Duncan v. Harris

• Court: U.S. District Court — Eastern District of Arkansas
• Writing for the Court: WOODS
• Citation: Duncan v. Harris, 518 F.Supp. 751 (E.D. Ark. 1980)
• Decision Date: 21 April 1980
• Docket Number: No. J-C-79-31.,J-C-79-31.
• Parties: Beryl DUNCAN, Plaintiff, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant.

518 F. Supp. 751

Beryl DUNCAN, Plaintiff, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant.

No. J-C-79-31.

United States District Court, E. D. Arkansas, Jonesboro Division.

April 21, 1980.

Phil J. Duncan, Little Rock, Ark., for plaintiff.

Terry L. Derden, Asst. U. S. Atty., Little Rock, Ark., for defendant.

MEMORANDUM AND ORDER

WOODS, District Judge.

The defendant's Motion for Summary Judgment is now before the Court in this Social Security case. The plaintiff's Motion to Remand and Amended Motion to Remand are also before the Court. In considering the defendant's motion, the Court must determine whether substantial evidence exists to support the final decision of the Secretary denying disability insurance benefits to the plaintiff. 42 U.S.C. § 405(g). In considering the plaintiff's motions, the Court must determine whether "good cause" exists for directing the Secretary to reconsider her decision. 42 U.S.C. § 405(g).

The plaintiff originally filed an application for disability insurance benefits on October 7, 1975 (Tr. 89). This application was denied by the Social Security Administration on October 21, 1975, and reconsideration was not requested. A second application was filed on October 12, 1977 (Tr. 95). This application was denied initially and upon reconsideration. The plaintiff requested a hearing before an Administrative Law Judge, which was held on July 11, 1978 (Tr. 33). The Administrative Law Judge denied the claim by decision dated November 21, 1978 (Tr. 23). The Appeals Council of Health, Education, and Welfare, pursuant to 20 C.F.R. § 404.947a, refused to review the decision of the Administrative Law Judge. The decision of the Administrative Law Judge represents, therefore, the final decision of the Secretary. 20 C.F.R. § 404.940. The plaintiff brought this action for judicial review of the Secretary's final decision pursuant to 42 U.S.C. § 405(g).

Before proceeding to a review of the record, it must be determined whether the Secretary has reopened the denial issued on October 21, 1975. The first application alleged April 23, 1975, as the onset of disability; the second application alleged April 20, 1975, as the onset date. If the Secretary treated the second application as a request to reopen the earlier denial, the Court is precluded from reviewing the denial of the reopening request.¹ Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

The second application was filed more than twelve months, but less than four years, after the denial of the first application. Therefore, any consideration of reopening falls within the "good cause" provision of 20 C.F.R. § 404.957(b), as further defined by 20 C.F.R. § 404.958. Under that latter Regulation, there are three bases for a finding of good cause: (1) new and material evidence, (2) clerical error, and (3) error on the face of the evidence.

Under Lauritzen v. Weinberger, 514 F.2d 561 (8th Cir. 1977), a determination of "error on the face of the evidence" is made by determining whether the prior decision was clearly incorrect or an injustice committed. A finding in a second determination that a claimant was not disabled during the same period covered in the first determination is an implicit finding that the first determination was not clearly incorrect or no injustice was committed. While the Court, then, can dismiss "error on the face of the evidence" as a possible ground for reopening the previous determination, it is not clear whether the other two grounds served as a basis for reopening. The Secretary should answer this question upon remand, that is, whether there was a reopening.

The plaintiff was born on January 2, 1924, and resides with her husband (Tr. 41). She has an eighth-grade education (Tr. 42). Prior to 1975, she worked twenty-three years for the Safeway grocery store (Tr. 57). Her duties in that position were very general: "I checked groceries, I stacked groceries, I loaded buggies, burned boxes and ordered." (Tr. 53). She began receiving private retirement benefits on the basis of disability in 1975, and has not worked since (Tr. 41-42).²

Although the medical evidence indicates that the plaintiff has suffered back pain for many years (Tr. 136, 146), her alleged disability stems from a discectomy and partial hemilaminectomy operation on April 25, 1975 (Tr. 147, 151), and a slip and near fall in 1976 (Tr. 83-84). In her testimony at the administrative hearing, she focused on the allegedly debilitating pain. She stated that she suffered pain in her lower back, both legs, and in the neck area, at least some of which was attributed to arthritis (Tr. 44, 52). The pain was said to preclude most normal household activity as well as any gainful employment. She stated that she was unable to walk for more than a block or two and that she had difficulty in dressing, driving, and in either sitting or standing for any appreciable length of time (Tr. 44-48). Her testimony was corroborated by her husband (Tr. 71-72, 76-78).

The medical evidence consists primarily of several reports by three doctors. The office and hospital notes of Dr. James C. H. Simmons span a period from April 15, 1975, to June 21, 1977 (Tr. 146-149). Dr. Simmons' treatment of the plaintiff predates the 1975 surgery and extends over a year beyond the 1976 accident. The reports corroborate the plaintiff's pain symptomatology from the earliest date.

Upon initial examination, the doctor determined that myelographic testing was necessary to evaluate the complaints of back pain and X-ray evidence of degenerative spurring in the low back area (Tr. 146). Results of the myelogram led to the back surgery (Tr. 147). Subsequent reports indicate that the plaintiff's condition improved somewhat post-operatively and until the accident on August 12, 1976 (Tr. 147-148). In a report dated September 13, 1976, the doctor diagnosed cervical sprain which aggravated a preexisting degenerative osteoarthritic condition at the fifth cervical vertebra (Tr. 149). The plaintiff returned to Dr. Simmons on June 21, 1977, complaining of low back pain and, upon examination, the doctor diagnosed mild degenerative osteoarthritis of the lumbosacral spine (Tr. 149).

The record also contains correspondence between Dr. Simmons and Safeway's insurance company. In one such letter dated February 25, 1977, the doctor stated in full:

It is my feeling that a patient who has had a protruded lumbar disc should not be assigned to job activities which involved lifting objects greater than 25 lbs. in a bent position. I do think she could lift objects from a squatting position that weigh 25 lbs. if necessary. I do not feel that she should, however, be assigned to lifting objects of less than 25 lbs. repeatedly in a bent position if this could be avoided. (Tr. 154).

The doctor attempted to clarify this letter in another letter dated June 13, 1977, which stated that the plaintiff "... should not be assigned to job activities which involved repeated lifting from a bent position." (Tr. 157). He added that he thought the plaintiff could lift twenty-five-pound objects from a squatting position, "if necessary." (Tr. 157).

The record also contains four reports from Dr. Merrill J. Osborne, the first of which is dated August 12, 1976, the date of the plaintiff's accident. Dr. Osborne's focus is therefore on the condition of the cervical area of the spine, although he also stated that the plaintiff was suffering "degenerative arthritic changes in both knees with considerable pain" upon motion testing (Tr. 158). Dr. Osborne's diagnosis of the plaintiff's cervical spine condition differed somewhat from that of Dr. Simmons. While Dr. Simmons diagnosed it as "cervical sprain" aggravating a preexisting arthritic condition, Dr. Osborne believed the condition "... appeared to be indicative of nerve root compression." (Tr. 167). In a report dated October 30, 1978, received subsequent to the administrative hearing but prior to the Administrative Law Judge's decision, Dr. Osborne stated: "I really do not see how the plaintiff will ever be able to work again, due to her limited education plus the fact that she's always done the type of work that requires the use of her back and etc." (Tr. 170). Dr. Osborne also stated in the same report that the plaintiff had "considerable limitation" in doing any type of work requiring bending or any lifting.

The record also contains one report from Dr. Joe K. Lester, who examined the plaintiff on March 25, 1977 (Tr. 155). Dr. Lester stated that X-rays revealed "evidence of degenerative change" in the lower spine. The doctor also opined as to the plaintiff's disability as follows:

This examiner feels that an award of 15% physical impairment of the body as a whole is a fair award. However, the significant thing is from the economic or functional standpoint, this is 100% disability because the patient has not been permitted to return to gainful employment by her employer. (Tr. 156).

The Court notes that Dr. Lester's opinion reflects an understanding of percentage disability ratings under Arkansas Worker's Compensation law, as well as the definition of disability for Social Security purposes. There is no considerable inconsistency in the divergent ratings by Dr. Lester, however, because the opinion of one hundred per cent disability includes a consideration of vocational factors relevant for the most part only under the Social Security Act. The record does show that the plaintiff's employer of twenty-three years has not permitted her to return to work and has placed her in retirement from its company based on her disability. However, the ability to engage in substantial gainful activity is not determined on the basis of an ability to return to a former occupation; rather, the test is a functional one, that is, whether the claimant can engage in substantial gainful activity. Vocational evidence is necessary only to show that jobs exist in the...