Hall v. Heckler, C-84-2932-WWS.

• Decision Date: 11 February 1985
• Docket Number: No. C-84-2932-WWS.,C-84-2932-WWS.
• Court: U.S. District Court — Northern District of California
• Parties: Edward M. HALL, Plaintiff, v. Margaret HECKLER, Secretary of Health & Human Services, Defendant.

602 F. Supp. 1169

Edward M. HALL, Plaintiff, v. Margaret HECKLER, Secretary of Health & Human Services, Defendant.

No. C-84-2932-WWS.

United States District Court, N.D. California.

February 11, 1985.

Kim Malcheski, San Francisco, Cal., for plaintiff.

Sandra L. Willis, Asst. U.S. Atty., San Francisco, Cal., for defendant.

MEMORANDUM OF OPINION AND ORDER

SCHWARZER, District Judge.

INTRODUCTION

This is an appeal pursuant to 42 U.S.C. § 405(g) from a final decision of the Secretary of Health and Human Services denying plaintiff Edward M. Hall disability and supplemental security income ("SSI") benefits. Plaintiff claims he is disabled by gout, degenerative joint disease, chronic obstructive pulmonary disease and alcoholism. The administrative law judge ("ALJ") concluded that plaintiff's impairments were not severe and denied benefits. This case is before the Court on cross-motions for summary judgment. In the alternative, plaintiff requests remand of the matter to the Secretary.

I. BACKGROUND OF THE CLAIM

Plaintiff filed an application for disability insurance and SSI benefits on June 23, 1982, alleging disability beginning May 1, 1982, due to gout and dizzy spells. Upon the Secretary's denial of these applications, plaintiff filed a Request for Reconsideration which resulted in denial of benefits on Reconsideration. Plaintiff then requested a hearing before an ALJ, which was held on July 18, 1983. On December 29, 1983, the ALJ who conducted the hearing issued a decision finding that plaintiff did not have impairments sufficiently "severe" to be considered disabling under the Act and regulations. Plaintiff filed a Request for Review by the Social Security Appeals Council on February 22, 1984. The Appeals Council denied review on April 15, 1984. The decision of the ALJ denying disability and SSI benefits thus became the final decision of the Secretary. Plaintiff commenced this action for review of the Secretary's decision pursuant to 42 U.S.C. § 405(g) on August 20, 1984.

II. EVIDENCE PRESENTED TO THE ALJ

The ALJ reviewed medical reports from three doctors. Dr. Bruce Thompson treated plaintiff from approximately May, 1982, to February, 1983. Dr. Marvin Grieff examined plaintiff at the government's request on August 11, 1982. Dr. W.L. Bentley treated plaintiff most recently, having first examined plaintiff in approximately February, 1983.

Plaintiff was 58 years old at the time of the hearing and has a high school education. He has worked at various times as a welder, maintenance mechanic and machinist rigger. His most recent job was as a forklift operator on a seasonal basis with a cannery. The last season in which he worked ended in September, 1981. At that time, plaintiff complained of gout, back pain, dizziness and shortness of breath.

Dr. Bruce Thompson diagnosed plaintiff as having chronic obstructive pulmonary disease, gout, rectal diverticulosis, ethanolosis, chronic bronchitis and degenerative joint disease with post trauma arthalgia in the left elbow. On June 2, 1982, an ECG was interpreted as "probably normal"; a chest x-ray revealed no acute cardiopulmonary disease or secondary signs to suggest chronic obstructive pulmonary disease, and a barium enema on June 7, 1982, revealed diverticulosis coli. Examination findings on December 15, 1982, showed mild tenderness over the left elbow extending from the elbow into the forearm. Dr. Thompson also noted a slight decrease in range of motion in the metacarpal joints of both hands. Cardiopulmonary examination was within normal limits. A chest examination showed no indication of acute pathology. Percussion was within normal limits and equal bilaterally, and no acute changes in the chest were distinguished. Balance, gait and coordination were within normal limits. Dr. Thompson also stated that plaintiff had been repeatedly advised on withdrawal from alcohol.

A consultative internal medical examination was performed on August 11, 1982, by a Board-certified internist, Dr. Marvin Grieff. The report showed that plaintiff described dyspnea on exertion with episodes of wheezing almost every day. Plaintiff smoked two packs of cigarettes per day. He stated that he could walk two blocks and climb a flight of stairs before experiencing shortness of breath. He had no orthopnea, paroxysmal nocturnal dypsnea or peripheral edema. Dr. Grieff reported that physical findings indicated no significant abnormalities except for some rhonchi bilaterally. Plaintiff had an onset of intermittent swelling, pain and redness of the joints of the knees, feet and hands in 1975. He has been maintained on medication for gout with flare-ups of gout noted approximately every two months, lasting several days at a time. Dr. Grieff described deformity of the thumbs, particularly at the interphalangeal joints and greater on the left, and with great toes, greater on the right. Plaintiff was able to make a fist, had near normal grip strength, and was able to approximate the thumb to various digits. While plaintiff complained of low back pain on the left without radiation approximately once a month with bending and lifting activities, the physical examination did not define any limitation of motion, malalignment, spasm or neurological deficits. Plaintiff's untreated blood pressure was 150/102, and Dr. Grieff stated that there had been no end organ complications or catastrophic vascular occlusive episodes. The pulmonary function study indicated a moderate obstructive abnormality; however, the post-bronchodilator study, with optimal performance by the patient, showed only a mild obstructive abnormality.

Plaintiff was followed by Dr. W.L. Bentley for chronic obstructive pulmonary disease, gout, alcoholism and degenerative joint disease. On July 13, 1983, Dr. Bentley completed a Functional Capacities Evaluation form indicating plaintiff would be capable of light and sedentary work as defined at 20 C.F.R. § 404.1567(b). Although there is no laboratory or clinical evidence in the record accounting for such restrictions, Dr. Bentley reported that plaintiff was limited to six hours of sitting, three hours of standing, and four hours of walking per day. Plaintiff could frequently bend and occasionally squat, crawl, climb, and reach above the shoulder. Dr. Bentley believed plaintiff could lift up to 20 pounds. He was restricted from moving machinery, heights, noise, and dusts.

Plaintiff testified that he finished high school and worked as a fork lift operator until 1981. At that time he was laid off from his seasonal work, but simultaneously developed problems lifting and experienced back pain and breathing problems. He thought he could lift 10-15 pounds, walk four blocks and sit and stand for about one hour before experiencing pain. Plaintiff stated that he took aspirin twice a day at one point for his back pain and said he later also took codeine. He testified to problems with gout and swelling twice a week and exhibited definite swelling and joint deformity of the large toe of the right foot at the hearing. He had not been hospitalized in the past year. He stated that while he drank quite a bit in the past, he had cut back because of admonitions from his doctor and now drank approximately one pint every few days for relaxation and to take away pain. He denied drinking as much as the doctors indicated. He testified that he was able to do his own laundry and shopping and came to the hearing on the bus. He told the ALJ that he had a few friends and left the house almost every day. He used a cane occasionally. He does not use a back brace.

III. THE ALJ'S DECISION

The ALJ found that the plaintiff did not have any impairments which significantly limit his ability to perform basic work-related functions. Therefore, he concluded that plaintiff does not have a "severe" impairment under 20 C.F.R. §§ 404.1520(c) and § 416.920(c).

IV. EVALUATION OF THE ALJ'S DECISION

Plaintiff asserts that the Secretary's decision should be reversed, or, in the alternative, remanded. First, plaintiff challenges the validity of the regulations upon which the ALJ relied in denying disability and SSI benefits to plaintiff. Alternatively, plaintiff argues that even if the regulation is construed as valid, it was nevertheless invalid as applied by the Secretary. Second, plaintiff argues that Social Security Ruling 82-55, referred to by the ALJ, is void under the Administrative Procedures Act, the Freedom of Information Act, and the Fifth Amendment. Third, plaintiff argues that the Secretary's decision is not supported by substantial evidence. He contends that the ALJ erred in rejecting the opinion of Dr. Bentley and failing to consider plaintiff's subjective complaints of pain.

A. Validity of the Severity Regulation

The Secretary, in denying plaintiff's claim, found that he did not have a "severe" impairment within the meaning of Agency regulations, 20 C.F.R. §§ 404.1520(c) (disability claims) and 416.921(c) (SSI claims). Plaintiff contends that these regulations are inconsistent with the Social Security Act in permitting the Secretary to deny disability benefits on the basis of medical evidence alone without considering vocational factors of age, education and work experience.

1.

Under 42 U.S.C. § 423(d)(1)(A) and 1382c(a)(3)(A), an individual shall be considered disabled if he is unable

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.

A physical or mental impairment is defined in 42 U.S.C. § 423(d)(3) and 1382c(a)(3)(C):

A "physical or mental impairment" is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

In 1967, the Social Security Act was amended to add the following...