Baker v. Chater, Civil Action No. S-95-2984.

• Citation: 957 F.Supp. 75
• Decision Date: 08 August 1996
• Docket Number: Civil Action No. S-95-2984.
• Parties: Roger L. BAKER, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security, Defendant.
• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)

957 F.Supp. 75

Roger L. BAKER, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security, Defendant.

Civil Action No. S-95-2984.

United States District Court, D. Maryland.

August 8, 1996.

COPYRIGHT MATERIAL OMITTED

Anthony R. Magnini, Baltimore, MD, for Plaintiff.

Lynn A. Battaglia, U.S. Atty., Allen F. Loucks, Asst. U.S. Atty., Baltimore, MD, for Defendant.

MEMORANDUM

KLEIN, United States Magistrate Judge.

Plaintiff brought this action under § 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), and § 1631(c)(3) of the Act, 42 U.S.C.A. § 1383(c)(3), as amended, for review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Currently before the Court are the parties' cross Motions for Summary Judgment, Paper Nos. 14 & 15, Defendant's Request for Oral Argument, Paper No. 15, and Plaintiff's Response to the Defendant's Memorandum of Points and Authorities in Support of her Motion for Summary Judgment, Paper No. 16.

Judge Frederic Smalkin referred this matter to the undersigned to resolve the Motions for Summary Judgment pursuant to 28 U.S.C. § 636(b) and Local Rules 301 and 302. Paper No. 9. The parties consented to the trial of this matter before a United States Magistrate Judge under 28 U.S.C. § 636(c). Paper No. 10. No hearing is necessary. Local Rule 105.6.

On October 3, 1991, plaintiff filed his applications for DIB and SSI, alleging that he had become disabled on April 3, 1991. Tr. 37-39, 44-60. His claims were denied originally and upon reconsideration. Tr. 41-43, 62-64, 68-70, 72-74. Upon request, and after a brief hearing held before Administrative Law Judge Jan Michalski on May 6, 1993, Tr. 194, a more extensive hearing was held before Administrative Law Judge Charles Dirlam ("ALJ"), at which plaintiff was represented by counsel. Tr. 198-224.

On December 28, 1994, the ALJ found plaintiff not entitled to a period of disability or disability insurance benefits under §§ 216(i) and 223, respectively, of the Act, and not eligible for SSI under §§ 1602 and 1614(a)(3)(A) of the Act. Tr. 21-27. On August 30, 1995, the Appeals Council denied plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final, reviewable decision of the Commissioner. Tr. 6-7.

I. STANDARD OF REVIEW

The function of the Court is not to review a DIB or SSI claim de novo, but rather to leave the findings of fact to the Commissioner and to determine upon the whole record whether the Commissioner's decision is supported by substantial evidence. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.1987); 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla but less than a preponderance of the evidence presented. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966). It is such evidence which a reasoning mind would accept as sufficient to support a particular conclusion. Id. Ordinarily, if there is substantial evidence to support the decision of the Secretary, then that decision must be upheld. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.1986); Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir.1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.1972); 42 U.S.C. § 405(g). After review, the Court is empowered to affirm, modify, or reverse the Commissioner's decision, with or without remanding the cause for a rehearing. Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir.1971); 42 U.S.C. § 405(g).

The Commissioner has promulgated regulations that set forth a sequential, five-step process for § 416.920 (1991); see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2290-92, 96 L.Ed.2d 119 (1987) (describing the process). First, the Commissioner determines whether the claimant is engaged in "substantial gainful activity" as defined in §§ 416.971 et seq. If such determination is positive, no disability will be found. §§ 404.1520(b), 416.920(b).

If such determination is negative, the Commissioner proceeds to step two, where he considers the physical and mental impairments of the claimant, severally and in combination. The impairments must meet the durational requirement, §§ 404.1509, 416.909, and be severe, §§ 404.1520(c), 416.920(c). If they do not, no disability will be found. §§ 404.1509, 416.909, 404.1520(c), 416.920(c).

If he determines that the claimant's impairments are severe and of sufficient duration, the Commissioner then proceeds to the third step, the consideration of whether the impairments, either severally or in combination, meet or equal an impairment listed in 20 C.F.R. pt. 404, subpt. P, App. 1 (1991), the so-called Listing of Impairments ("LOI"). §§ 404.1520(d), 416.920(d). If one of the listings is met, disability will be found without consideration of age, education or work experience. §§ 404.1520(d), 416.920(d).

If a listing is not met, the Commissioner moves to the fourth step, and considers whether the claimant retains the residual functional capacity to perform past relevant work. §§ 404.1520(e), 416.920(e). A positive answer means that the claimant is not disabled. §§ 404.1520(e), 416.920(e).

A negative answer requires the Commissioner to proceed to the fifth and final step, which requires the consideration of whether, in view of the claimant's vocational factors such as age, education and work experience, and of his residual functional capacity, the claimant is capable of other work in the national economy. The claimant is entitled to disability benefits only if the answer is "no". §§ 404.1520(f), 416.920(f).

In determining the answer, the burden of proof shifts to the Commissioner, who must establish that the claimant retains the residual functional capacity to engage in an alternative job existing in the national economy. McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.1983); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.1980). The Commissioner must prove both the claimant's capacity and the job's existence. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir.1983). Before the Commissioner may conclude that the claimant can perform alternative skilled or semi-skilled work, he must show that the claimant possesses skills that are transferable to those alternative positions. McLain v. Schweiker, 715 F.2d at 869.

The Medical-Vocational Guidelines, as defined in pt. 404, subpt. P, App. 2 ("Guidelines"), provide the applicable rules in determining whether a claimant is disabled. Where findings of fact concerning a claimant's vocational factors and residual functional capacity coincide with all the criteria in a rule, and the claimant suffers from only exertional types of impairments, that rule directs the conclusion of the claimant's disability status. Guidelines, § 200.00(a); Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983).

However, the rules do not direct conclusions of disability status for individuals with nonexertional types of impairments. Guidelines, § 200.00(e)(1); Grant v. Schweiker, 699 F.2d at 192. In such cases, the Commissioner may be required to solicit vocational expert ("VE") testimony in order to reach a proper conclusion. See Taylor v. Weinberger, 512 F.2d 664, 668-69 & n. 9 (4th Cir.1975). Nor do the rules direct a conclusion if a claimant's specific vocational profile is not listed within Appendix 2; e.g., if the claimant's residual functional capacity falls between two ranges of work indicated in the rules. Guidelines, § 200.00(d). Nor, finally, do the rules direct such conclusions if any one of the findings of fact does not coincide with the corresponding criterion of a rule. Guidelines, § 200.00(a). In such cases, the claimant's disability status "is decided on the basis of the principles and definitions in the regulations, giving consideration to the rules for specific case situations in Appendix 2." Guidelines, § 200.00(d). Further, in such cases full consideration must be given to all of the relevant facts of the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations. Guidelines, § 200.00(a).

II. THE ALJ'S DECISION

The ALJ denied plaintiff's claim at the fifth step of the process, finding that plaintiff retains the residual functional capacity to perform light work. Tr. 24; Finding No. 7. In support thereof, the ALJ made, inter alia, the following findings: 1) plaintiff had not engaged in substantial gainful activity since April 3, 1991, Finding No. 2; 2) plaintiff does not have an impairment listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4, Finding No. 3; 3) plaintiff has the residual functional capacity to perform the physical exertion requirements of work except for lifting or carrying of objects weighing more than twenty pounds and working in an environment with concentrated exposure to fumes, odors, dust, gas, poor ventilation, etc., Finding No. 5; 4) plaintiff is unable to perform his past relevant work, Finding No. 6; 5) plaintiff was a "person closely approaching advanced age" at the time of his date last insured, Finding No. 8; 6) plaintiff has a "limited" eighth grade education, Finding No. 9; 7) plaintiff does not have any acquired work skills which are transferable to other skilled or semiskilled work activities, Finding No. 10; 8) § 404.1569 of Regulations No. 4 and § 416.969 of Regulations No. 16 and Rule 202.10, Table No. 2 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant's residual functional capacity, age, education, and work experience, he is not disabled, Finding No. 11.

III. ANALYSIS

In support of plaintiff's assertion that the Commissioner's decision is unsupported by substantial evidence, plaintiff alleges four procedural deficiencies in the Commissioner's method of obtaining his final decision. The alleged procedural deficiencies are addressed first, the general level of supporting evidence second.

Plaintiff...