Carr v. Sullivan

• Decision Date: 05 March 1991
• Docket Number: No. C-85-245-JBH.,C-85-245-JBH.
• Citation: 772 F. Supp. 522
• Parties: Rolane P. CARR, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Washington

772 F. Supp. 522

Rolane P. CARR, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

No. C-85-245-JBH.

United States District Court, E.D. Washington.

March 5, 1991.

COPYRIGHT MATERIAL OMITTED

Lora Lee Stover, Spokane, Wash., for plaintiff.

Richard H. Wetmore, Asst. Regional Counsel, Seattle, Wash., Thomas O. Rice, Asst. U.S. Atty., E.D. Wash., Spokane, Wash., for DHHS, Region X.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

JAMES B. HOVIS, United States Magistrate Judge.

JURISDICTION

Rolane P. Carr, plaintiff, applied for Social Security disability insurance benefits ("DIB") on March 25, 1982. (Tr. 103-106). The application was denied initially and on reconsideration. (Tr. 123, 132). Represented by counsel, Ms. Carr appeared before Administrative Law Judge ("ALJ") Marvin Harmatz, who issued a decision on June 18, 1983 affirming the denial. (Tr. 164-171). Ms. Carr requested review by the Appeals Council, and on January 24, 1984, the Council vacated the denial pursuant to Morrison v. Heckler, 582 F.Supp. 321 (W.D.Wash. 1983). (Tr. 176).

A second administrative hearing was held before ALJ Leonard E. Baloun, who also found that Ms. Carr was not disabled. (Tr. 12-19). Ms. Carr again requested review by the Appeals Council. After the Appeals Council denied her request for review (Tr. 3-4), Ms. Carr filed this court appeal pursuant to 42 U.S.C. § 405(g). Both parties consented to the Magistrate Judge's jurisdiction. (Ct.Rec. 4, 20, 24). The Secretary moved for remand of plaintiff's case for consideration under new mental impairment listings, and on November 20, 1985 this court ordered remand for another administrative hearing. (Ct.Rec. 10, 11).

A third hearing was conducted, again with ALJ Baloun, who issued a recommended denial on July 18, 1986. (Tr. 224-236). The Appeals Council approved the ALJ decision (Tr. 220-221), and the matter came back to federal court. On December 2, 1987 this court issued a second remand order and opinion specifying the ALJ's errors, primarily in the evaluation of Ms. Carr's mental impairment. (Ct.Rec. 21).

After psychological and psychiatric evaluations Ms. Carr appeared for her fourth ALJ hearing on March 15, 1989, again before ALJ Baloun, and again represented by counsel. (Tr. 432-491). Also appearing and testifying were R. Thomas McKnight, Ph.D., psychological advisor; David P. Grubb, M.D., psychiatric advisor; and Verne E. Cressey, M.D., examining psychiatrist. The ALJ's recommended denial was rendered on July 3, 1989, and accepted by the Appeals Council on July 14, 1990. (Tr. 404-405, 412-421). The matter is again before this Magistrate Judge.

STATEMENT OF FACTS

The facts have been presented in the administrative transcript, the ALJ's decision, the plaintiff's and defendant's briefs and will only be summarized here. Ms. Carr was born on November 5, 1944 which made her 37 years old at the time of her application and 44 years old at the time of the final hearing. (Tr. 103). She has a high school education and past relevant work experience as a bagger in a candy factory and a bridal consultant. (Tr. 113, 117-118). Ms. Carr's application alleges disability due to pain and limitation in her back and right knee (Tr. 109), however, the record contains numerous reports of other physical impairments in addition to psychological/psychiatric impairments. Ms. Carr claims disability since December 7, 1980 (Tr. 103), and her insured status expired on June 30, 1982. (Tr. 413).

STANDARD OF REVIEW

"The Secretary's determination that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence, 42 U.S.C. § 405(g)...." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir.1983). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir.1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir.1988). "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, 1427, 28 L.Ed.2d 842 (1971). "Such inferences and conclusions as the Secretary may reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir.1965).

While it is the role of the trier of fact, and not this court, to resolve conflicts in evidence, Richardson, 402 U.S. at 400, 91 S.Ct. at 1426, the court considers the record as a whole, and not just the evidence supporting the decision of the Secretary. Weetman v. Sullivan, 877 F.2d 20 (9th Cir.1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir.1982). The court "may not affirm simply by isolating a specific quantum of supporting evidence." Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989), quoting Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985).

A decision supported by substantial evidence will, nevertheless, be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir.1987).

ISSUES

Ms. Carr contends that the Secretary erred as a matter of law. Specifically she argues that:

1. The ALJ improperly found that her mental impairment did not interfere with her ability to do sedentary work.

2. The ALJ improperly relied on the Medical-Vocational guidelines for a finding of not disabled.

3. The ALJ did not properly consider the combined effect of her impairments.

Absent legal error, the underlying issue before the court is whether substantial evidence supports the decision of the Secretary that plaintiff is not disabled.

DISCUSSION

SEQUENTIAL EVALUATION PROCESS

The Social Security Act defines "disability" 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 twelve months." 42 U.S.C. § 423(d)(1)(A). The Act also provides that a claimant shall be determined to be under a disability only if his or her impairments are of such severity that the claimant is not only unable to do his previous work but cannot, considering claimant's age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

The Secretary has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. § 404.1520. Step one determines if he is engaged in substantial gainful activities. If he is, benefits are denied. 20 C.F.R. § 404.1520(b). If he is not, the decision maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c).

If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares the claimant's impairment with a number of listed impairments acknowledged by the Secretary to be so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(d); 20 C.F.R. Part 404, Sbpt. P, App. 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. 20 C.F.R. § 404.1520(e). If the claimant cannot perform this work, the fifth and final step in the process determines whether he is able to perform other work in the national economy in view of his age, education and work experience. 20 C.F.R. § 404.1520(f). See: Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).

The initial burden of proof rests upon plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir.1971). The initial burden is met once a claimant establishes that a physical or mental impairment prevents him from engaging in his previous occupation. The burden then shifts to the Secretary to show (1) that the claimant can perform other substantial gainful activity and (2) that a "significant number of jobs exist in the national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir.1984).

THE COURT REMAND ORDER

On December 2, 1987 this court remanded Ms. Carr's case to the Secretary, because the ALJ had failed to properly evaluate her mental impairment. (Ct.Rec. 21). The court held that the ALJ had failed to make a reasonable effort to ensure evaluation by a qualified psychologist or psychiatrist even though Ms. Carr moved for such evaluations, and that the Appeals Council failed to consider relevant psychiatric/psychological reports submitted subsequent to the hearing. (Ct.Rec. 21, p. 7).

The court concluded that as a result of this improper development of the record, the Secretary did not fully consider Ms. Carr's mental condition, either singularly or in combination with her physical impairments. (Ct.Rec. 21, pp. 7-8). The court stated its opinion "that the evidence of record clearly establishes a `severe' mental impairment and it was error for the Secretary to find otherwise." (Ct.Rec. 21, p. 8). The court ordered the ALJ on remand to call the examining psychiatrist for an explanation of his opinion that Ms. Carr was disabled before expiration of her insured status. Id.

ALJ'S FINDINGS

The final ALJ hearing was held on March...