Gathright v. Shalala

• Citation: 872 F. Supp. 893
• Decision Date: 22 July 1993
• Docket Number: Civ. No. 92-801 JP/WWD.
• Parties: Johnny E. GATHRIGHT, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of New Mexico

872 F. Supp. 893

Johnny E. GATHRIGHT, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant.

Civ. No. 92-801 JP/WWD.

United States District Court, D. New Mexico.

July 22, 1993.

COPYRIGHT MATERIAL OMITTED

Gary J. Martone, Albuquerque, NM, for plaintiff Johnny E. Gathright.

Ronald F. Ross, U.S. Atty's Office, Dist. of New Mexico, Albuquerque, NM, for defendant Secretary of Health and Human Services.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

Plaintiff invokes this Court's jurisdiction under 42 U.S.C. § 405(g), seeking judicial review of a final decision¹ of the Secretary of Health and Human Services (Secretary). The Secretary determined that Plaintiff is not eligible for either disability insurance or supplemental security income (SSI) benefits. Plaintiff moves this Court for an order remanding this matter for a rehearing. This Court reviews the Secretary's decision to determine whether the Secretary's findings are supported by substantial evidence and whether the Secretary applied correct legal standards in making his findings. Williams v. Bowen, 844 F.2d 748 (10th Cir.1988).

ADMINISTRATIVE HISTORY

Plaintiff's applications for disability insurance benefits and SSI benefits were denied at the administrative level both initially and on reconsideration. Plaintiff requested and received a de novo review before an administrative law judge (ALJ). A hearing was held before the ALJ at which Plaintiff and his attorney appeared. The ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review of the ALJ's decision. The decision of the ALJ therefore became the final decision of the Secretary for judicial review purposes.

STATEMENT OF THE FACTS

Plaintiff alleges disability since October 1989 due to bilateral osteoarthritis of the knee. At the time of the administrative hearing, Plaintiff was about to turn 45 years old. Plaintiff has a high school education and has worked in the past as a roofer, welder, and carpenter. He has not worked since October 1989.

A. MEDICAL RECORD

On July 20, 1990, S.K. Kassicieh, D.O., stated that Plaintiff has moderately severe degenerative joint disease in the knees. Tr. 104. Dr. Kassicieh noted that Plaintiff could not climb ladders or lift heavy objects. Id. A few weeks later, Dr. Kassicieh stated that Plaintiff could not climb stairs or kneel, either. Tr. 103. At the end of August 1990, Dr. Kassicieh observed that Plaintiff had an antalgic gait but did not need assistance to walk. Tr. 102.

In September 1990, Plaintiff underwent a consultative examination by G.T. Davis, M.D. According to Dr. Davis, Plaintiff stated that he could walk up to an hour at a time and sit without a problem, but had trouble kneeling, climbing ladders, and climbing stairs. Tr. 109. Plaintiff was not taking any medications at that time. Id. Plaintiff told Dr. Davis that the medication Dr. Kassicieh gave him did not help. Id.

Dr. Davis concluded that Plaintiff should avoid kneeling and squatting, and that Plaintiff may have some difficulty walking, carrying heavy objects, as well as going up and down ladders and stairs. Tr. 110. Dr. Davis likewise opined that Plaintiff could probably do sedentary work and light types of activities if his knees are not under undue stress. Tr. 111. X-rays of Plaintiff's right knee were within normal limits. Tr. 113.

In May 1991, Plaintiff underwent intelligence testing and a personality assessment at Kirkpatrick Consultants. According to the results of the personality testing, persons who responded to the testing as Plaintiff did may have a diagnosis of somatoform disorder. Tr. 118. In other words, stress and long standing personality problems could lead Plaintiff to develop physical symptoms. Tr. 119. Plaintiff's intelligence as expressed in an intelligence quotient (I.Q.) number was average. Id.

In June 1991, Charles Bradshaw, Ph.D., saw Plaintiff for a psychological evaluation. Dr. Bradshaw noted that at the interview, "there was no indication of any serious depression." Tr. 127. Dr. Bradshaw further stated that in a work setting Plaintiff "may need quite a bit of supervision to stay on tasks. He probably would not enjoy challenges to any degree and it does not appear that he could deal with much stress in a job setting. He also would possibly have difficulty interacting with peers and supervisors." Tr. 127-A. Plaintiff might also have problems following verbal direction. Id. Dr. Bradshaw observed that Plaintiff got up twice during an hour and a half to stretch his leg. Id.

Plaintiff responded to Dr. Bradshaw's personality testing as one who tends to exaggerate complaints somewhat. Tr. 128. Dr. Bradshaw was not sure whether Plaintiff deliberately tried to make his condition look bad or was just pessimistic. Id. Plaintiff also responded to the personality testing as one who is significantly depressed. Id. That response was consistent with Plaintiff's description of his emotional state. Id.

Dr. Bradshaw found Plaintiff's I.Q. to be close to or within the low normal range. Id. Dr. Bradshaw indicated that Plaintiff "should be able to learn to work with his head rather than his back...." Id. Plaintiff told Dr. Bradshaw he would like to work perhaps with computers or do something where he could work at his own pace and allow for his knee problems. Tr. 128-29. Plaintiff, however, placed considerable limitations on the type of work he would do. Tr. 129. Dr. Bradshaw concluded that Plaintiff demonstrated "some depression" but not clinical depression or suicidal tendencies. Id.

Dr. Bradshaw rated Plaintiff's ability to make the following occupational adjustments as follows: follow work rules — between good and very good/unlimited; relate to co-workers — fair; deal with the public — between fair and poor or none; use judgment — between good and very good/unlimited; interact with supervisor — between good and fair; deal with work stress — between fair and poor or none; function independently — fair; and maintain attention/concentration — good. Tr. 130. Dr. Bradshaw considered Plaintiff's ability to carry out complex job instructions to be fair. Tr. 131. Finally, Dr. Bradshaw rated Plaintiff's ability to behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability as fair. Id.

B. PLAINTIFF'S TESTIMONY

Plaintiff testified that he can walk a couple of miles if he does so slowly. Tr. 31. Plaintiff also testified that he can sit for 20 minutes, stand 10 minutes, and lift and carry 20 pounds. Tr. 31, 33, 38. Plaintiff also has trouble using stairs without a bannister to hold on to. Tr. 34. Plaintiff stated he takes a prescribed pain medication which causes him to be drowsy sometimes. Tr. 34-35. The knee pain also awakens him at night. Tr. 35.

Plaintiff's daily activities include laying on the couch most of the day, a walk around the block, watching television, and collecting baseball cards. Tr. 33, 40. Plaintiff also plays chess on a computer as well as with his friends who come over twice a week. Tr. 35. Plaintiff noted that he moves to different positions when playing chess. Id. Plaintiff also goes to a spa twice a week where he sits in the whirlpool, sauna, and pool. Tr. 41. Plaintiff cleans his room and sometimes mows his sister's lawn with a gas lawn mower. Tr. 42.

C. THE ALJ'S DECISION

The ALJ found that Plaintiff could not return to his past relevant work because of his bilateral knee osteoarthritis. Tr. 17. The ALJ also found that Plaintiff has a residual functional capacity (RFC) for sedentary work and nonexertional factors such as pain or psychological problems do not limit his RFC. Applying the grids to Plaintiff's situation, the ALJ found Plaintiff to not be disabled.

ISSUES

Plaintiff contends that the ALJ did not base his decision on substantial evidence nor did he apply properly legal standards in finding that Plaintiff was not disabled and has the capacity to perform the full range of sedentary work.

DISCUSSION

A. THE STANDARD OF REVIEW

The function of this Court on review is not to try the Plaintiff's claim de novo, but to determine upon the whole record whether the Secretary's decision is supported by substantial evidence. Hamilton v. Secretary of Health and Human Services, 961 F.2d 1495, 1497-98 (10th Cir.1992). Substantial evidence is more than a scintilla but less than a preponderance of the evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). It is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. It is well settled that if there is substantial evidence to support the Secretary's decision then that decision must be upheld. However, the district court should not blindly affirm the Secretary's decision but must instead scrutinize the entire record to determine if the Plaintiff's claim is supported by substantial evidence and the law has been correctly applied. Hogan v. Schweiker, 532 F.Supp. 639, 642 (D.Colo.1982).

The Plaintiff must first make a prima facie showing of an impairment which effectively precludes him from returning to his past work. Once that showing is made, the burden shifts to the Secretary to show: (1) that the Plaintiff, considering his age, education, work experience and physical shortcomings, has the capacity to perform alternative jobs and (2) that these specific types of jobs exist in significant numbers in the economy. Hall v. Harris, 658 F.2d 260, 264 (4th Cir.1981); Salas v. Califano, 612 F.2d 480, 482-83 (10th Cir.1979); Gardner v. Brian, 369 F.2d 443, 446-47 (10th Cir.1966).

To regularize the adjudicative process, the Social Security Administration promulgated regulations which establish a "sequential evaluation process" to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (1990).² At the first four levels of the sequential evaluation...