Easley v. Schweiker, 82-0182-CV-W-9.
| Decision Date | 25 January 1983 |
| Docket Number | No. 82-0182-CV-W-9.,82-0182-CV-W-9. |
| Parties | Harry Wayne EASLEY, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Thomas C. Capps, Liberty, Mo., for plaintiff.
Frederic Griffin, Asst. U.S. Atty., Kansas City, Mo., for defendant.
Plaintiff commenced this action under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of the final decision of the Secretary of Health and Human Services denying disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.
Plaintiff filed his application for disability benefits on May 9, 1980, alleging disability commencing May 22, 1976. Plaintiff filed a prior application for disability on December 20, 1976, which was denied on August 31, 1977, by an Administrative Law Judge (ALJ). The Appeals Council denied review and it was appealed to this Court. The Secretary's decision was affirmed by the Hon. Russell G. Clark on July 13, 1978. Plaintiff did not appeal that decision and the ALJ who considered this application for disability benefits determined not to reopen the prior application. That decision is not reviewable under § 205(g) of the Act, 42 U.S.C. § 405(g). Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). Therefore, the period of disability under consideration in this case is after August 31, 1977.
At plaintiff's request, a hearing was held on July 9, 1981, at which both plaintiff and his wife testified. Plaintiff was represented by counsel. The ALJ subsequently denied plaintiff's claim and the Appeals Council refused to grant plaintiff's request for review of that decision. The action is before the Court on cross-motions for summary judgment. Upon consideration of the briefs of the parties, and for the reasons stated below, the motion of the defendant is granted and the motion of the plaintiff is denied.
The initial burden to establish the existence of a disability as defined by 42 U.S.C. § 423(d)(1) is on the claimant. This statute defines disability as follows:
(A) 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 ....
The standard of judicial review for this Court is whether the decision of the Secretary was supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Curtner v. Califano, 584 F.2d 1389, 1390-91 (8th Cir.1978); Hancock v. Secretary of Dep't of H.E.W., 603 F.2d 739, 740 (8th Cir.1979); Alexander v. Weinberger, 536 F.2d 779, 784 (8th Cir.1976). Substantial evidence is gleaned from the record as a whole, considering the evidence in support of and that in opposition to the Secretary's decision.
In order to sustain the Secretary's decision there must exist substantial evidence appearing on the record as a whole. This standard of review is more than a search for the existence of substantial evidence supporting the Secretary's findings. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 484-85 71 S.Ct. 456, 462-63, 95 L.Ed. 456 ... (1951). As Justice Frankfurter made clear "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Id. at 488 71 S.Ct. at 464 .... (footnote omitted).
Brand v. Secretary of Dep't of H.E.W., 623 F.2d 523, 527 (8th Cir.1980).
The burden of proof rests upon plaintiff to establish that he is entitled to benefits under the Social Security Act. Weber v. Harris, 640 F.2d 176, 177 (8th Cir.1981); Timmerman v. Weinberger, 510 F.2d 439, 443 (8th Cir.1975).
The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled or not. The Eighth Circuit Court of Appeals summarized this evaluation process in McCoy v. Schweiker, 683 F.2d 1138 (1982).
In an attempt to create an orderly and uniform framework for analysis and decision of disability claims, the Guidelines set out a fixed sequence of decision-making that Administrative Law Judges (ALJs) are required to follow. First, a determination is made whether a disability claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled. If the claimant is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, the claimant must be found not disabled. If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, the claimant is found disabled on the medical evidence alone. If the impairment is not listed in Appendix 1, the next inquiry is whether the claimant can perform relevant past work. If he can, a finding of no disability is required. Finally, if the claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his previous work. At this stage, the ALJ must determine the claimant's residual functional capacity (RFC), that is, what he can still do physically even with his impairment, and also the claimant's age, education, and relevant work experience — the latter three findings being referred to as vocational factors, as opposed to RFC, which is a medical factor. The criteria of age, education, and work experience are relevant because the statute specifies them in defining disability, 42 U.S.C. § 423(d)(2)(A). If the ALJ's findings as to RFC, age, education and work experience fit any of the combinations of those criteria contained in the Tables in Appendix 2 to Part 404, then the ALJ must reach the conclusion (either "disabled" or "not disabled") directed by the relevant Rule or line of the applicable Table....
Applying the framework of analysis set out in McCoy, the ALJ determined that the claimant was engaged in "minimal work activity as a self-employed small engine repairman ... even though his actual net earnings from this work presently are not at a substantial gainful level." (Tr. 8.)
The ALJ did not directly specify whether he found plaintiff to be suffering from a severe impairment. He stated in his opinion:
(T. 8-9.)
Following these findings, the ALJ determined that the claimant was not disabled since "he can perform his usual work activity at a substantial gainful level." (Tr. 9.) The ALJ then added this alternate finding:
(Tr. 7, 9.)
The plaintiff contends that he has established that he suffers from arthritis and osteoarthritis and that the pain he suffers prevents him from engaging in any substantial gainful activity. Plaintiff testified about his pain and was supported by the opinion of Dr. John M. Williams who is presently treating plaintiff.
Plaintiff was referred to Dr. Williams by Dr. Andrew Rhodes, a neurosurgeon. From the records in the transcript, it appears plaintiff was treated by Dr. Rhodes from July 1977 to March 1980. Dr. Rhodes at first had believed plaintiff suffered from a herniated disc at L5, S1 (Tr. 273-74), but an electromyogram of the lumbosacral, paraspinals and right lower extremity proved to be normal and there was no evidence of denervation at a root, plexus or peripheral nerve level. (Tr. 279.) On March 19, 1980, Dr. Rhodes reported:
The patient has developed some problems with lumps forming on his wrists and hand bone.... On examination the patient does have some thickening of the joints of the fingers and of the wrist bone. There is tenderness in the calf musculature and knees with no fever or redness. This patient has not had any recent cough or other lung episodes, has had no kidney disorders, his gait has not changed, he has no joint problems with support on his limbs. Comment: I think that this patient is developing some arthritis in the hands and wrists as well as at the knee. Family history is significant, but the patient should be followed up after an evaluation by a family physician ....
(Tr. 270.)
When Dr. Williams saw plaintiff in April, 1980 with...
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