Waters v. Bowen

• Decision Date: 31 March 1989
• Docket Number: Civ. A. No. 88-088-Y.
• Citation: 709 F. Supp. 278
• Parties: Marilyn R. WATERS, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Massachusetts

709 F. Supp. 278

Marilyn R. WATERS, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.

Civ. A. No. 88-088-Y.

United States District Court, D. Massachusetts.

March 31, 1989.

Marilyn R. Waters, Roxburg, Mass., pro se.

Eileen Hagerty, Asst. U.S. Atty., for defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

This matter is before the Court for review of a final decision of the Secretary of Health and Human Services ("the Secretary") denying benefits to the claimant, Marilyn Waters. Waters moves for summary judgment to reverse the Secretary's decision and award benefits to her.

I.

Waters was born on June 30, 1940, and is currently 48 years of age. She has obtained a General Equivalency Degree and has worked most recently as an educational counselor and as a lead paint technician.

On April 3, 1983, Waters was injured in an automobile accident. Within a few months after the accident, she worked as a bus driver trainee for three weeks and as a hotel maid for three weeks.¹ Waters asserts that she was required to leave both jobs due to pain resulting from injuries to her head and back she sustained in the April accident. Other than the foregoing, she has not worked since the accident. (Tr. 11; Complaint at 1)

Based on her disability, Waters applied for disability insurance benefits and Supplemental Security Income benefits on July 28, 1986. (Tr. 56-59, 233-42) The applications were denied initially (Tr. 69-70, 243) and on reconsideration (Tr. 78-79) by the Social Security Administration. The Administrative Law Judge considered the case de novo and, on July 23, 1987, found that Waters was not disabled. (Tr. 8-19) The Appeals Council approved the decision of the Administrative Law Judge on October 27, 1987 (Tr. 4-5), rendering it the final decision of the Secretary. Waters then appealed to this Court.

II.

A district court reviewing a decision of the Secretary must determine whether the decision is supported by substantial evidence and conforms to statutory requirements. Geoffroy v. Secretary of Health and Human Services, 663 F.2d 315, 319 (1st Cir.1981). The relevant statute defines a disabled individual as one who is unable:

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 12 months....

42 U.S.C. sec. 423(d)(1)(A) (1982). Section 423(d)(2)(A) further provides that an individual:

shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....

Id. sec. 423(d)(2)(A).

The Secretary has promulgated regulations that employ a series of tests to determine whether a claimant is disabled. 20 C.F.R. sec. 404.1520 (1985). See Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6 (1st Cir.1982). In particular, the Social Security Administration asks five questions in the following order:

First, is the claimant currently employed? If so, the claimant is automatically considered not disabled.

Second, does the claimant have a severe impairment? A "severe impairment" means an impairment which "significantly limits his or her physical or mental capacity to do basic work activities." 20 C.F.R. sec. 404.1520(c) (1985).² If the claimant does not have a severe impairment, the claimant is automatically considered not disabled.

Third, does the claimant have an impairment equivalent to one specifically listed in 20 C.F.R. Part 404, Supt. P, App. 1 (hereinafter, "Appendix 1") which meets the duration requirement set forth therein? 20 C.F. R. sec. 404.1520(d). If so, the claimant is automatically considered disabled.

These first three tests are threshold "medical" tests. If the claimant is found to have a severe impairment (test 2) but that impairment is not equivalent to one listed in Appendix 1 (test 3), the agency goes on to the fourth and fifth questions, which apply "vocational" tests.

Fourth, does the claimant's impairment prevent her from performing work of the sort she has done in the past? 20 C.F.R. sec. 404.1520(e). If not, she is not disabled. If so, the agency asks the fifth question.

Fifth, does the claimant's impairment prevent her from performing other work of the sort found in the economy? 20 C.F.R. sec. 404.1520(f). If so, she is disabled; if not, she is not disabled. Goodermote, 690 F.2d at 6-7.

In applying these last two "vocational" tests, the claimant has the burden of proving that she is disabled under the fourth test; that is, she must prove that her disability is serious enough to prevent her from working at her former jobs. However, the Secretary bears the burden of showing that the claimant has not satisfied the fifth test; that is, the Secretary must show the existence of other jobs in the national economy that the claimant's impairment does not prevent her from performing. Id. at 7.

Judicial review of Social Security disability determinations is limited, and the Court must affirm the Secretary's decision if it is supported by substantial evidence. The resolution of conflicts in the evidence and the determination of the ultimate question of disability is for the Secretary. Therefore, this Court must uphold the Secretary's findings in this case if a reasonable mind, reviewing the entire record as a whole, could accept it as adequate to support the Secretary's conclusions. Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir.1981).

III.

The fourth question confronts the Court in this case. The Administrative Law Judge found that Waters' impairment does not prevent her from performing work of the sort she has done in the past either as an educational counselor or as a lead paint technician. (Tr. 15) Waters disputes this conclusion, asserting that her back injury has caused scoliosis in her spine which in turn causes her headaches, back and shoulder pain, shooting pain down her arms and legs, and pain brought on by prolonged sitting or standing.³ Complaint at 1. The Secretary admits that Waters has suffered a severe impairment resulting from her back injury, but found that her allegations of pain are not credible to the degree alleged. Defendant's Memorandum in Support of Motion for Order Affirming the Decision of the Secretary at 5.

This Court reverses the Secretary's decision and remands this case for further proceedings because the Administrative Law Judge applied an incorrect standard of law.

In his findings, the Administrative Law Judge stated:

The claimant's complaints of pain are not supported by sufficient objective medical evidence which would show that her pain is of such a severe extent as to prevent her from performing all types of substantial gainful activity and therefore are not credible.

(Tr. 15) The First Circuit directed a district court to remand a social security case to the Secretary where an Administrative Law Judge made a similar finding. DaRosa v. Secretary of Health and Human Services, 803 F.2d 24 (1st Cir.1986). In DaRosa, the First Circuit noted:

In reaching his decision, the ALJ apparently discounted the claimant's testimony concerning his pain and physical limitations because the extent of pain alleged was not corroborated by objective medical evidence.

Id. at 26 (footnote omitted). The DaRosa court then ruled that Avery v. Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.1986) required more of the Secretary.

In Avery, the First Circuit interpreted the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (1984) (the "Act") and an instruction issued by the Secretary to require, first, that a claimant must establish that "a clinically determinable medical impairment exists that can reasonably be expected to produce the pain alleged." Avery, 797 F.2d at 21 (construing that part of the Act codified at 42 U.S.C. sec. 423d5). Second, and not entirely consistently, the court held that the "statements of the claimant or her doctor, consistent with the medical findings, shall be part of the calculus. If this second provision is to have any meaning, the statements of a claimant and her doctor must be additive to clinical or laboratory findings" so long as such statements "are not inconsistent with the objective findings." 797 F.2d at 21 (emphasis added) (footnote omitted). The court further required the Secretary to follow the standard established by an instruction issued by the Secretary for the Health and Human Services Department's Program Operations Manual System, DI T00401.570 (the "POMS"), 797 F.2d at 24; see also DaRosa, 803 F.2d at 26. That instruction "specifically contemplates a possible finding of disability in a case `where the degree of pain alleged is significantly greater than that which can be reasonably anticipated based on the objective physical findings....'" Avery, 797 F.2d at 22-23 (quoting the POMS).

The Avery court also directed Administrative Law Judges that "when there is a claim of pain not supported by objective findings, the adjudicator is to `obtain detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant, his/her physicians from whom medical evidence is being requested, and other third parties who would be likely to have such knowledge.'" Id. at 23 (quoting the POMS). Clearly, the adjudicator is not to discount the claimant's testimony merely "because the extent of the pain alleged is not corroborated by objective medical evidence."⁴ DaRosa, 803 F.2d at 26; see also Avery, 797 F.2d at 23.

In summary, Avery seems to stand for the following propositions: 1) subjective statements of pain can be...