Opinion
Civ. A. No. 88-1371-T.
October 13, 1989.
Philip W. Unruh, Harper, Kan., for plaintiff.
Stephen K. Lester, Asst. U.S. Atty., Wichita, Kan., for defendant.
MEMORANDUM AND ORDER
This matter is before the court on the Secretary's motion to affirm and the plaintiff's motion for summary judgment or remand. This is an action under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Plaintiff initially filed an application for disability benefits in April 1980, which was denied on May 12, 1980. Plaintiff did not seek reconsideration of this initial denial. Plaintiff filed the current application for disability benefits under Title II on July 22, 1986. Tr. 67-70. The application received consideration, Tr. 59-63, and reconsideration, Tr. 45-48, but was denied. Following a hearing, an administrative law judge (ALJ) rendered a decision unfavorable to plaintiff. Tr. 8-13. The ALJ found that plaintiff was not under a "disability" within the meaning of the Social Security Act at any time when he met the earnings requirement of the law. Plaintiff last met the earnings requirement on September 30, 1984. The Appeals Council of the Social Security Administration denied plaintiff's request for review. Tr. 3-4. Thus, the decision of the ALJ is the final decision of the Secretary.
The standard of review in this case is established by 42 U.S.C. § 405(g), which provides that "[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, . . ." Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971). It is not the duty of the court to reweigh the evidence. Garrett v. Califano, 460 F. Supp. 888, 890 (D.Kan. 1978); Manigan v. Califano, 453 F. Supp. 1080, 1086 (D.Kan. 1978). Substantial evidence, however, must be more than a mere scintilla. Perales, 402 U.S. at 403, 91 S.Ct. at 1428. This court cannot affirm the Secretary's decision by isolating a few facts and calling them "substantial evidence." Cline v. Califano, No. 78-4166 (D.Kan., August 31, 1979). It is the court's duty to scrutinize the entire record to determine whether the Secretary's conclusions are rational. Keef v. Weinberger, 404 F. Supp. 1193, 1196 (D.Kan. 1975). In applying these standards, the court must keep in mind that the purpose of the Social Security Act is to ameliorate some of the rigors of life for those who are disabled or impoverished. Dvorak v. Celebrezze, 345 F.2d 894, 897 (10th Cir. 1965).
In an application for disability benefits filed on July 22, 1986, plaintiff alleged disability beginning July 15, 1980, because of back and ankle problems. Plaintiff was born on July 29, 1926, and was 53 years old at the alleged onset of disability. Tr. 67-70.
Plaintiff began seeing Forney W. Fleming, M.D., an orthopedic surgeon, on April 16, 1979, for treatment of an injury to his right arm and wrist. X-rays showed a well healed fracture of the radius, but plaintiff continued to have decreased motion in the wrist. Plaintiff also complained of back pain. X-rays revealed mild degenerative changes in the thoracic spine. Tr. 129. On July 27, 1979, plaintiff was released with an impairment rating of 10 percent for the upper extremity. Tr. 127.
Plaintiff returned to Dr. Fleming on September 25, 1979 with complaints of severe low back pain. X-rays showed only minimal degenerative changes of the lumbar spine. Dr. Fleming diagnosed lumbosacral strain and prescribed Emperin # 3, Valium, rest, and heat. Tr. 126. By November 8, 1979, Dr. Fleming noted that the plaintiff's condition had improved to the point at which, if the plaintiff were employed, plaintiff would be able to work with a fifty pound lifting restriction. Tr. 125.
Plaintiff was examined by Paul E. Wakim, D.O., on February 19, 1980. X-rays of plaintiff's back showed no fracture, dislocation, or abnormal degenerative disease beyond what was to be expected at the plaintiff's age. Dr. Wakim's impression was "lumbosacral sprain, lumbar spine." The doctor recommended that plaintiff wear a corset when working and suggested that he obtain a job not requiring significant amounts of bending or stooping. The doctor limited plaintiff's lifting to twenty pounds. Dr. Wakim believed that plaintiff had a 12 percent impairment of the back. Tr. 182. In a deposition taken July 9, 1980, Dr. Wakim concluded that the combination of upper extremity and back problems would amount to a total impairment of 13 to 14 percent. Tr. 163-81.
Dr. Fleming's office notes indicate that he last saw plaintiff on March 18, 1980, when he dismissed plaintiff from his care. On July 10, 1980, Dr. Fleming's notes indicate a phone call from an attorney regarding plaintiff's condition. Tr. 124. The record reflects that plaintiff did not see a physician between 1980 and 1986.
On August 8, 1986, Patricia McRae-Denning, M.D., a specialist in internal medicine, performed a consultative examination. Plaintiff complained of a thirty year history of pain in his back, right wrist, and both ankles. He took no pain medication. There was no limitation of joint movement and no tenderness, effusion, or redness, although plaintiff reported pain on motion in his right wrist, left ankle, and cervical and lumbar spine. Straight leg raising was negative and without spasm. Dr. McRae-Denning noted that plaintiff had no difficulty getting on and off the examination table or with heel and toe walking, and had only mild difficulty with squatting, arising from a sitting position, and hopping. Because he was five foot nine inches tall and weighed 249 1/2 pounds, weight reduction was encouraged. Tr. 131-34.
Dr. Allen McLain, D.O., examined plaintiff on September 22, 1986. Plaintiff complained of back pain. X-rays revealed narrrowing of the disc space between L5 and S1. The radiologist found no evidence of fracture, dislocation, or bony destruction and minimal degenerative arthritic change in the spine. Tr. 143. The doctor stated that the plaintiff suffered from "some disability" due to the pain such that plaintiff would not be able to tolerate heavy work. Dr. McLain prescribed Motrin for plaintiff's discomfort. Tr. 140-42.
In October 1986, plaintiff underwent a disability evaluation at a Veterans Administration Hospital. Tr. 112-22. Plaintiff complained of low back pain, a fracture of his right radius, pain in his feet, ankles, legs, back, and hands, and poor circulation in his feet and ankles. Tr. 113. Examination revealed that plaintiff weighed 259 pounds. Tr. 114. Despite mild muscle spasm in his back, range of back motion was full. Straight leg raising was positive at 60 degrees bilaterally. Tr. 115. X-rays showed possible narrowing of the L4 and L5 disc spaces. Degenerative changes in the lower lumbar area was compatible with plaintiff's age. Tr. 116. L.E. Knapp, M.D., the Veterans Administration medical rating specialist, concluded that the evidence established sufficient permanent disability to preclude return to substantial gainful activity. Tr. 95.
In a statement dated September 3, 1987, Dr. McLain opined, based on his examination of plaintiff in 1986 and Dr. Wakim's testimony in 1980, that plaintiff was disabled in September 1984. Tr. 183-85. At the hearing held September 16, 1987, plaintiff testified that he suffered muscle spasms in his back, pain in his wrists and ankles, swelling in his ankles, poor circulation and discoloration in his lower extremities, and pain when stooping, lifting, or sitting. Tr. 22. Plaintiff testified that as of September 1, 1984, he could do no strenuous lifting or carrying, no prolonged walking or sitting, and no repetitive bending, twisting, or stooping. Tr. 23-24. He claimed that he had not seen a physician between 1980 and 1986 because of financial difficulties. Tr. 29.
Plaintiff also filed an application for supplemental security income (SSI) benefits pursuant to Title XVI of the Social Security Act on July 22, 1986. In a decision dated March 31, 1987, an ALJ found plaintiff to be disabled and eligible for SSI benefits as of July 22, 1986, the date of application.
The sole issue before the court is whether the Secretary's decision that the plaintiff was not under a disability as of September 30, 1984, the date plaintiff was last insured, is supported by substantial evidence. In the present case, the ALJ determined that the plaintiff did not have a medically severe impairment at step two of the evaluation process.
For determining whether a Social Security claimant is disabled, the Secretary has developed a five step sequential evaluation. 20 C.F.R. § 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). If the claimant fails at any of the steps where he or she bears the burden of proof (steps one through four), consideration of any subsequent steps is unnecessary.
The relevant inquiry at step one is whether the claimant is engaged in substantial gainful activity. If not, step two requires the factfinder to determine whether the claimant has a medically severe impairment or combination of impairments. Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987). Step three entails determining "whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Id. If no equivalency, the claimant must show at step four that the "impairment prevents the claimant from performing work he has performed in the past." Id. At the fifth step, the factfinder must determine whether the claimant has the residual functional capacity "to perform other work in the national economy in view of his age, education, and work experience." Id. The Secretary bears the burden of proof at step five. Id., 107 S.Ct. at 2294 n. 5; Williams, 844 F.2d at 751.
The determination at step two is governed by the Secretary's severity regulations and is based on medical factors alone. Consequently, vocational factors such as age, education, and work experience are not considered. 20 C.F.R. § 404.1520(c); William, 844 F.2d at 750. The claimant "must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities, . . ." Williams, 844 F.2d at 751. The claimant must present medical evidence to make this showing of medical severity. 20 C.F.R. § 404.1512(b); Williams, 844 F.2d at 751. This is a de minimis showing, however. Williams, 844 F.2d at 751.
In the present case, the plaintiff presented no medical evidence covering the relevant time period. Plaintiff's initial application for disability benefits was denied on May 12, 1980. The initial determination that plaintiff was not under a disability as of May 12, 1980 became final and binding due to the plaintiff's failure to appeal. The ALJ found no reason to reopen the prior decision. See Tr. 10-11. That decision is not challenged here. Plaintiff was thus required to establish that he was under a disability between May 12, 1980 and September 30, 1984, when plaintiff's insured status expired.
The record in this case contains little from the relevant time period. Dr. Wakim testified in a deposition on July 9, 1980; however, his testimony was based upon his examination of plaintiff of February 18, 1980. See Tr. 163-81. Dr. Fleming's office notes indicate a phone call from an attorney on July 10, 1980. It does not appear that the doctor examined plaintiff at that time. Tr. 124. The record reflects no relevant medical evidence for the period 1980 to 1984. The ALJ's decision at step two that plaintiff did not have a severe impairment is supported by substantial evidence. The court is sympathetic with plaintiff's situation; however, disability is a medical determination. Plaintiff cannot establish a disability without some medical evidence as to his condition during the relevant time period. See 42 U.S.C. § 423(d)(5)(A).
IT IS BY THE COURT THEREFORE ORDERED that the plaintiff's motion for summary judgment or remand is hereby denied.
IT IS FURTHER ORDERED that the Secretary's motion to affirm is hereby granted.