Graham v. Sullivan

• Decision Date: 20 March 1992
• Docket Number: No. 91-4078-C.,91-4078-C.
• Citation: 794 F. Supp. 1045
• Parties: Larry A. GRAHAM, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Kansas

794 F. Supp. 1045

Larry A. GRAHAM, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant.

No. 91-4078-C.

United States District Court, D. Kansas.

March 20, 1992.

Robert E. Tilton, Tilton & Hoffman, Topeka, Kan., Gerald Benjamin, Levine, Benjamin, Tushman, Bratt, Jerris and Stein, P.C., Southfield, Mich., for plaintiff.

Jackie A. Rapstine, U.S. Attorney's Office, Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

This is an action to review 42 U.S.C. § 405(g) the Secretary's denial of social security disability benefits to plaintiff, Larry A. Graham. The case is ready for decision on the plaintiff's motion for summary judgment (Dk. 8) and on the Secretary's motion to affirm (Dk. 13).

On June 1, 1988, the plaintiff filed his second application for disability benefits under Title II. He alleged that as of May 30, 1981, he suffered from disabling, "permanent injury to both ankles." The plaintiff's claim was denied initially and on reconsideration. Following a hearing held May 3, 1989, the administrative law judge ("ALJ") issued his decision finding that the plaintiff was not disabled at any time before March 31, 1987 and through June 30, 1989, the date of his decision. On November 28, 1989, the Appeals Council remanded the case to the ALJ for further proceedings and a new decision as the ALJ had not fully considered the opinion of the plaintiff's treating physician and the plaintiff's need to elevate his feet.

On remand, the ALJ conducted a supplemental hearing on April 4, 1990, and issued his decision on May 11, 1990 again denying the plaintiff disability benefits. The ALJ specifically discredited the treating physician's opinion and the plaintiff's testimony that plaintiff's feet needed to be elevated after periods of sitting. On March 12, 1991, the Appeals Council denied plaintiff's request for review. Consequently, the ALJ's decision stands as the Secretary's final decision.

The court's standard of review is set forth at 42 U.S.C. § 405(g), which reads that "the finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is more than a scintilla and is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401-02, 91 S.Ct. 1420, 1427-28, 28 L.Ed.2d 842 (1971); Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989). The court's duty to assess whether substantial evidence exists:

"is not merely a quantitative exercise. Evidence is not substantial `if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.'"

Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988) (quoting Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.1985)). Although the court is not to reweigh the evidence, the findings of the Secretary will not be mechanically accepted. Claassen v. Heckler, 600 F.Supp. 1507, 1509 (D.Kan.1985). Nor will the findings be affirmed by isolating facts and labelling them substantial evidence, as the court must scrutinize the entire record in determining whether the Secretary's conclusions are rational. Holloway v. Heckler, 607 F.Supp. 71, 72 (D.Kan.1985).

The Social Security Act provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d)(2)(A). Claimant has the burden of proving a disability that prevents him from engaging in his prior work for a continuous period of twelve months. The burden then shifts to the Secretary to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir.1989). The Secretary satisfies this burden if substantial evidence supports it.

For evaluating a claim of disability, the Secretary has developed a five-step sequential process. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290-91, 96 L.Ed.2d 119 (1987). Step one is whether the claimant is currently engaged in substantial gainful activity. If not, the next consideration is whether "the claimant has a medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 141, 107 S.Ct. at 2291. Step three entails determining whether the impairment is equivalent to one of a number of impairments listed in the "Listing of Impairments," 20 C.F.R. Part 404, subpt. p, app. 1 which the Secretary acknowledges are so severe as to preclude substantial gainful activity, 20 C.F.R. § 416.920(d). If no equivalency, the claimant must show that because of the impairment he is unable to perform his past work. 20 C.F.R. § 416.920(e). The final step is to determine whether the claimant has the residual functional capacity (RFC) to perform other work available in the national economy, considering such additional factors as age, education, and past work experience. 20 C.F.R. § 416.920(f). This process comes to an end if at any point the Secretary determines the claimant is disabled or not. Gossett, 862 F.2d at 805; 20 C.F.R. § 416.920(a).

In his order of May 11, 1990, the ALJ found:

1. That the claimant met the disability insured status requirements of the Act on May 30, 1981, the date the claimant stated he became unable to work, and continued to meet them through March 31, 1987, but not thereafter.

2. That the claimant has not engaged in substantial gainful activity since May 30, 1981.

3. That the medical evidence establishes that the claimant has bilateral ankle pain and swelling secondary to a history of severe sprain to both ankles; extreme obesity; hypothyroidism well controlled on present medication; psoriasis; peripheral neuropathy; and bilateral ankle instability. Nevertheless, he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

4. That the claimant's subjective complaints of inability to do any work activity on a sustained basis no matter how sedentary due to swelling, pain and numbness in his lower extremities; in particular, his allegation that he must elevate his fee whenever sitting, are not credible or as limiting as alleged based on the medical evidence, and his appearance and testimony at the hearing.

5. That the claimant has the residual functional capacity to perform the exertional and nonexertional requirements of work including lifting and carrying objects weighing up to 10 pounds, and standing or walking about two hours total out of an eight hour work day. The claimant retains the residual functional capacity to perform the sitting contemplated in the definition of sedentary work (20 CFR 404.1545).

6. That the claimant is unable to perform his past relevant work as auto assembler.

7. That the claimant's residual functional capacity for sedentary work is not significantly reduced by his subjective complaints; namely, an alleged need to elevate his feet at all times when sitting.

8. That the claimant is 49 years old, which is defined as a "younger individual" (20 CFR 404.1563).

9. That the claimant has a tenth grade education plus has earned a GED (20 CFR 404.1564).

10. That the claimant does not have any acquired work skills which are transferable to the skilled or semiskilled work activities of other work (20 CFR 404.1568).

11. Based on an exertional capacity for sedentary work, and the claimant's age, education, and work experience, section 404.1569 and Rule 201.21, Table No. 1, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."

12. Although the claimant's additional nonexertional limitations do not allow him to perform a full range of sedentary work, the record as a whole including the medical evidence, the claimant's testimony, and testimony from vocational experts establish there are a significant number of jobs in the national economy which he could perform. Representative occupations include: optical assembler, electrical assembler and security monitor. These occupations represent numerous jobs in the State of Kansas.

13. That the claimant was not under a "disability," as defined in the Social Security Act, as amended, at any time through the date of this decision (20 CFR 404.1520(f)).

The plaintiff's appeal primarily takes issue with the evidence supporting the ALJ's findings at paragraphs four and five.

The plaintiff was born December 24, 1940. He is 5' 10½? tall and weighs 335 lbs. From 1963 to 1981, the plaintiff worked at the General Motors plant in Kansas City. Around the first of May 1981, the plaintiff injured his ankles in an automobile accident. The plaintiff worked the next day until the pain and swelling forced him to go home at noon.

On May 5, 1981, the plaintiff was treated by Dr. Scott Corder who observed swelling in both ankles and diagnosed bilateral contusion sprains. X-rays on the same day revealed no "acute fracture or other abnormality." Dr. Corder prescribed rest, hot soaks, and no work for six days. Dr. Corder saw the plaintiff on May 11th and 15th for continued swelling and pain in the right ankle. Because of the slow improvement, on May 26, 1981, Dr. Corder placed the ankle in a walking cast and gave the plaintiff crutches. X-rays on this day revealed swelling, but no fracture.

On June 15, 1981, two days after the cast was removed, Dr. Corder observed three-plus swelling in the right ankle. He referred the plaintiff to Dr. Sheffer, who saw the plaintiff for the persistent swelling on June 19, 1981. Dr. Sheffer opined that the plaintiff had a "resolving talofibular ligament sprain" and recommended...