Fulwood v. Heckler

• Decision Date: 27 September 1984
• Docket Number: Civ. A. No. 84-1252.
• Parties: Theodore S. FULWOOD, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Columbia

594 F. Supp. 540

Theodore S. FULWOOD, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

Civ. A. No. 84-1252.

United States District Court, District of Columbia.

September 27, 1984.

Mona M. Murphy, Arlington, Va., for plaintiff.

James N. Owens, Asst. U.S. Atty., Royce C. Lamberth, Asst. U.S. Atty., Joseph E. diGenova, U.S. Atty., Washington, D.C., for defendants; Donald A. Gonya, Randolph W. Gaines, Mary Gludt; Social Security Division, Dept. of Health and Human Services, Baltimore, Md., of counsel.

CHARLES R. RICHEY, District Judge.

INTRODUCTION

This action is brought under 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health and Human Services denying Plaintiff's application for disability insurance benefits under Title II of the Social Security Act (Act), and denying Supplemental Security Income benefits under Title XVI of the Act. Upon consideration of Plaintiff's Motion for Judgment on the Pleadings, Defendant's Motion for Judgment of Affirmance, memorandum in support thereof and opposition thereto, and the entire record herein, the Court, for the reasons stated below, reverses the Secretary's decision.

BACKGROUND

Plaintiff, Theodore Fulwood, is a 58 yearold black male with a seventh grade education. He is a former maintenance engineer for a commercial laundry in Washington, D.C., where he worked for 34 years until he was discharged without a pension in February of 1981. Plaintiff testified that he was terminated for not appearing for work, even though he was ill, and called in every day (R. 79, 80).

Plaintiff suffers from a plethora of ailments, including, but not limited to, hypertension, asbestosis, (which he contracted at his former place of employment where he was regularly exposed to asbestos dust (R. 249)), diabetes, chronic lumbosacral strain, dypsnea, alcoholism, cirrhosis of the liver, chronic renal failure, alcoholic anemia, alcoholic hepatitis, gall stones, ulcers, and pericarditis. Psychologically, Plaintiff suffers from anxiety episodes, fear of dying, and relationship dysfunction. These psychological problems stem from the loss of his job, the death of his brother by asbestosis in 1978 (his brother had worked alongside him at the laundry (R. 245-246)), the more recent death of his wife in March of 1983, and the burden of his physical illnesses.

As a result of his ailments, Plaintiff claims that he cannot walk any further than a few blocks or climb more than a couple flights of stairs without experiencing shortness of breath and extreme fatigue (R. 56, 58, 63). In addition, he has dizzy spells (R. 58) and has to lie down often (R. 63), his heart races for no apparent reason (twice, in fact, he had to visit an emergency room due to this (R. 59)), he gets headaches that last for days (R. 60), experiences weakness in the arms and numbness and pain in the legs and feet (R. 337) limiting his ability to stand to not more than thirty to forty-five minutes (R. 57), and he experiences chest tightness, nose bleeds, (R. 60), and night sweats. (R. 317-318).

Although Plaintiff lives alone and generally takes care of himself, he also has frequent help from relatives in performing such chores as cooking and shopping (R. 72, 317). For the most part, Plaintiff stays at home, occasionally getting out to attend church on Sunday and visit the sick and shut-ins (R. 74-76). At the time of the hearing before the Administrative Law Judge (ALJ), Plaintiff stated that he was without income but had an application for general public assistance pending (R. 80-81).

Plaintiff initially filed a claim for disability benefits in May of 1981 but that claim was denied. Plaintiff did not have an attorney at that time and did not appeal the denial. In May of 1982 Plaintiff again filed for disability benefits and again his claim was denied. This time, however, Plaintiff had retained counsel and the decision was appealed. In June of 1983 the case was heard by an Administrative Law Judge. In July of 1983 the ALJ issued a decision, finding that Plaintiff was capable of doing "light or sedentary" work and was, therefore, not disabled within the meaning of the Social Security Act and not entitled to any disability benefits. Plaintiff requested a review of the decision by the Social Security Agency Appeals Council, which request was denied on February 16, 1984 because the Council believed that the ALJ's decision was supported by substantial evidence. Plaintiff filed his complaint in this court on April 23rd, 1984.

I. THE ALJ ERRED AS A MATTER OF LAW BY INCORRECTLY ALLOCATING THE BURDEN OF PROOF

To establish a disability as defined by the Act, the initial burden is on the Plaintiff to show that he suffers from an impairment that is severe enough to preclude him from engaging in his past work. The burden then shifts to the Secretary to show that there exists other substantial gainful employment which Plaintiff could perform in view of his age, education, work experience, and residual functional capacity. e.g., Meneses v. Secretary of HEW, 442 F.2d 803, 806 (D.C.Cir.1971); Stephens v. Secretary of HEW, 603 F.2d 36, 41 (8th Cir. 1979).

In this case, it is undisputed that Mr. Fulwood successfully demonstrated that he had a severe impairment which precluded him from continuing in his former employment. Nevertheless, the ALJ stated: "For the claimant to be successful, he must establish the inability to do suitable work in consideration of his age, education, work background, and residual functional capacity." (R. 52). As shown above, the burden of showing the ability of the claimant to perform other substantial gainful employment is on the government alone. This statement by the ALJ, however, shows that the ALJ never shifted that burden of proof to the government. Thus, the ALJ erred as a matter of law by incorrectly placing the burden of proof upon the Plaintiff throughout the entire proceeding.

II. PLAINTIFF'S ABILITY TO CARE FOR HIMSELF AND THE FACT THAT HE RECENTLY SOUGHT WORK DOES NOT NEGATE HIS CLAIM OF DISABILITY

Although Plaintiff lives alone, does a minimum of his own shopping and cooking, occasionally drives an automobile, visits relatives, serves as a deacon at his church (a largely ceremonial function) (R. 74-76), and has recently sought work (R. 98), this does not negate his credibility in claiming that he was "disabled" within the meaning of the Social Security Act. Merely because an individual is somewhat mobile and can perform some simple functions, such as driving, dishwashing, shopping, and sweeping the floor, does not mean that he is able to engage in substantial gainful activity. Smith v. Califano, 637 F.2d 968, 971-972 (3d Cir.1981); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir.1974); Walston v. Gardner, 381 F.2d 580, 586 (6th Cir.1967); Buzzeo v. Harris, 486 F.Supp. 690, 693 (S.D.N.Y.1980); Joki v. Flemming, 189 F.Supp. 365, 372 (D.Mont.1960). These tasks can be performed intermittently, when the individual is not experiencing severe symptoms, and do not require the sustained effort necessary for any substantial, sustained and regular gainful employment. Mr. Fulwood himself testified that whether he engages in church, family, or social activities depends upon how he feels physically (R. 77, 82). The ALJ's finding that Mr. Fulwood's performance of these activities renders his disability claim not credible is illogical and simply runs counter to common sense under the facts of this case.

Likewise, the fact that Mr. Fulwood had recently sought work does not reflect poorly on his claim of disability. That a claimant has recently sought work is immaterial to a determination of whether he qualifies for disability benefits. Bartell v. Cohen, 445 F.2d 80, 82 (7th Cir.1971). If anything, this fact, taken together with Plaintiff's 34 years of service at his former place of employment, only demonstrates that Mr. Fulwood is not a malingerer.

III. THE ALJ DID NOT GIVE THE PROPER EVIDENTIARY WEIGHT TO THE MEDICAL RECORDS BEFORE HIM

Among the evidence considered by the ALJ in reaching his conclusion that Mr. Fulwood could perform light and sedentary work were several reports from medical examiners. None of these reports, however, stated that Mr. Fulwood was physically and psychologically capable of even performing light or sedentary work. Only one report — that which was prepared by Plaintiff's personal treating physician, Dr. Kenneth A. Chase — contained an opinion regarding Mr. Fulwood's ability to work. In that report Dr. Chase stated that the likelihood of Mr. Fulwood obtaining substantial gainful employment was "extremely unrealistic." (R. 314).

Not only was Dr. Chase the Plaintiff's personal treating physician, but he had also examined Plaintiff over a long period of time. Conversely, the other doctors were not treating physicians and had only examined Plaintiff over short time spans. The ALJ is required to give greatest weight to evidence of a personal, treating physician, particularly when the consultation has been over a considerable length of time, unless this is clearly outweighed by conflicting evidence of other qualified examining physicians. See Perez v. Schweiker, 653 F.2d 997, 1001 (5th Cir. 1981); Gold v. Secretary of HEW, 463 F.2d 38, 42 (2d Cir.1972). In addition, Dr. Chase based his opinion on an assessment of the totality of Mr. Fulwood's ailments, while the other doctors only examined Plaintiff concerning isolated ailments. Medical reports which are based on a totality of the claimant's impairments are entitled to substantial weight. Narrol v. Heckler, 727 F.2d 1303, 1306 (D.C.Cir.1984). Finally, Dr. Chase's report stating that Plaintiff's chances at employment were extremely unrealistic, is the most recent medical report analyzing Mr. Fulwood's condition.

An example of how the ALJ improperly allocated the evidentiary weight in this case is shown through his analysis in comparing the medical reports of Dr. Chase with that of ...