Bush v. Apfel, 97-CV-538-EA.

• Decision Date: 15 January 1999
• Docket Number: No. 97-CV-538-EA.,97-CV-538-EA.
• Parties: Richard A. BUSH SSN: 117-46-2546, Plaintiff, v. Kenneth S. APFEL, Commissioner, Social Security Administration,<SMALL><SUP>1</SUP></SMALL> Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

34 F.Supp.2d 1290

Richard A. BUSH SSN: 117-46-2546, Plaintiff, v. Kenneth S. APFEL, Commissioner, Social Security Administration,¹ Defendant.

No. 97-CV-538-EA.

United States District Court, N.D. Oklahoma.

January 15, 1999.

Paul F. McTighe, Jr., Tulsa, OK, for plaintiff.

Peter Bernhardt, United States Attorney, Tulsa, OK, for defendant.

ORDER

EAGAN, United States Magistrate Judge.

Claimant, Richard A. Bush, pursuant to 42 U.S.C. § 405(g), requests judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying claimant's application for disability benefits under the Social Security Act.² In accordance with 28 U.S.C § 636(c)(1) and (3), the parties have consented to proceed before a United States Magistrate Judge. Any appeal of this order will be directly to the Tenth Circuit Court of Appeals. Claimant appeals the decision of the ALJ and asserts that the Commissioner erred because the ALJ incorrectly determined that claimant was not disabled. For the reasons discussed below, the Court AFFIRMS the Commissioner's decision.

I. CLAIMANT'S BACKGROUND

Claimant was born on January 1, 1954, and was 39 years old at the time of his first and second administrative hearings in this matter. He was 42 years old at the time of the third administrative hearing. He has a tenth grade education and a GED. Claimant has worked as a gas station attendant, tool room checker, foundry furnace operator, ranch laborer and portable building carpenter. (Complaint, at 2, ¶ 6.) Claimant alleges an inability to work beginning October 15, 1978. The date he was last insured, for purposes of Title II, was June 30, 1984. He claims that he is unable to work because of his back problems, hip problems, muscle spasms, fatigue, depression and anger, pain and limited mobility. (Complaint, at 2, ¶ 5.) He initially claimed that he suffered from a back injury sustained in 1978, joint problems, partial deafness, and breathing problems. (R. 72, 106.)

II. SOCIAL SECURITY LAW AND STANDARDS OF REVIEW

Disability under the Social Security Act is defined as the "...inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment...." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security Act 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 in the national economy...." Id., § 423(d)(2)(A). Social Security regulations implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. § 404.1520.³

Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied. Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir.1991).

One of the issues now before the Court is whether there is substantial evidence in the record to support the final decision of the Commissioner that claimant was not disabled within the meaning of the Social Security Act. The term substantial evidence has been interpreted by the U.S. Supreme Court to require "... 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, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The search for adequate evidence does not allow the court to substitute its discretion for that of the agency. Cagle v. Califano, 638 F.2d 219 (10th Cir.1981). Nevertheless, the court must review the record as a whole, and "the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

III. THE DECISION OF THE ADMINISTRATIVE LAW JUDGE

The ALJ made his decision at the fifth step of the sequential evaluation process. (R. 200-07.) He found that claimant had no severe impairment which significantly limited his ability to perform basic work-related activities prior to August 1, 1991 (for purposes of claimant's Title II claim), but that claimant was impaired by back pain severe enough to reduce his ability to work on and after August 1, 1991 (for purposes of claimant's Title XVI claim.) Other findings include claimant's residual functional capacity (RFC) to perform a full range of light work subject to no more than occasional bending or stooping. The ALJ concluded that claimant could not perform his past relevant work, but there were other jobs existing in significant numbers in the national and regional economies that he could perform, based on his RFC, age, education, and work experience. Having concluded that there were a significant number of jobs which claimant could perform, the ALJ concluded that he was not disabled under the Social Security Act at any time through the date of the decision. (R. 206.)

V. REVIEW

Claimant asserts as error that the ALJ improperly relied on the post-hearing report of a consultative examiner and erroneously denied Plaintiff's request to subpoena the consultative examiner for cross-examination, and, absent the report, the ALJ failed to affirmatively establish by substantial evidence that claimant retained the capacity to perform the demands of light work at all times relevant to his claim. The report at issue resulted from a consultative examination that ALJ Bennett ordered after the first administrative hearing on February 18, 1993. The consultative examiner, J.D. McGovern, M.D., saw claimant and wrote the report on June 2, 1993. (R. 172.) Dr. McGovern reported that claimant's "range of joint motion" chart revealed several inconsistencies, several of which may have been the result of "poor cooperation." (R. 173.) He could find no objective support for the position that claimant's low back problems were severe enough to cause impairment. (R. 173-74.) He observed that claimant had very few functional limitations. (R. 178-80.)

ALJ Bennett sent the report and a letter to claimant's representative on June 18, 1993, which informed the representative that he could submit written comments concerning the report, a brief or written statement as to the facts and law in the case, or additional evidence not previously supplied. He also stated: "You have the right to examine the author of the evidence. If you want to have the author answer questions, please submit the questions to me in writing. If you want to obtain oral testimony from the author in a supplemental hearing, you must submit a statement indicating the relevance of the information and why the information cannot be obtained through written questions." (R. 181.) The relevant regulations provide:

(d) Subpoenas. (1) When it is reasonably necessary for the full presentation of a case, an administrative law judge or a member of the Appeals Council may, on his or her own initiative or at the request of a party, issue subpoenas for the appearance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents that are material to an issue at the hearing.

(2) Parties to a hearing who wish to subpoena documents or witnesses must file a written request for the issuance of a subpoena with the administrative law judge or at one of our offices at least 5 days before the hearing date. The written request must give the names of the witnesses or documents to be produced; describe the address or location of the witnesses or documents with sufficient detail to find them; state the important facts that the witness or document is expected to prove; and indicate why these facts could not be proven without issuing a subpoena.

20 C.F.R. §§ 404.950(d), 416.1450(d).

Claimant's representative sent a letter to the ALJ on June 21, 1993, demanding an opportunity to cross-examine Dr. McGovern. The letter did not set out the information required by subsection two of the regulation. Although most of the information required would have been unnecessary, given that Dr. McGovern was the consultative examiner and the ALJ knew his name, address and the facts Dr. McGovern would be expected to prove, claimant did not indicate why the facts could not be proven, or, in this case, disproven, without issuing a subpoena. Instead, claimant's representative contended that claimant "has an absolute right to have [the ALJ] subpoena and cross-examine the post-hearing medical advisor." (R. 182.)

ALJ Bennett replied, by letter dated July 7, 1993: "There is no evidence available to me that you have made effort to obtain [the desired] information by other means; therefore, no action has been taken to subpoena (or to cause to appear without subpoena having been issued) Dr. J.D. McGovern to be present to testify in said supplemental hearing." (R. 186.) He also informed claimant's representative that he would remove the McGovern report from the record if the representative desired, but he warned the representative that he was not inclined to rule in claimant's favor without the report.

ALJ Bennett and claimant's representative continued this discussion at the supplemental hearing on July 28, 1993. (R. 49-53.) Claimant's representative objected to Dr. McGovern's absence, but claimant testified as to the nature of Dr. McGovern's examination as well as another examination he had at the OSU Medical Clinic in Tulsa on July 26, 1993. (R. 183-84.) ALJ Bennett issued a decision on December 21 1993, denying claimant's disability claims at step four of the sequential analysis by finding that claimant could perform his past relevant work (R. 14-20), and the Appeals Council ...