Martin v. Sullivan, IP 89-1011-C.

• Decision Date: 23 October 1990
• Docket Number: No. IP 89-1011-C.,IP 89-1011-C.
• Citation: 750 F. Supp. 964
• Parties: James E. MARTIN, Sr., Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of Indiana

750 F. Supp. 964

James E. MARTIN, Sr., Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

No. IP 89-1011-C.

United States District Court, S.D. Indiana, Indianapolis Division.

October 23, 1990.

COPYRIGHT MATERIAL OMITTED

Jeffery C. Burris, Burris Burris & Margerum, Indianapolis, Ind., for plaintiff.

Gerald A. Coraz, Asst. U.S. Atty., Indianapolis, Ind., for defendant.

ORDER ON APPEAL OF SECRETARY'S DENIAL OF BENEFITS

McKINNEY, District Judge.

This social security appeal is before the Court on the complaint of the plaintiff for review of the Secretary's denial of disability insurance benefits (DIB) under sections 216(i) and 223 of the Social Security Act (Act). 42 U.S.C. § 405(g). The issues raised have been briefed and are ready for resolution. As set forth, the Court REVERSES the Secretary's denial of benefits and REMANDS for further proceedings consistent with this Order.

I. PROCEDURAL AND FACTUAL BACKGROUND

James E. Martin, Sr. was born on March 8, 1942, and has a high school education. His relevant work history includes work as a heavy equipment mechanic and welder, a bartender, and as a manager/mechanic for a taxi cab company. Martin has not engaged in substantial gainful employment since July 30, 1985.

In September 1985, Martin was diagnosed as having systemic lupus erythematosus ("lupus"). He complains of joint pain in his hands, arms, and also around his heart and lungs. Martin has used a TENS¹ unit daily since January 1988 to minimize his pain. He has difficulty breathing and complains of fatigue. Martin spends most of his time watching television and resting. He is unable to do any cooking, cleaning, bedmaking, laundry, or grocery shopping. Martin also complains of depression and an inability to deal with people.

The claimant filed his application for disability on April 23, 1987, alleging he became disabled on July 30, 1985. The application was denied initially and again upon reconsideration by the Social Security Administration. Martin then requested a hearing before an Administrative Law Judge. A hearing was held before ALJ John C. Castelli on August 24, 1988, and the claimant appeared in person and was represented by counsel. Also present at the hearing were Dr. Richard B. Kohler, who testified as a medical advisor, and Theresa Martin, the claimant's wife.

At the hearing, the claimant's wife testified that since being diagnosed as having lupus, Martin's personality has changed dramatically and he prefers to avoid people. At times, he gasps for breath and is unable to mow the yard. Frequently he is in pain, fatigued, and has difficulty remembering things and has difficulty sleeping.

Dr. Kohler testified that the claimant's basis impairment was reasonably established as lupus although the diagnosis had not been definitely established according to the criteria of the American Rheumatoligical Association. As a result of his lupus, Martin's lungs and joints were affected. In August 1985 and 1986, Martin had a flare-up of his lupus which affected his lungs. In August 1985, his vital capacity was 2.5 liters or approximately 50-55 percent of normal. As such, he did not meet the criteria enumerated in Section 3.02 A, Appendix 1, Subpart P, Regulations Number 4. Although blood gas studies in August 1985 and 1986 indicated that he did meet the criteria of Section 3.02 C 1, Appendix 1, Subpart P, Regulations Number 4, this study was performed during an acute flare.

With regard to Martin's joint problem, Dr. Kohler stated there was no radiological evidence of any joint change and no objective evidence of inflammation such as redness, increased warmth, swelling, or loss of motion. Dr. Kohler noted that 10-20 percent of lupus patients do experience joint pain without visible signs of inflammation, but usually the joint pain responds to treatment. The fact that Martin's joint pain remained so difficult to control was atypical but, nonetheless, his joint pain could still be associated with his lupus.

Dr. Kohler also testified that Martin has a depressive disorder. Dr. Kohler indicated that it was not uncommon to find people with lupus to be depressed to various degrees. This depression would further reduce Martin's ability to perform even sedentary work activity. His depression would make it difficult for him to cope with stress and Dr. Kohler noted the claimant had been prescribed Amitriptyline in April 1987. Dr. Kohler also testified that depression can exacerbate an individual's perception of pain.

On August 30, 1988, the ALJ concluded that Martin was disabled as of March 1, 1987. The ALJ stated that the combination of joint and lung problems, together with his depression, rendered Martin incapable of performing any type of substantial gainful employment after March 1, 1987. Additionally, the ALJ held that the claimant does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations Number 4.

After being granted disability status, Martin appealed to the Appeals Council seeking an earlier onset date. The Appeals Council reversed the ALJ's decision and denied disability status on July 12, 1989. On September 13, 1989, Martin instituted this action under 42 U.S.C. § 405(g) for judicial review of the Secretary's final decision.

II. THE SECRETARY'S DECISION

The Act defines disability as an inability to engage in substantial gainful activity due to a medically determinable impairment which can be expected to last for 12 continuous months. 42 U.S.C. § 1382c(a)(3)(A). A claimant will be disabled only if his impairments are of such severity that he is both unable to do his previous work, and cannot, given his age, education and work experience, do any other substantial gainful work existing in the national economy, notwithstanding the availability of such work, or whether he would be hired if he applied for work. 42 U.S.C. § 1382c(a)(3)(B). The Act, unlike a worker's compensation system, does not contemplate degrees of disability or allow for an award based on partial disability. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir.1985).

The Secretary is required to use the following five-step sequential procedure for evaluating plaintiff's claims:

1. If the claimant is doing substantial gainful activity, he is not disabled;

2. If the claimant does not have a severe impairment, he is not disabled;

3. If the claimant has an impairment or combination of impairments which is found on the Listings or is equal to a listed impairment, he is disabled;

4. If the claimant's residual functional capacity allows him to perform work he has done in the past, he is not disabled;

5. If the claimant cannot, in view of his residual functional capacity and his age, education, and past work experience, perform other work in the national economy, he is disabled.

20 C.F.R. §§ 404.1520, 416.920. The Secretary made a Step 5 determination that because Martin has the residual functional capacity for at least sedentary work, other jobs exist in significant numbers in the national economy which the claimant can perform consistent with his impairments.

In making this determination, the Appeals Council considered the entire record, including the oral testimony given at the hearing. Letters from claimant's attorney, a letter from the ALJ, office notes of Dr. Kopp, and a report from Dr. Ventry have been added to the record subsequent to the ALJ's determination.

The Appeals Council concluded that the record did not support a finding that the claimant's joints were significantly impaired because Martin had a full range of motion with no swelling, erythema, or increased warmth in the joint area. The Appeals Council discounted the diagnosis of lupus because other diagnoses were also possible. In view of its finding of a lack of a single diagnosis or other objective indications, the Appeals Council regarded Martin's contentions of pain as not credible.

With regard to the claimant's respiratory problem, the Appeals Council agreed with the ALJ that the claimant does not have an impairment listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations Number 4. Additionally, the Appeals Council held that the evidence does not support the claimant's contentions that he had difficulty breathing, was easily fatigued and took two or three naps a day.

In addressing Martin's depression, the Appeals Council found that the record contained no findings regarding a mental impairment until Martin began seeing Malcolm Jackson, Ph.D., a psychologist, after his insured status had run. Thus, the Appeals Council held that the ALJ wrongly considered Martin to be mentally impaired.

III. GENERAL STANDARDS OF REVIEW

The district court's function on review of the Secretary's findings is to determine whether the record as a whole supports the decision. 42 U.S.C. § 405(g); Burnett v. Bowen, 830 F.2d 731, 734 (7th Cir.1987). If the Secretary's findings are supported by substantial evidence in the record, the Court must affirm unless there has been an error of law. Waite v. Bowen, 819 F.2d 1356, 1360 (7th Cir.1987). Substantial evidence is relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Burnett, 830 F.2d at 734. Although courts cannot interject their own judgment for that of the Secretary, they "must not simply rubber stamp his decision in the absence of a critical review of the evidence." Veal v. Bowen, 833 F.2d 693, 696 (7th Cir.1987). Therefore, plaintiff's proof must show that no reasonable person, based on the record as a whole, could have found as the Secretary did.

The burden to prove disability is on the claimant through Step 4. 42 U.S.C. § 423(d); McNeil v. Califano, 614 F.2d 142, 145 (7th Cir.1980). However, the burden of proof is on the Secretary at Step 5, where the ALJ considers whether the claimant can do other work in light of his age, education, and past work...