Kepple, Gerard C. v. Barnhart, Jo Anne B. ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 01-1155
    Gerard C. Kepple, II,
    Plaintiff-Appellant,
    v.
    Larry G. Massanari, Acting Commissioner
    of Social Security,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 99 CV 4469--Ian H. Levin, Magistrate Judge.
    Argued September 20, 2001--Decided October 4, 2001
    Before Bauer, Manion, and Evans, Circuit
    Judges.
    Bauer, Circuit Judge. In November of
    1994, Gerard C. Kepple, II applied for
    disability benefits and supplemental
    security income with the Social Security
    Administration (SSA). His application and
    subsequent request for reconsideration
    were denied. Kepple then requested a
    hearing before an administrative law
    judge (ALJ); subsequently, the ALJ found
    that Kepple could perform certain
    sedentary jobs and denied his
    application. Kepple appealed to the
    Appeals Council, which denied review,
    making the ALJ’s determination the final
    decision of the SSA. Kepple then sought
    judicial review of the SSA’s decision
    denying his application in the district
    court based on 42 U.S.C. sec. 405(g). The
    district court affirmed the SSA’s
    decision. On appeal to this court, Kepple
    argues that the evidence failed to
    support the ALJ’s conclusions. For the
    reasons set forth in the following
    opinion, we affirm.
    I.  BACKGROUND
    On November 10, 1994, Kepple applied for
    disability benefits and supplemental
    security income with the SSA claiming
    that he was disabled since April of 1990
    due to a variety of medical problems
    stemming from diabetes. Kepple has not
    been employed since 1990 when he worked
    in his father’s law office as a clerk.
    Prior to that he had worked on an
    assembly line and had loaded and unloaded
    trucks for a delivery service. At the
    time the ALJ rendered her decision in
    1997, he was twenty nine years old, had
    graduated from high school, and had one
    year of college. At the time the district
    court rendered its decision, Kepple had
    three children, ages two, three, and six,
    and lived with his parents. He was the
    primary caregiver for the children, doing
    chores such as cooking and cleaning.
    Kepple was able to watch television,
    drive a car, and he took a trip to Hawaii
    in 1993.
    Kepple’s ailments stem largely from
    diabetes mellitus, and include kidney
    disease, diabetic retinopathy, cataracts,
    and fatigue. There is some disagreement
    over the actual acuity of Kepple’s
    vision, which he argues was deteriorating
    but the ALJ found that it was
    approximately 20/60 (corrected) in both
    eyes. Due to his ailments, Kepple was un
    able to lift or carry more than ten
    pounds at a time, could only walk or
    stand for limited periods of time, and
    could not perform jobs that required
    peripheral vision or sustained reading.
    Most of Kepple’s aliments, including his
    diabetes and vision problems, are
    controllable with proper treatments and
    dietary restrictions. However, Kepple has
    often failed to follow his dietary
    restrictions or obtain certain treatments
    causing further complications.
    A medical expert, Dr. Glickman, an
    internist, testified at the hearing that
    Kepple could perform sedentary work with
    some vision restrictions. In a letter
    dated September 15, 1992, Dr. Rubinstein,
    a nephrologist, stated that Kepple’s
    eyesight was diminishing and nearing
    blindness. However, this letter was
    contradicted by the reports of two
    ophthalmologists which concluded that
    Kepple’s eyesight, while impaired, was
    stable.
    A vocational expert also testified at
    the hearing that despite his ailments
    Kepple could perform between 1,600 and
    3,400 unskilled sedentary jobs in the
    national economy. These jobs included
    cashier, security monitor, charge account
    clerk, telephone quotation clerk, and
    assembly worker. Based on the evidence
    and testimony produced at the hearing,
    the ALJ found that Kepple was not
    "disabled" within the meaning of the
    Social Security Act, 42 U.S.C. sec.sec.
    423(a)(1)(D), 1382(a).
    II.    ANALYSIS
    A.    Standard of Review
    We employ the same standard of review as
    the district court and review the ALJ’s
    findings to determine if they are
    "supported by substantial evidence."
    Richard v. Perales, 
    402 U.S. 389
    , 399-401
    (1971); Powers v. Apfel, 
    207 F.3d 431
    ,
    434 (7th Cir. 2000). Substantial
    evidence, although more than a mere
    scintilla of proof, is "no more than such
    ’relevant evidence as a reasonable mind
    might accept as adequate to support a conclusion.’"
    Diaz v. Chater, 
    55 F.3d 300
    , 305 (7th
    Cir. 1995) (quoting 
    Perales, 402 U.S. at 389
    ). Though we review the entire record
    to determine if there is relevant
    evidence adequate to support the ALJ’s
    conclusion, we do not decide the facts
    anew, re-weigh evidence, or substitute
    our judgment for that of the ALJ. Butera
    v. Apfel, 
    173 F.3d 1049
    , 1055 (7th Cir.
    1999).
    B.    Sufficiency of the Evidence
    The dispute in this case is primarily
    over the weight accorded to the facts by
    the ALJ. Kepple argues that the ALJ
    "considered only evidence supporting the
    Acting Commissioner’s position without
    explaining why evidence favorable to the
    claimant was not evaluated." However, as
    noted above we do not engage in a
    weighing of the evidence or substitute
    our judgment for that of the ALJ. From
    the record it is clear that the ALJ
    neither ignored evidence favorable to
    Kepple nor was the medical expert
    unqualified to render an opinion. On the
    contrary, from the ALJ’s findings it is
    clear that she thoroughly reviewed all
    the evidence and did exactly what she was
    supposed to do: determine credibility and
    weight. The ALJ’s conclusion that Kepple
    is not disabled is supported by the
    opinion of the medical expert, as well as
    two ophthalmologists. In addition, the
    fact that Kepple is able to drive a car,
    watch television, and take care of three
    small children belies his argument that
    his vision is so significantly impaired
    as to prevent him from working.
    Furthermore, the vocational expert
    identified a number of jobs in the
    national economy that a person with
    Kepple’s medical restrictions could hold.
    Kepple may disagree with the ALJ’s
    findings, but they are "supported by
    substantial evidence" and will be upheld.
    C.   Waiver
    Kepple also appeals the district court’s
    determination that he should have
    objected to the qualifications of the
    medical expert in the administrative
    hearing. However, the district court
    first reached the merits of the argument
    and concluded that the medical expert was
    qualified to testify. See Memorandum
    Opinion and Order at 21-22. We review the
    district court’s ruling on the merits of
    the argument. Kepple admits that a
    medical expert is "not disqualified from
    testimony because [his] practice
    speciality does not lie within the area
    of medicine reflected by claimant’s
    impairment." See also 20 C.F.R. sec.
    404.1513(a)(1) (2000). As noted
    previously, the conclusions of the
    medical expert are supported by two
    additional reports by ophthalmologists as
    well as Kepple’s own admissions. Thus, we
    agree with the district court and
    conclude that the medical expert was
    competent to testify and decline to
    address the waiver issue.
    For purposes of completeness we note
    that the Supreme Court’s recent decision
    in Sims v. Apfel, 
    530 U.S. 103
    , (2000)
    (plurality opinion), held that for
    purposes of judicial review a claimant
    does not waive an issue by failing to
    raise it in the Appeals Council. However,
    the Court specifically left open the
    question of whether an issue is waived if
    it is not raised in the administrative
    hearing. 
    Id. at 107.
    The first circuit
    later directly addressed this question
    and declined to extend Sims to the
    administrative hearing. Mills v. Apfel,
    
    244 F.3d 1
    , 8 (1st Cir. 2001), petition
    for cert. filed, (Aug. 29, 2001) (No.
    01-6108). The first circuit reasoned that
    applying Sims to the administrative
    hearing would "cause havoc" and undermine
    "the administrative process." 
    Id. Whether such
    a terrible result would occur if
    Sims were applicable to administrative
    hearings in the SSA is a question this
    circuit or the Supreme Court may later
    address when directly confronted with the
    issue.
    CONCLUSION
    Because the findings of the ALJ are
    supported by substantial evidence we
    affirm the ruling of the district court.