Floyd v. Schweiker

• Decision Date: 30 August 1982
• Docket Number: No. 81 C 5905.,81 C 5905.
• Citation: 550 F. Supp. 863
• Court: U.S. District Court — Northern District of Illinois
• Parties: Ruby M. FLOYD, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health & Human Services, Defendant.

550 F. Supp. 863

Ruby M. FLOYD, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health & Human Services, Defendant.

No. 81 C 5905.

United States District Court, N.D. Illinois, E.D.

August 30, 1982.

Sheldon M. Gomberg, Chicago, Ill., for plaintiff.

Daniel K. Webb, U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Ruby M. Floyd brings this suit under 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health & Human Services denying her application for Social Security disability benefits and for Supplemental Securing Income (hereinafter collectively referred to as "disability benefits"). Cross motions for summary judgment have been filed asking this court to determine whether the Secretary's decision is supported by substantial evidence or, alternatively, whether the claim should be remanded to the Secretary and another hearing held with counsel present. For the reasons set forth below, the motion to remand is granted.

42 U.S.C. § 423(d)(1)(A) defines disability as "inability to engage in any substantial gainful activity by reason of any medical impairment that can be expected to last for over twelve months." More specifically, disability means not only inability to do the previous type of work but also the incapacity to do any other kind of work which exists in the national economy, "considering opportunities that exist either in the claimant's region or in the several regions of the country." 42 U.S.C. § 423(d)(2)(A). See Spencer v. Schweiker, 678 F.2d 42 (5th Cir. 1982), Hogan v. Schweiker, 532 F.Supp. 639 (D.Colo.1982).

To be eligible for disability benefits a claimant must make a prima facie showing of an impairment sufficiently severe to preclude a return to his or her previous employment. Decker v. Harris, 647 F.2d 291, 293 (2d Cir.1981). Once this is established the burden shifts to the Secretary to present evidence showing that there exists in the national economy substantial gainful work which claimant, considering his or her age, education, experience and training, is able to perform. Spencer v. Schweiker, supra; Stark v. Weinberger, 497 F.2d 1092 (7th Cir.1974).

In response to criticism over disparate treatment of seemingly similar claims, the Social Security Administration recently promulgated new and detailed regulations which establish an orderly sequence of adjudication for Social Security disability claims. Kirk, et al. v. Secretary of Health & Human Services, 667 F.2d 524 (6th Cir. 1981). The Seventh Circuit described the "sequential evaluation for adjudication of disability claims as follows:

The first inquiry under the sequence concerns whether a claimant is currently engaged in substantial gainful employment. If it is found that he is, the claim is denied without reference to the other steps in the sequence. If he is not, the second inquiry is whether the claimant has a "severe" impairment. If he does not, the claim is denied. If a severe impairment is present, the third inquiry is whether such impairment meets or equals one of the impairments listed under Appendix I to Subpart P of the Administrative Regulations No. 4. If it does, the claim is approved. If it does not, the fourth inquiry is whether the claimant's impairments prevent him from performing his past relevant work. If he is found to be capable of returning to his past relevant work, the claim is denied. If he is not found to be so capable, the fifth and final inquiry is whether claimant is able to perform other forms of substantial gainful activity, considering his age, education and prior work experience. If he is not, the claim is approved.

The medical-vocational guidelines, which are contained in Appendices 2, Subparts P and I, Parts 404 and 416, 20 CFR, are used in determining whether the claimant is disabled when and if the fifth step in the evaluation process is reached. To apply the guidelines, the ALJ must make findings of fact as to the claimant's vocational factors, i.e., age, education, and work experience, as those terms are defined by the regulations ... and his residual functional capacity.... When the findings of fact made as to all factors coincide with the criteria of a rule contained in the guidelines, that rule directs a factual conclusion of disabled or not disabled.

Cannon v. Harris, 651 F.2d 513 (7th Cir. 1981). See also Cummins v. Schweiker, 670 F.2d 81 (7th Cir.1982), Hogan v. Schweiker, supra, at 643. These regulations necessarily require a detailed factual analysis of plaintiff's background and medical condition.

Ms. Floyd was born on April 12, 1924, has an eleventh grade education and has minimal additional training as a nurse's aid. With the exception of a two-year stint as a cook's helper, plaintiff's primary work experience between 1962 and 1979 was as a nurse's aid, a job that requires a significant amount of standing, bending and lifting. Plaintiff maintains that she is incapable of performing her prior work or pursuing any other type of employment because she suffers from high blood pressure, depression, and arthritis in various joints. Such ailments, of undeterminate dates of origin, evidently worsened over time and ultimately caused her to quit her work as a nurse's aid in May of 1979. One year later Ms. Floyd filed a claim for disability benefits with the Social Security Administration. That claim was denied initially and upon reconsideration. Exercising her right to an independent de novo review of the matter, plaintiff appeared without counsel at a hearing before an Administrative Law Judge ("ALJ") on April 8, 1981.

Ms. Floyd was the only witness to testify at the hearing. Under questioning by the ALJ she stated the following: In addition to arthritis in her side, hands and knees, plaintiff experiences shortness of breath, she can walk only two blocks before tiring, she cannot climb steps without resting every third or fourth step, and she is unable to stoop or run. As for lifting, Ms. Floyd said, "I can't lift anything too well that is over ten pounds. Maybe around seven or eight pounds, roughly. It makes me so tired." Other physical complaints include high blood pressure, which occasionally causes dizziness, a tumor in the womb, with unspecified effect on her ability to work, cancer, which was not elaborated upon, and pain around her heart, stomach and chest. Finally, plaintiff testified that she suffers from emotional disorders and at some point in the past had a nervous breakdown. When asked how her nervous condition affected her now, plaintiff responded

Well, noises and depression. I can't stand worry and noises. I have to have something for insomnia. I have to take these nerve pills there. I got two of the same nervous pills there, but one of them is a higher milligram.

Because of these ailments Ms. Floyd visits a doctor once a month. Dr. J. Niazir has been her treating physician at least since 1978. Her prescribed medications include Clinoril, 20 milligrams twice a day, presumably for arthritis; Valium, 5 milligrams twice a day, and Tylenol #3 which plaintiff says she takes twice a day to alleviate pain.

With regard to her daily activities Ms. Floyd testified that she cooks, washes dishes and cares for her personal needs, although experiencing some difficulties. In exchange for free rent plaintiff cleans the kitchen and halls, collects the rent and moves empty garbage cans. Finally, while she used to visit friends and relatives frequently, she rarely does so now except for attending church on Sunday.

In addition to plaintiff's testimony, information secured from Dr. Niazir was admitted into evidence. Submitted evidence included both the records kept by the doctor of Ms. Floyd's visits, and reports filled out at the behest of the Social Security Administration. Unfortunately, the monthly notations of plaintiff's condition are virtually illegible. What can be discerned is a significant weight gain of thirty pounds over the course of a year and, conversely, a steadily decreasing blood pressure. In a report dated July 12, 1980, Dr. Niazir described his patient's conditions as hypertension, depression and osteoarthritis of the lower back. He indicated that there was no end organ damage as a result of the high blood pressure, no symptoms of heart disease, nor any evidence of chest pain. Dr. Dilts, of the Social Security Administration, reviewed the medical evidence and concurred with Dr. Niazir's conclusions: "There is no anatomical deformity, bony destruction or bony hypertrophy in the spine, with no atrophy or local inflammatory or systemic signs. There is no weakness, and no loss of range of motion. Ambulation is normal.

After considering such evidence, the ALJ found Ms. Floyd ineligible for disability benefits. In so doing, the ALJ made the following findings of fact:

* * * * * *

2. The claimant has the following impairments: hypertension, osteoarthritis of the lower back, and depression.

3. Allegations of severe and disabling pain are not credible in view of claimant's activities, and the medical evidence submitted.

4. The claimant does not have any impairment or impairments which significantly limits the ability to perform basic work-related functions; therefore, the claimant does not have a severe impairment.

5. Since the claimant does not have a severe impairment, she was not under a disability as defined in the SSA, as amended, at any time through the date of this decision.

Plaintiff lodges two arguments against the findings and conclusion of the ALJ: first, plaintiff was denied a full and fair hearing because she was not represented by counsel and therefore the cause should be remanded so that an adequate hearing can be conducted; second, the ALJ's decision was not supported by substantial evidence, and thus his findings should be reversed and disability benefits awarded.

While Ms. Floyd had a statutory right to counsel at her Social Security hearing, see Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.198...