White v. Shalala, F92-00182.

• Decision Date: 19 May 1993
• Docket Number: No. F92-00182.,F92-00182.
• Citation: 823 F. Supp. 621
• Parties: Zettie WHITE, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Indiana

823 F. Supp. 621

Zettie WHITE, Plaintiff, v. Donna E. SHALALA, Secretary of Health and Human Services,¹ Defendant.

No. F92-00182.

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

May 19, 1993.

Wade R. Bosley, Marion, Joseph W. Shull, Fort Wayne, for plaintiff.

Deborah M. Leonard, Fort Wayne, for defendant.

Order on Motion for Summary Judgment

ALLEN SHARP, Chief Judge.

Zettie M. White ("White") appeals from a final judgment of the Secretary of Health and Human Services ("Secretary") denying her application for Supplemental Security Income ("SSI") pursuant to § 1602 and § 1614(a)(3)(A) of the Social Security Act ("Act"), 42 U.S.C. § 1381a, 1382c(a)(3)(A). Jurisdiction over White's petition for judicial review is conferred upon this court by 42 U.S.C. § 405(g).

A. Procedural History

White first filed for SSI benefits on September 8, 1989 (R. 103-106). On that same date, she also filed an application for social security disability insurance benefits ("DIB") pursuant to §§ 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i) and 423 (R. 90-92). On October 2, 1989, both the SSI and DIB applications were denied (R. 95-96, 109-110). Upon a request for reconsideration, her petitions were again denied (R. 101-102, 113-114). At her request, an administrative law judge ("ALJ") heard her case on March 24, 1990 (R. 41, 115). On June 22, 1990, pursuant to a request made by White, through her attorney, the claim for Title II benefits, DIB, was dismissed (R. 34). The order of dismissal did not apply to her application for SSI (R. 34). On August 27, 1990, the ALJ issued his findings and a determination that White was not eligible for SSI (R. 28-32). On September 13, 1990, White requested review of the ALJ's August 27, 1990 decision (R. 26). The Appeals Council granted the request for review, and on May 7, 1991, vacated the August 27, 1990 hearing decision and remanded the case to the ALJ "for further proceedings, including a new decision" (R. 24-25). Specifically, the Appeals Council found the hearing decision lacking, because it neither

described the relative weight attributed to a medical assessment in Exhibit 28 from Javaid Iqbal, M.D. nor resolved the discrepancies between this medical assessment and the Administrative Law Judge's conclusion of the claimant's residual functional capacity.

The Appeals Council added that

although the hearing decision indicates the claimant has nonexertional limitations with respect to the use of her right arm for overhead reaching and also environmental restrictions from moving machinery, the vocational rules are used to direct the conclusion on disability. Inasmuch as the Administrative Law Judge's decision finds the claimant to have nonexertional limitations, the vocational rules may only be used as a framework for decisionmaking and moreover, due to the presence of significant nonexertional limitations in this case, testimony from a vocational expert is necessary.

In its order remanding this case, the Appeals Council instructed that the ALJ 1) "offer the claimant the opportunity for another hearing"; 2) "give further consideration to the claimant's residual functional capacity, describing the relative weight assigned to opinions from treating and consulting physicians"; and 3) "obtain testimony from a vocational expert on the extent to which any nonexertional limitations identified diminish the claimant's potential occupational base" (R. 25).

Pursuant to the "Order of Appeals Council Remanding Case to Administrative Law Judge," a supplemental hearing was held before an ALJ on October 30, 1991 (R. 68). In a decision issued November 21, 1991, the ALJ again found White not eligible for SSI under §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. §§ 1381a and 1382c(a)(3)(A) (R. 10-18). That decision became the final determination of the Secretary on June 24, 1992 when the Appeals Council found no basis upon which to grant review of the ALJ's decision (R. 4-5).

On August 13, 1992, White appealed to this court for review of the Secretary's decision denying her SSI. On September 10, 1992, the Honorable William C. Lee granted White's application to proceed in forma pauperis. This case was last assigned to the Honorable Roger B. Cosbey. For purposes of judicial economy and justice, it was reassigned to the undersigned Judge on March 23, 1993.

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 ALJ's finding that White 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 White 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 ALJ's Findings

Ms. White must be "disabled" in order to qualify for the benefits she requests. 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), 1382c(a)(3)(A).

Pursuant to statutory authority, 42 U.S.C. §§ 423(d)(4), 1382c(a)(3)(D), the Secretary has promulgated regulations for determining whether an individual is disabled. 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). 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, the ALJ decided the case at step five by determining that:

1. The claimant has not engaged in substantial gainful activity since September 8, 1989.

2. The medical evidence establishes that the claimant has severe limited use of her right arm, but that she 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.

3. The claimant's testimony regarding her pain and functional limitations was found to be grossly exaggerated and not credible.

4. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for work requiring lifting more than 10 pounds. In addition, the claimant cannot perform overhead reaching or lifting, cannot use her right arm repetitively, and cannot push or pull with her right arm (20 CFR 416.945).

5. The claimant is unable to perform her past relevant work as a dietary aid, a pastry helper, or a packer.

6. The claimant's residual functional capacity for the full range of light work is reduced by her inability to lift more than 10 pounds and the above described nonexertional limitations.

7. The claimant is 37 years old, which is defined as a younger person (20 CFR 416.963).

8. The claimant has a high school education (20 CFR 416.964).

9. The claimant does not have any acquired work skills which are transferable to the skilled or semi-skilled work functions of other work (20 CFR 416.968).

10. Based on an exertional capacity for light work, and the claimant's age, education, and work experience, section 416.969 of Regulations No. 16 and Rule 202.20, Table No. 2, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."

11. Although the claimant's exertional and nonexertional limitations do not allow her to perform the full range of light work, using the above-cited rule as a framework for decisionmaking, there are a significant number of jobs in the national economy which she could perform. Examples of such jobs are: general clerk, counter clerk, photo finisher, receptionist, surveillance system monitor, and escort vehicle driver, all of which exist in significant numbers in the national economy.

12. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR 416.920(f)).

In so finding, the Secretary (through his designate, the ALJ) renders White ineligible to receive...