Baker v. Heckler

• Decision Date: 26 August 1983
• Docket Number: No. 81-3082.,81-3082.
• Citation: 569 F. Supp. 749
• Parties: Dalton BAKER, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Western District of Arkansas

569 F. Supp. 749

Dalton BAKER, Plaintiff, v. Margaret HECKLER,^* Secretary of Health and Human Services, Defendant.

No. 81-3082.

United States District Court, W.D. Arkansas, Harrison Division.

August 26, 1983.

Thomas A. Martin, Jr., Jasper, Ark., for plaintiff.

Mark W. Webb, Asst. U.S. Atty., Fort Smith, Ark., for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Plaintiff Dalton Baker seeks judicial review of a decision of the Social Security Administration's Appeals Council denying his claim for disability benefits. Both plaintiff and defendant Secretary of Health and Human Services have moved for summary judgment. Plaintiff contends that (1) the Appeals Council's decision was not supported by substantial evidence on the record as a whole; and (2) HHS regulations found at 20 C.F.R. §§ 404.969-.970 (1983) precluded the Council from reviewing his claim. The Secretary argues that the Council's decision was a "final decision of the Secretary," and that it was supported by substantial evidence on the record. This Court has jurisdiction of the cause pursuant to 42 U.S.C. § 405(g).

Background

Mr. Baker was born in 1929, and received a fifth grade education. In 1961, he severely injured his back in an accident and underwent surgery to fuse his lumbar spine in several places. After a year of recuperation, he received vocational rehabilitation training in small appliance repair. He worked several years in this capacity, and then in 1975 started a saw sharpening business. In May, 1980 Mr. Baker turned his business over to his son. Since that time he has performed no work activities aside from buying, selling and feeding a herd of twenty-eight cattle. He applied for disability benefits in October, 1980, alleging he had been disabled since May, 1980 by "residuals of back surgery, arthritis in neck, shoulders and hand."

At the time Mr. Baker applied for benefits, he indicated that he had not been seen by a doctor since 1961. Consequently, administrative personnel arranged for a consultative examination to be performed by internist Dennis Berner. Dr. Berner reported that plaintiff had good strength and range of motion in all joints except the spine. There was no flexion or extension in the lumbar spine, and plaintiff had great difficulty squatting. X-rays of the hand and cervical spine revealed mild changes. Lumbar spine x-rays showed calcification and narrowing of the interspaces. Dr. Berner diagnosed, inter alia,

1. Status post lumbar laminectomy and lumbar fusion for herniated nucleus pulposus. Mr. Baker still has significant leg and back pain, and loss of mobility of the lumbar spine.

2. Symptoms of osteoarthritis. The major pain being in the neck and the hands.

Plaintiff's claim was denied originally and on reconsideration, and plaintiff requested a hearing before an administrative law judge ALJ. The hearing was held in April, 1981. Plaintiff testified that the condition of his back had been deteriorating for years, and that he experienced constant burning pain in his low back and right hip and leg. He said that he had quit working because the pain in his back and hands was aggravated by the prolonged sitting, frequent bending, and constant use of hands required by the saw sharpening job. He also testified that he took medication for the headaches but no other prescription drugs.

On the basis of this record, the ALJ found that plaintiff was disabled. The ALJ stated that

In observing the claimant at the hearing including his demeanor, it is the opinion of the undersigned that the claimant's credibility could not be questioned.

Shortly thereafter, however, the Appeals Council notified Mr. Baker that it considered the ALJ's decision to be unsupported by the evidence and erroneous in law. The Council proposed to review the claim "on its own motion." In December, 1981, the Council issued a decision reevaluating the entire claim. The Council rejected plaintiff's allegations of disabling pain, and found that he was capable of returning to his "past relevant work." The Council therefore denied the claim, and plaintiff appealed to this Court.

Discussion

1. Substantial evidence.

Plaintiff contends that the Council's decision was not supported by substantial evidence. We do not agree. Substantial evidence is that amount "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Dr. Berner's report established that plaintiff had a stiff back and some pain; but it failed to indicate the extent to which the pain could be expected to interfere with work activities. As a result, plaintiff's credibility became the central issue in this case. In rejecting plaintiff's allegations, the Council relied on his reported daily activities (caring for cattle, gardening, etc.); his failure to seek medical attention after 1961; and his skimpy medication record. This evaluation was not unreasonable. As the Court of Appeals has said, "Claimant's subjective complaints may be shown to be exaggerated by any inconsistency in claimant's testimony and all other circumstances in the case." Brand v. Secretary of HEW, 623 F.2d 523, 526 n. 3 (8th Cir.1980).

In upholding the Appeals Council's evaluation of the evidence we are cognizant of the fact that the ALJ's positive credibility finding militated strongly against that evaluation. Universal Camera v. N.L.R.B., 340 U.S. 474, 496, 71 S.Ct. 456, 468-69, 95 L.Ed. 456 (1951). The ALJ's finding was reasonable, and was supported by plaintiff's work history and by the close parallels between plaintiff's testimony and Dr. Berner's report. Moreover, it was of course in no way inappropriate for the ALJ to give testimony controlling weight when resolving crucial issues. But even weighing the ALJ's finding along with the rest of the evidence, we believe that reasonable minds reviewing the record could reach opposing conclusions as to the severity of plaintiff's impairments. We hold that the Council's decision was supported by substantial evidence.

2. Regulations governing Appeals Council review.

The Secretary's regulations provide:

Anytime within 60 days after the date of a hearing decision ... the Appeals Council itself may decide to review the action that was taken. If the Appeals Council does review the hearing decision ... notice of the action will be mailed to all parties ....

20 C.F.R. § 404.969 (1983).

The Appeals Council will review a case if —

(1) There appears to be an abuse of discretion by the administrative law judge;

(2) There is an error of law;

(3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or

(4) There is a broad policy or procedural issue that may affect the general public interest.

20 C.F.R. § 404.970. It will be recalled that the Council asserted insubstantiality of the evidence and errors of law as its reasons for reviewing the ALJ's decision. Mr. Baker argues that neither of these two grounds applied in this case. Plaintiff then concludes that the Council had no authority to review and reverse the ALJ's decision on his claim. He urges this Court to reinstate the ALJ's...