Lopez v. SECRETARY, DHHS

• Decision Date: 10 June 1992
• Docket Number: Civ. No. H88-659.
• Parties: Angel LOPEZ, Plaintiff, v. SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Northern District of Indiana

798 F. Supp. 1351

Angel LOPEZ, Plaintiff, v. SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Civ. No. H88-659.

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

June 10, 1992.

James Alanoff, Munster, Ind., for plaintiff.

Robin W. Morlock, Asst. U.S. Atty., Hammond, Ind., for defendant.

ORDER

LOZANO, District Judge.

The Plaintiff, Angel Lopez (hereinafter "Lopez"), brings this action pursuant to § 205(g) of the Social Security Act (hereinafter "Act"), 42 U.S.C. § 405(g). Lopez seeks judicial review of the Secretary of Health and Human Services' (hereinafter "Secretary") final decision that he is not entitled to a period of disability and disability insurance benefits under §§ 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i) and 423, nor to supplemental security income under §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. §§ 1381a and 1382c(a)(3)(A).

This matter is before the Court on Lopez' Motion for Summary Judgment filed on April 5, 1990. For the reasons set forth below, Lopez' Motion for Summary Judgment is GRANTED and the case is REMANDED to the ALJ for further review consistent with this Order.

PROCEDURAL HISTORY

Lopez claimed he became disabled shortly after he was laid off work in 1982. (A.R. 64) He applied for Social Security Disability Insurance benefits (hereinafter "SSD") and Supplemental Security Income benefits (hereinafter "SSI") on August 27, 1985. (A.R. 62, 64,) Lopez' application was denied both initially and upon reconsideration. (A.R. 71-72, 77-78) Lopez then filed a request for hearing before an Administrative Law Judge (hereinafter "ALJ"). (A.R. 106-107) Based on new evidence of a mental impairment not previously considered, J. Lawson Brown, the ALJ, issued an order on June 2, 1986, remanding Lopez' claim back to the state agency. (A.R. 160-161)

On remand, the state agency issued a new decision finding Lopez disabled as of May 1, 1986 due to a mental disorder. (A.R. 173-174) Lopez petitioned for reconsideration of his onset date, but administrative review was denied. (A.R. 192) Once again, Lopez filed a request for hearing before an ALJ. (A.R. 221) ALJ Jerome B. Blum held Lopez' second hearing on December 28, 1987. (A.R. 32) On May 5, 1988, the ALJ determined that Lopez was not disabled within the meaning of the Act at any time prior to May 1, 1986. (A.R. 12, 16). The Appeals Council of the Social Security Administration declined review of the ALJ's decision on October 4, 1988. (A.R. 3) The ALJ's decision of May 5, 1988, therefore, constitutes the final decision of the Secretary of which Lopez now seeks judicial review.

CLAIMANT'S HISTORY

Born on May 31, 1943, Lopez was 44 years old at the time of the second hearing before the ALJ. (A.R. 12) Lopez has a seventh grade education which he obtained in Puerto Rico. He remains illiterate in English. (A.R. 12, 14) Lopez also has difficulties orally communicating in English. (Id.) Although hampered by a language barrier, Lopez was able to work in a steel mill as a general laborer until he was laid off work in 1982. (A.R. 12) Lopez' work in the steel mill was unskilled, requiring light, medium, and heavy exertional levels. (A.R. 14)

At the second administrative hearing, held on December 28, 1987, Lopez testified that he had become disabled due to a non-traumatic back injury and a gastrointestinal disorder.¹ (A.R. 42-44) Lopez could not give a specific date of onset. He was laid off of work in 1982 or 1983. (A.R. 39) Lopez claimed that he has always had back problems, starting in the mid-70's. (A.R. 40) Lopez also asserted that he had not driven for the last five months due to back pain. (A.R. 42, 45) Lopez' back pain requires him to take Tylenol Number Four as well as prescription drugs. (A.R. 44) He currently has problems walking and sleeping. Specifically, Lopez testified that he can only walk about one block, then he must rest. He also testified that he can sit in a chair for only fifteen minutes and then he must stretch. Moreover, Lopez testified that he cannot sit or stand for eight hours and would have to lie down at some point during this period. (A.R. 45-49)

Additionally, several doctors' reports were submitted at the second administrative hearing.² In August 1985, Lopez was hospitalized for gastrointestinal bleeding. (A.R. 109) Due to the bleeding, Lopez underwent a complete colectomy³ to correct the problem. (Id.) Except for a urinary problem after surgery, Lopez' physician, Dr. Jacobo, stated that his gastrointestinal bleeding had been corrected. (Id.) Although Lopez' gastrointestinal bleeding had been corrected, Lopez complained of frequent diarrhea to several physicians. (A.R. 148, 152, 153) None of the physicians observed any diarrhea; rather, the physicians merely documented Lopez' subjective complaints in their reports. (Id.)

At the second hearing, a report submitted by Dr. J. Behr stated that he had examined Lopez on October 5, 1985. (A.R. 133) Dr. Behr observed that Lopez walked with a normal heel-toe reciprocal gait. (Id.) Dr. Behr also performed several flexibility tests and evaluated x-rays of Lopez' back. (A.R. 134) Doctor Behr opined that no evidence existed which would indicate low back pain or nerve root compression, or which would warrant restrictions in Lopez' daily activities. (Id.) Dr. J. Jacobo also supplied a report indicating that Lopez experienced back pain of unknown etiology.

Dr. E.M. Shepard reported that he examined Lopez on April 11, 1986. (A.R. 146) Dr. Shepard observed that Lopez walked with a normal gait, but demonstrated hyperlordosis. (Id.). Lopez could flex forward within 20 centimeters from the floor to his fingertips, but his extension was limited and painful. (Id.) Dr. Shepard also evaluated x-rays, a CT scan, and a myelogram of Lopez' back. X-rays were normal and the myelogram did not show clear cut epidural defect, but the CT scan showed significant spinal stenosis. (Id.) In fact, the CT scan also demonstrated a herniated disk at the L5 S1 level of the left side. (A.R. 226) Dr. Shepard opined that Lopez suffered from spinal stenosis which caused his low back pain and neurological intermittent claudication. (A.R. 146) Dr. Shepard discussed Lopez' treatment options with him and recommended that surgery would be of help. (Id.)

Dr. B. Guberman examined Lopez on January 25, 1988, and submitted his report to the ALJ. (A.R. 253) Dr. Guberman found range of motion abnormalities in Lopez' lumbar spine area. (A.R. 257) He also found sensory abnormalities which suggested nerve root damage. (Id.) The sensory abnormalities were not, however, diagnostic of nerve root damage and no confirmatory motor or reflex abnormalities existed. (Id.) Dr. Guberman stated there was no history of intermittent claudication. (A.R. 257) He observed that Lopez could not squat and experienced difficulty when walking heel to toe. (A.R. 256)

DISCUSSION

Rule 56 of the Federal Rules of Civil Procedure provides in relevant part that:

a party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.... A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(a)-(c). Pursuant to Rule 56(c), summary judgment is proper only if it is demonstrated "that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988); Beard v. Whitley County R.E.M.C., 840 F.2d 405, 409 (7th Cir.1988); Roman v. United States Postal Serv., 821 F.2d 382, 385 (7th Cir.1987); McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1167 (7th Cir.1986). "Whether a fact is material depends on the substantive law underlying a particular claim and `only disputes over facts which might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.'" Walter, 840 F.2d at 434 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-252, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 211 (1986)).

In a Social Security case where a plaintiff seeks district court review of the Secretary's decision to deny benefits, a motion for summary judgment and the procedure which the court must follow in ruling on it differ slightly from other civil cases. First, the court's scope of review is limited to determining whether the Secretary's decision is supported by substantial evidence and whether the Secretary applied the correct legal standards to reach that decision. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The scope of review is confined to the administrative record and pleadings. Garcia v. Califano, 463 F.Supp. 1098, 1100 (N.D.Ill.1979) (citing Davis v. Califano, 437 F.Supp. 978, 979 (N.D.Ill.1977); Brown v. Sec'y of Health, Educ. & Welfare, 403 F.Supp. 938, 940 (E.D.Wis.1975)). The Court's power is limited to entering, upon the pleadings and the administrative record, a judgment reversing, affirming, or modifying the Secretary's decision, with or without remanding the case for a rehearing. 42 U.S.C. § 405(g). The Court may not consider new evidence except for the purpose of determining whether remand is appropriate, and may not...