Koning v. Bowen, Civ. No. L 87-40.

• Decision Date: 16 December 1987
• Docket Number: Civ. No. L 87-40.
• Citation: 675 F. Supp. 452
• Parties: Louis B. KONING v. Otis R. BOWEN, Secretary of Health and Human Services.
• Court: U.S. District Court — Northern District of Indiana

675 F. Supp. 452

Louis B. KONING v. Otis R. BOWEN, Secretary of Health and Human Services.

Civ. No. L 87-40.

United States District Court, N.D. Indiana, Hammond Division at Lafayette.

December 16, 1987.

James F. Roth, Lafayette, Ind., for plaintiff.

Christina McKee, Asst. U.S. Atty., Fort Wayne, Ind., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This is an action brought under 42 U.S.C. 405(g) for judicial review of the Secretary's denial of the plaintiff's claim for Social Security Disability Insurance Benefits and Supplemental Security Income Benefits, as provided respectively by Title II of the Social Security Act, §§ 216(i) and 223, and Title XVI §§ 1602, 1614(a)(3)(A), (42 U.S.C. §§ 416(i), 423 and § 1381 et seq.). The matter was brought to the attention of this court by the filing of a complaint on April 6, 1987. The parties have filed cross-motions for summary judgment, and the plaintiff alternatively requests a remand for further consideration. The issues have been fully briefed by both sides and the matter is, therefore, ripe for ruling.

I.

To qualify for a period of disability and disability insurance benefits under §§ 216(i) and 223 an individual must meet the insured's status requirements of the sections, be under age 65, file an application for disability insurance benefits and a period of disability, and be under a "disability" as defined by the Act. 42 U.S.C. §§ 416(i), 423. Sections 1602 and 1614(a)(3)(A) similarly require meeting the requirements of the sections, filing application, and being under a "disability." 42 U.S.C. § 1381 et seq. "Disability" is defined as the "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." 42 U.S.C. § 423(d)(1)(A). The same section specifies that a person will be determined to be under a disability only if physical or mental impairments are so severe that the individual is not only unable to do previous work but, considering age, education, and work experience, he or she cannot engage in any other kind of substantial gainful work existing in the national economy, whether such work exists in the immediate area, whether a job vacancy exists for the applicant, or whether the person would be hired. Id.

In determining disability the Secretary employs a five-step test, 20 C.F.R. §§ 404.1520, 416.920 (1987), addressing in order the following questions: (1) Is the claimant currently employed? (2) Is the claimant's impairment severe? (3) Does the impairment equal or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work in the national economy? Id. The first four steps allow some claimants to be classified "disabled" or "not disabled" based on medical or work history alone. 20 C.F.R. §§ 404.1520(b)-(e) (1987). Walker v. Bowen, 834 F.2d 635, 640, note 3 (7th Cir.1987). This case was decided at the fifth step of the process which involves a determination of whether, in light of the claimant's residual functional capacity, age, education, and work experience, the claimant has the capacity to perform other work. 20 C.F.R. §§ 404.1520(f), 416.920(f).

Mr. Koning's applications were filed simultaneously on November 19, 1985, alleging the inability to work due to back problems, blood clots in the stomach, and a blood disorder. His claims were denied initially on January 19, 1986. Upon the filing of a request for reconsideration on February 25, 1986, the plaintiff's claims were denied a second time on March 13, 1986. Mr. Koning then requested a hearing which was held on May 16, 1986, before Administrative Law Judge (ALJ) Williams, who issued a decision on September 30, 1986. The ALJ's denial of benefits was affirmed by the Appeals Council on February 11, 1986, at which time it became the final decision of the Secretary and became reviewable by this court.

In denying the plaintiff benefits, the ALJ found as follows:

1. The claimant met the disability insured status requirements of the Act on February, 1985, the date the claimant stated he became unable to work, and continues to meet them through the date of this decision.

2. The claimant has not engaged in substantial gainful activity since February 1985.

3. The medical evidence establishes that the claimant has chronic low back pain, chronic bronchitis secondary to cigarette smoking, and congenital syphilis by history without residual stigmata, but that 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. The claimant's allegations of disabling pain are not credible and are not supported by the medical evidence.

5. The claimant may be unable to perform his past relevant work as a house-keeper, a farmer, construction laborer, and a machine operator.

6. The claimant has the residual functional capacity to perform the full range of at least light work (20 CFR 404.1567 and 416.967).

7. The claimant is fifty years old, which is defined as a person closely approaching advanced age (20 CFR 404.1563 and 416.963).

8. The claimant has a high school education (20 CFR 404.1564 and 416.964).

9. Section 404.1569 of Regulations No. 4 and Section 416.969 of Regulations No. 16, and Rules 202.13, Table No. 2 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant's residual functional capacity, age, education, and work experience, he is not disabled.

10. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

The plaintiff argues that substantial evidence does not support a finding that the plaintiff has a capacity for light work. In the view of the plaintiff, the ALJ further erred by failing to make an adequate credibility determination, and by failing to adequately complete the record. Related to the last point the plaintiff objected that the transcript produced by the Secretary was inadequate for purposes of full and fair consideration.

The issue for the review of this court is whether the Secretary's decision is supported by substantial evidence, viewing the record as a whole. See, e.g. Smith v. Schweiker, 735 F.2d 267, 270 (7th Cir.1984). Where, as here, the ALJ's findings have been affirmed as the final decision of the Secretary, the ALJ's opinion as to disability must be upheld if it is supported by substantial evidence. Walker v. Bowen, 834 F.2d 635, 639 (7th Cir.1987); Stephens v. Heckler, 766 F.2d 284, 287-88 (7th Cir. 1985). The court may not re-weigh the evidence, and where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the Secretary is to resolve the conflict. Id.; Delgado v. Bowen, 782 F.2d 79, 82-83 (7th Cir. 1986). "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g) (1983); Walker, at 639. If substantial evidence supports the Secretary's findings, the decision must be affirmed unless there has been an error of law. Veal v. Bowen, 833 F.2d 693 (7th Cir.1987); Burnett v. Bowen, 830 F.2d 731 (7th Cir.1987); Waite v. Bowen, 819 F.2d 1356 (7th Cir. 1987).

II.

The plaintiff, at the time of his May 16, 1986, hearing, was fifty years old. He is a high school graduate and his prior work included heavy manual labor in the form of drilling and construction. He has worked a variety of other jobs including employment with Pepsi-Cola, and housekeeping duties for a veteran's home. In his application, he alleged a disability onset date of February, 1985. At that time he left his work as a housekeeper, moved to North Carolina, and got married. Within a short time he returned to Indiana, his marriage having failed, and sought a position at Purdue University. As part of a pre-employment physical, he was examined in October of 1985 by a Dr. Babb, who recommended that he not be hired due to the presence of bi-lateral hernias. The doctor also noted the possibility of mild emphysema. Apparently, in a later agency contact with Dr. Babb, which was dated December 4, 1985, the doctor indicated additionally that the plaintiff is unable to do lifting jobs, but the doctor did not wish to cooperate further.

After being turned down six or eight times for employment, the plaintiff settled into doing odd jobs such as painting and yard work. He viewed various other employment rejections as having stemmed primarily from the fact that his pre-employment physicals had revealed that his blood disease was, in fact, congenital syphilis.

In December of 1985, the plaintiff was interviewed and examined at the Arnett Clinic. The results were reported by Dr. John Pfrommer. Dr. Pfrommer's impression was congenital syphilis, by history, without residual stigmata, as well as chronic bronchitis, secondary to cigarette smoking. Although the examination included a urine test for specific gravity, pH, protein and sugar, which were within normal limits, no other laboratory tests were made. Dr. Pfrommer indicated that

X-rays of the lumbosacral spine were reported by the radiologist to demonstrate normal intervertebral disc spaces and minimal anterior spurring at L2-L3 and L3-L4. The sacrum and sacroiliac joints were normal. There was no evidence of bony injury or fracture. Minimal anterior bridging was present at L5-S1. The degree of change in the apophyseal joint areas of L4-L5 and L5-S1 is moderate.

The doctor further noted phleboliths, that is, chalky masses or deposits in the veins of the pelvic region. The radiologist's impression was that the series showed some arthritic change in the lumbosacral spine, but no evidence of acute bony injury or malalignment....