Harris v. Heckler, Civ. A. No. 83-C-58.

• Decision Date: 06 March 1984
• Docket Number: Civ. A. No. 83-C-58.
• Citation: 580 F. Supp. 1546
• Parties: Rhubin HARRIS, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

580 F. Supp. 1546

Rhubin HARRIS, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Respondent.

Civ. A. No. 83-C-58.

United States District Court, E.D. Wisconsin.

March 6, 1984.

Martin E. Kohler, Levine & Epstein, Milwaukee, Wis., for plaintiff-appellant.

Joseph P. Stadtmueller, U.S. Atty. by Patricia J. Gorence, Asst. U.S. Atty., Milwaukee, Wis., for defendant-respondent.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action to review a final decision of the Secretary of Health and Human Services ("Secretary"), denying the claimant's applications for disability insurance benefits, a period of disability, and supplemental security income. Federal jurisdiction derives from 42 U.S.C. § 405(g). Both parties have moved for summary judgment. I conclude that the Secretary's final decision is based on an erroneous application of the parties' burdens of proof, and accordingly the action will be remanded.

The plaintiff is a thirty-seven year old black male with a twelfth grade education. He has had no vocational training, and has performed various unskilled jobs, working as a sandblaster, a janitor and, at the onset of the alleged disability, a chipper and grinder. This latter job involves chipping excess metal off castings and finishing them with a grinding tool. It requires an ability to lift objects weighing up to 100 pounds.

In 1977, plaintiff injured his back and was treated through 1979 for lower back pain and muscle spasms. In January 1980, his back was again injured in an automobile collision. He received treatment but was unable to continue his work as a chipper and grinder due to the pain in his back.

Plaintiff filed applications for a period of disability, disability insurance benefits, and supplemental security income on July 10, 1981. He was determined not to be disabled and therefore ineligible for relief. His requests for reconsideration of the determination of nondisability were denied. Plaintiff timely requested a hearing before an administrative law judge ("ALJ").

On March 18, 1982, a hearing was held at which plaintiff, his wife, and his attorney appeared. Additionally, a vocational expert testified at the ALJ's behest. The ALJ considered the plaintiff's testimony, which included the foregoing facts, and, additionally, his problem with depression. Plaintiff stated that the pain in his back rendered him unable to work, and that coincident with his inability to work, he suffers from severe depression. Plaintiff's wife testified to plaintiff's depression, stating that ever since he left his job in 1980, he had become a different person, lacking any interest in socializing and at times becoming angry almost to the point of violence. She also testified that they briefly separated on one occasion. Finally, the vocational expert testified that plaintiff's depression and his back injury were both disabling afflictions and that they would last for twelve months or more.

The ALJ issued his decision on April 14, 1982. He found that plaintiff's back injury and psychological problem had prevented him from engaging in any substantially gainful activity since February 1980, and that this combination of problems satisfied the Secretary's "Listing of Impairments." The ALJ concluded that plaintiff was under a disability for purposes of the Social Security Act.

The Social Security Administration Appeals Council ("the Appeals Council") reconsidered on its own motion the ALJ's determination. In a decision dated November 18, 1982, the Appeals Council reversed the ALJ's conclusion and rendered its evaluation of the evidence. With respect to the plaintiff's back injury, the Appeals Council rejected the possibility that this affliction caused pain so severe and unremitting that plaintiff was precluded from engaging in substantial gainful activity. The Appeals Council noted that x-rays of plaintiff's back taken in 1979 and 1980 showed no fractures, and while plaintiff was diagnosed as suffering from recurrent back strain in 1981, he was simultaneously found to have no abnormal back motions, no neurological abnormalities, and no observable difficulties in walking, standing, sitting, bending, stooping, or using his hands. It also observed that all treating physicians released the plaintiff to return to work. From this evidence, the Appeals Council concluded that plaintiff's back impairment and any pain therefrom did not equal the "Listing of Impairments."

With respect to the plaintiff's mental condition, the Appeals Council similarly rejected any finding that plaintiff's depression prevented him from engaging in substantial gainful activity. The Appeals Council reviewed the record of an interview of plaintiff conducted on July 16, 1981, at which time plaintiff stated that he had not seen a psychiatrist and that he occasionally carried out the garbage, mowed the lawn, helped his wife with housework, took care of his two children, and visited with friends and relatives, but also that other activities had been set aside because of his financial situation. The Appeals Council also observed that plaintiff began seeing a psychiatrist in August 1981, and that at an examination by a psychiatrist on September 1, 1981, plaintiff alleged depression, insomnia, a twenty pound weight loss, some suicidal thinking, and social withdrawal. At this time, plaintiff's memory and thought processes were good, and he had no delusions, hallucinations, or psychotic thought processes, and no deterioration in personal habits. The Appeals Council reviewed the psychiatrist's report of July 28, 1982, in which the psychiatrist stated that the plaintiff's condition had improved only slightly over the past year and that medication had not affected plaintiff's depression, but also that plaintiff had not exhibited any psychotic symptoms or cognitive impairments throughout the treatment. The Appeals Council concluded that while the plaintiff's symptoms suggested a significant problem with depression or a dysthymic disorder, it did not equal the "Listing of Impairments" and did not affect significantly his maximum sustained capacity for light work.

In closing, the Appeals Council recognized that plaintiff was not engaged in substantial gainful activity, and that his back strain and mental problems constituted an impairment sufficient to prevent him from returning to his former employment. However, the Appeals Council found that these impairments, whether considered in combination or separately, did not equal the "Listing of Impairments." The Appeals Council found that the plaintiff retained the maximum sustained capacity to perform light work, and that he was not disabled for the purposes of entitlement to a period of disability and disability benefits and eligibility for supplemental security income.

Under 42 U.S.C. § 405(g), I must affirm the Secretary's factual conclusions if they are based on "substantial evidence." In this context, the decision of the Appeals Council is the final decision of the Secretary and thus subject to the limited standard of review. See Hammonds v. Schweiker, 535 F.Supp. 276, 278 n. 1 (S.D. N.Y.1982). Generally, I must affirm the final decision of the Secretary unless there is no evidence that a reasonable mind would regard as adequate to support the determination, or unless improper legal standards were applied. I am not free to overturn a decision that is supported by substantial evidence, even though I might reach a contrary conclusion upon de novo review of the facts. Lieberman v. Califano, 592 F.2d 986 (7th Cir.1979).

In order to qualify for a period of disability under 42 U.S.C. § 416 and for disability insurance benefits under 42 U.S.C. § 423, a claimant must, inter alia, show that he is disabled. The Social Security Act defines disability thus:

(d) Definition of disability. (1) The term "disability" means —

(A) inability 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; or

(B) in the case of an individual who has attained the age of 55 and is blind (within the meaning of "blindness" as defined in section 216(i)(1) 42 USCS § 416(i)(1)), inability by reason of such blindness to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time.

(2) For purposes of paragraph (1)(A) —

(a) an individual (except a widow, surviving divorced wife, or widower for purposes of section 202(e) or (f) 42 USCS § 402(e) or (f)) 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national

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