Opinion
Civil No. 3:99-CV-2813-H.
May 23, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant's Motion for Summary Judgment, filed April 19, 2000; and Plaintiff's Motion for Summary Judgment or, in the Alternative, for Remand to the Commissioner for Further Proceedings, filed April 20, 2000.
After considering the pleadings, briefs and relevant authorities, the Court is of the opinion, for the reasons stated below, that Defendant's Motion should be GRANTED, and Plaintiff's Motion should be DENIED.
I. Background
A. Procedural history
Plaintiff William Morse brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of the Social Security Administration denying Plaintiff's claims for disability benefits under Title II of the Social Security Act. Plaintiff initially filed an application for benefits on April 12, 1994. [Tr. 106], and his initial application was denied by the Social Security Administration on August 4, 1994. [Tr. 119-20]. Plaintiff subsequently requested reconsideration on August 29, 1994, and after reconsideration his application was again denied on September 30, 1994. [Tr. 121-24]. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), and ALJ R E. Dockery, Jr. held a hearing on Morse's application on July 25, 1995. ALJ Dockery issued an Unfavorable Decision on October 18, 1995, denying Plaintiff benefits based on his ability to perform sedentary work with a sit/stand option, even though he could not return to his former work. [Tr. 416-32].
Plaintiff requested review of the Unfavorable Decision to the Appeals Council, which found that ALJ Dockery had erred in his determination of the last date Morse maintained disability insured status and remanded the case to the ALJ for another hearing. [Tr. 442-44]. ALJ Dockery held a second hearing on October 28, 1997, and again denied Plaintiff disability benefits, this time finding Plaintiff was able to perform light work activity. [Tr. 10-21].
Plaintiff requested review of the second Unfavorable Decision to the Appeals Council, which denied his request. [Tr. 3-4] As a result, the second Unfavorable Decision became the final decision of the Commissioner, and Plaintiff now asks this Court to review the entire record and the decision of the ALJ.
B. Facts
Plaintiff was 42 years old when he first was injured in 1988, and 49 years old when he last maintained disability insured status on March 31, 1995. [Tr. 19, 185]. He had an eighth grade education, and had held jobs as a grinder, gauger and finisher, a welding material heat treater; and a vacuum form machine operator. [Tr. 57]. Plaintiff Morse lives with his wife and assists with household chores, but does not otherwise work. [Tr. 37, 40, 75].
Plaintiff initially injured his neck, left shoulder and back in January, 1988, and was diagnosed with cervical strain, a degenerative disc at C5-6, and a possible rotator cuff injury. [Tr. 184]. Morse underwent physical therapy and a decompressive cervical laminotomy [Tr. 190] which improved his condition to the point that he was able to return to work [Tr. 179]; however, he again experienced neck pain which resulted in his being limited to light duty work, [Tr. 174]. As his job exceeded that limitation he did not return after taking two weeks off, and the evidence reflects he has not worked since October 15, 1989. [Tr. 40-41, 171, 427]. Further tests in October 1989, disclosed the need for further surgery; however, Morse declined to have the surgery his treating physician recommended. As he was neurologically intact with only mildly restricted motion, the physician again cleared him to return to work. [Tr. 172].
Repeated examinations from 1990 to 1992 showed Morse was neurologically intact, and his treating physicians found him capable of some type of light duty work [Tr. 155-170]. In 1993 he experienced abdominal distress which proved to be pancreatitis, possibly related to excessive alcohol consumption. [Tr. 206-208]. Morse was examined again in 1994 and early 1995, after complaining of perpetual aching in the lumbosacral junction, and was found to have reduced grip strength in his left hand, some degenerative changes at the C5-6 disc, and mildly restricted range of motion of the cervical and dorsal spines. According to the treating physician, by early 1995 Morse had reached a maximum level of improvement. [Tr. 220, 222-225, 244].
II. Standard of Review
The role of the Court under 42 U.S.C. § 405(g) is to determine whether there is substantial evidence in the entire record to support the Secretary's decision to deny Plaintiff's application for benefits. See Richardson v. Perales, 402 U.S. 389, 390 (1971), see also Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). If supported by substantial evidence, the Secretary's findings are conclusive and must be affirmed. See Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). Substantial evidence is that which is relevant and sufficient for reasonable minds to accept as adequate to support a conclusion; it is more than a mere scintilla and less than a preponderance. See Spellman v. Shalala, 1 F.3d 357, 364 (5th Cir. 1993).
The Court's task is not to "reweigh the evidence or substitute its judgment for the Secretary's," but to scrutinize the record and determine whether substantial evidence supports the Secretary's findings. Chaparro, 815 F.2d at 1010 (citing Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983)). The Court must also determine whether the Administrative Law Judge used the proper legal standards in evaluating the evidence. See Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992); Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991) (citing Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir. 1990).
To be entitled to disability insurance benefits, an applicant must show that he is disabled. Villa, 895 F.2d at 1022. A person is disabled under the Social Security Act if he has medically determinable physical or mental impairment that lasts, or is expected to last, twelve months and that prevents him from doing "substantial gainful activity." 42 U.S.C. § 423(d)(1)(A). A five-step test is used to determine whether the applicant is disabled. In applying the test, the Secretary must answer the following questions: (1) Is the claimant working during the relevant period? (2) Can the impairment be classified as non-severe? (3) Is the impairment listed, or medically equivalent to, an impairment in Appendix A of 42 U.S.C. § 423 (d)(1)(A)? (4) Can the claimant perform her past relevant work? (5) Can the claimant perform any other gainful job? See Chaparro, 815 F.2d at 1010; see also 20 C.F.R. § 404.1520.
III. The ALJ's findings
ALJ Dockery determined that Plaintiff had the residual functional capacity to perform the physical exertion and nonexertional requirements of a frill range of light work. While he was not able to return to his former employment as a heat treater, but was able to return to his former positions as a vacuum machine operator or as a grinder/finisher, since these occupations involved only light work. [Tr. 19]. He also found Morse could make an adjustment to other work that exists in the national economy involving light work. [Tr. 20]. Based on his ability to perform light work, his age, his education, and his work experience, the ALJ determined that section 404.1569 and Rules 202.17 and 201.18, Tables No. 2 and 1 respectively, Appendix 2, Subpart P, Regulation No. 4 would direct a conclusion of "not disabled." [Tr. 20].
The ALJ further determined that Morse's claim for mental impairment, due to his diagnosis of anxiety, NOS, did not preclude him from obtaining employment in at least a sedentary capacity, which would be included in the light work category. [Tr. 20].
IV. Analysis
As a preliminary matter, Plaintiff does not challenge the legal standards utilized by ALJ Dockery in either of his decisions, and the Court finds that the standards used were proper. Plaintiff challenges the decision of the ALJ in three areas, namely: (1) it is not supported by substantial evidence; (2) he improperly applied the Medical-Vocational Guidelines; and (3) it does not comport with the Appeals Council order of remand. The Court disagrees with Plaintiff for the following reasons.
A. ALJ Dockery's Decision Is Supported by Substantial Evidence
Plaintiff, in support of his claim he was disabled during the relevant time period, states that as a result of his physical pain and mental anxiety he had good days and bad days, that on bad days he didn't even want to leave his home, and that he had to lie down periodically even on good days. [Tr. 45]. He states that he was often "nervous" [Tr. 49] and unable to maintain regular employment. [Tr. 36-38, 40, 47, 74].
With regard to Plaintiff's back and shoulder pain, the record reflects extensive notes by Plaintiff's treating physicians which detail Plaintiffs injury and recovery progress. [Tr. 152-184]. The notes also contain numerous observations that Plaintiff was capable of performing light duty work, and that returning to some type of work would be beneficial. [Tr. 155, 157-159, 167]. In his testimony, Plaintiff stated that he experiences pain on occasion in his back and shoulder; however, for pain to constitute a disabling condition, it must be "constant, unremitting, and wholly unresponsive to therapeutic treatment." See Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994). There is no evidence that Plaintiffs pain was so constant or burdensome
In addition, the record contains the testimony of a medical expert who reviewed the evidence and pronounced Plaintiff capable of performing light duty work. [Tr. 93]. Plaintiffs mental condition was examined by a doctor, and he was diagnosed with "Anxiety Disorder, NOS" with aggressive psychiatric intervention suggested as a treatment [Tr 226-231], but nothing in the report or the related testimony in the hearings indicates that Morse's condition precluded gainful employment. There was also testimony from a vocational expert who stated that Plaintiff's symptoms would not preclude his working at sedentary, unskilled jobs. [Tr. 58]. She did state that if he were required to lie down for a couple of hours while at work, that such work would not be available. [Tr. 59].
There is evidence in the record that ALJ Dockery considered the apparent conflict between the claims of Plaintiff that he could not work a complete day, and the findings of the various physicians that Morse was capable of light duty work, and found the physicians' findings to be more credible, [Tr. 18-19]. A complete review of the record discloses substantial evidence supporting the ALJ's determination that Plaintiff Morse could engage in some type of meaningful work, and that Plaintiff's occasional "bad days" did not rise to the level of constant and unremitting pain required by Falco. Accordingly, the ALJ's finding that Morse was not disabled is AFFIRMED.
B. The ALJ Improperly Applied the Guidelines.
Plaintiff Morse next asserts that ALJ Dockery failed to properly apply the guidelines. Persons in the 18-49 age group are considered "younger individuals" 20 C.F.R. § 404.1563(b). As previously noted, Plaintiff Morse was injured when he was 42 and last maintained disability insured status when he was 49. However, he was within 6 months of his 50th birthday at the end of his disability insured status and he argues he should be considered under the more conservative guidelines pertaining to the individuals "approaching advanced age," i.e. those persons aged 50-54. 20 C.F.R. § 404.1563(c). Morse asserts, correctly, that the age categories are not to be applied mechanically in a borderline situation. See 20 C.F.R. § 404.1563(a), and Harrell v. Bowen, 862 F.2d 471, 479 (5th Cir. 1988).
The decision to place someone whose age approaches another category in that category is discretionary with the Secretary, and the decision is accorded considerable deference. Harrell, 862 F.2d at 479. This Court's role is not to substitute its opinion for that of the Secretary, but to determine if the decision is supported by substantial evidence. Plaintiff Morse's actual age clearly fit in the "younger individual" category at the relevant time period, and the ALJ's decision is therefore supported by substantial evidence. The record reflects that ALJ Dockery specifically considered whether to place Morse in the "approaching advanced age" category. [Tr. 64, 97], and chose not to. Accordingly, the decision will not be disturbed.
C. The ALJ's Decision Is Inconsistent With The Appeals Court's Order
Plaintiff Morse argues that the ALJ incorrectly revoked his finding in the first hearing, claiming the Appeals Court's remand order applied only to the additional time it found Morse was in a disability insured status. Because the ALJ raised Plaintiff Morse's residual functionality from sedentary, with a restriction, to full light duty, Morse claims the earlier decision should stand, at least for that period of time.
A review of the Appeals Court's decision discloses that, by its plain language, it vacated the ALJ's initial decision in its entirety, and he was to determine Morse's residual functional capacity for the entire relevant period. In its order, the court stated that it "vacates the hearing decision and remands. . . ." [Tr. 443] It further states that the ALJ was to "give further consideration to the claimant's maximum residual functional capacity through March 31, 1995. . . ." [Tr. 443]. The Order does not say "from January 1, 1995, through March 31, 1995," or otherwise qualilfy the decision, and clearly covers the entire period of Morse's alleged disability. While ALJ Dockery limited the testimony at the second hearing to the time period from January 1, to March 31, 1995, he expressly adopted the majority of his first decision in his second decision, with the express exception of the "Findings." [Tr. 14]. His second decision, therefore, correctly incorporated the entire period Morse was in a disability insured status
V. Conclusion
For the foregoing reasons, Defendant's motion for summary judgment should be, and is hereby, GRANTED. Plaintiff's motion for summary judgment is DENIED. Judgment will be entered accordingly.
SO ORDERED.
DATED: May 23, 2000.