McGraw v. Apfel

• Decision Date: 29 December 1999
• Docket Number: No. Civ. 1:99CV111.,Civ. 1:99CV111.
• Citation: 87 F.Supp.2d 845
• Parties: Evangelist Mark MCGRAW, Sr., Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security Administration, Defendant.
• Court: U.S. District Court — Northern District of Indiana

87 F.Supp.2d 845

Evangelist Mark MCGRAW, Sr., Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security Administration, Defendant.

No. Civ. 1:99CV111.

United States District Court, N.D. Indiana, Fort Wayne Division.

December 29, 1999.

Joseph W. Shull, Fort Wayne, IN, for Mark McGraw, Sr, Evangelist, plaintiff.

Deborah M. Leonard, United States Attorneys Office, Fort Wayne, IN, for Social Security Administration, Kenneth S. Apfel, Commissioner, defendant.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.

This matter is before the court¹ for judicial review of a final decision of the defendant Commissioner of Social Security Administration denying plaintiff's application for disability insurance benefits (DIB) as provided for in the Social Security Act. 42 U.S.C. § 416(i); 42 U.S.C. § 423; 42 U.S.C. § 1381. Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive...." 42 U.S.C. § 405(g).

The law provides that an applicant for disability insurance benefits must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months...." 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is not enough for plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (4th Cir.1962), cert. denied, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill.1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir.1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).

Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir.1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405(g). "Substantial evidence is defined as `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir.1984) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971)); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir.1977). "If the record contains such support [it] must [be] affirmed, 42 U.S.C. § 405(g), unless there has been an error of law." Garfield, supra at 607; see also Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir.1980).

In the present matter, after consideration of the entire record, the Administrative Law Judge ("ALJ") made the following findings:

1. The claimant met the disability insured status requirements of the Act on April 7, 1995, the date the claimant stated he became unable to work, and continues to meet them through at least March 31, 2000.

2. The claimant has not engaged in any disqualifying substantial gainful activity since April 7, 1995.

3. The medical evidence establishes that the claimant has severe medically determinable symptoms suggestive of chronic fatigue syndrome, 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 subjective complaints are not fully credible.

5. The claimant has the residual functional capacity to perform work related activities except for work involving lifting or carrying greater than 10 pounds frequently or lifting greater than 20 pounds occasionally (20 C.F.R. 404.1545).

6. The claimant's past relevant work as a factory worker (at the light exertional level) did not require the performance of work related activities precluded by the above limitations (20 C.F.R. 404.1565).

7. The claimant's impairments do not prevent the claimant from performing his past relevant work.

8. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision (20 C.F.R. 404.1520(e)).

Based upon these findings, the ALJ determined that the plaintiff was not entitled to disability insurance benefits. The ALJ's decision became the final agency decision when the Appeals Council denied review on August 18, 1998. This appeal followed.

The plaintiff filed his opening brief on July 2, 1999. On October 4, 1999, the defendant filed a memorandum in support of the Commissioner's decision, and on October 18, 1999, the plaintiff filed his reply. After reviewing the briefs the court ordered supplemental briefs. The Commissioner filed his supplemental brief on November 29, 1999, and the plaintiff filed his supplemental brief on December 16, 1999. Upon full review of the record in this cause, this court is of the view that the ALJ's conclusion was not supported by substantial evidence and accordingly, the Commissioner's decision will be reversed.

A five step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir.1988); Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 2290-91, 96 L.Ed.2d 119 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:

The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet 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 within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n. 2 (7th Cir.1988); Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir.1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir.1984). From the nature of the ALJ's decision to deny benefits, it is clear that step four was the determinative inquiry.

The plaintiff initially applied for DIB on October 11, 1995, which was initially disallowed by notice dated January 18, 1996 and disallowed on reconsideration by notice dated April 18, 1996. The plaintiff alleged disability due to chronic fatigue syndrome, as well as the residual effects of headaches, dizziness, and generalized weakness. The plaintiff has also complained of bronchitis, degenerative disc disease, and depression. The plaintiff requested a hearing, and on March 26, 1997, a hearing was held before ALJ Bryan J. Bernstein. The plaintiff testified at the hearing, as did his wife, Claudia McGraw, and a vocational expert (VE), Dr. Leonard Fisher. On October 24, 1997, the ALJ denied the plaintiff's claim. The plaintiff filed a timely appeal, and on February 3, 1999, the Appeals Council issued a decision upholding the ALJ's decision.

The plaintiff was 50 years old at the time of the hearing, having been born on March 21, 1947. The plaintiff has a high school education plus two years of college. The plaintiff has worked as a Tocco operator, a construction helper, and a press operator.

The plaintiff alleges that he suffers from chronic fatigue syndrome (CFS) and depression. The plaintiff's medical history is as follows². On March 23, 1990, the plaintiff was admitted to the hospital complaining of a severe pain in the neck associated with a sore throat and fever with difficulty in swallowing. An examination revealed some diffuse swelling in the right neck, anterior to the sternocelidomastoid muscle. The diagnosis was cervical adentitis. On October 12, 1993, the plaintiff reported to his family doctor, Dr. Yogesh Amin, that he was feeling dizzy, weak, tired, was vomiting, and had a cough with a cold. The plaintiff continued to report similar symptoms in 1994, and Dr. Amin sent him for another work up in August.

On August 3, 1994, the plaintiff saw Dr. Cynthia Kish, an ENT specialist, complaining of intermittent dizziness, recent upper respiratory infection, bitemporal headaches, frequent nausea and vomiting, a queasy stomach, and feeling very tired all the time. After a physical examination, Dr. Kish was not sure what the problem was and she advised a CT screening of the sinus. After the CT scan, the plaintiff continued to complain of the same problems, even though the scan did not really show any significant sinus disease.

On August 9, 1994, the plaintiff was given a treadmill exercise test and the results indicated deconditioning with rapid rise in heart rate, no arrhythmias, normal blood pressure response, and equivocal ST changes were noted suggestive of myocardial ischemia. On August 12, 1994, the plaintiff saw Dr. Bhupendra K. Shah, a neurologist. The plaintiff reported headaches and dizziness, and Dr. Shah felt that they were of a tension and muscle contraction type. On August 29, 1994, an EEG was performed which was...