Wynn v. Schweiker, 82-0538-CV-W-9.

• Decision Date: 03 March 1983
• Docket Number: No. 82-0538-CV-W-9.,82-0538-CV-W-9.
• Citation: 558 F. Supp. 617
• Parties: Jean WYNN, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Western District of Missouri

558 F. Supp. 617

Jean WYNN, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

No. 82-0538-CV-W-9.

United States District Court, W.D. Missouri, W.D.

March 3, 1983.

Jacqueline Guidry, Legal Aid of Missouri, Kansas City, Mo., for plaintiff.

A. Mary Sterling, Asst. U.S. Atty., Kansas City, Mo., for defendant.

ORDER REMANDING CASE

BARTLETT, District Judge.

Plaintiff seeks review of a final decision disallowing her claim for disability insurance benefits under Title II of the Social Security Act, (the Act), 42 U.S.C. §§ 401 et seq., and also her claim for supplemental security income (SSI) benefits based on disability under Section 1602 of Title XVI of the Act, 42 U.S.C. §§ 1381-1385. Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Secretary of Health and Human Services under both Titles II and XVI.

Plaintiff filed her application for disability benefits under both Title II and Title XVI on September 5, 1980. Both applications were denied by the Social Security Administration. At plaintiff's request, a hearing was held before an administrative law judge (ALJ). Plaintiff appeared without counsel at this hearing and testified in her own behalf. No other witnesses testified. On December 30, 1981, the ALJ rendered a decision unfavorable to the plaintiff, holding that she was not entitled to a period of disability or to disability insurance benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i) and 423, or to supplemental security income under Section 1614(a)(3), 42 U.S.C. § 1382c(a)(3), of the Act. Plaintiff sought review of the ALJ's decision, but on April 30, 1982, the Appeals Council of the Social Security Administration denied her request for review. Thus, the opinion of the ALJ stands as the final decision of the Secretary.

Plaintiff alleged in her application for disability that she suffered from blackouts, a heart condition and high blood pressure. (Tr. 53.) At the hearing she complained of being out of breath after walking three blocks.

I walk ... three blocks. And everyday when, like when I'm walking, I always have to sit down on, lately on the corner. I sit down on the steps. I'm out of breath when I get there and I sit there maybe five or ten minutes before I could start going up the big hill. Then I have to start up the hill. I think that's really my main problem. I stay out of breath and then I get dizzy all the time....

(Tr. 47.)

The ALJ found that the claimant was not under a "disability" as defined in the Act, and that she retained the residual functional capacity to perform her prior work as a vending machine attendant or as an interviewer for a governmental agency.

This action is before the Court on cross-motions for summary judgment. Upon consideration of the briefs in support and in opposition, and for the reasons stated below, this action will be remanded for further proceedings in accordance with this opinion.

The standard of judicial review for this Court is whether the decision of the Secretary was supported by substantial evidence.

Our duty is to determine whether the decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Also see, Brand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir.1980). Substantial evidence, in turn, means more than a scintilla of evidence; it means such relevant evidence as 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). Furthermore, this standard of review is more than a rubber stamp for the Secretary's decision, and is more than a mere search for the existence of substantial evidence supporting the Secretary's decision. Brand, 623 F.2d at 527. As Justice Frankfurter made clear "the substantiality of evidence must take into account whatever the record fairly detracts from its weight." sic Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951).

McMillian v. Schweiker, 697 F.2d 215 at 220 (8th Cir.1983).

The burden of proof rests upon the plaintiff to establish that she is entitled to benefits under the Social Security Act. Weber v. Harris, 640 F.2d 176, 177 (8th Cir.1981); Timmerman v. Weinberger, 510 F.2d 439, 443 (8th Cir.1975).

The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled or not. The regulations, referred to generally as Medical-Vocational Guidelines, are codified as Subpart P of Part 404 of Chapter III of Title 20 of the Code of Federal Regulations, 20 C.F.R. §§ 404.1501 et seq., and the same guidelines appear in Subpart I of Part 416, 20 C.F.R. §§ 416.901 et seq. (1982). The former regulations apply to claims by workers insured by reason of earnings covered by social security who have become disabled under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. and the latter to claims of disability by persons who meet a prescribed means test and are eligible for supplementary security income (SSI) payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385.

The Eighth Circuit Court of Appeals summarized this evaluation process in McCoy v. Schweiker, 683 F.2d 1138 (1982). Although McCoy dealt with the claims of insured workers, the Court specifically noted that the discussion about the Medical-Vocational Guidelines was equally applicable to SSI claims.

In an attempt to create an orderly and uniform framework for analysis and decision of disability claims, the Guidelines set out a fixed sequence of decision-making that Administrative Law Judges (ALJs) are required to follow. First, a determination is made whether a disability claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled. If the claimant is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, the claimant must be found not disabled. If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, the claimant is found disabled on the medical evidence alone. If the impairment is not listed in Appendix 1, the next inquiry is whether the claimant can perform relevant past work. If he can, a finding of no disability is required. Finally, if the claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his previous work. At this stage, the ALJ must determine the claimant's residual functional capacity (RFC), that is, what he can still do physically even with his impairment, and also the claimant's age, education, and relevant work experience — the latter three findings being referred to as vocational factors, as opposed to RFC, which is a medical factor. The criteria of age, education, and work experience are relevant because the statute specifies them in defining disability, 42 U.S.C. § 423(d)(2)(A). If the ALJ's findings as to RFC, age, education and work experience fit any of the combinations of those criteria contained in the Tables in Appendix 2 to Part 404, then the ALJ must reach the conclusion (either "disabled" or "not disabled") directed by the relevant Rule or line of the applicable Table....

McCoy, 683 F.2d at 1141-42.

In this case the ALJ determined that the plaintiff had not engaged in any substantial gainful activity since the alleged onset of her disability, September 2, 1980, although she had taken care of children within her home during the period "January through April 1980" sic. (Plaintiff's testimony was that she cared for children during the period January through April, 1981. (Tr. 38.)) The record did not establish, however, whether this employment constituted substantial gainful activity. The ALJ made the following additional findings relative to plaintiff's impairments:

The claimant has hypertension which at times has been under poor control due to the claimant's failure to take medication and follow her diet.

The claimant has had early congestive heart failure secondary to her hypertension which is, in turn, secondary to her failure to control her hypertension.

The claimant has intermittent slight dizziness secondary to her hypertension.

The claimant's hypertension is controllable on medication and diet as indicated by her medical records.

The claimant is exogenously obese; although she has been advised to lose weight, the record indicates she has made little attempt to comply with this advise. The claimant has no psychiatric impairment which interferes with her ability to perform basic work-related activities.

The claimant maintains the residual functional capacity to perform her last work as a vending machine attendant or her previous work as an interviewer for a governmental agency.

(Tr. 8.)

The ALJ concluded by finding that plaintiff was not under a disability as that term is defined by the Social Security Act.

Applying the framework of analysis of McCoy, the ALJ determined that the plaintiff was not engaged in substantial gainful activity. He also found that she had certain impairments without specifying whether he found them severe. None of her impairments met the criteria of the listings in Appendix 1 to Subpart P. At that point, however, the ALJ concluded that the plaintiff could perform relevant past work and, accordingly, by-passed the balance of the analysis set out in the regulations.

Plaintiff asserts in her motion that the defendant erred in the following respects:

(1) Failure to fulfill affirmative duty to assist unrepresented claimant, (2) ignoring substantial evidence regarding claimant's inability to return to

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