Durant v. Chater, Civ. A. No. 95-10545.

• Decision Date: 24 October 1995
• Docket Number: Civ. A. No. 95-10545.
• Citation: 906 F. Supp. 706
• Parties: Martha DURANT, Plaintiff, v. Shirley CHATER, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — District of Massachusetts

906 F. Supp. 706

Martha DURANT, Plaintiff, v. Shirley CHATER, Commissioner of the Social Security Administration, Defendant.

Civ. A. No. 95-10545.

United States District Court, D. Massachusetts.

October 24, 1995.

COPYRIGHT MATERIAL OMITTED

Ellen N. Wallace, Greater Boston Legal Services, Boston, MA, for Martha Durant.

Lori J. Holik, U.S. Attys. Office, Boston, MA, for Shirley Chater.

MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiff Martha Durant ("Durant") seeks judicial review of the final decision of the Secretary of Health and Human Services ("the Secretary") denying her application for Supplemental Security Income benefits based on disability ("SSI benefits"). Durant argues the Secretary's decision was legally erroneous and not based upon substantial evidence. Accordingly, Durant asks this Court either to reverse and set aside the defendant's decision, or to remand her claim for reconsideration. Durant also seeks reasonable attorney fees and costs.

I. PROCEDURAL HISTORY

Durant first filed for SSI benefits on November 28, 1984. The Secretary denied this claim on April 1, 1985. Durant did not appeal this denial. Durant again filed for SSI benefits on June 27, 1986. The Secretary approved this application based on a finding that Durant had severe impairments during the time frame encompassing her second application and its later approval. Durant's second application is not at issue in this appeal.

Following the decision of the First Circuit in McDonald v. Secretary of Health and Human Services, 795 F.2d 1118 (1st Cir. 1986), the Secretary resurrected Durant's first application and reviewed it according to the new McDonald de minimis standard. The Secretary again denied Durant's claim and, on appeal, an Administrative Law Judge affirmed the Secretary's decision because during the relevant period—between November 28, 1984, and April 1, 1985, from the filing of the first application to its denial— Durant suffered no severe impairments. The Secretary's Appeal Council declined to review the decision of the Administrative Law Judge, thus rendering the decision of the Administrative Law Judge the final decision of the Secretary subject to judicial review. Thus, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Durant's appeal comes now before this Court.

II. BACKGROUND

At the time of her first application for SSI benefits, Durant was sixty years old. She had completed the ninth grade without any further education. She lived alone and was unemployed. Prior to the period in question, Durant had sigmoid colon resection surgery for treatment of diverticulitis in 1974 and she had been diagnosed in 1978 with mild degenerative joint disease of the lumbosacral spine. In 1986, Durant's physician reported she suffered from the following: mild osteoarthritis of the right elbow; mild degenerative joint disease of the heels; and mild essential hypertension. He further found Durant suffered "very mild functional limitations" related to degenerative arthritis of the lumbosacral spine and both feet.

Durant also underwent psychological and psychiatric evaluations at the request of the state agency. In July, 1986, Marsha Tracy, M.D., a psychiatrist, examined Durant. During the examination, Durant described her daily activities as including watching television, visiting with neighbors, and grocery shopping. Durant did note that the grocery bundles were difficult to carry. Dr. Tracy concluded that, although psychiatric diagnosis and prognosis were difficult, Durant suffered from an "inadequate personality." Durant's next examination was in September, 1986, by a psychologist, Eric L. Brown. In this examination, Durant stated that she suffered from insomnia associated with her preoccupation of finding her son, whom she has not seen in thirty years. Durant also noted that she prepared her own meals, went for occasional walks, sometimes took public transportation to downtown Boston, and was able to do some light dusting and housework. She further stated that standing for long periods caused back pain. Brown reported that Durant's performance on a Bender Gestalt test was suggestive of mild long-standing organic impairment, consistent with her borderline-to-low-average intelligence. He diagnosed Durant as having dysthymic disorder.¹

On May 26, 1994, the Administrative Law Judge found after a hearing on Durant's revived first application that although Durant had, during the relevant period, suffered from some discomfort and restriction of motion due to her diagnosed ailments, the medical evidence did not demonstrate the presence of physical conditions, or a combination of physical conditions, or even a combination of physical and mental conditions, which would have qualified her as "disabled" within the meaning of Title XVI of the Social Security Act.

Durant now argues that the decision was unsupported by substantial evidence and is based upon errors of law. She claims that the Administrative Law Judge misapplied the McDonald de minimis standard in step 2 of the five-step evaluation process for determining disabilities, and that there is no substantial evidence that her combined physiological and psychological impairments were insufficient to render her disabled under the de minimis standard. Secondly, Durant claims legal error in the application of the pain standard set forth in Avery v. Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.1986). She argues that the Administrative Law Judge ignored and misconstrued both medical and lay evidence which, she argues, require a contrary finding.

III. DISCUSSION

A. Applicable Law

Judicial review of Social Security disability benefit determinations is limited under 42 U.S.C. § 405(g), which states that this Court is empowered to "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." See also Defosse v. Bowen, 670 F.Supp. 1078, 1080 (D.Mass.1987) (Wolf, J.). The Court must affirm the Secretary's decision if it is supported by substantial evidence. Da Rosa v. Secretary of Health and Human Services, 803 F.2d 24, 26 (1st Cir.1986) (per curiam); Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir.1981). In fact, this Court "must affirm the Secretary's determination, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence." Rodriguez Pagan v. Secretary of Health and Human Services, 819 F.2d 1, 3 (1st Cir.1987) (per curiam), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98 L.Ed.2d 663 (1988). Substantial evidence is "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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 1938). Furthermore, the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for the Secretary and not the courts to decide. Perales, 402 U.S. at 399, 91 S.Ct. at 1426; Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir.1981). When evidence has not been evaluated because of an error of law, however, the Secretary's decision must be set aside. Da Rosa, 803 F.2d at 26.

A claimant bears the burden of establishing by credible evidence that she was disabled within the meaning of the Social Security Act. Deblois v. Secretary of Health and Human Services, 686 F.2d 76, 79 (1st Cir.1982). 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 12 months.

42 U.S.C.A. § 423(d)(1)(A) (West 1991). The statute further provides:

an individual 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....

Id. § 423(d)(2)(A). Thus, evidence of an impairment is not enough to warrant an award of benefits; there must also be evidence in the record that the impairment prevented the claimant from engaging in any substantial activity. McDonald v. Secretary of Health and Human Services, 795 F.2d 1118, 1120 (1st Cir.1986).

Social Security Administration regulations ("the Regulations") have reduced the question of whether a claimant is disabled to a five-step analysis. The first step is determining whether the claimant is engaged (employed) in a substantially gainful activity. If so, then she is automatically considered not disabled. The second step ("Step 2") considers whether the claimant has a severe impairment or combination of impairments, mental, physical or both, "which significantly limits the claimant's physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c) (1994). If the claimant does not have an impairment to this degree, she is automatically considered not disabled. The third step entails finding whether the claimant's impairments are contained in Appendix 1 to the Regulations. If so, the claimant is automatically found disabled. However, if the claimant survives Step 2, but her disability does not appear in Appendix 1, she moves on to the fourth step. Here the question is whether the claimant's impairment prevented her from performing past work. If not, then she is automatically considered not disabled. If so, then she moves on to the fifth step, which considers whether the impairment prevents the claimant from performing other...