Johnson v. Secretary of Health and Human Services, K84-74 CA.

Decision Date24 July 1985
Docket NumberNo. K84-74 CA.,K84-74 CA.
Citation614 F. Supp. 339
PartiesKenneth M. JOHNSON, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
CourtU.S. District Court — Western District of Michigan

Kevin P. Burch, Chambers, Steiner, Mazur, Ornstein & Amlin, Kalamazoo, Mich., for plaintiff.

Martin Palus, Asst. U.S. Atty., Grand Rapids, Mich., for defendant.


BENJAMIN F. GIBSON, District Judge.

This is an action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health and Human Services (the Secretary) denying plaintiff's claim for disability insurance benefits.

The final decision of the Secretary is now before the Court for review pursuant to motions for summary judgment filed by both plaintiff and defendant.

Section 205(g) of the Act, supra, limits the Court to a review of the administrative record and provides that if the Secretary's decision is supported by substantial evidence it shall be conclusive. The Secretary has found that plaintiff is not disabled within the meaning of the Act. The only issue before the Court is whether or not the decision of the Secretary is supported by substantial evidence. Because this Court concludes that it is not so supported, the Secretary's decision is reversed, and this case shall be remanded for the awarding of benefits.

In determining whether an individual is disabled, the initial burden is on plaintiff to establish that he can no longer engage in his past work. Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir.1978); Garrett v. Finch, 436 F.2d 15, 18 (6th Cir.1970). Once the plaintiff establishes he can no longer do his past work, the burden shifts to the Secretary to establish that plaintiff, in light of his physical condition "can perform other substantial gainful work, and that there are jobs in the national economy which claimant can perform." Hephner, supra at 362; Montgomery v. Weinberger, 514 F.2d 1211 (6th Cir.1975).

The Sixth Circuit established, based on administrative regulations which became effective February 26, 1979, that claimants must satisfy four criteria as part of their "prima facie case" in order to successfully shift the burden to the Secretary:

The regulations require that an initial determination be made as to whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is found "not disabled." Second, it is determined if the claimant has a severe impairment —one that significantly limits the ability to perform work-related functions; if not, then on the medical evidence alone the claimant is determined to be not disabled. Third, if a severe impairment is found, the impairment is compared against those listed in Appendix 1, 20 C.F.R. Subpart P, Appendix 1 (1981), to see if, on the medical evidence alone, the claimant can be found to be disabled. Assuming the claimant is not found to be disabled, the fourth step requires inquiry into whether the claimant can perform relevant past work; if so, then the claimant is not disabled.

Kirk v. Secretary, 667 F.2d 524, 528 (6th Cir.1981), cert. denied 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983).

In the present case, the ALJ determined that plaintiff failed to establish that his impairments are severe. Because the Court is of the opinion that the record does not contain substantial evidence to support this decision, it shall be reversed.

Plaintiff, Mr. Kenneth M. Johnson, was born on March 1, 1921 and was 62 years old at the time of the hearing. He has an eighth grade education and worked as a truck driver until February 14, 1983, when he became disabled due to pain in his left knee, diabetes, hypertension, and a cateract in his right eye. It appears from the plaintiff's testimony that he terminated his employment on that date due to a knee injury occasioned while on the job in 1980. (Tr. 38) The ALJ made no determination as to the exertional requirements of plaintiff's past relevant work, nor of the exertional ability plaintiff retains due to his present impairments. The record does reflect that plaintiff was required to load and unload trucks. (Tr. 23)

Dr. Lindquist treated plaintiff for his knee injury in 1980. In a report dated April 8, 1983, Dr. Lindquist stated that plaintiff had degenerative arthritis in the injured knee. (Tr. 132) This finding is confirmed by Dr. Warren Speers in a report dated March 9, 1983 (Tr. 130) and by Dr. Felipe Regualos, who noted that an x-ray showed "mild degenerative changes" in the knee. (Tr. 135)

The record is replete with clinical documentation of plaintiff's other impairments. Dr. Speers diagnosed plaintiff's diabetes, and notes that plaintiff underwent prostate surgery in 1981. (Tr. 130) He further noted that plaintiff walks with a limp. (Tr. 131) Dr. Lindquist, who treated plaintiff intermittently between 1980 and 1983, also noted plaintiff's "antalgic gait favoring left side." (Tr. 132) Dr. Regualos stated that plaintiff had a diabetic coma in 1981, that he has diabetes mellitus, essential hypertension, and a cateract. (Tr. 134-135).

Despite these consistent medical findings, the ALJ concluded that plaintiff's impairments are not severe. Severity is defined by the Secretary as an "impairment or combination of impairments" which "significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). The regulations go on to give examples of basic work activities the Secretary will consider when determining severity:

(b) BASIC WORK ACTIVITIES. When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs. Examples of these include—
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.
§ 404.1521(b)

If an impairment or combination of impairments is found "not severe," the Secretary "will not consider your age, education, and work experience" in the disability calculus. § 404.1520(c). On its face, this regulation conflicts with the express language of the statute which sets forth factors mandated by Congress for consideration when passing on disability determinations. This statute provides in relevant part 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, 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)

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