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WILKS v. APFEL

September 15, 2000

EXCELL WILKS, PLAINTIFF,
V.
KENNETH S. APFEL, DEFENDANT.



The opinion of the court was delivered by: Lamberth, District Judge.

MEMORANDUM OPINION

This matter, brought under the Social Security Act, 42 U.S.C. § 405 (g), is before the Court on defendant's motion for summary affirmance of the Commissioners s denial of benefits and plaintiff's motion for reversal. Upon consideration of the parties' submissions, the administrative record, and the entire record herein, defendant's motion will be denied and plaintiff's motion will be granted.

I.

Plaintiff applied for Supplemental Social Security Income ("SSI") on January 3, 1994 for aggravation of back and joint injury initially sustained in June 1986.*fn1 Plaintiff's application was denied initially and following a hearing before an Administrative Law Judge ("ALJ"). The administrative Appeals Council granted review and remanded the case to the ALJ in April 1997 for the taking of additional evidence concerning plaintiff's mental impairments and, if necessary, another vocational assessment considering the mental impairments. The ALJ conducted a second hearing in October 1997 and issued a written decision on November 20, 1997. The ALJ's decision became final on April 21, 1999, when the Appeals Council denied plaintiff's request for review. Plaintiff timely filed this action.

II.

This Court must affirm the Commissioner's decision regarding a claimant's disability if, on the basis of the entire record, it is supported by substantial evidence. 42 U.S.C. § 405 (g); see Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Simms v. Harris, 662 F.2d 774, 777 (D.C.Cir. 1980). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. 1420 (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Brown v. Bowen, 794 F.2d 703, 705 (D.C.Cir. 1986). To determine whether the Commissioner's decision is supported by substantial evidence, the Court must "carefully scrutinize the entire record." Davis v. Heckles, 566 F. Supp. 1193, 1195 (D.D.C. 1983). The Court may not reweigh the evidence and "replace the [Commissioner's] judgment regarding the weight and validity of the evidence with its own." Davis, 566 F. Supp. at 1195. "[B]ecause the broad purposes of the Social Security Act require a liberal construction in favor of disability, the Court must view the evidence in the light most favorable to the claimant. This way, the Court can give effect to the remedial purposes of the Social Security Act." Davis v. Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994) (internal citations omitted).

III.

The Social Security Act defines disability as the

inability 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 twelve months.

42 U.S.C. § 423 (d)(1)(A). The inability to engage in substantial gainful activity includes the inability to perform the claimant's previous work or other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423 (d)(2)(A).

Claims for Social Security disability insurance benefits are evaluated using a five-step process. A claimant may be found to have no disability at any one of the sequential steps. The claimant must prove (1) that he is not presently engaged in substantial gainful work, (2) that he has a severe "impairment," and either (3) that he suffers for more than twelve months from one or more listed impairments,*fn2 or (4) that he is incapable of performing past relevant work.*fn3 20 C.F.R. § 404.1520 (b)-(e), 416.920(b)-(e). If the claimant prevails on the first four steps, the fifth step shifts the burden to the Commissioner to make a finding of, no disability only if the Commissioner proves that the claimant, based upon his age, education, work experience and residual functional capacity, is capable of performing other gainful work. 20 C.F.R. § 404.1520 (f), 416.920(f). See Simms v. Sullivan, 877 F.2d 1047, 1049 (D.C.Cir. 1989); Brown v. Bowert, 794 F.2d at 705-06.

In this case, the ALJ found that plaintiff had not engaged in substantial gainful work since 1994; that he suffered from "severe" impairments that were not, however, "listed in, or medically equal to" those under Appendix 1, Subpart P of the regulations; that he had no transferrable work skills and that he had the residual functional capacity to perform work within certain limitations. Record at 24-25. The ALJ found that plaintiff was not disabled at step five of the sequential disability evaluation process because a significant number of jobs were available to plaintiff within his residual functional capacity. Plaintiff disputes the ALJ's findings and asserts that the ALJ erred because, among other things, he failed to include plaintiff's claims of pain in the hypothetical to the vocational expert testifying at the hearing.

1. Administrative Record

At the time of the ALJ's decision, plaintiff was 53 years old and homeless. He graduated high school in 1962 and took college courses in 1978. Administrative Record ("AR") at 36-37. Plaintiff served in the military from 1965-69 assigned to infantry, which he describes as "search and destroy," Id. at 38. He identified no specific job duties while in the military, even when pressed by the ALJ. See id. at 48-49. He was honorably discharged upon completion of his enlistment period. Id. Plaintiff began assembly-type work at Firestone in 1972, but was discharged after he hurt his arm. Id. He claims to have "messed my back and arm up" from having to lift 100 pounds at a time. Thereafter, plaintiff held jobs "doing any type of work I could find." Id. He drove a forklift for Sears and lifted about 75 pounds at a time, but left after a "year or two" because his "arm was out of place" and he could no longer perform the work. Id. at 40-41. Plaintiff worked temporary jobs because he was "not able to perform [full time] work" due to sustaining a broken knee in 1985 "and my arm was already out of place then after those two conditions occurred, causing me to have to use my back more and now my back has arthritis . . . ." Id. at 41. He was incarcerated from about 1976 to 1979. Plaintiff testified that he has been treated medically for arthritis of the back and elbow, the latter which "can't be corrected." Id. He testified about taking pain medication, primarily for back spasms. Id. 42-44. At the first hearing in 1995, plaintiff testified that he had worked for a temporary service performing "light industrial" jobs for eight hours on average two days a week, maybe 10 or 15 days a month, but not every month. Id. at 46, 58. Plaintiff testified that he is assigned to jobs "they think I can do," but states that he "can't keep a job, because most of the time I can't perform the work they want me to do." Id. at 47. He stated that he could "hardly lift more than 25 pounds." Id. at 56. At the second hearing in 1997, plaintiff testified that he had not worked since January 3, 1994, the day on which he filed his ...


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