Harris v. Callahan

• Decision Date: 05 June 1998
• Docket Number: No. 1:96-CV-18.,1:96-CV-18.
• Citation: 11 F.Supp.2d 880
• Parties: Johnny HARRIS v. John J. CALLAHAN,<SMALL><SUP>1</SUP></SMALL> in his capacity as Commissioner of the Social Security Administration.
• Court: U.S. District Court — Eastern District of Texas

11 F.Supp.2d 880

Johnny HARRIS v. John J. CALLAHAN,¹ in his capacity as Commissioner of the Social Security Administration.

No. 1:96-CV-18.

United States District Court, E.D. Texas, Beaumont Division.

June 5, 1998.

Ernest L. Sample, Beaumont, TX, for Plaintiff.

Stephen MacArthur Mason, Asst. U.S. Atty., Tyler, TX, for Defendant.

ORDER

SCHELL, Chief Judge.

For reasons stated in the accompanying memorandum opinion adopting the Report and Recommendation of the United States magistrate judge and overruling plaintiff's objections, it is

ORDERED, ADJUDGED and DECREED that the Commissioner's decision denying plaintiff's application for disability benefits during the period of May 6, 1992 through July 26, 1995 is AFFIRMED, and this portion of the complaint is DISMISSED. It is further

ORDERED, ADJUDGED and DECREED that plaintiff's application for disability benefits during the period of April 1, 1991 through May 5, 1992, is REMANDED to the Commissioner for consideration in accordance with due process notice requirements stated in the report and recommendation of the United States magistrate judge. It is further

ORDERED that the administrative record developed on remand shall include evidence of any prior application and decision if plaintiff's claim for disability benefits during the period of April 1, 1991 through May 5, 1992, is again denied based on res judicata.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HINES, United States Magistrate Judge.

Plaintiff Johnny Harris brings this action seeking judicial review of the final decision by the Commissioner of the Social Security Administration ("Commissioner"). Harris filed an application for disability insurance benefits for injuries suffered April 1, 1991. The Commissioner dismissed Harris' application for the period from April 1, 1991 to May 5, 1992 based on res judicata, and denied Harris' application for the period from May 6, 1992 to July 26, 1995 based on his conclusion that Harris was not disabled.

This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings and conclusions of law. See 28 U.S.C. § 636(b)(1)(B) and Local Rules for the Assignment of Duties to United States Magistrate Judges. Jurisdiction is invoked pursuant to 42 U.S.C. § 405(g).

I. Factual Background and Administrative Proceedings

Plaintiff filed this application for disability benefits on August 9, 1993 for injuries sustained April 1, 1991. While working as a tree trimmer, plaintiff fell 40 feet and suffered a burst fracture of the L1 vertebrae. (Pl.Mot.at.4). The Commissioner denied plaintiff's application initially and on reconsideration.

Plaintiff then requested and received a hearing before the Administrative Law Judge ("ALJ"). (Tr. at.5, 149-176). On June 8, 1995, plaintiff appeared pro se and testified at the hearing. (Tr. at.149-176). Despite plaintiff's lack of recollection of a prior social security application and hearing, the ALJ concluded that Harris had submitted a prior application and had been deemed not disabled through May 5, 1992, the asserted date of the prior hearing. Concluding res judicata prevented re-litigation of the previous application, the ALJ limited Harris' August 9th application to the period beginning May 6, 1992.

The ALJ found that since May 6th, Harris had the residual functional capacity to perform the full range of light work.² (Tr. at 15, Finding 6). As such, the ALJ denied plaintiff's application for social security benefits.

Plaintiff then sought Appeals Council review of the ALJ's decision. The Appeals Council concluded that there was no basis to grant Harris' request. (Tr. at.3-4). Having exhausted all administrative remedies, Harris filed this appeal in district court.

II. Plaintiff's Points of Error and The Commissioner's Responses

By local orders, this court's review is restricted to points of error specifically raised and discussed in briefs submitted after the administrative transcript is filed. See ("Notice To Parties In Social Security Appeals and Order" ¶¶ 4, 5 Docket Entry # 3, January 17, 1996 and "Amended Order Directing Filing of Briefs" Dockt Entry # 9, May 24, 1996).

Plaintiff raises five points of error to the ALJ's decision. These points of error essentially raise three objections. First, plaintiff argues that application of res judicata violated his due process rights. Plaintiff claims no recollection of a previous hearing and states that he has no documentation of a prior decision. Further, he asserts that the notice of the hearing was constitutionally infirm in that it provided no notice that res judicata was applicable. Second, plaintiff contends the Appeals Council erred in denying review of the ALJ's decision. Plaintiff claims it was an abuse of discretion for the Appeals Counsel not to review, reverse, or set aside the ALJ's decision. Third, plaintiff complains that the Commissioner's decision is not supported by substantial evidence. Plaintiff claims his impairment or combination of impairments equals or exceeds the listings of impairment outlined at 1.00B and 1.05 of appendix I of Subpt. P of the social security regulations. (Pl's Mot. at 30-31).

Plaintiff asserts a mental impairment which, in combination to physical impairment, renders him disabled. Plaintiff's asserted mental impairment is the result of what he characterizes as a low IQ, depression, and migraine headaches. In fact, plaintiff's motion applauds plaintiff for attaining the position of foreman despite plaintiff's IQ of 77, and his having failed 3rd grade. (Pl's Mot. at 2). Plaintiff's IQ results in what he terms an over-simplification of more complex issues and an inability to reflect or properly analyze questions. Plaintiff claims these deficiencies were apparent during the administrative hearing and in discussions with doctors or family members. (Pl's Mot. at 5). Such a lack of intellect, plaintiff asserts, is a disability in itself, or, at a minimum, creates a disability in light of plaintiff's physical impairments.

The Commissioner responds that res judicata is not an "issue," but rather a legal doctrine. (Resp. at 9). The Commissioner contends that a legal doctrine requires no notice before its application. Defendant argues further, that substantial evidence supports the ALJ's findings. The Commissioner points to step 5, where the ALJ relied on the medical-vocational guidelines to conclude that there was work available which plaintiff could perform. (Resp. at 8).

The Commissioner also argues that plaintiff meets no provisions of the listings and that the ALJ's conclusion was proper. According to the Commissioner, the medical evidence does not support plaintiff's contention that his back impairment meets section 1.05C. The Commissioner points to medical evidence by Drs. Cherry, Thorpe, and McMullen who noted that plaintiff had normal strength in both lower extremities and no evidence of back spasm, and no other indication of muscle wasting, joint inflammation, or swelling.

Defendant rejects any notion that plaintiff has a mental impairment. Defendant notes that between May 6, 1992 and July 26, 1995, plaintiff received psychiatric treatment on four occasions and neither psychiatrist diagnosed him with a mental impairment. As a result, defendant argues plaintiff has failed to show the four symptoms required to establish depression under 12.04(A). Further, defendant contends plaintiff failed to establish subaverage intellect as required under 12.05 and 12.06.

III. Judicial Review

The court's limited role is to determine whether the Commissioner applied the proper legal standards and whether the decision is supported by substantial evidence. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.1992). Substantial evidence is more than a scintilla, but less than a preponderance, Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.1992), it requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion, Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir.1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983)), and must be "enough to justify, if the trial were submitted to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Bd. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 299-300, 59 S.Ct. 501, 504-05, 83 L.Ed. 660 (1939), cited in Harvey L. McCormick, SOCIAL SECURITY CLAIMS AND PROCEDURES § 672, at 193 & n. 1 (4th ed.1991).

This court should scrutinize the whole record to determine whether substantial evidence exists. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir.1983). The court may not, however, reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir.1989); Neal v. Bowen, 829 F.2d 528, 530 (5th Cir.1987). Rather, it is for the Commissioner to weigh the evidence and to resolve any conflicts. Anthony v. Sullivan, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.1990). If supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. at 230, 59 S.Ct. at 217); see also, 42 U.S.C. § 405(g).

To determine whether substantial evidence supports the Commissioner's decision, the court must examine four elements of proof: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) claimant's subjective evidence of pain; and (4) claimant's educational background, age, and work history. Owens v....