rated 30% disabled under workers’ compensation or recover a tort judgment equal to the present value of 30% of his future earnings. This reflects the fact that the loss from injury is a matter of degree.

Not so with the system of disability insurance under the Social Security Act, 42 U.S.C. § 423. A person is “disabled” or not; there are no degrees. And a person is not disabled unless he is “not only unable to do his previous work but cannot ... engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 423(d)(2)(A). A person with a partial disability for purposes of workers’ compensation is “not disabled” under the Social Security Act, and even a person entitled to collect substantial damages because he cannot find any employment may be deemed “not disabled.”

I

Wendell L. Stephens, Sr., was injured on the job in 1972. While lifting a heavy load he felt his left hip pop. For the next six years he worked on and off. He would work for as much as seven months at his job as an attendant in a warehouse, then take time off to rest his back. He experienced pain and visited hospitals. He received workers’ compensation benefits covering up to 50% of his average wage, and he may have had a rated disability of 15%. (The record is not clear on the rating.) He quit work entirely in 1978. The administrative law judge (ALJ) found that Stephens is unable to do his old work or any other than sedentary work. But because Stephens was only 39 years old at the time of the hearing and had a ninth-grade education, the AU found him not disabled under the Grid, a set of rules that translate age, impairment, and other characteristics into a finding of disability or no disability. The Appeals Council declined to review the decision, and the district court found the decision supported by substantial evidence.

Stephens’s case highlights the difficulties created by a statute that requires the AU to give a yes-or-no evaluation of a medical problem. The more complex the task, the more arbitrary any effort to sort the results into just two bins. Disability cases raise questions of medicine (what is wrong with Stephens, and will it get worse?), of psychology (how much pain does Stephens suffer, and what effect does the pain have on his ability to work?), of vocational education (just what can a person in Stephens’s position do?), and of practical economics (what jobs are available for people who can do whatever Stephens can do?). An effort to sort a million people with a million personal histories and ten thousand different ailments into just two bins — “disabled” and “not disabled” — ensures “arbitrary” action. It is arbitrary in the sense that many people called “not disabled” must look almost exactly like many people called “disabled.” It is arbitrary in the sense that many combinations of ailments and personal situations do not fit well in any category, let alone one of the only two permitted by statute. See Heckler v. Campbell, 461 U.S. 458, 468, 103 S.Ct. 1952, 1958, 76 L.Ed.2d 66 (1983) (sustaining the Grid as a way to make this process more uniform); Cummins v. Schweiker, 670 F.2d 81, 83-84 (7th Cir.1982).

When Congress calls on the Executive Branch to perform a million discretionary and unavoidably arbitrary acts, it becomes very tempting for the Judicial Branch to point out the element of arbitrariness that affects a fair number of cases and to order the task done again. Certainly there is no shortage of arbitrariness in disability cases. But the very nature of the task calls for modesty. Courts cannot enlarge the number of permissible outcomes. We cannot take a person whose ailments foreclose 75% of all gainful employment (or reduce his expected income by 75%) and order the award of 75% benefits. Only Congress has that choice. When any outcome is imprecise and hence arbitrary, a court must accept a decision of the agency if that decision follows the agency’s rules. The governing statute, 42 U.S.C. § 405(g), limits the review of factual findings by providing that the “findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive”. We agree with the district court that the AU’s findings are supported by substantial evidence, and we therefore affirm.

The record contains reports by at least eleven medical professionals. The two reports most strongly supporting Stephens come from Dr. L.S. McCallister, a general practitioner who attends Stephens, and Orval Keller, Stephens’s chiropractor. Dr. McCallister reported that Stephens has a severe limitation on motion of the spine, is unable to bend comfortably, and cannot bear stress in the lumbo-sacral area without severe pain. Dr. McCallister concluded that Stephens is disabled. Keller also diagnosed an injury to Stephens’s spinal cord that produces pain when Stephens bends his back. He concluded that Stephens can do no pushing or lifting and therefore is disabled. Several other medical reports attest to limitations on Stephens’s motion and to the pain that drove him to hospitals; Stephens gave testimony about the limitations and the pain.

Dr. David Reich, a resident in neurology at Indiana University, rendered one of several contrary reports. Dr. Reich found that Stephens has full mobility in his arms and legs and not much pain with normal motion. He found no evidence of disc slippage but some mild hip disease. After the hearing, the AU sent Stephens to three more professionals. Dr. Lee M. Cattell, an orthopedic surgeon, examined Stephens fully. Cattell found some tenderness of the muscles in the lumbo-sacral area but a full range of motion without pain. He found Stephens’s spine normal. Stripped of medical jargon, Dr. Cattell’s report said that there were no physiological restrictions on Stephens’s movement and that he could work eight hours a day without much discomfort, so long as the work did not call for more than occasional lifting of weights exceeding 50 pounds. Dr. E. Carl Hann, a neurologist, performed a full exam and found the same tenderness but no measurable abnormal performance and no distress when Stephens performed hip maneuvers. G. Matt Howard, a chiropractor, concluded that irritation of the spinal nerve by intrusions from bone causes some muscle spasms and that Stephens cannot do physical labor, but that he was not otherwise disabled. Howard opined that Stephens “has a 30 percent total impairment of the whole man”.

The ALJ found that Stephens cannot return to his old job doing manual tasks in the warehouse but can do sedentary work. The record supports this conclusion, though it does not compel it. The medical evidence was conflicting; the medical reports were all based on first-hand examinations by evidently competent professionals; someone had to resolve the conflict, and under the statute that someone is the Secretary’s delegate.

II

The ALJ’s opinion sets out all of these reports (and others), and we are confident that he overlooked nothing. Indeed, he approached the job with care, ordering three additional examinations after the hearing. Stephens nonetheless maintains that we must remand the ease because the AU did not specifically address his complaints of pain. He points out that this court has required AUs to make specific findings when they reject evidence supporting a claimant. E.g., Garfield v. Schweiker, 732 F.2d 605, 609-10 (7th Cir.1984); Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir.1984); McNeil v. Califano, 614 F.2d 142, 144-45 (7th Cir.1980).

We do not have the fetish about findings that Stephens attributes to us. The court review judgments, not opinions. The statute requires us to review the quality of the evidence, which must be “substantial,” not the quality of the AU’s literary skills. The AUs work under great burdens. Their supervisors urge them to work quickly. When they slow down to write better opinions, that holds up the queue and prevents deserving people from receiving benefits. Cf. Heckler v. Day, — U.S.-, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984) (discussing delay in the process). When they process cases quickly, they necessarily take less time on opinions. When a court remands a case with an order to write a better opinion, it clogs the queue in two ways — first because the new hearing on remand takes time, second because it sends the signal that AUs should write more in each case (and thus hear fewer cases).

The AU’s opinion is important not in its own right but because it tells us whether the AU has considered all the evidence, as the statute requires him to do. Thus we held in Zblewski that “when the AU fails to mention rejected evidence” (732 F.2d at 79) the court must send the case back, for it cannot tell whether the AU fulfilled his statutory duty. The evidence the AU did not mention in Zblewski “went uncontra-dicted.” Zalewski v. Heckler, 760 F.2d 160, 166 (7th Cir.1985). This court insists that the finder of fact explain why he rejects uncontradicted evidence. One inference from a silent opinion is that the AU did not reject the evidence but simply forgot it or thought it irrelevant. That is the reason the AU must mention and discuss, however briefly, uncontradicted evidence that supports the claim for benefits. But as we pointed out in Zblewski and reiterated in Zalewski, this court does “not require the AU to evaluate in writing every piece of testimony and evidence submitted.” Zalewski, supra, 760 F.2d at 166. We require only “a minimal level of articulation by the AU as to his assessment of the evidence ... in cases in which considerable evidence is presented by the claimant”. Ibid.

If a sketchy opinion assures us that the AU considered the important evidence, and the opinion enables us to trace the path of the AU’s reasoning, the AU has done enough. We have never embraced the more extensive proposition, which may be the rule in the Third Circuit, that the AU must mention and assess in writing every piece of evidence. Cotter v. Harris, 642 F.2d 700 (3d Cir.), opinion on denial of rehearing, 650 F.2d 481 (1981). Stephens argues that this court follows Cotter because we have cited it (e.g., in Zblewski, supra, 732 F.2d at 79). But to cite a case is not to endorse all of its reasoning. Our decisions (which are distinct from our citations) make a more limited demand on AUs. By “minimal level of articulation” we mean just that — enough to show that the AU considered the evidence the law requires him to consider. A more extensive requirement sacrifices on the altar of perfectionism the claims of other people stuck in the queue.

A court must examine the entire record of the proceedings to determine whether there is “substantial evidence” for the decision. That means that a court must assess the evidence favoring the claimant as well as the evidence favoring the rejection of the claim. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The difficulty of dealing with conflicting medical evidence is no reason to take the task lightly — not for us, and not for the AU. Just as a court should not demand too much from the AU, so a court should not accept too little. Judicial opinions send messages. That is why we do not insist on completeness in the AU’s reasoning; it is also why we insist that the AU acknowledge potentially dispositive evidence. The conclusion that the agency has substantial discretion to balance the demands of expedition and perfection does not imply a decision to give the agency carte blanche. Without question, however, the arbitrariness of the decision the AUs are called on to make implies that they have very wide latitude. When there is no one “right” answer to a legal dispute, it is difficult to say that selection of any one outcome is legal error. In re Sinadi-nos, 760 F.2d 167, 170 (7th Cir.1985). This, and not some desire to relieve the AUs of legal constraints, is why judicial review is properly quite limited.

The AU in this case has done enough. The AU’s opinion recounts the views of every medical professional who examined Stephens. It is apparent that the AU considered Stephens’s pain in making the decision. Stephens does not suffer drastic physiological restrictions of mobility. His joints move freely. Stephens’s problem is that he suffers pain when doing certain things. The pain that accompanies movement is the source of his limitations. When the AU found that Stephens could not do his old job, he credited the claims of limitations caused by pain. Yet the medical evidence also supports a conclusion that Stephens’s problems are much less serious if he need not bend, push, flex, or lift. Thus the AU was entitled to conclude that Stephens can do sedentary work. This is a logical path to a conclusion supported by substantial evidence. True, the AU did not articulate it in so many words, but the statute does not require full explanation.

Ill

Stephens raises one final objection. The AU gave special weight to the reports of the orthopedic surgeon and the neurologist. Stephens argues that the AU should have given special weight instead to the reports of his general practitioner and chiropractor because they were more familiar with his physical state. He relies on Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir. 1977), which found unsupported by substantial evidence a decision in which the' AU preferred the report of a consulting physician over the views of the claimant’s general practitioner.

Allen does not hold that the report of a general practitioner controls whenever physicians disagree. The court held only that the AU must take into account the treating physician’s ability to observe the claimant over a longer period. When experience backed by observation is set against the “speculative statement” (552 F.2d at 786) of a consulting physician, substantial evidence lies on the side of the treating physician. See also Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir.1982) (report of the treating physician should be favored over that of a consultant who merely reviews the file and does not examine the claimant, unless the treating physician is not credible).

The patient’s regular physician may want to do a favor for a friend and client, and so the treating physician may too quickly find disability. Cummins v. Schweiker, supra, 670 F.2d at 84. The regular physician also may lack an appreciation of how one case compares with other related cases. A consulting physician may bring both impartiality and expertise. A lawyer with a general practice often brings in a specialist for a few hours’ consultation and pays handsomely; the specialist’s review of an antitrust problem may reveal more than two weeks of work by a lawyer who handles few antitrust cases. Similarly, a physician who specializes in diseases of the thorax may contribute more knowledge to the administrative process after a one-hour examination than the general practitioner (who sees few thorax problems) contributes after years on the case. Many patients pay premium prices to have an hour’s time with a physician with expertise in the precise problem they face, greatly preferring an hour of top-quality care to a week of average care. The consulting specialist can tell how a patient fits in a spectrum of similar ailments, something the non-specialist may not be able to do.

The Secretary’s delegate is free to make the same sort of choice an informed patient may make for himself. Experience and knowledge of this case lie on the side of the treating physician, expertise and knowledge of similar cases on the side of the consulting specialist. How these weigh in a particular case is a question for the Secretary’s delegate, subject only to the rule that the final decision must be supported by “substantial evidence.” See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Strunk v. Heckler, 732 F.2d 1357, 1362-64 (7th Cir.1984).

The specialists took the time necessary to render complete reports. They examined Stephens and did not just shuffle papers. Their reports are factual, not speculative. (Dr. Hann carefully separated his medical views from what he viewed as impermissible speculation about how Stephens would fare in a workaday environment.) The ALJ was entitled to favor these reports over the contrary views of the treating physician and treating chiropractor.

AFFIRMED.