Opinion
Cause No. 4:02cv0044
January 10, 2003
MEMORANDUM AND ORDER
Plaintiff, David E. Mann, appeals the denial of his application for Social Security Disability Income Benefits (DIB). He argues that the decision to deny benefits was not supported by substantial evidence. Specifically, he contends that the Administrative Law Judge (ALJ) did not properly inform him of his right to counsel in order to properly waive such right and that the case was not fully and fairly developed by the ALJ.
I. PROCEDURAL BACKGROUND
On August 14, 1995, Plaintiff filed his first application for DIB. He received a denial decision on August 29, 1996. Plaintiff appealed this decision, which was upheld by the Appeals Council on December 29, 1997. Plaintiff filed another application for DIB on November 18, 1998. This application was also denied and a hearing was held and again an unfavorable decision was rendered on June 30, 2000. Again, Plaintiff appealed the decision. The decision was affirmed by the Appeal Council on April, 30, 2002 Next document. Plaintiff was not represented by counsel at any time during any hearing or appeal. Thereafter, Plaintiff filed this civil action seeking a review of the decision(s). This matter is before the Court to determine whether the decisions denying disability benefits to plaintiff are supported by substantial evidence.
II. BACKGROUND A. The First ALJ's Decision
Plaintiff was born on August 16, 1942. He has a 12th grade education and past work experience as a machinist. Plaintiff testified that he hurt his back for the first time in 1966 and has not worked since January of 1992. The Plaintiff alleges he is disabled primarily due to pain. There is evidence that Plaintiff has a mood disorder secondary to his pain. There are medical records which contain reports from the State of Indiana Industrial Board Division dated June 9, 1967 which shows that Plaintiff strained his lower back in an accident at work in 1967. However, no permanent defect or disability was assessed. Additional reports showed that on March 25, 1977, the Plaintiff again strained his lower back. He was off work for a few days but no permanent defect or disability was expected.
Office treatment notes from Daniel Shull, M. D. show that in 1992 Plaintiff was seen with complaints of painful shoulder and Dupuytren's contractures in his hands. Examination revealed that Plaintiff was neurologically intact. It was noted that at some point surgical correction may be required. The Plaintiff refused such surgical treatment and did not take any pain medication. In making his determination that Plaintiff did not suffer from a disability as defined by the Social Security Act, the ALJ conducted the standard five-step inquiry. See 20 C.F.R. § 404.1520. The inquiry requires the ALJ to consider the applicant's claim in the following 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.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) citing Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial activity since January 31, 1992. The ALJ found that the evidence established that the Plaintiff had a severe impairment involving lower back pain, but that he did not have an impairment or combination of impairments listed in or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. At step four of the evaluation, the ALJ opined that based upon his review of the medical record and in consideration of all of the evidence, that Plaintiff was unable to perform his past relevant work as a machinist/grinder. The ALJ found that Plaintiff had the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for lifting over 20 pounds occasionally and 10 pounds frequently. After reaching this determination with respect to Plaintiff's residual functional capacity, the ALJ consulted both the Medical-Vocational guidelines and the vocational expert, Ray Burger.
The ALJ concluded that a person with Plaintiff's vocational profile, with the limitation of light work, had the residual functional capacity to perform a number of jobs, including, but not limited to; crossing guard, mail clerk, watchman, usher, and cashier. In evaluating the Plaintiff's allegation of disability, the ALJ gave consideration to all evidence in the record, including: daily activities, location, duration, and intensity of pain or symptoms, aggravating factors, any medication taken to alleviate the pain, treatment, measures used to relieve the pain and symptoms, and other factors concerning functional limitations and restrictions due to pain or symptoms. The ALJ found that the Plaintiff's testimony regarding his alleged limitations and pain was not fully supported by the documented findings and other evidence. The ALJ found that claimant was not under a "disability" as defined in the Social Security Act at any time through the date of this decision.
B. The Second ALJ's Decision
In making his determination that Plaintiff did not suffer from a disability as defined by the Social Security Act, the ALJ conducted the standard five-step inquiry. See 20 C.F.R. § 404.1520. The inquiry requires the ALJ to consider the applicant's claim in the following 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.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) citing Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial activity at any time relevant to the decision. The ALJ found that the evidence established that the Plaintiff had a severe impairment involving chronic lower back pain, depressed mood secondary to pain, and degenerative joint disease of the shoulders during the time relevant to the decision. However, the ALJ found that based on the record, Plaintiff failed to establish any of the specific complications required by the listing or any other clinical or laboratory abnormality equal in severity to the listed criteria in Appendix 1, Subpart P, Regulations No. 4. At step four of the evaluation, the ALJ opined that based upon the consultative examination performed by Dr. Aldo Buonanno on January 25, 2000, the prior ALJ's decision, as well as testimony by the Plaintiff, that Plaintiff was unable to perform his past relevant work as a machinist/grinder. The ALJ agreed with the prior ALJ's decision and found that Plaintiff had the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for lifting over 20 pounds occasionally and 10 pounds frequently. After reaching this determination with respect to Plaintiff's residual functional capacity, the ALJ consulted the Medical-Vocational guidelines, and concluded that Plaintiff was limited to a full range of light unskilled work. As dictated by the Rule, Plaintiff had a significant number of jobs available to him during the period of time relevant to this decision, and therefore was not disabled as defined in the Social Security Act at any time through December 31, 1996.
III. STANDARD OF REVIEW
This court's review of the Commissioner's decision is a limited one. Unless there is an error of law, the court will uphold the Commissioner's findings of fact if they are supported by substantial evidence. Griffth v. Callahan, 138 F.3d 1150, 1152 (7th Cir. 1998). Substantial evidence consists of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 399-400 (1971). In making a substantial evidence determination, the court will review the record as a whole, but will not reevaluate the facts, re-weigh the evidence or substitute its own judgment for that of the Commissioner. Griffth 138 F.3d at 1152; Brewer v. Chater, 103 F.3d 1384, 1391 (7th Cir. 1997). That being said, the ALJ must "build an accurate and logical bridge between the evidence and the result." Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000).
With respect to credibility determinations, the ALJ is in the best position to observe the demeanor and veracity of the testifying witnesses. Griffth 138 F.3d at 1152. The court will not disturb the ALJ's weighing of credibility so long as those determinations are based on some support in the record and are not "patently wrong." Id.; Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). However, the district court is required to critically review the evidence and not simply rubber-stamp the Commissioner's decision. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
IV. DISCUSSION
"Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act." Estok v. Apfel, 152 F.3d 636, 638 (7th. Cir. 1998). Under section 423(c)(1)(B)(1), it is well established that to receive benefits, a disability must have begun or had its inception during the period of insured status. Bastian v. Schweiker, 712 F.2d 1278, 1280 (8th Cir. 1983); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.), cert. denied, 444 U.S. 952 (1979). The Seventh Circuit has established that a claimant has the burden of establishing that she is disabled within the meaning of the Social Security Act on or before the date her insured status expired. Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998); Meredith v. Bowen, 833 F.2d 659 (7th Cir. 1987); Owens v. Heckler, 770 F.2d 1276, 1280 (5th Cir. 1985); Garner v. Heckler, 745 F.2d 383, 390 (6th Cir. 1984); Jeralds v. Richardson, 445 F.2d 36, 39 (7th Cir. 1971). "The law requires that a claimant demonstrate her disability within the proscribed period of eligibility not prior to or subsequent to the dates in question." Jeralds, 445 F.2d at 39. Therefore, "any condition that had its onset or became disabling after plaintiff's insured status expired may not be used as a basis for entitlement to disability benefits." Couch v. Schweiker, 555 F. Supp. 651, 654 (N.D.Ind. 1982). Plaintiff bears the burden of showing through testimony and medical evidence supported by clinical data and laboratory diagnosis that she was disabled during the period in which he was insured. Jeralds, 445 F.2d at 38-39; See also Reading v. Matthews, 542 F.2d 993, 997 (7th Cir. 1976).
The claimant must show that she 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. § 423(d)(1)(A). The regulations to the Act create a five-step inquiry in determining whether a claimant is disabled. As previously discussed, the ALJ must consider the applicant's claim in the following sequence:
(1) whether the claimant is currently employed;
(2) whether she has a severe impairment;
(3) whether her 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.
Clifford 227 F.3d at 868; citing Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
"An affirmative answer leads either to the next step, or on Steps 3 and 5, to a finding that the claimant is disabled. Clifford 227 F.3d at 868. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Clifford 227 F.3d at 868. The initial burden in steps one through four is on the plaintiff; only at step five does the burden shift to the Commissioner. Id.
The Plaintiff argues that the case was not fully and fairly developed by the ALJ and that the ALJ did not properly inform Plaintiff of his right to counsel in order to properly waive such right.
A. Plaintiff's Right to Representation
The Plaintiff was not represented by counsel at either of the hearings on disability. A claimant has a statutory right to counsel at a disability hearing. 42 U.S.C. § 406, 20 C.F.R. § 404.1700. If properly informed of the right, the claimant may waive it. Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir. 1991). To ensure a valid waiver of counsel, we require the ALJ to explain to the pro se claimant 1) the manner in which an attorney can aid in the proceedings, 2) the possibility of free counsel or a contingency agreement, and 3) the limitation on attorney fees to 25 percent of past due benefits and required court approval of fees. Id. In the present case, the ALJ did not adequately explain such criteria to the Plaintiff. The ALJ simply stated to Plaintiff that he had a right to an attorney and asked if he was willing to go ahead without an attorney. The Plaintiff stated that he didn't see any reason to pay an attorney. This testimony by the Plaintiff, combined with the inadequacy of the ALJ's explanation, leads this Court to believe that there was not a valid waiver of the right to representation because as in Thompson, his failure to have counsel may have been due to his lack of money. See Id. at 585.
B. Fully and Fairly Developed Case
However, an inadequate notice of the right to counsel does not automatically entitle a claimant to a remand, unless the ALJ also fails in his assigned duty to develop a full and fair record. Thompson at 586. As stated in Thompson, since the Plaintiff's waiver of his right to counsel was invalid, a heightened duty is owed on the part of the ALJ to develop the record fully and fairly. Id. at 586. In the present case, both of the ALJs took into account not only Plaintiff's testimony of his subjective complaints, but medical evidence from Dr. Shull as well as evidence from the consultative examination performed by Dr. Buonanno. The ALJs also relied on testimony from a vocational expert regarding Plaintiff's residual functional capacity. Plaintiff has filed two applications for DIB and each time, the ALJ went through the proper five-step analysis in reaching the determination that Plaintiff was not disabled and therefore not entitled to DIB. The Plaintiff argues that further evidence should have been relied upon, but, fails to establish what difference further evidence would make in regards to the decision of the ALJs. Both of the ALJs determined that the Plaintiff did have lower back pain, however it was found not to be severe enough as to be disabling. They also determined that while Plaintiff could not perform his past work, he was able to hold numerous other light work jobs, which leads to the conclusion that Plaintiff is not disabled as defined in the Social Security Act.
V. CONCLUSION
The ALJs, in both of the hearings developed a full and fair record in this case. The hearing decisions are thus, AFFIRMED, and therefore, Plaintiff's motion for summary judgment to have the hearing decisions reversed and remanded is DENIED.