Durham v. Apfel

• Citation: 34 F.Supp.2d 1373
• Decision Date: 22 December 1998
• Docket Number: No. Civ.A. 1:97CV2061RWS.,Civ.A. 1:97CV2061RWS.
• Parties: Charles DURHAM, Plaintiff, v. Kenneth S. APFEL, Social Security Commissioner, Defendant.
• Court: U.S. District Court — Northern District of Georgia

34 F.Supp.2d 1373

Charles DURHAM, Plaintiff, v. Kenneth S. APFEL, Social Security Commissioner, Defendant.

No. Civ.A. 1:97CV2061RWS.

United States District Court, N.D. Georgia, Atlanta Division.

December 22, 1998.

Charles Lee Martin, Office of Charles L. Martin, Decatur, GA, for Charles Durham, plaintiff.

Jane Wilcox Swift, Lori M. Beranek, Office of United States Attorney, Atlanta, GA, for Kenneth S. Apfel, Commissioner of SS, defendant.

ORDER

STORY, District Judge.

This case is before the Court for consideration of the Report and Recommendation [11-1] by Magistrate Judge Joel M. Feldman recommending that the Commissioner's decision be remanded for further consideration. After carefully considering the Report and Recommendation, the Court receives it with approval and adopts it as the opinion and order of this Court.

Accordingly, the Commissioner's decision is REMANDED for further consideration consistent with the Report and Recommendation.

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION

FELDMAN, United States Magistrate Judge.

Attached is the report and recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Rules LR 72 and LCrR 58. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the report and recommendation within ten (10) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the report and recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983), cert. denied 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

The Clerk is directed to submit the report and recommendation with objections, if any, to the district court after expiration of the above time period.

IT IS SO ORDERED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This is an action to review the determination by the Secretary of Health and Human Services ("the Secretary") that Charles Durham is not entitled to a Period of Disability, Disability Insurance Benefits and Supplemental Security Income under §§ 216(i), and 223(a) of the Social Security Act, 42 U.S.C. §§ 416(i), 423(a), 1381a and 1382.

I. PROCEEDINGS BELOW.

Charles Durham filed a claim for a Period of Disability, Disability Insurance Benefits and Supplemental Security Income on August 8, 1993 (TR 56-59, 80-83) alleging that he had been disabled due to a back and foot impairment and brain damage since July 21, 1993 (TR 56). His applications were denied initially (TR 69-70, 84-86), and on reconsideration (TR 78-79, 87-88). A hearing was held, and a decision was issued denying his claim (TR 10-26). The claimant requested a review of the hearing decision (TR 7), and the Appeals Council denied the claimant's request (TR 3-4), so the decision of the ALJ is the final decision of the Commissioner. Claimant brought this action in the district court for review of the final decision.

Mr. Durham has filed all appeals, including this action, in a timely manner, and this matter is properly before the U.S. Magistrate Judge.

II. ISSUES

The plaintiff raised two issues on this appeal:

A. WHETHER THE ALJ'S FINDING THAT THE PLAINTIFF DOES NOT MEET LISTING § 12.05C WAS BASED ON INCORRECT LEGAL STANDARDS

B. WHETHER THE ALJ FAILED TO CONSIDER ALL OF THE PLAINTIFF'S IMPAIRMENTS

III. STANDARD FOR REVIEW

A claimant for disability benefits under the Social Security Act bears the initial burden of demonstrating that he is unable to return to any past relevant work due to a medically determinable impairment. Once he has done so, the burden shifts to the Secretary to prove that the claimant can, in spite of his impairments, perform other work which constitutes substantial gainful activity. Freeman v. Schweiker, 681 F.2d 727 (11th Cir.1982).

The Administrative Law Judge has the exclusive power to resolve conflicts in the evidence. Arnold v. Heckler, 732 F.2d 881 (11th Cir.1984). But he must state the weight accorded to each item of evidence, and the reason for his conclusion. Hudson v. Heckler, 755 F.2d 781 (11th Cir.1985). The scope of judicial review is limited to determining whether the findings of the Secretary are supported by substantial evidence taking the record as a whole. Tieniber v. Heckler, 720 F.2d 1251 (11th Cir.1983). Substantial evidence has been defined as "more than a scintilla ... it means such relevant evidence as the reasonable mind might accept as adequate to support a proposition." Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982). This court must examine the record as a whole, however, and may not affirm the Secretary's decision by referring only to those parts of the record which support the same. Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir.1983). "The substantiality of 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, 467 (1951) (Frankfurter, J.). The Secretary's conclusions must also be reasonable. Powell on Behalf of Powell v. Heckler, 773 F.2d 1572 (11th Cir.1985).

To be supported by substantial evidence, the court must also be satisfied that the decision of the Secretary is grounded in the proper application of the appropriate legal standards. Bridges v. Bowen, 815 F.2d 622 (11th Cir.1987). There is neither a presumption that the legal standard applied by the Secretary is valid, nor that it was properly applied. Lamb v. Bowen, 847 F.2d 698, 702 (11th Cir.1988).

"[T]here are four elements of proof to be considered in determining whether a claimant is disabled within the meaning of the Social Security Act, and these are: (1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by his wife, other members of his family, his neighbors and others who have observed him; and (4) the claimant's age, education and work history. A fair and conscientious consideration of all of these elements of proof should furnish an examiner with a comprehensive and adequate method of determining whether or not a claimant is disabled within the meaning of the Act in most cases, including the one before us. It is obvious that all of these elements of proof must be considered together and in combination with each other, and not just one or two with the others excluded." DePaepe v. Richardson, 464 F.2d 92 (5th Cir.1972). A decision based on a Vocational Expert's response to a hypothetical ignoring one of these factors is not based on substantial evidence. Freeman v. Schweiker, 681 F.2d 727 (11th Cir.1982).

The proper procedure for evaluating a disability claim under the Social Security Act is a five-step process, often called the sequential evaluation process. Under the sequential evaluation process, the Administration must first decide if the claimant is working. If so, the claim is denied and the evaluation stops. If the claimant is not working, it then decides if she has a severe impairment. If not, the claim is denied and the evaluation stops. Thirdly, it decides whether the impairment meets or equals an impairment described in the listings of impairments. If so, the claim is granted. Otherwise, the evaluation continues. The fourth step concerns whether the claimant can return to any past relevant work. If so, the claim is denied and the evaluation stops. At the fifth and final step the Administration decides whether there is any other work the claimant can do. 20 C.F.R. § 416.920. At the fifth step, the Administration may apply the rules in the Grid (20 C.F.R. Regulations No. 4, Subpart P, Appendix 2) to determine whether there are jobs the claimant can perform, provided that the Grid rule takes into account all the claimant's limitations. 20 C.F.R. § 416.969.

In the instant case, the ALJ decided the claim adversely to the claimant at the fourth step, concluding that Mr. Durham was capable of performing his past work as a kitchen helper (TR 17).

IV. EVALUATION OF THE EVIDENCE

A. OBJECTIVE MEDICAL EVIDENCE

Mr. Durham has a history of treatment for back pain. Georgia Baptist Medical Center on October 19, 1992, saw him with complaints of back pain. "Examination reveals some tenderness on his left buttock and left lower back." (TR 147). Lumbosacral and pelvic x-rays were essentially normal with "some evidence of degenerative joint disease" in the lumbar spine (TR 147, 149).

Mr. Durham was examined by Dr. Shure on November 19, 1992, with complaints of back pain radiating into the left leg. Dr. Shure noted, "He moved about with some degree of care and caution and very definitely did appear to be in discomfort." (TR 156). The exam revealed "tenderness in the lower lumbar area with spasm and restriction of movement. The straight leg raising test on the left was markedly positive with a positive Lasegue test. The bowstring test was positive. Patrick's test was positive on the left." (TR 156). The left ankle reflex was slightly decreased. Dr. Shure stated, "this patient has an acuted [sic] left lumbar radiculopathy. He very definitely does appear to be in discomfort." (TR 156). "He will be instructed to remain at home at restricted activity." (TR 156).

Mr. Durham underwent a lumbar MRI on November 23, 1992, which showed "loss of signal intensity of the L2-3 and the L3-4 intervertebral discs...