Barnes v. Schweiker, C 82-72.

• Decision Date: 26 April 1983
• Docket Number: No. C 82-72.,C 82-72.
• Citation: Barnes v. Schweiker, 562 F.Supp. 433 (N.D. Iowa 1983)
• Parties: Mary Jane BARNES, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Iowa

562 F. Supp. 433

Mary Jane BARNES, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

No. C 82-72.

United States District Court, N.D. Iowa, Cedar Rapids Division.

April 26, 1983.

Daniel J. McDermott, Cedar Rapids, Iowa, for plaintiff.

Robert Teig, Asst. U.S. Atty., Cedar Rapids, Iowa, for defendant.

ORDER

McMANUS, Chief Judge.

This matter is before the court on plaintiff's resisted motion for summary judgment, filed October 12, 1982; on defendant's resisted motion to affirm the Secretary's decision, filed November 12, 1982; and on plaintiff's resisted "Motion for Consideration of Court Orders," filed January 4, 1983. Vacated and remanded.

This is an action to review a final decision of the Secretary of Health and Human Services denying plaintiff disability insurance benefits under the provisions of Title 42 U.S.C. § 423 of the Social Security Act.

Before turning to the law and facts herein involved, the court will address plaintiff's January 4, 1983 motion. In that motion plaintiff asks the court to, in effect, strike defendant's supplemental brief in support of defendant's motion to affirm the decision of the Secretary. Plaintiff claims that said brief was not within the purview of the court's orders regarding the briefing schedule. However, the court finds that defendant's supplemental brief addresses information and arguments raised for the first time in plaintiff's reply brief. It is only fair that defendant be permitted to respond thereto. Thus, plaintiff's motion will be denied.

At this point a general review of the law to be applied is in order.

Under the Social Security Act the findings of the Secretary must be affirmed if they are supported by substantial evidence in the record. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Alexander v. Weinberger, 536 F.2d 779 (8th Cir.1976); Reams v. Finch, 313 F.Supp. 1272 (N.D.Ia.1970). Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, supra; Timmerman v. Weinberger, 510 F.2d 439 (8th Cir.1975). Further, it is clear that the plaintiff has the burden of establishing his entitlement to benefits under the Act. Johnson v. Califano, 572 F.2d 186 (8th Cir.1978); Yawitz v. Weinberger, 498 F.2d 956 (8th Cir.1974).

It is, however, equally clear that plaintiff has the burden of establishing his claim for disability benefits. See e.g., Rhines v. Harris, 634 F.2d 1076 (8th Cir.1980); Davis v. Califano, 616 F.2d 348 (8th Cir.1979); Johnson v. Califano, 572 F.2d 186 (8th Cir.1978). The statutory definition of disability imposes upon a claimant a three-fold proof requirement:

1. That there is a medically determinable physical or mental impairment that can be expected to continue for a period of not less than 12 months.

2. That there is an inability to engage in any substantial gainful employment; and

3. That the inability is by reason of the impairment.

Timmerman v. Weinberger, 510 F.2d 439 (8th Cir.1975).

Once a plaintiff, as here, has established a disability so severe as to preclude that person from engaging in his former work, the burden shifts to the Secretary to prove that there is some other kind of substantial gainful employment that plaintiff could perform. See e.g., Johnson v. Califano, supra; Brinker v. Weinberger, 522 F.2d 13, 17 (8th Cir.1975).

In this case the ALJ found plaintiff not to be disabled on the basis of the grid. The grid was developed in an attempt to insure more uniformity in the decision of disability cases. Santise v. Schweiker, 676 F.2d 925 (3rd Cir.1982). It establishes a sequential decision making process to be uniformly followed in deciding disability cases. See 20 CFR § 404.1520. Specifically, the regulations require that an initial determination be made as to whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is found "not disabled." Second, it is determined if the claimant has a severe impairment—one that significantly limits the ability to perform work-related functions; if not, then on the medical evidence alone the claimant is determined to be not disabled. Third, if a severe impairment is found, the impairment is compared against those listed in 20 CFR Subpart P, Appendix I (1981), to see if, on the medical evidence alone, the claimant can be found to be disabled. Assuming the claimant is not found to be disabled, the fourth step requires inquiry into whether the claimant can perform relevant past work; if so, then the claimant is not disabled. The final step in the process involves the use of the grid. See 20 CFR § 404.1520.

Before the grid can be used the ALJ is required to make findings as to the applicant's age,¹ education,² prior work experience,³ and residual functional capacity (RFC) which can then be plugged into the grid and a result obtained. Of these factors the Eighth Circuit has indicated that RFC is by far the most important. McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982). Under the regulations RFC is defined as the level of work that an individual is able to perform in spite of his various physical and mental impairments. 20 CFR § 404.1545. It is clear that the grid does not apply if the applicant's RFC is to do a particular kind of work⁴ only intermittently but rather the claimant must be able to perform a full range of work on a sustained basis. As the Eighth Circuit stated in McCoy, "the RFC that must be found if the grid is to be used, in the case of sedentary and medium work, as well as light work, is not the ability merely to lift weights occasionally in a doctor's office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world." Id. In any event the claimant must be capable of performing a wide range of jobs at the designated level sedentary, light or medium.

Further, RFC is defined wholly in terms of the physical ability to perform certain exertional tasks. If a claimant has a solely non-exertional⁵ impairment, the grid is not controlling and cannot be used to direct a conclusion without regard to other evidence. See Appendix 2, § 200.00(e). Tennant v. Schweiker, 682 F.2d 707 (8th Cir. 1982). Torres v. Secretary of HHS, 668 F.2d 67 (1st Cir.1981). If a claimant has a combination of exertional and non-exertional impairments the guidelines are considered first to determine whether that person is entitled to a finding of disability based on exertional impairments alone. If such a finding is not directed the ALJ must then consider "how much the individual's work capability is further diminished" by the non-exertional impairment. Appendix 2, § 200.00(e)(2). Thus, if the non-exertional limitation restricts a claimant's performance of a full range of work at the appropriate RFC levels, non-exertional limitations must be taken into account and a non-guideline determination made.

In this circuit pain is considered a non-exertional impairment and it has been clear for some time that it may be disabling within the meaning of the Act. See Yawitz v. Weinberger, 498 F.2d 956 (8th Cir.1974); Northcutt v. Califano, 581 F.2d 164 (8th Cir.1978); Murphy v. Gardner, 379 F.2d 1 (8th Cir.1967).

Accordingly, the ALJ must seriously evaluate plaintiff's complaints of pain even though not fully corroborated by objective examinations and tests. See Ballowe v. Harris, 650 F.2d 130 (8th Cir.1981); Brand v. Secretary of HEW, 623 F.2d 523 (8th Cir.1980). However, the mere fact that a plaintiff experiences pain does not make that person disabled. The existence of pain necessitates a finding of disability only if it is not remediable and precludes a person from engaging in any substantial activity. See e.g., Gaultney v. Weinberger, 505 F.2d 943 (5th Cir.1974); Mark v. Celebrezze, 348 F.2d 289 (8th Cir.1965); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir.1965). It is the ALJ who is the fact-finder in this regard and if he properly considers the claim his determination is entitled to great weight. See e.g., Fitzsimmons v. Mathews, 647 F.2d 862 (8th Cir.1981); Weber v. Harris, 640 F.2d 176 (8th Cir.1981); Simmons v. Harris, 602 F.2d 1233 (5th Cir.1979).

While credibility is for the ALJ this does not alter the substantial evidence rule set out above and where subjective complaints of pain are rejected the ALJ should give some explanation of his reasoning unless it is apparent from the record. Lanes v. Harris, 656 F.2d 285 (8th Cir.1981). The ALJ should evaluate subjective complaints of pain with due consideration for credibility, motivation and medical evidence. Benson v. Mathews, 554 F.2d 860 (8th Cir.1977). When evaluating credibility in addition to the medical evidence the ALJ, and the court in determining if the ALJ's decision is supported by substantial evidence, should consider such factors as unsuccessful attempts to return to work, see e.g., Milton v. Schweiker, 669 F.2d 554 (8th Cir.1982), claimant's prior work history, see e.g., Northcutt v. Califano, 581 F.2d 164 (8th Cir.1978); testimony of corroborating witnesses, see e.g., Northcutt v. Califano, 581 F.2d 164 (8th Cir.1978), whether plaintiff is undergoing treatment or not, see e.g., Rhines v. Harris, 634 F.2d 1076 (8th Cir. 1980), and claimant's daily activities. See e.g., Yawitz v. Weinberger, 498 F.2d 956 (8th Cir.1974). In short, the ALJ is bound to consider all factors in the record which shed light on the validity or invalidity of plaintiff's claim. Cole v. Harris, 641 F.2d 613 (8th Cir.1981); Landess v. Weinberger, 490 F.2d 1187 (8th Cir.1974). Further, each plaintiff must be treated individually and an individualized determination made since different people may react differently to the same physical impairments. Cole v. Harris, 641 F.2d 613 (8th Cir.1981). The question is the extent of...