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

FLAUM, Circuit Judge,

concurring.

The majority opinion represents, in my view, a marked, unnecessary, and unfortunate departure from the precedent established by this circuit in Zblewski v. Schweiker, 732 F.2d 75 (7th Cir.1984), and followed in subsequent cases, rather than the logical progression from that precedent that the majority suggests. The majority’s attempt to minimize this circuit’s established standard would perhaps be understandable, though still not appropriate, if the ALJ’s opinion below failed to meet that standard. But that is not the case here. I therefore write separately to underscore that the AU in this case clearly met the existing standards that this circuit has heretofore established for the proper evaluation of Social Security disability cases, and to express disagreement with the majority’s unduly restrictive view of the roles of the AUs and the courts in adjudicating disability claims.

I.

The Social Security Act provides that the Secretary must issue findings of fact and render decisions as to the rights of an individual applying for disability insurance benefits. 42 U.S.C. § 405 (b)(1) (1982). In cases where the Secretary renders a decision unfavorable in whole or in part to a claimant, the Act also requires that the Secretary include in the decision a statement of the case in understandable language that discusses the evidence and that gives the reasons for the Secretary’s decision. Id. In interpreting these provisions, this circuit has enunciated standards that *290 the AU must follow in making its findings and in rendering its decision, so that this court can properly perform its task of reviewing whether the AU’s decision is supported by substantial evidence. See 42 U.S.C. § 405 (g) (1982).

In Zblewski, 732 F.2d at 78 , this court emphasized that although it was required to defer to the credibility findings made by the AU as factfinder, it had to verify that the AU had indeed made such findings. While we have recognized the heavy caseload of the AUs, we have consistently held that an AU must offer a minimal level of articulation as to his assessment of the evidence in cases where considerable evidence is presented by the claimant to counter the agency’s position. Id. at 79 . See also Zalewski v. Heckler, 760 F.2d 160, 165-66 (7th Cir.1985); Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir.1984); Taylor v. Schweiker, 739 F.2d 1240 (7th Cir.1984); Garfield v. Schweiker, 732 F.2d 605 (7th Cir.1984). 1 The requirement of a “minimal level of articulation” has never been interpreted to require literary perfection in an AU’s opinion, nor is it so unduly burdensome as to hinder the AU’s resolution of disability claims. The majority’s analysis in this regard makes the common and, I believe, erroneous assumption that an AU opinion that satisfies this simple requirement must be lengthier, or must take longer to formulate, than one that does not. The purpose of requiring this minimal level of articulation is merely to enable us to determine from an AU’s opinion whether the AU considered and assessed the relevant evidence, a determination which is essential if we are to perform our statutorily-mandated review function. Zalewski, 760 F.2d at 167 .

The claimant in this case argues that the AU committed reversible error by failing to consider the claimant’s testimony as to his pain and by failing to make any findings as to the claimant’s pain. I believe that the AU has sufficiently articulated his assessment of the evidence concerning the claimant’s pain, thereby permitting this court to engage in a meaningful review of the case. The AU in this case set forth a complete and accurate picture of the evidence, as the majority opinion correctly points out. Contrary to what the majority suggests, however, this is not all that an AU is required to do when deciding a Social Security case. We have repeatedly held that the AU must also offer his assessment of the evidence and his reasons for rejecting or crediting particular evidence, such as lack of credibility. Zalew-ski, 760 F.2d at 166-67 ; Zblewski, 732 F.2d at 79.

In the present case, the AU offered a detailed evaluation of the medical evidence that was submitted. At the outset, the AU recognized that the medical evidence was conflicting: he stated that the claimant’s chiropractor, Dr. Keller, and a general practitioner, Dr. McCallister, both indicated that the claimant was totally disabled; while the neurological examinations conducted by Dr. Reich and Dr. Hann and an orthopedic evaluation by Dr. Cattel did not show any serious impairment. The AU concluded that the evidence presented at the hearing, especially Dr. Cattel’s examination of the claimant, indicated a residual functional capacity for sedentary work. The AU also indicated that in reaching this determination, he had placed great weight on the opinions of the orthopedic and neu-rologic specialists, since their findings gave a more accurate assessment of the claimant’s residual functional capacity than did the opinions of the treating chiropractor or the general practitioner. 2 The AU’s deci *291 sion to give greater weight to the consulting physicians’ opinion was completely appropriate, notwithstanding Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir.1982), because the consulting physicians in this case personally examined the claimant. In sum, these findings by the AU clearly meet the threshold standard that this circuit has established to ensure meaningful appellate review.

II.

Having concluded that the AU’s decision in this case complies fully with the clearly-established requirements of our prior decisions, I see no need to elaborate further on those decisions. The majority, however, out of apparent concern that our decisions have been misconstrued as manifesting a “fetish about findings,” ante at 287, has seized upon this opportunity to characterize disability determinations as inherently “arbitrary,” ante at 286, to stress the “modesty” of the task that Congress has called upon the AUs and the courts to perform, ante at 286, and to express our judicial willingness to accept a “sketchy opinion” by an AU in order to avoid “sacrificpng] on the altar of perfectionism the claims of other people stuck in the queue,” ante at 287-288. The majority opinion therefore conjures up a picture of a Social Security disability system in which the nature of the decision to be made is so hopelessly arbitrary, and the lines of claimants waiting for a decision so interminably long, that the AUs and the courts can aim for little more than to decide as many cases as possible, as quickly as possible. I believe that the tenor — if not the substance — of the majority’s remarks might convey an inappropriate message concerning this court’s view of the roles that Congress has assigned both to the AUs and to the courts in the adjudication of disability claims.

As the majority correctly notes, Social Security disability benefits are not available to all who have some degree of physical or mental impairment. AUs are continually faced with the competing interests of speed and thoroughness when deciding the hundreds of cases before them. The benefits will not go to all who have some need, but should go to those who qualify under the guidelines set out by Congress. Although AUs are under intense pressure to process the greatest possible number of cases within a given time period, true efficiency in this system should consist of deciding the greatest number of cases as accurately as possible in the shortest amount of time. As the Supreme Court explained in Richardson v. Perales, 402 U.S. 389 , 91 S.Ct. 1420 , 28 L.Ed.2d 842 (1971):

The Social Security Act has been with us since 1935____ It affects nearly all of us. The system’s administrative structure and procedures, with essential determinations numbering into the millions, are of a size and extent difficult to comprehend. But, as the Government’s brief here accurately pronounces, “Such a system must be fair — and it must work.”

Id. at 399 , 91 S.Ct. at 1426 (footnote omitted). See also Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.1984) (although disability system “must run efficiently and expeditiously ... [t]he function of the AU is not merely to sit and listen, nor is he appointed to process cases on an administrative assembly line”).

Just as only Congress can decide whether to entertain claims for partial disability, ante at 286, so only Congress can strike the proper balance between the competing demands of quantity and quality in the processing of claims for total disability. It is doubtful whether the majority’s ap *292 proach to the adjudication of disability claims would comport with congressional intent in this regard. As the Supreme Court recently noted in rejecting, based on a comprehensive review of recent legislative history, judicial injunctions requiring the Secretary to adjudicate disputed disability claims within mandatory deadlines: “Certainly in Congress the concern that mandatory deadlines would jeopardize the quality and uniformity of agency decisions has prevailed over considerations of timeliness.” Heckler v. Day, — U.S.-, 104 S.Ct. 2249, 2255 , 81 L.Ed.2d 88 (1984). The Court further emphasized that despite its awareness of the long delays associated with the adjudication of disputed disability claims, Congress nevertheless chose in 1980 and 1982 to pass additional legislation designed “to ensure quality and uniformity in agency adjudication” that in effect “will impose additional duties on the Secretary and her heavily burdened staff.” Id. at 2256-57 . Indeed, it was in 1980 that Congress amended section 405(b) to require that the Secretary include in every initial determination of ineligibility an easily-understandable statement of the relevant evidence and the reasons underlying the determination. See id. at 2256 . Against the background of this legislative history, it seems unlikely that Congress would wish us to communicate to the AUs that the nature of their task in deciding disability cases is “arbitrary” and “calls for modesty.”

Similarly disturbing are the majority’s intimations regarding our role in performing the task that Congress has prescribed for us in reviewing disability decisions. As the majority correctly notes our duty is only to review the agency’s decision to determine if it is supported by substantial evidence. 42 U.S.C. § 405 (g). The substantial evidence standard, while undoubtedly deferential, is also not toothless. Justice Frankfurter stated it best in explaining the comparable role of courts of appeals in reviewing decisions of the National Labor Relations Board to determine whether they are supported by substantial evidence:

Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 490 , 71 S.Ct. 456, 466 , 95 L.Ed. 456 (1951). See also McNeil v. Califano, 614 F.2d 142, 146 (7th Cir.1980) (in reviewing disability decisions, “[w]e must be more than an uncritical rubber stamp, but we must affirm the Secretary’s decision if it is supported by substantial evidence”); Schlabach v. Secretary of Health, Education and Welfare, 469 F.Supp. 304 , 306-OS (N.D.Ind.1978) (generally discussing judicial review of AUs’ decisions in disability cases).

Regardless of our individual views as to the efficacy of judicial review or the importance of deferring to agency decisions, Congress has charged us with the obligation of conducting a careful review of the agency’s disability determinations. In order to fulfill this obligation, we must be able to determine whether the AU considered and evaluated the relevant evidence. True deference to the legislative will in this context therefore requires us to demand more than sketchiness on the part of the AU. To the extent that this court’s recent decisions may have been misinterpreted as creating a “fetish about findings” or as placing inappropriate emphasis upon the AUs’ literary skills, I welcome and join in the assurances given by the majority. However, to the *293 extent that the majority’s opinion implies that this court will not bring to its task of review the same oversight that we have exercised in our prior decisions in disability cases, I must disassociate myself from its message.

. The majority seems to suggest, ante at 287, that this assessment of the evidence is required only when a claimant's evidence is uncontradicted by the agency. We expressly held in Za-lewski, however, that credibility findings were required (and provided) in that case, a case involving contradictory evidence as to the claimant’s ability to handle a job that required standing or walking. See Zalewski v. Heckler, 760 F.2d 160, 163-65 (7th Cir.1985).

. The claimant states in his brief that the decision by the ALJ must be remanded because the AU "made no findings concerning pain, nor did he even discuss the issue of pain.” I disagree. The ALJ thoroughly summarized the claimant's *291 complaints of pain and also completely presented the doctors' reports, which also reviewed the claimant’s complaints of pain. The Social Security Act defines a "physical or mental impairment” as an "impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423 (d)(3) (1982). It is apparent that the AU’s thorough assessment of the medical evidence relating the claimant’s complaints of pain and the ALJ's credibility finding that the reports of the neurologists and orthopedic doctor were more accurate than the other doctors’ reports satisfied this circuit's requirement regarding credibility findings.