Assavedo v. Apfel, Civil Action No. 99-0958.

• Decision Date: 29 September 2000
• Docket Number: Civil Action No. 99-0958.
• Citation: 115 F.Supp.2d 704
• Parties: Murphy ASSAVEDO, v. Kenneth S. APFEL, Commissioner of Social Security.
• Court: U.S. District Court — Eastern District of Louisiana

115 F.Supp.2d 704

Murphy ASSAVEDO, v. Kenneth S. APFEL, Commissioner of Social Security.

Civil Action No. 99-0958.

United States District Court, E.D. Louisiana.

September 29, 2000.

COPYRIGHT MATERIAL OMITTED

Robert Ellis, Ponchatoula, LA, for plaintiff.

Eneid A. Francis, Kathryn Weekley Becnel, U.S. Attorney's Office, New Orleans, LA, for defendant.

ORDER AND REASONS

MITCHELL, Senior District Judge.

Plaintiff Murphy Assavedo seeks judicial review pursuant to Section 405(g) of the Social Security Act (the Act) of the final decision of the Commissioner of Social Security Administration (the SSA), which denied his claim for disability benefits (DIB), Title II, §§ 216(I) and 223 of the Act, 42 U.S.C. §§ 416(I) and 423, and supplemental security income benefits (SSI) under Title XVI, §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. § 1381(a). Plaintiff and defendant filed timely cross-motions for summary judgment. Record Doc. Nos. 12, 14.

1. PROCEDURAL HISTORY

Assavedo applied for DIB on July 11, 1995, alleging disability since October 3, 1994, due to "chest pains." (Tr. 35-39, 83). The commissioner denied his application initially and on reconsideration. (Tr. 50-53, 66-70). Plaintiff requested a hearing before an administrative law judge ("ALJ"), which was held on February 26, 1997. (Tr. 281-327). The ALJ denied Assavedo's application on July 24, 1997. (Tr. 15-16). After the Appeals Council denied Assavedo's application on February 26, 1999, (Tr. 5-6), the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.

2. STATEMENT OF ISSUES ON APPEAL

Plaintiff's request for judicial review raises the following issues:

A. That the ALJ failed to apply Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985);

B. That the hypothetical question asked of the Vocational Expert (VE) was defective;

C. That the ALJ erred by not crediting all of plaintiff's complaints;

D. That the ALJ's assessment of plaintiff's residual functional capacity ["RFC"] did not contain all the necessary findings; and

E. That the ALJ erred in finding that plaintiff had a sixth grade education.

3. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL

A. The medical evidence establishes that the claimant has severe chest pain, but that he does not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1, Subpart P, Regulations No. 4.

B. The claimant's subjective complaints are not fully credible, and his symptoms are not as limiting as alleged.

C. The claimant has the residual functional capacity [RFC] to perform the physical exertion and nonexertional requirements of light work except for being limited to sitting for 30 minutes and standing for 30 minutes (20 CFR 404.1545 and 416.945).

D. The plaintiff is unable to perform his past relevant work as a baker's helper, a fisherman, and a laborer.

E. The claimant is 44 years old [at time of February, 1997 hearing], which is defined as a younger individual (20 CFR 404.1563 and 416.963).¹

F. The claimant has a sixth grade education (20 CFR 404.1564 and 416.964).

G. Considering an exertional capacity for a wide range of light work and the claimant's age, education, and work experience within the framework of the Administration's medical/vocational rules found in 20 CFR 404.1569, 20 CFR 416.969, and Section 202.00(g), Appendix 2, Subpart P, Regulations No. 4 supported by vocational expert testimony, the claimant has the capacity to perform a wide range of work representing substantial work capability compatible with making a work adjustment to substantial numbers of unskilled jobs. Examples of such jobs are: kitchen worker, carver, pantry worker, or silver wrapper. (Tr. 25-26).

4. Standards of Review

The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's. Id.; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).

The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.1995).

To be considered disabled and eligible for SSI, plaintiff must show that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. §§ 404.1501 to 404.1599 & Appendices, §§ 416.901 to 416.998 1995. The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994), Moore v.. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990).² The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.1995).

The claimant has the burden of proof under the first four parts of the inquiry. Id. If he successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir.1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant," Id.; accord Selders, 914 F.2d at 618.

The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) his age, education, and work history," Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.

A. Factual Background

Plaintiff Murphy J. Assavedo, along with the VE, testified at the hearing on February 26, 1997, before the ALJ. (Tr. 281-327), He was 44 at the time of the hearing, married, with two children, ages 18 and 14. His 18 year old son receives SSI because he is handicapped. His wife works part time for the Tangipahoa School Board. He stated he was 6'2" tall, and weighed 285 pounds, but that his weight fluctuated a bit and at times he was over 300 pounds. He responded to a question by the ALJ as to how far he went in school by saying "seventh grade." He then explained he was in special education in 7th grade, but when the school burned down, his mother did not re-enlist him. (Tr. 287-290). (Later on, he explained he had repeated 7th grade four times. [Tr. 3 10]). He was seventeen at that time. He said he started working part time, but he never received any additional job training of any sort. He said he could read or write "a little bit," and could sign his name and make change. The last time he worked for a living was in 1994 or 1995, when he worked for two weeks at Vandazzo's bakery, as a helper. He stopped in February of 1995 because he got sick. His prior work experience included working on an oyster boat, and working as a commercial crabber. He did heavy labor at that time.

In response to a question by the ALJ as to why plaintiff did not feel he could do any work, he stated his back and leg were giving him problems, that it was hard for him to get up and down the steps at his house, and that if he picked up too much, he would get blood in his urine. He also suffered with a pain on his right side, and suffered with prostate problems of some sort. (Tr. 296). He said if he picked up over 30 pounds, he would get blood in his urine. He said he could walk a couple of blocks, but then would have to sit down and relax because the pain "shoots so hard." (Tr. 298). He can sit for about 30 minutes. He stated x-rays showed his heart was "a little bit bigger than a regular heart," but that he had cut back on his salt and cholesterol and his diet, so as far as he knew, his heart was O.K. (Tr. 398). He testified he suffered with his right arm, in that it would get a sharp pain and get numb and sometimes swell up. He also said he sometimes had pain in his left arm, but not as bad as in the right.

In response to questioning about his back, plaintiff stated that sometimes if he turns too fast, [the pain] makes him drop to his knees. He said his doctor told him he had "a gap in my disks back there." (Tr. 303). He takes fluid pills and Flexerils and had a couple of more pills...