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DAVIS v. SHALALA

August 30, 1994

WILLIAM DAVIS, Plaintiff,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 INTRODUCTION

 Dispositive Motions are before the Court in the above-captioned case on behalf of both the Plaintiff and the Defendant with regard to the Defendant's denial of the Plaintiff's request for Social Security Disability Insurance Benefits ("DIB") under Title II and Supplemental Security Income Benefits ("SSI") under Title XVI of the Social Security Act. Upon consideration of the parties' submissions, the applicable law, careful scrutiny of the record as a whole, and for reasons discussed herein, the Court finds that the Secretary's decision must be Remanded. Having examined the record, the Court is unable to conclude that the Secretary's decision is supported by substantial evidence, as the Administrative Law Judge ("ALJ") has failed in his written decision to explain sufficiently the weight he has given to certain probative items of evidence. In particular, he has failed to give adequate consideration to the evidence supporting Plaintiff's claim that his impairment, or combination of impairments, meets Listing 1.12 of the controlling regulations for the requisite time period. Moreover, in finding that the Plaintiff can perform the full range of light work, the Defendant has not adequately examined probative evidence concerning Mr. Davis' exertional limitations, nor has he given proper consideration to the subjective evidence of non-exertional impairments which, in turn, could require the ALJ to introduce vocational evidence to determine whether a significant number of jobs exist in the national economy that the Plaintiff may perform.

 BACKGROUND

 The Plaintiff is a 52-year-old man with a 12th grade education. He has a vocational background as a swimming pool manager and lifeguard, carpenter, cement mason, and rehabilitation counselor. The Plaintiff's swimming pool positions required him to sit for long periods, occasionally bend and reach, and lift and carry up to 50 pounds. The Plaintiff's construction positions required him to stand and walk for long periods, constantly bend and reach, and lift and carry 50-100 pounds. The Plaintiff's counselor position required sitting for prolonged periods, occasional bending, reaching, and lifting little, if any, weight (R. 113-18). *fn1" At present, the Plaintiff is unemployed.

 The Plaintiff alleges that he is unable to work because he suffers disabilities in his right elbow and left ankle. On October 7, 1982, the Plaintiff was struck by an automobile. As a result of the accident, the Plaintiff sustained severe fractures to his right elbow and left ankle (R. 170).

 Regarding the Plaintiff's ankle condition, the Plaintiff reports that he suffers severe pain, secondary to traumatic arthritis, and that he occasionally wears a left ankle brace (R. 220). Regarding his right elbow condition, the Plaintiff underwent two surgical procedures, somewhat improving his condition. However, the Plaintiff reports that he has problems with numbness and lack of feeling in his fingers, causing him sometimes to drop things (R. 216-17). As a result of these conditions, the Plaintiff claims that he has been unable to work since September 15, 1991, when he was employed as a seasonal pool manager (R. 74).

 On April 15, 1992, the Plaintiff underwent an orthopedic consultative examination by Dr. Willie E. Thompson. Dr. Thompson noted that the Plaintiff has a limited range of motion in his right elbow, causing a 15% degree of permanent/partial impairment and loss of physical function to his right upper extremity. Additionally, the Plaintiff's X-rays revealed early degenerative arthritis in his left ankle. Based on these X-rays, Dr. Thompson found that surgical intervention may be necessary in the future. Dr. Thompson opined that the Plaintiff's physical work should be moderately restricted, that is, the Plaintiff should refrain from standing and walking for more than 1/3 of a work day, should not engage in climbing, and should not lift more than 20 pounds (R. 170-73).

 In September, 1992, the Plaintiff allegedly re-injured his right elbow and left ankle in a fall (R. 184-88, 191-94). On March 18, 1993, the Plaintiff underwent a rheumatology consultative evaluation by Dr. Oliver J. Lawless. Dr. Lawless noted that the Plaintiff's major disability involves his right elbow and that surgery may be necessary in the future. Dr. Lawless diagnosed the Plaintiff with post-traumatic osteoarthritis of the right elbow and left ankle, possible reflex sympathetic dystrophy, and carpal tunnel syndrome on the upper right extremity (R. 195-97).

 In the summer of 1993, the Plaintiff complained of increasing problems with pain and limited use of his right elbow, for which he subsequently sought evaluation and consultation for surgery options. On July 12, 1993, Dr. Bruce S. Wolock, an orthopedic surgeon at John's Hopkins, reported that x-rays of the Plaintiff's right elbow showed a markedly destroyed elbow joint, and a nonunion of an olecranon fracture with a cross union of the radius and ulna (R. 198). Dr. Wolock further reported that Plaintiff had normal sensation, but had a severe degree of post-traumatic arthritis in his right elbow, making him a candidate for a total elbow replacement (R. 198-99). On July 22, 1993, Dr. Robert J. Neviaser confirmed the Plaintiff's diagnosis of marked post-traumatic arthritis, and discussed replacement surgery as an option for the Plaintiff (R. 204-205).

 In October 1993, the Plaintiff underwent reconstructive surgery, an "arthroplasty," or full replacement of his right elbow. However, this treatment is not expected to restore full use of the Plaintiff's right arm (R. 28; see R. 198, 205).

 The administrative proceedings in this case began on January 29, 1992 (protective filing date), when the Plaintiff filed applications for DIB and SSI benefits, alleging that he had been disabled and unable to work since September 15, 1991, due to his right elbow and left ankle conditions. On June 9, 1992, the Social Security Administration ("SSA") denied the Plaintiff's application for benefits, finding that he failed to satisfy the statutory standard of disability, as defined under the Social Security Act. On July 14, 1992, the Plaintiff filed a Request for Reconsideration of the SSA's decision, which the SSA denied on July 23, 1992.

 The Plaintiff subsequently requested a hearing before an Administrative Law Judge, which was held on June 22, 1993, before ALJ Irwin A. Friedenberg. On September 29, 1993, ALJ Friedenberg issued a decision affirming the denial of the Plaintiff's claim for benefits (R. 57). This decision was the final decision of the Defendant, Secretary of Health and Human Services ("the Secretary"), because on February 24, 1994, the Appeals Council of the SSA denied the Plaintiff's request for a discretionary review of the ALJ's decision (R. 4).

 In the Defendant's Opposition to Plaintiff's Motion for Judgment of Reversal, the Plaintiff's Reply, the Plaintiff's Opposition to Defendant's Motion for Judgment of Affirmance, and the Defendant's Reply, the respective parties maintain their respective positions. Namely, the Plaintiff seeks reversal, while the Defendant seeks affirmance, of the Secretary's decision to deny the Plaintiff's claim for DIB and SSI benefits under the Social Security Act.

 The primary dispute between the parties centers around the ALJ's findings with respect to the "third" and "fifth" steps in the sequential process for determining disability, set forth by this Circuit in Brown v. Bowen, 253 U.S. App. D.C. 409, 794 F.2d 703, 705-706 (D.C. Cir. 1986). The ALJ's findings, disputed by the Plaintiff, are as follows:

 
(1) Step Three: That the Plaintiff's impairments do not meet or equal an impairment or combination of impairments listed in, or medically equal to one listed in, 20 C.F.R. Part 404, Subpt. P, Appendix 1 ("the Listing of Impairments"); and
 
(2) Step Five: That the Plaintiff has the residual functional capacity to perform the full range of light work.

 (R. 66). The parties do not dispute, however, that the Plaintiff satisfies the other three steps in the evaluation process. The ALJ concluded, according to its findings under the evaluation process, that the Plaintiff is not entitled to receive DIB and SSI benefits under the Social Security Act.

 DISCUSSION

 I. STANDARD OF REVIEW APPLICABLE TO THIS CASE

 The parties do not dispute that, on review, the Court must evaluate the administrative record, and only affirm the Secretary's decision if it is supported by "substantial evidence" in the record, and is not tainted by an error of law. 42 U.S.C §§ 405(g), 1383(c)(3); See Smith v. Bowen, 264 U.S. App. D.C. 104, 826 F.2d 1120, 1121 (D.C. Cir. 1987). "Substantial evidence" has been defined as "more than a scintilla." Richardson v. Perales, 402 U.S. 389, 402, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). It is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)).

 The standard of review in cases of this kind requires considerable deference to the decision rendered by the ALJ and the Appeals Council, but the reviewing court remains obligated to ensure that any decision rests upon substantial evidence. Accordingly, this standard of review "calls for careful scrutiny of the entire record," to determine whether the Secretary, acting through the ALJ, "has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits . . . ." See Simms v. Sullivan, 278 U.S. App. D.C. 259, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (citations omitted).

 In addition, because the broad purposes of the Social Security Act require a liberal construction in favor of disability, see Taylor v. Heckler, 595 F. Supp. 489, 493 (D.D.C. 1984) (Parker, J.), the Court must view the evidence in the light most favorable to the claimant. See Champion v. Califano, 440 F. Supp. 1014, 1018 (D.D.C. 1977) (Gasch, J.). ...


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