Mastroni v. Bowen, Civ. No. 85-0053.
| Decision Date | 30 October 1986 |
| Docket Number | Civ. No. 85-0053. |
| Citation | 646 F. Supp. 1032 |
| Parties | Vincent MASTRONI, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of HHS, Defendant. |
| Court | U.S. District Court — District of Columbia |
Burton L. Raimi and Robert M. Clark of Dechert Price & Rhoads, Washington, D.C., for plaintiff.
Claire M. Whitaker, Asst. U.S. Atty., Washington, D.C., for defendant.
This is an action under 42 U.S.C. § 405(g) to review the Secretary of Health and Human Services ("the Secretary") decision denying plaintiff's claim for disability insurance benefits under Title II of the Social Security Act ("the Act"). Upon review of the pleadings and the transcript of the record, the Court holds that the Secretary's decision is not supported by substantial evidence and is hereby reversed.
Plaintiff was born on July 4, 1928, and is a high school graduate. From February 14, 1946, through June 30, 1966, plaintiff served in the United States Army. Since retiring on July 1, 1966, plaintiff has resided in West Germany. From November, 1966, until December, 1968, plaintiff worked as a cashier in the United States Army N.C.O. Club Lenggries Kaserne. In 1969, plaintiff packed and carried groceries at the United States Army Commissary at Flint Kaserne, Bad Toelz, West Germany. From 1969 until July, 1978, plaintiff did light factory work for several German companies.
In June, 1969, plaintiff began to experience constant pain in his lower back and left leg, causing him to seek regular treatment at the United States Army Health Clinic in West Germany. Ultimately, plaintiff filed an application on January 5, 1979, for disability insurance benefits, alleging that rheumatoid arthritis of the lower spine with pain extending to the toes had disabled him since June 28, 1969. Plaintiff's application was denied initially and on reconsideration by the Social Security Administration ("SSA").
Because he was no longer employable, plaintiff filed a second application on November 13, 1980, pursuant to the United States International Social Security Agreement between the United States and the Federal Republic of Germany. This application was also denied initially and on reconsideration by the SSA.
On November 24, 1980, plaintiff filed a third application, this time alleging that he became disabled on July 16, 1978, due to degenerative disc disease of the entire spine, nerve root irritation extending into his feet and persistent pain in the lumbosacral area. Again, the SSA denied plaintiff's application. On appeal an Administrative Law Judge ("ALJ") considered plaintiff's claim de novo and determined in a decision dated May 8, 1984, that plaintiff met the disability insured status requirements from July 11, 1978, to September 30, 1983, but that he had the ability to perform his previous work as a cashier and, therefore, was not "disabled" within the meaning of the Act. The Appeals Council denied plaintiff's request for review and the decision became final on November 7, 1984.
Plaintiff then filed this action. On January 6, 1986, the Court remanded the case to the Appeals Council, which issued a second decision on June 23, 1986, effectively affirming the May 8, 1984, decision. The Appeals Council found that plaintiff('s) (1) met the special earnings requirements for purposes of disability benefits through September 30, 1984, (2) suffers from a severe impairment caused by degenerative arthritis of the lumbar spine restricting him to "light work," (3) impairment does not meet or equal an impairment listed in Appendix 1 of 20 C.F.R. Part 404, (4) is capable of performing his last known occupation as a cashier, and (5) is not disabled based on the medical-vocational guidelines of Appendix 2 of 20 C.F.R. Part 404. The parties have moved the Court to affirm or reverse the decision of the Appeals Council.
Judicial review of the Secretary's decision is limited to a determination of whether the decision is supported by substantial evidence, see 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Vance v. Heckler, 757 F.2d 1324, 1326 (D.C. Cir. 1985), — "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); Department of Transportation v. ICC, 733 F.2d 105, 110 (D.C. Cir.1984). The ALJ must weigh all the evidence and may not disregard evidence that suggests an opposite conclusion. See Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir.1982); Diabo v. Secretary of HEW, 627 F.2d 278, 281-82 (D.C. Cir.1980).
The burden of proof in a Title II denial of insurance benefits case is split. Once plaintiff proves a disability that prevents him from performing his previous work, the burden shifts to the Secretary to prove that based on plaintiff's age, education, work experience and residual capacity, he can engage in some other kind of substantial gainful employment. See e.g., Goodson v. Railroad Retirement Board, 595 F.2d 881, 883 (D.C. Cir.1979); Meneses v. Secretary of HEW, 442 F.2d 803, 806 (D.C. Cir.1971); Fulwood v. Heckler, 594 F.Supp. 540, 543 (D.D.C.1984). In this case, the Appeals Council found that plaintiff did not meet his burden of proof because he "is capable of performing his last know sic occupation as a cashier." Report to the Court and Notice of Filing (filed June 23, 1986). The Court holds, however, that the Appeals Council's finding is not supported by substantial evidence. To the contrary, there is not substantial evidence to support any conclusion but that plaintiff's disability prevents him from performing his previous jobs as a cashier, a grocery packer and a factory worker.
The agency's regulations expressly exclude from the definition of "previous work" any work performed more than 15 years ago. See 20 C.F.R. § 404.1565(a); Social Security Ruling 82-62 (Oct. 1982). "The 15-year guide is intended to insure that remote work experience is not currently applied." 20 C.F.R. § 404.1565(a). Plaintiff worked as a cashier at the N.C.O. Club Lenggries Kaserne in Germany from November, 1966, to December, 1968. The Appeals Council decision was issued on June 23, 1986, more than 15 years since plaintiff was last employed as a cashier. Therefore, it was improper for the Appeals Council to consider plaintiff's work as a cashier as "previous work."
Plaintiff may meet his burden of proving that he cannot perform his past relevant work by showing that he is unable to perform his most recent job. See Carter v. Heckler, 712 F.2d 137, 141 (5th Cir. 1983). Plaintiff was unable to continue working as of July, 1978. R. 27, 198, 294. Both Dr. Nenadovic and Dr. Barkman concluded at that time that plaintiff could not continue doing light factory work. R. 79, 81. Subsequently, in April, 1980, Drs. Nadler and Benke and the German social security authority also concluded that plaintiff was incapable of gainful employment. R. 139. Plaintiff was not able to continue doing light factory work, R. 27, 182, 188 & 198, and, therefore, proved that he was not capable of performing his previous work.
The Appeals Council must consider the record as a whole, including evidence favorable to plaintiff. See McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir.1986); Taylor v. Heckler, 595 F.Supp. 489, 492 (D.D.C.1984). The Appeals Council, however, focused upon one aspect of the record and disregarded contrary evidence, McCruter, 791 F.2d at 1548. As discussed below, the overwhelming weight of the evidence submitted by the doctors who have examined and treated plaintiff since 1969 is that plaintiff is incapable of performing any of his previous jobs.
In 1969, Major Payton S. Adams, Jr. found "hypertrophic spurring at most levels in plaintiff's lumbar segments" and concluded that plaintiff was suffering from early degenerative disc disease. R. 75.
Dr. Vera Nenadovic was plaintiff's principal treating physician from 1969 to at least 1979. She reported that since 1969 plaintiff had been suffering from degenerative disc disease and advanced arthritis of the spine extending down the left leg to the toes, and that from 1969 to 1973 he was 75% disabled. R. 73-81. Based on range-of-motion tests and Dr. Nenadovic's continuing observation of plaintiff, she concluded in 1979 that plaintiff was 100% disabled. R. 81.
On April 12, 1979, Dr. Barkman concluded from an examination of plaintiff that he had "moderately severe degeneration" of his disc spaces, narrowing of the joint spaces and facet spurring, but no sensory or trophic changes and no apparent motor function deficits. Dr. Barkman also found that plaintiff was unable to carry more than 15-20 pounds. It was Dr. Barkman's opinion that plaintiff was totally disabled. R. 79.
Dr. Eduard Nadler examined plaintiff on June 19, 1979. From this examination Dr. Nadler determined that plaintiff suffered from "functional deficits and degenerative radiologic changes in the thoracic and lumbar segments that are very considerable...." Dr. Nadler also found that the stability of plaintiff's vertebral column...
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