Gerard C. Kepple, II v. Larry G. Massanari, Acting Commissioner of Social Security

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

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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

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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

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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

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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.

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