Moynihan v. Shalala, L92-29.

• Decision Date: 28 June 1993
• Docket Number: No. L92-29.,L92-29.
• Citation: 834 F. Supp. 1066
• Parties: Michael MOYNIHAN, Plaintiff, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Indiana

834 F. Supp. 1066

Michael MOYNIHAN, Plaintiff, v. Donna E. SHALALA,¹ Secretary, Department of Health and Human Services, Defendant.

No. L92-29.

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

June 28, 1993.

COPYRIGHT MATERIAL OMITTED

Robert L. Glasser, Indianapolis, IN, for plaintiff.

Clifford D. Johnson, South Bend, IN, for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

Michael Moynihan ("Moynihan") appeals from a final judgment of the Secretary of Health and Human Services ("Secretary") denying his application for Social Security Disability Insurance Benefits ("DIB") pursuant to §§ 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. Jurisdiction over Mr. Moynihan's petition for judicial review is conferred upon this court by 42 U.S.C. § 405(g).

A. Procedural History

Mr. Moynihan filed an application for DIB alleging arthritis, obesity and alcoholism on October 30, 1986 (R. 433-436). In that application, he stated that he had been denied benefits in 1984. After his October 30, 1986, petition was denied initially and upon reconsideration, Mr. Moynihan requested a hearing before an administrative law judge ("ALJ") on October 1, 1987 (R. 446).

Pursuant to that request, ALJ Dale B. McLaughlin held a hearing on December 10, 1987 (R. 67-123). In a decision issued March 15, 1988, ALJ McLaughlin found that Mr. Moynihan had insured status under the Act through March 31, 1987. Furthermore, ALJ McLaughlin concluded that Moynihan was not disabled, because he retained the residual functional capacity ("RFC") to perform the full range of sedentary work (R. 53-60).

Upon Mr. Moynihan's request for a review, the Appeals Council reviewed and remanded the case to the ALJ on September 19, 1988. The order remanding instructed the ALJ to consider whether Moynihan met the insured status requirement for DIB beyond March 31, 1987, and to obtain vocational expert ("VE") testimony to resolve issues relating to the plaintiff's nonexertional limitations (R. 47-49).

ALJ McLaughlin held a second hearing on February 14, 1989, at which Mr. Moynihan, his attorney, and a VE were present (R. 133-189). Based upon that hearing, the ALJ issued a decision on May 22, 1989, concluding that Moynihan met the insured requirements of the Act through March 31, 1988. However, the ALJ again found Moynihan not disabled, because he was capable of performing the full range of light work (R. 38-44).

On January 30, 1991, pursuant to a request for review filed by Mr. Moynihan, the Appeals Council remanded this case to another ALJ, Ronald J. Vitello. The order remanding the case instructed ALJ Vitello to:

1) determine Moynihan's last insured date which would depend upon a decision of whether the claimant received self-employment earnings in a bona fide trade or business, and 2) determine the periods during which Moynihan worked subsequent to the alleged onset date, and

3) "obtain any additional treating source reports," and

4) "take testimony from a medical advisor as to the nature and severity of the claimant's impairments and the limitations they impose on his ability to perform work-related activities," and

5) evaluate claimant's alcohol problem and prepare a Psychiatric Review Technique form.

(R. 30-32).

ALJ Vitello held an administrative hearing on September 10, 1990, at which plaintiff Moynihan testified (R. 190-217). On May 7, 1991, ALJ Vitello held a supplemental hearing at which a medical adviser and a VE testified (R. 218-235).

On June 20, 1991, ALJ Vitello issued his written determination that Moynihan's last insured date was March 31, 1988. Specifically, Vitello wrote,

as the record regarding his Moynihan's quarters of coverage now exists, without crediting him Moynihan for the self-employment earnings in 1985, he Moynihan last meets the special earnings requirement of Title II of the Social Security Act on March 31, 1988.

(R. 18). ALJ Vitello further determined that Mr. Moynihan "met the disability insured status requirements of the Act on June 25, 1986, the date the claimant Moynihan stated he became unable to work" (R. 19). Thus, the June 20, 1991, decision concluded

that, based on the application filed on October 30, 1986, the claimant is entitled to a period of disability commencing June 25, 1986, and to disability insurance benefits under sections 216(i) and 223, respectively, of the Social Security Act.

(R. 20).

The Appeals Council, on its own motion, pursuant to 20 C.F.R. 404.969, decided to review ALJ Vitello's June 20, 1991, decision granting DIB. Based upon its review of the evidence, the Appeals Council decided that Moynihan

last met the special disability insured status requirements on March 31, 1982, that the claimant was not insured as of his alleged onset date of June 25, 1986, and that the claimant Moynihan is not entitled to a period of disability and to disability insurance benefits.

(R. 8). Critical to this final decision was the Appeals Council's determination that the monies received by Moynihan from 1983 through 1986 for the sale of his blood plasma, the "management" of his father's farm, and a promotional prize of $200.00 were not received in the course of a trade or business. Thus, they did not constitute self-employment earnings and Moynihan was found ineligible for DIB (R. 12).

The Appeals Council's decision stands as the final determination of the Secretary. Pursuant to 42 U.S.C. § 405(g), Moynihan now seeks judicial review of the Secretary's final determination denying him DIB.

B. Standard of Review

The Act itself provides the pertinent standard of review: "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...." 42 U.S.C. § 405(g). The Appeals Council's finding that Mr. Moynihan is not disabled must be upheld if it is supported by substantial evidence. Pitts v. Sullivan, 923 F.2d 561, 564 (7th Cir.1991); Herr v. Sullivan, 912 F.2d 178, 182 (7th Cir.1990). This court will not reweigh the evidence presented at the administrative hearing, Young v. Secretary of Health and Human Services, 957 F.2d 386, 388 (7th Cir.1992), nor will it determine whether Mr. Moynihan actually was disabled. Id.; Stuckey v. Sullivan, 881 F.2d 506, 508 (7th Cir.1989). Absent an error of law by the Secretary, this court must affirm her decision if there is substantial evidence to support it. Herr, 912 F.2d at 180; Kelley v. Sullivan, 890 F.2d 961, 965 (7th Cir.1989). Substantial evidence is that quantum of relevant evidence which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Howell v. Sullivan, 950 F.2d 343, 347 (7th Cir.1991). It may be less than a preponderance of the evidence. See, Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966); Young, 957 F.2d at 389.

C. Description of the Secretary's Decision

To be eligible for DIB, a claimant must establish both his disability and his insured status. The Act defines "disabled" 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 twelve months.

42 U.S.C. § 423(d)(1)(A).

Pursuant to statutory authority, 42 U.S.C. § 423(d)(4), the Secretary has promulgated regulations for determining whether an individual is disabled. 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f) (1992). The Secretary employs a five-step process to determine whether a claimant is eligible for benefits within the meaning of the Act. Campbell v. Shalala, 988 F.2d 741 (7th Cir.1993). The Seventh Circuit has described this sequential inquiry.

The Secretary must determine in sequence: (1) whether the claimant is currently employed; (2) whether he has a severe impairment; (3) whether his impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform his past work; and (5) whether the claimant is capable of performing any work in the national economy. Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992). Once the claimant has satisfied Steps One and Two, he will automatically be found disabled if he suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform his past work, the burden shifts to the Secretary to show that the claimant can perform some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir.1984).

Campbell, 988 F.2d at 743; see also Young, 957 F.2d at 389.

Applying the five-step procedure in this case, ALJ Vitello decided that:

1. The claimant met the disability insured status requirements of the Act on June 25, 1986, the date the claimant stated he became unable to work.

2. The claimant has not engaged in substantial gainful activity since June 25, 1986.

3. The medical evidence establishes that the claimant has severe bilateral knee problems, is status post bilateral patellectomy and has sensory neuropathy in his feet.

4. The severity of the claimant's impairment equals the requirements of Section 1.03 and/or 11.14 Appendix 1, Subpart P, Regulations No. 4, and has precluded him from working for at least 12 continuous months (20 CFR 404.1526).

5. The claimant has been under a "disability," as defined in the Social Security Act, since June 25, 1986 (20 CFR 404.1520(d)).

(R. 19-20).

On review, the Appeals Council focused on Mr. Moynihan's insured status. "To become entitled to disability insurance benefits, you must have disability insured status in the first full month that you are disabled...." 20 C.F.R. § 404.131(b)(1) (1992). Pursuant to its review of Mr. Moynihan's activities and earnings during the years 1982 through 1986, the Appeals Council entered the following findings:

1. The claimant's sale of his blood plasma did not constitute a bona fide trade or

...