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CONWAY v. BOWEN

July 25, 1987

Nettie Conway, Plaintiff,
v.
Otis R. Bowen, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: PENN

 Plaintiff challenges an administrative decision that found that she was not disabled so as to qualify for Disability Insurance Benefits, Supplemental Security Income (SSI), or Widow's Insurance Benefits. The parties have filed cross-motions for judgment. After carefully considering the motions and the record in this case, and for the reasons stated below, the Court affirms the Secretary's decision as to the widow's benefits, and reverses the Secretary's decision as to the disability insurance and SSI claims.

 I. FACTUAL BACKGROUND

 Plaintiff is a 64 year old widow with only five years of education. She is not currently employed. After working as a domestic for the fifteen previous years, plaintiff ceased working in February 1981. *fn1" According to plaintiff, she stopped working because of ailments described as arthritis, bursitis, and menopausal syndrome. Immediately thereafter, she claimed Disability Insurance Benefits, SSI, and Widow's Insurance Benefits.

 A hearing was convened before an administrative law judge (ALJ) on May 21, 1982. The evidence at the hearing consisted of the plaintiff's testimony, and the reports of her treating physicians, Dr. Bullock and Dr. Crockett. The ALJ concluded that plaintiff's impairments are not severe enough to warrant a finding of a disability. The Appeals Council, acting for the Secretary, affirmed the ALJ's conclusion. Plaintiff then appealed that decision to this Court. Determining that further medical evidence was needed, the Court ordered plaintiff to submit to an independent medical examination and remanded the case to the agency for further consideration. Memorandum Order, filed September 30, 1983.

 The evidence produced on remand consisted of outpatient notes from Howard University Hospital; the report of Dr. Griffin, a consultative physician who is a specialist in rheumatology and internal medicine; and a note from Dr. Bullock stating that his previous opinion "still holds true."

 After considering the additional evidence, the ALJ issued a recommended decision finding that plaintiff is not disabled within the meaning of Social Security Act and the agency's regulations. The Appeals Council adopted that decision, which is the subject of the present motions.

 II. DISCUSSION

 A. Statute and Regulations

 Title II of the Social Security Act (Act) provides for the payment of insurance benefits to people who have contributed to the program and who suffer from a physical or mental disability. 42 U.S.C.A. § 423(a)(1)(D) (West Supp. 1987). Title XVI of the Act provides for the payment of disability benefits to indigent people under the SSI program. § 1382(a). Both titles of the Act define "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." § 423(d)(1)(A). See § 1382c(a)(3)(A).

 The Secretary has adopted a five-step process to determine if a claimant is disabled for the purpose of receiving disability insurance benefits and SSI. 20 CFR §§ 404.1520 and 416.920 (1986). Under the first step, an individual who is engaged in substantial gainful activity is not disabled. 20 CFR §§ 404.1520(b) and 416.920(b). An individual not engaged in substantial gainful activity must prove a severe impairment which significantly limits the ability to do basic work activities. 20 CFR §§ 404.1520(c) and 416.920(c). Examples of work activities listed in the regulations include "physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." 20 CFR §§ 404.1521(b)(1) and 416.921(b)(1). If a severe impairment exists, it is measured against a Listing of Impairments. 20 CFR § 404, Subpart P, App. 1; 20 CFR §§ 404.1520(d) and 416.920(d). If the impairment meets the standards of severity and duration in Appendix 1, the claim is approved. Id. If the impairment does not meet the criteria of severity in Appendix 1, and the claimant is still capable of performing past work, the disability will be denied. 20 CFR §§ 404.1520(e) and 416.920(e). If the claimant is incapable of performing past work, the ALJ will consider the claimant's residual functional capacity, along with claimant's age, education, and work experience to make a final determination concerning disability. 20 CFR §§ 404.1520(f) and 416.920(f).

 In this case, the ALJ reached the second step in the evaluation and found that plaintiff does not have a severe impairment or combination of impairments which significantly limit her ability to perform basic work activities.

 The Supreme Court recently upheld the validity of the "severity regulations", 20 CFR §§ 404.1520(c) and 416.920(c), relied upon by the ALJ in this case. Bowen v. Yuckert, 482 U.S. 137, 55 U.S.L.W. 4735, 96 L. Ed. 2d 119, 107 S. Ct. 2287 (1987). In doing so, the Court noted that the Secretary has issued a ruling "to clarify the policy for determining when a person's impairment(s) may be found 'not severe' . . . ." Id. 55 U.S.L.W. at 4739 n. 12 (quoting Social Security Ruling 85-28, which can be found in West's Social Security Reporting Service, Rulings, at 473-474 (Supp. 1986)). Under that ruling:

 
An impairment or combination of impairments is found "not severe" and a finding of "not disabled" is made at [step two] when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered . . . If . . . evidence shows that the person cannot perform his or her past relevant work because ...

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