Blumberg v. Heckler

• Decision Date: 05 November 1984
• Docket Number: No. 82-6674-CIV.,82-6674-CIV.
• Citation: 598 F. Supp. 1250
• Parties: Allen BLUMBERG, Plaintiff, v. Margaret M. HECKLER, Defendant.
• Court: U.S. District Court — Southern District of Florida

598 F. Supp. 1250

Allen BLUMBERG, Plaintiff, v. Margaret M. HECKLER, Defendant.

No. 82-6674-CIV.

United States District Court, S.D. Florida, Miami Division.

November 5, 1984.

Lyle D. Lieberman, Miami, Fla., for plaintiff.

Maria P. Sperando, Asst. U.S. Atty., Miami, Fla., for defendant.

FINAL ORDER

HASTINGS, District Judge.

Upon review of the Report and Recommendation of United States Magistrate Herbert S. Shapiro, and upon independent review of pertinent parts of the entire record herein, it is hereby

ORDERED AND ADJUDGED that said Report and Recommendation is hereby adopted, and that the Decision of the Secretary of Health and Human Services be REVERSED.

REPORT AND RECOMMENDATION

September 17, 1984

HERBERT S. SHAPIRO, United States Magistrate.

This is a review of the final decision of the Secretary of Health and Human Services of the United States of America, who has denied Allen Blumberg disability and disability insurance benefits under the provisions of 42 U.S.C. Sections 416(i) and 423.

The Honorable Alcee L. Hastings, United States District Judge, has referred this cause to United States Magistrate Herbert S. Shapiro for preliminary review of the administrative record and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative decision. See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976).

I. RECORD

For the purposes of this Report and Recommendation, the letter "R" will be used to designate the Record.

ISSUE PRESENTED

The issue to be determined by this Court is whether the ALJ's finding of no disability is supported by substantial evidence.

APPLICABLE LAW

A. Statutory

Certain basic statutory provisions relating to disability and mental impairment are applicable in this case.

First, 42 U.S.C. Section 423(d)(1)(A) defines "disability" as:

... inability 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 lasted or can be expected to last for a continuous period of not less than 12 months....

Pursuant to 42 U.S.C. Section 423(d)(2)(A), a disability exists where:

an individual (except a widow, surviving divorced wife, or widower for purposes of section 402(e) or (f) of this title) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), `work which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

Further, 42 U.S.C. Section 423(d)(3) provides:

For purpose of this subsection, a "physical or mental impairment" is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically accepted clinical and laboratory diagnostic techniques.

Title 42 U.S.C. Section 423(d)(5) (Supp.1983) has specified that:

An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.

On November 28, 1978, the Secretary's vocational factors regulations were published as formal rules in the Federal Register. 20 C.F.R. Sections 404.1503-404.1513; Sections 416.903-416.913. Former Sections 404.1503-404.1513 were redesignated as Sections 404.1514-404.1518, and former Sections 416.903-416.913 were redesignated as 416.914-416.918. The new regulations became effective February 26, 1979. The new regulations were utilized in the instant case and set forth the factors which were considered in this action.

Pursuant to the new regulations, a sequential process of evaluation is to be undertaken in assessing a disability claim. 20 C.F.R. Section 404.1520(a). First, it must be determined whether the claimant is presently engaged in substantial gainful activity. If so, then a finding of no disability is made. 20 C.F.R. Section 404.1520(b). If not, then the next inquiry is whether the claimant suffers from a "severe" impairment which significantly affects basic work related activities. 20 C.F.R. Section 404.1520(b); see also Section 404.1521. If so, the inquiry progresses. If not, then, without considering age, education or work experience, the claimant is determined not to be disabled. 20 C.F.R. Section 404.1520(c).

Where a severe impairment does exist, the next step is to determine if it meets or equals the Secretary's Listing of Impairments in Appendix I, Subpart P of the regulations. Disability is automatically established if the listing is met. 20 C.F.R. Section 404.1520(d). If the listing is not met, then the individual's Residual Functional Capacity (RFC) must be determined. This means that the Secretary must determine those physical and mental functions which the claimant can still perform despite his or her impairments. 20 C.F.R. Section 404.1544. These must be measured against the demands of claimant's prior work to determine whether he or she can return to that work. If not, then the Secretary must determine if there is any other work existing in the economy which the claimant can do, considering age, education, work experience and RFC. 20 C.F.R. Section 404.1520(e) and (f). If, however, the claimant can return to past work, disability is denied.

B. Case Law

I

The undersigned notes that cases decided by the Fifth Circuit before the close of business on September 30, 1981, are binding on this Court as precedent. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981).

II

The law is clearly settled as to the role of this Court in reviewing the denial of Social Security Disability Benefits. The Social Security Act provides for a limited measure of judicial review. "The role of the Courts in this quintessentially administrative process is extremely narrow." Lewis v. Weinberger, 515 F.2d 584, 586 (5th Cir.1975); 42 U.S.C. Section 405. See Homan & Crimen v. Harris, 626 F.2d 1201 (5th Cir.1980). As the Fifth Circuit said in the Lewis case, 515 F.2d at 586, 587:

We do not re-weigh the evidence; we simply determine whether there 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, 1427, 28 L.Ed.2d 842 (1970) ... Determinations which are not supported by substantial evidence are unusual, even rare ... Gaultney v. Weinberger, 505 F.2d 943, 945 (5th Cir.1974). Nonetheless, this does not mean that "we have abdicated our traditional judicial function of scrutinizing the record as a whole to determine the reasonableness of the decision reached."

See Rodriguez v. Schweiker, 640 F.2d 682 (5th Cir.1981); see also Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir.1983). The Court is barred from substituting its evaluation of the evidence for that of the Secretary, yet it may review the record to determine if substantial evidence exists to support the Secretary's findings. Boyd v. Heckler, 704 F.2d 1207 (11th Cir.1983); Viehman v. Schweiker, 679 F.2d 223 (11th Cir.1982). The Court is to defer to the Secretary's findings of fact. Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir.1982); Millet v. Schweiker, 662 F.2d 1199 (5th Cir.1981). Issues of credibility are reserved to the Secretary of Health and Human Services. Smallwood v. Schweiker, 681 F.2d 1349 (11th Cir.1982).

Thus, under the Eleventh Circuit's directive, this Court clearly may review the Secretary's denial and may utilize the entire record of the proceedings in making its final determination. See Viehman v. Schweiker, 679 F.2d 223 (11th Cir.1982).

III

The issue before the Court is whether the finding of no disability of the Secretary, as reflected by the record, is supported by substantial evidence. Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982).

The function of this Court is not to determine the claim of the plaintiff de novo but rather to determine whether the findings of the Secretary as to any fact are supported by substantial evidence. 42 U.S.C. Section 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1970); Jones v. Heckler, 702 F.2d 950 (11th Cir. 1983); Walden v. Schweiker, 672 F.2d 835 (11th Cir.1982); Rodriguez v. Schweiker, 640 F.2d 682, 685 (5th Cir.1981). "Substantial evidence" is defined as relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Boyd v. Heckler, 704 F.2d at 1205; Freeman v. Schweiker, 681 F.2d 727, 730 (11th Cir.1982).

IV

The burden of proof on plaintiff is a heavy one. Oldham v. Schweiker, 660 F.2d 1078 (5th Cir. Unit B 1981). To become eligible for disability benefits, the plaintiff is required to prove by objective medically acceptable clinical and laboratory diagnostic findings that he is unable to work owing to a physical or mental impairment. Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.1973), cert. den., 414 U.S. 913, 94 S.Ct. 255, 38 L.Ed.2d 155 (1973); Hart v. Finch, 440 F.2d 1340 (5th Cir.1971). An ALJ's challenge to the credibility of the claimant is proper where the evidence is subjective. Smallwood v. Schweiker, 681 F.2d at 1351. Under both statutory and case law, the burden is on the plaintiff to prove his disability supported by medical evidence. Simpson v. Schweiker, 691 F.2d at 969; Anderson v. Schweiker, 651 F.2d 306 (5th Cir.1981); Crosby v. Schweiker, 650 F.2d 777 (5th Cir.1981); Ferguson v. Schweiker, 641 F.2d 243 (5th Cir.1981). If the plaintiff shows that a return to the prior job is not possible, the...