Brown v. Bowen, 85-5803

• Decision Date: 20 June 1986
• Docket Number: No. 85-5803,85-5803
• Citation: 794 F.2d 703
• Parties: , 14 Soc.Sec.Rep.Ser. 133, Unempl.Ins.Rep. CCH 16,843 Rose E. BROWN, Appellant v. Otis R. BOWEN, Secretary, Department of Health and Human Services.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 703

794 F.2d 703

253 U.S.App.D.C. 409, 14 Soc.Sec.Rep.Ser. 133,

Unempl.Ins.Rep. CCH 16,843

Rose E. BROWN, Appellant v. Otis R. BOWEN, Secretary, Department of Health and Human Services.

No. 85-5803.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 26, 1986.

Decided June 20, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-02601).

Gaines H. Cleveland, with whom E. Marie Wilson-Lindsay, Washington, D.C., was on brief, for appellant.

William J. O'Malley, Jr., Asst. U.S. Atty., Washington, D.C., for appellee. Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, Michael J. Ryan and Claire M. Whitaker, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee. James N. Owens, Asst. U.S. Atty., Washington, D.C., also entered an appearance, for appellee.

Before MIKVA, STARR and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This is a Social Security disability case. The claimant, Rose E. Brown, appeals from a judgment dismissing her action for review of a decision by the Secretary of the Department of Health and Human Services denying her claim for both disability and supplemental security income benefits under the Social Security Act. After careful review, we conclude that the Secretary's decision was unsupported by substantial evidence.

I

For twenty-six years, Mrs. Brown was continuously employed and served successively as a waitress, delicatessen worker, butcher, and cook. Now fifty-nine years of age, Mrs. Brown is considered under applicable regulations to be of "advanced age," 20 C.F.R. Sec. 404.1563(d); her eleventh-grade education is classified as "limited." Id. Sec. 404.1564(b)(3). In November 1980, while performing her duties as a cook at a local church, Mrs. Brown sustained a back injury. Unable to work, she sought treatment. She was hospitalized twice. At the time, her treating physicians diagnosed her injury as a lumbosacral strain. Over the next eighteen months, several x-rays and a spinal CAT scan were interpreted as revealing lumbar lordosis, scoliosis, possible disc herniation, disc space narrowing, and spinal stenosis. These findings were interpreted as indicating degenerative disc disease. In April 1982, her former physician, Dr. Fleming, reported to a workers compensation insurer that Mrs. Brown would be "left with a partial permanent disability," J.A. at 103, adding that she could "return to work now on a part-time basis to see if she [can] tolerate employment." Id.

In June 1982, the insurer engaged a consulting physician, Dr. Dorin, to examine Mrs. Brown. Dr. Dorin found that x-rays revealed disc space narrowing and sclerosis, which "could represent a discogenic disease or a low-grade infection." J.A. at 107. The consulting physician concluded, however, that Mrs. Brown was not permanently disabled as a result of the injury and should have been able to return to her duties as a cook. Id. In early 1983, Mrs. Brown's new treating physician, Dr. Jacques, increased the dosage of her prescribed painkiller. J.A. at 110. Following a neck injury suffered by Mrs. Brown in June 1983, further x-rays of the cervical region were interpreted as indicating scoliosis and degenerative arthritis. In October 1983, Dr. Jacques rendered a diagnosis of chronic low back pain, lumbosacral disc disease, spinal stenosis, scoliosis, and degenerative arthritis in the cervical region. J.A. at 196. His prognosis was that he did "not expect [a] complete cure. The disc disease itself is slowly progressive." J.A. at 197. While not recommending surgery, Dr. Jacques added that he expected "no significant improvement in the underlying disease." Id. Importantly, Dr. Jacques recommended "no heavy lifting or strenuous physical activity." Id. at 196. He indicated that Mrs. Brown was unable to resume her duties as a cook due to the "heavy lifting and reaching" required, but that she could resume "non[-]physically strenuous duties." Id. at 197. ¹

Thus, over the three-year period since her first injury, Mrs. Brown had been diagnosed by several physicians as having chronic low back pain, lumbosacral disc disease, spinal stenosis, scoliosis, degenerative arthritis, neck pain, and hypertension. As of the time of this proceeding, she continued to receive biweekly outpatient treatment and was receiving various medications for back pain and hypertension.

In August 1982, Mrs. Brown applied for disability insurance benefits ² under Title II and Supplemental Security Income benefits ³ under Title XVI of the Social Security Act. Her applications were denied the following month, and her request for reconsideration was denied in March 1983. Mrs. Brown requested de novo consideration of her claims before an administrative law judge. After a hearing in November 1983, the ALJ entered his written decision denying her claims for benefits. The ALJ found that Mrs. Brown was not "disabled" within the meaning of the Act because her impairments would not prevent her from performing her "past relevant work." This determination became the Secretary's final decision in June 1984 when the Appeals Council denied the request for formal review. In May 1985, the United States District Court for the District of Columbia, after consideration of cross-motions for judgment, affirmed the Secretary's decision without opinion. The appeal before us is but another step on the long road of disability determination.

II

Like that of the District Court, our review is statutorily confined to determining whether the Secretary's decision that Mrs. Brown was not disabled is supported by substantial evidence in the record. If substantial evidence exists, then the Secretary's factfinding is conclusive. 42 U.S.C. Sec. 405(g) (1985). In the classic formulation, substantial evidence 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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Our review in substantial-evidence cases calls for careful scrutiny of the entire record. Dorsey v. Heckler, 702 F.2d 597, 602 (5th Cir.1983).

The pivotal statutory term, "disability," is defined in pertinent part by the Act as the

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

42 U.S.C. Sec. 423(d)(1)(A) (1982). The Secretary has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. Sec. 404.1520 (1983). A claimant may be found to be "not disabled" at any of the five stages of this review. First, an individual who is engaged in substantial gainful work is deemed to be not disabled, despite any medical evidence or other contraindications. Id. Secs. 404.1520(b), 416.920(b). Second, an individual must have a severe "impairment" to be considered disabled. Id. Secs. 404.1520(b), 416.920(c). Third, if an "impairment" suffered by an individual is one of the requisite duration and is listed in the Secretary's regulations, then the individual is considered disabled. Id. Secs. 404.1520(d), 416 920(d). Fourth, an individual who, though suffering from an "impairment," is capable of performing work that he or she has done in the past is deemed not to be disabled. Id. Secs. 404.1520(e), 416.920(e).

During these first four steps, the claimant bears the burden of proof. At the fifth and final stage, the burden shifts to the Secretary to show that the individual, based upon his or her age, education, work experience, and residual functional capacity, is capable of performing gainful work. Id. Secs. 404.1520(f), 416.920(f).

III

In her appeal, Mrs. Brown presses two contentions: first, that the ALJ applied an improper standard of proof as to her claims of subjective pain in that he unduly emphasized the lack of objective medical evidence of pain; and, second, that his finding in the fourth step of the analysis as to her functional capacity to perform her past work was unsupported by substantial evidence.

With regard to the first contention, the standard for evaluating claims of subjective pain is clear. ⁴ The governing statute provides that:

there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment ... which could reasonably be expected to produce the pain ... alleged.

42 U.S.C. Sec. 423(d)(5)(A) (Supp. II 1984) ⁵; see 20 C.F.R. Secs. 404.1529, 416.929. Here, the ALJ expressly found that Mrs. Brown was afflicted with an underlying impairment, which he described as "severe." ALJ Decision at 4 (Feb. 1, 1984). The statute also provides that, in evaluating the credibility of Mrs. Brown's claim of subjective pain, it is well within the ALJ's province to consider whatever medical evidence of pain or other symptoms exists, as well as Mrs. Brown's statements and those of her physicians "as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings [as to an underlying impairment]." 42 U.S.C. Sec. 423(d)(5)(A).

In the case at hand, we are persuaded that the ALJ applied the proper legal standard. The record indicates that the ALJ did not conclude that a shortfall of objective evidence barred consideration of Mrs. Brown's subjective allegation of pain. Rather, in weighing the relevant indicia--the underlying impairment, the medical evidence of pain, Mrs. Brown's own statements, and the physician's reports--the ALJ came to the independent judgment that her subjective claims of intractable pain were not credible. ALJ...