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ROBINSON v. SHALALA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


September 29, 1994

BETTIE JEAN ROBINSON, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: STANLEY SPORKIN

MEMORANDUM OPINION

 This matter comes before the Court on cross-motions for summary judgment. Plaintiff, Bettie Jean Robinson, seeks judicial review pursuant to 42 U.S.C. § 405(g) of the decision of the Secretary of Health and Human Services denying her claim for Supplement Security Income (SSI). In the alternative, Plaintiff seeks to have the case remanded for further proceedings in light of her alleged deteriorating medical condition. Defendant moves the Court pursuant to Rule 7(b)(1) of the Federal Rules of Civil Procedure to affirm the decision of the Secretary.

 PROCEDURAL BACKGROUND

 Plaintiff filed her claim for SSI on November 30, 1990, contending that she had been disabled since January 1, 1990 with hypertension, spastic colon syndrome and rheumatoid arthritis. (R. 57) SSA Disability Determinations rendered on April 25, 1991 and October 10, 1991 found that plaintiff did not qualify for SSI. Plaintiff appealed these decisions to an administrative law judge (ALJ) who likewise determined on October 30, 1992 that plaintiff was ineligible. On January 5, 1993, Paintiff submitted her Request for Review of the ALJ's decision to the Appeals Council, Office of Hearings and Appeals, SSA. When the Appeals Council declined the request for review on March 17, 1993, the ALJ's decision became the final decision of the Secretary. This action followed.

 SCOPE OF REVIEW

 Judicial review of the Secretary's decisions is not de novo, but rather is limited to determining whether the Secretary's findings are supported by substantial evidence and whether the Secretary applied the correct legal standards. 42 U.S.C. § 405(g) Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938). The Court's role is not to weigh the evidence and "replace the Secretary's judgment concerning the weight and validity of the evidence with its own." Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983).

 LEGAL STANDARDS (RULES AND REGULATIONS)

 The Act and its implementing regulations are very specific regarding the evaluative process to be applied by the Secretary in determining entitlement to SSI benefits. The first step of five in the evaluative process is to determine whether the claimant is engaged in "substantial gainful employment." 20 C.F.R. § 416.920(b). If the answer is yes, the inquiry is satisfied. 42 U.S.C. § 1382c(a)(3)(D); see also, Fowler v. Bowen, 876 F.2d 1451, 1453.

 According to the regulations promulgated by the Secretary pursuant to the Act, work activity which involves "significant physical or mental activities" and that is done for "pay or profit" is substantial gainful employment. 20 C.F.R. §§ 416.972(a) and (b). Even more specific guidelines indicate the presumptions that the Secretary can apply based on the salary earned by the claimant. However, if the claimant earns between $ 300 and $ 500 per month, as is the case here, then no presumptions apply and the Secretary considers a host of factors, such as whether the claimant's work is comparable to that of unimpaired people doing a similar job.

 ANALYSIS AND DECISION

 The decision of the Secretary was supported by substantial evidence. The record indicates that Plaintiff, who was 45 years old when she filed her claim, had been employed as an office cleaner for three years and was still currently employed during her hearing. (R.30, 35) She worked 20 hours a week and earned approximately $ 400 per month. (R.68) Her responsibilities included emptying the trash cans, dusting offices and occasional sweeping. (R 31-32.) The record also indicates that Plaintiff's work was substantially comparable to that of unimpaired persons doing a similar job. (R. 34-35) Based on this record, the Court finds that a reasonable mind could have concluded that the Plaintiff was engaged in substantial gainful employment.

 Even though the Secretary's decision is supported by substantial evidence, Plaintiff has made a proper showing that there is recent medical evidence that her condition is deteriorating. (See Plaintiff's Exhibit B). Obviously, such evidence could not have been presented during the original claims process. This additional evidence is pertinent to the question of Plaintiff's ultimate eligibility for SSI. Accordingly, the Court will remand the case to the Secretary for further proceedings as requested by Plaintiff pursuant to 42 U.S.C. § 405(g). *fn1" Rather than have Plaintiff go through the lengthy and time consuming process of filing a new claim, the Court recognizes that it will be more expeditious to handle this case by remand. *fn2"

 An appropriate order accompanies this memorandum opinion.

 DATE: 9/29/94

 Stanley Sporkin

 United States District Judge

 ORDER

 This matter comes before the Court on cross-motions for summary judgment. Plaintiff, in the alternative, requests that the Court remand the case in order for the Secretary to consider changes in her medical condition. After full consideration of the papers and oral argument in support of and in opposition to the motions, the Court hereby orders that the case be remanded to the Secretary for further proceedings in accordance with the accompanying memorandum opinion.

 DATE: 9/29/94

 Stanley Sporkin

 United States District Judge


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