Petition for Writ of Certiorari — Fierro v. Bowen

Supreme Court, U.S. |

r ‘ ¢ } .

PY 9 52 SS s.

NOV 19 1986

JOSEPH F. SPANIOL, JR.

ae CLERK

iN WHE

SUPREME COURT Gr Tith UNIT STa tho

OCTOBER TERM LYSO

— eee -——— + —

DANIEL L. FIERRO,

Petitioner,

V.

OTIS R. BOWEN,

Secretary Of Department

OF ttealth and Human Services,

Respondent.

— a a ee ae ee ee

PETITIUN POR wkIT OF CERTLORARL TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH Cisxculrt

en ee ee

ee

RAY LChEwWtTS FULLER

SOUTHERN NEW MEXICO LEGAL

SERVICES, INC.

3¥0 Norctn Downtown Mail

Las Cruces, New Mexico 3Sddl

COUNSEL OF R&ECORL FOR

PETITIONER

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TAbLe Or CONTENTS

Page

Question Presented ....-..- 1

Miet GE Ail Petties « « « « i

Tanpie Of Contegtse ..« < « « » il

apie Gf Authacities ...« s« « « 4&4:

Opinion Below ...+s+4+e+es e 2

PO

JUEASGICCION « .«s« «

Statutes and Administrative

ROGULECIONS 4s 2 so © 6 © «

INO

Statement of the Case et? ae ae 4

Reasons for Granting writ:

——-

CONFLICT ON THIS

Te a oh wee On 7

1, THE CIRCUITS ARE I}

o

2. UNDER THE _ SOCIAL

SECURITY REGULATIONS, _IT

WAS IMPROPER AS A MATTER

OF LAW FOR THE APPEALS

COUNCIL TO DECIDE TO

REVIEW AND REVERSE THIS

CASE WHERE THE ADMIN-

ISTRATIVE LAW JUDGE'S Ss

DECISION IN FAVOR OE OF

THE THE CLAMIANT WAS aa

BY _ SUBSTANTIAL EVIDENC ° LY

CONCLUSION . . * 7 . . a - _ . 23

atin

TABLE OF AUTHORITIES

CASES

Baker v. Heckler, 7340 F.2d 1147

(sth Cir. i986) .9 3 2 eee

consolidated Edison Co. v. NLRB,

365 U.8. A997 22900 2

VeLony v. Heckler, 721 F.2d 206

(/th Cit. J3G3) soe 0)

Deters v. Secretary, 789 F.2d liél

(Sth Cit. 1930) =o

Ellis v. Heckler, 621 F. Supp.

823 (D.C. Fike See eee

Escalante v. Bowen, 621 Pet. for

Cert., WO. @26. 7000 34.

Gross v. Heckler, 785 F.2d 1163

(4th Cir. 1986) oa ee oe ee

Kellough v. Heckler, 785 F.2d

1147 (4th Cie, oe ee

LOpez-Cordona v. Secretary, 747

F.2d 1981 (lsat Cit, 2908) a «

Newsome v. Secretary, Health and

Human Services, 753 F.2d 44

(6th Cir. £383) 2

Parker v. Bowen, 788 F.2d 1147

(lith Cis. i906).5. 3.

Parris v. Heckler, 733 F.2d 324

(4th Cir. 2308) 0 ae °

Richardson v. Perales, 402 U.S.

——

389 (1971) . 7 . . . . . .

Scott v. Heckler, 768 F.2d 172

(7th Cir. iseoe ee a * oo

Shepherd v. Secretary, 758 F.2d

196 (6th Cie. oe

Taylor v. Heckler, 765 F.2d 872

(9th Cie 1985) . . . . . .

W.C. v. Heckler, 629 F. Supp. 791

(W.vD. wasn. 1985) . . . . . .

Ward v. Heckler, 622 F. Supp. 462

(Bats Lis LY85) . . : . . . .

23 U..8.G. Section 1254(i) . . 7 . .

42 U.S.C. Section @85 000 ae

o

16

.

Nh Nh @©

N Us.

IN THE

SUPREMGe CUOUKT OF THE UNITED STATES

OCTOBER ‘TERM L9YSo

——— ee

DANIEL L. FILERRO,

Petitioner,

OTIS R. BOWEN,

Secretary of Department

Of Health and Human Services,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCULT _

Petitionec respectfully prays that a

Writ of Cectiocari issue to review the

judgment and opinion of the United States

Court of Appeals for the Tenth Circuit,

entered in the proceeding on August 2l,

L986,

OPINION BELOW

The opinion of the United States

Court of Appeals for the Tenth Ciccuit is

reported as 798 F.2d 1351 (16th Cir.

1980).

JURISDICTION

The United States Court of Appeals

tor the Tenth Circuit entered its opinion

and judgment on August 2l, 1986, The

jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254(1).

STATUTES AND ADMINISTRATIVE REGULATIONS

42 U.S.C. Section 405(g):

"Any individual, after any final decision

of the Secretary made after a hearing to

which he was a party, irrespective of the

amount in controversy, may obtin a review

of such decision by a civil action

commenced within sixty days after the

Mailing to him of notice of such decision

Or within such furthec time as the

Secretary may allow. Such action shall be

beought in the district court o€f the

United States for the judicial district in

which the plaintiif resides. oo-The

judgment of the court shall be final

except that it shall be subject to review

in the same manner as a judgment in other

Civil actions. Any action instituted in

accordance with this subsection shall

sucvive notwithstanding any chanye in the

person occupying tne office of Secretary or

any Vacancy in such office."

26 C.F.R Section 444.969:

“Appeals Council initiates review.

Anytime witnin 68 days after the date

of a hearing decision or dismissal, the

Appeals Council itself may decide to

review the action tnat was taken. If the

Appeals Council does review the hearing

decision or dismissal, notice of tne

action will be mailed to all parties at

their last known address."

26 C.F.R. Section 464.9740:

"Cases the Appeals Council will review.

a

e « al — * om SS mgt < - hea

(a) The Appeais Council will review a

case if

(1) There appears to be an abuse of

Giscretion oy the administrative law

judge;

(2) here is an error of law;

(3) Tne action, Findings or

conclusions of the administrative law

judge are not supported by substantial

evidence; oc

(4) There is a broad policy or

procedural issue that may affect the

general public interest."

STATEMENT OF THE CASE

i. Course of the proceedings

The basis for federal jurisdiction

here was Section 245(g) of the Social

Security Act, 42 U.S.C. Section 485(g),

pusuant to whicn Petitioner initited an

action for judicial review of a final

decision of the Secretary of tae U.S.

Department of Health and Human Services

denying nis claim for Disability Insurance

Benefits under Title II of the Social

Security Act, 42 U.S.C. Section 416(i) and

423, and for Supplemental Security Income

Attias 2 - « = so AD . =

benefits under Title XVI of the Act, 42

U.S.C. <1L38la.

In October 1980, tne Plauintift

filed an application for Disability

Insucance Benercits (TF. 52-55), and an

application for Supplemental Security

Income benefits (Tr. i, 1). On January

19, 1982, the Administrative Law Judye

sitting in this case issued a decision

wholly favorable to this clai sant on both

applications, approving the same,

(Supplemental Tr. 153-54). The Appeals

Council of the Social Security

Administration, sua sponte, on March 12,

1982, vacated the Administcative Law

Judge*s decision, because " ..the Council

believed that a psychiatric evaluation with

psychological testing was necessary in

order to clarify tne sevecity, if any, of

(che claimant*s) impairment." (Tr.18.)

Pollowiny claimant*s supplemental

heariny Of September 21, 1982, the

Administrative Law Judye, on November 38,

1932, issued his “Decision Upon Remand by

Appeals Council,” ayain finding the

Plaintitf disabled and entitled to Social

Security benefits under both applications.

(Tr. 17-24.) On January 6, 1983, the

Appeals Council, on its own motion, dediced

to review the favorable hearing decision of

the Administrative Law Judge. (Tr. 147-

48.) On April 14, 1983, the Appeals

Council reversed the Administrative Law

Judye and issued its own decision denying

tne Plaintirft’'s applications for Social

Security benefits. (Tr. 4-14)

The Plaintitt timely appealed from the

adverse administrative decision of the

Defendant Secretary to the United States

District Court of New Mexico. On September

lo, 1985 the District Court Judye Sitting

on this matter entered an Order affirming

tne adwilnistrative decision of the

DelLendant Secretary and dismissing the

Plaintigteé's comMplaint. Tneceafter on

November /, 1985, Plaintiff timely appealed

in the instant cause to the United States

-Ouct OL Appeals for the Tenth Circuit

wnicn naS here Upheld the iction of the

Social Security Appeals Council in

reviewloj anad reversing tn ravorabdie

Administrative Law Judge's decision.

Ll. The Circults are in conflict on

Tnere is a division of authority

petween, and even within, the Circuit

-OuctsS Of Appeals on the issue Of whethec

t [jc VOClLlAal Secul!t ty regul aC LiONS promulg ited

as 20 C.F.R. Section 4484.97¥(a) limit, to

any degree, the power of Appeals Council to

review the considered decision of an

Administrative Law Judge upon conclusion of

the administrative hearing,

Cases purporting to answer the

proposition affirmateively are represented

by the following: Parcria vy. Heckler, 733

F.2d 324 (4th Cir. 1984)3; Newsome v.

nee el

Secretary of Health and Human Services,

733 F.2G 44 (6th Cir.1L985); Shepard y.

Secretary, 758 F.2d 196 (6th Cir. 1985)

—_—— eee

Scott vv. Beckier, 768 F.2d i772 titan Cit.

1985); Ward v. Heckler, 622 F. Supp. 462

(D.C. Tll, i965); Bliia v. Heckler, 621

P.Sune. 823 Cc. rik. 19895); 8c. ¢,

Heckler, 629 F. Supp. 791 (W.D. Wash.

1985).

Cases appearing to answer the same

proposition negatively are represented by

the Following: Lopez-Cardona v.

Secretary, 747 F.2d 1081 (lst Cir. 1984);

Kellough_v. Heckler, 785 F.2d 1147 (4th

Cir. 1986), Gross _v. Heckler, 785 F.2d

1163 (4th Cir. 1986) (J. Hall dissenting);

Deters v. Secretary, 789 F.2d 1181 (5th

Cir. 1980) DeLong v. Heckler, 771 F.2d 2606

(7th Cir. 1985); Baker v. Heckler, 734

F.20 i147 (@thH Cit. £9804)3 Tavyior vv.

Heckler, 765 £.2d 872 (9th Cir. 1995);

Parker v. Bowen, 788 F.2d 1147 (llth Cic.

1986).

A possible related petition for

certiorari appears to be pending before

the Court, in Escalante v. Bowen, No. 35-

1726.

Such recurring conflict among the

respective federal courts in the

interpretation o£ federal Social Security

law should be resolved definitively by the

Supreme Court.

>

2. Under ___the _ __Social Security

regulations, it was improper as a matter

of law for the Appeals Council to decide

to review and reverse this case, where the

Administrative Law Judges decision _in

favor of the claimant was supported by

substantial evidence.

Upon an initial remand from the Appeals

Council, the Administrative Law Judge

conducted a live, face-to-face

administrative hearing at which the

Plaintiffێ testified and could be observed

and evaluated for veracity and

Symptomology by tne trier-of-fact. (Tr.

40-50.) Based upon that hearing and all

the other evidence of record, the

Administrative Law Judge issued a decision

im favor of tne Plaintiff. (Tr. 17-24.)

The Appeals Council, wa remote place and

time, and upon its own motion, proceeded

to review that hearing decision, on the

purported ground that such decision was

"not supported by substantial evidence ...

ye

1:

pursuant to regulation 494.974 (a)(3)".

(Fe. i148.) Subsequently, the Appeals

Council issued its own decision, reversing

the hearing decision of the Administrative

Law Judge, and denying the Plaintiff

Supplemental Security Income and

Disability Insurance Benefits. (Tr. 14.)

Secial Security regulations, found

at 2@ C.F.R. <404.970(a), svecify the

cases which will be reviewed by the

Appeals Council as follows:

"(1) There appears to be an abuse

of maectetion by the

adininistrative law judge;

(2) There is an error o€ law;

(3) The action, findings or con-

clusions of the administrative law

judge are not supported by

Substantial evidence; or

(4) There is a broad policy or

Ss

procedural issue that may affect

the yeneral mille dopereses

The words of the applicable

regulations seem clear, and purposeful.

The Appeais Council will -- and shouid --

review any Administrative Law Judges

decision which falls into one of the

categories of 28 C.F.R. Section 404.970 (a):

(1) abuse of discretion; (2) error of

law; (3) not supproted by substantial

evidence; or, (4) affecting the general

public interest. And under 26 C.F.R.

Section 464.969, if the Appeals Council

seeks such an Oown-motion review, it is to

do so within 68 days. There is nothing

tortured about such a construction of the

regulations.

However, the Secretary has argued, and

a nuinber of the Courts have decided, that

tne Former reyulation merely states when

-]2-

nS

the Appeals Council "shall" review, while

the lattec regualtion says The Appeals

Council “may" review any ALJ decision for

any reason, without limit, other than time.

The net eftect ot such an interpretation is

to nullify the former regulation: If the

Appeals Council "may" review ALJ decisions

unfettered, then the regulation delineating

four circumstances prompting such review is

superfluous and utterly meaningless.

Wonat’s more, such an interpretation

Suggesting unbcidied authority creates the

danger that actual arbitrariness on the

part of the Appeals Council will be

permitted in initiating such review, ata

place and time far removed from the

claimant’s administrative hearing before

the ALJ. It truly seems difficult to

concieve of situations not covered by 20

C.FP.R. Section 404.970(a), where the

wt tn

Appeals Council should properly, and could

legitimately, substigute den Opinion for

that of the ALJ. While the Social Security

administrative proceedings are but a quasi-

judicial system of justice, tney should

still nominally serve the cause of justice

-- and arbitrariness manifestly does not,

To render 20 C.F.R. Section 404.97@(a) a

leyal nullity does not serve ends of

justice. While it may seem expedient to do

so, it is not just. Petitioner submits

that the regulaory language should be given

its plain and ordinary meaning. To do

otherwise is to engage in the Linguistic

contorctions of which bureaucracies are so

capable, and which lamentably are nothing

new to history, or our literature:

"“When I use a word’, Humpty Dumpty

said, io rather a scornful tone, ‘it

means just what I chvose it to mean--

-i4-

neither more noc less’.

“The question is’, said Alice,

“whether you can make words mean so

many different things~.

“The question is*, said Humpty Dumpty,

“which is to be master--that*s ali*."

Lewis Carroll, Through the Lookiny

Glass (Heritage Press, New York, 1941),

p.il2,

Petitionec argues that the Appeals

Council failed to follow the Defendant

Secretary s own regulations and applied an

improper standard of review here, since

tne decision of the Administrative Law

Judye is supported by substantial

evidence, Such “Substantial evidence" wa

uv

defined in Parris a Heckler, 733 F.2d

324, 326 (4th Cir. 1984):

"...(T)he Appeals Council informed

the claimant, in a communication

which 1s part of the record in this

case, that ‘(t)he administrative

law judge’s ultimate conclusion as

to ‘disability* is not supported by

substantial evidence. cosothia

(“substantial evidence") standard

has been defined as ‘such relevant

evidence as a reasonable mind

miyht accept as adequate to

Support a conclusion, Richardson

v. Perales, 402 U.S. 389, 401, 91

S.Ct. 1420, 1427, 28 L.Ed.2d 842

(1971) gquotiny Consolidated Edison

Co. v. NLRB, 305 U.S. 197, 229, 59

S.Ct. 206, 216, 83 L.Bd. 126

(1938), for purposes of our review

of tne Secretary, and there is no

reason to Suppose that the

Secretacy’ s rceyulations were

thio

dratted with a different meaning

in mind,"

The Administrative Law Judye, in his

Favorable decision of November 8, 1982,

exocessly found that this claimant is

entitled to Social Security Benefits

because, "Based on the evidence of record,

Supported clinically and by x-ray

evidence, claimant is disabled permanently

and unable to do any substantial gainful

activity, even sedentary-type work because

of nis inability to sit and stand

alternately for a period in excess of

three hours and this would preclude

sedentary-type work." (Fe. - 23a) The

Administrative Law Judge found that the

Plaintiff nad the following impairments:

"Claimant has an acute and chronic form of

cervical strain and acute and chronic

Osteoartiritis with degenerative problems

i

involving tne cervical spine and other

problems. Claimant also has a psychogenic

pain syndrome." (Tr. 23.)

The Administrative Law Judge*‘s

evaluation of tne evidence in his decision

is telling, and demonstrates that his

decision is supported by substantial

evidence:

"Claimant alleged disability

beyinning August 38, 1980, Lecause

of a neck injucy and residuals of

an old injury to this left arm.

«+» He iS having problems in the

form of musculoskeletal type

headaches and complains of neck

pain. He is still taking

medications for muscle spasms and

pain. In Kis October 15, 19886

report, Dr. Rodriguez noted that

ai@u

claimant had a permanent

disability which he would have to

deal with foc the rest of his

life, that he would need further

hospitalizations, and that his

incapacity 1S on a permanent and

chronic basis. see Th

1a

medical evidence submitted at the

—— eee

Supplemental hearing, and the

— ee eee ee

that Claimantcan not do any work.

-_-—-— —

Claimant was wearing a collar at

the hearing, carrying a cane,

stating that he has had these

problems since an automobile

accident in 1980, that he has a

cervical disc, that his neck

hucts, being aggravated by the

automobile accident. He cannot

=i@a

Sit Or stand very lony. His hip

had been scraped at the Veteran's

Administration, and his teft

forearm has a metal plate ani he

can’t lift anytninyg heavy. eee

Dr. ROdriguez is his treacing

doctor. He nas trouble bending

Over and he gets dizzy or has

blackouts when he does. He can‘t

turn his neck without pain and had

to give up bowling and baseball,

He couldn’t stand for eight hours,

couldn*t bend over to cut hair, he

can’t support the weight of his

body without pain. ese He can

stand an hour or two without the

cane aad can sit 36 minutes to an

houc before he has to stretch and

jet uy and walk around, He could

sit or stand alternately for maybe

@2-

three hours. Kneeling aygravates

his back, especially when he gets

up. He has cadiation down both

arms and his left hand has been

affected. ... X-rays taken on

Marcn 30, L982, indicate

degenerative osteophytic and

cystic changes present in the

interspaces L4-5 and L5-Sl and

also a bridging osteophyte seen

laterally on the right at Ll and

L2 interspace. The moderate

4

deyenerative cystic changes wer

seen in all the disc spaces and

the deygenerative osteophytic

chanyes were seen extending

anteriorly at L4 and laterally at

all interspaces. Dr. ROdriguez

ese C@iterates tnis in Exhibit No,

j§ and he has the diagnosis, after

-

chronic

strain, also

OsteOarthritis

problems along

and otner bones

s body. His

yradually

advancing. He

$ treatment and

(Emphasis

4

testing, of an acute and

form of cervical

acute and chronic

with degenerative

the cervical spine

in the claimant’

condition is

deteriorating and

sets out claimant

his medication."

added.) (Se. £4628)

There is certainly substantial

evidence

from the testimony and medical Exhivits of

record to sustain the

Administrative Law Judye,

Council’s review and

decision are

Defendant’s own

<444.970 (a) (3).

findings

reversal

improper

regulations,

of the

and the Appeals

of that

under the

26 C.F.R.

If there was substantial evidence

for the Administrative Law Judye’s

determination of disability, then the

reviewing Courts should have reversed the

Appeals Council*s denial of benefits,

according to Newsome v. Secretar

eee aes te

of

Health and Human Services, 7/53 F.2d 44

(6th Cir. 1985), and its progency. "To rule

otherwise would be to render the hearing

before the ALJ essentially without effect,

subject to the unbridled de novo review of

the Appeals Council." Scott _ v. Heckler,

768 &.20 172, 178 (7th Circ. 1985). In this

case, the Appeals Council had no authority

to review the decision o€ the

Administrative Law Judge, contrary to the

decision of the Tenth Circuit here,

CONCLUSION

+ '

For the foregoing reasons, the

petition for writ of certiorari should be

granted,

Respectfully submitted,

ie a

U

RAY LEWIS FULLER

SOUTHERN NM LEGAL

SERVICES, INC.

388 N. Downtown Mall

Las Cruces, NM 88Jdl

(505) 526-4451

COUNSEL OF RECORD FOR

PETITIONER

APPENDIX

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 85+2738

DANIEL L. FIERRO,

Plaintiff-Appellant,

V.

OTIS R. BOWEN, M.D., Secretary,

Department of Health and Human

Services,

td

Defendant-Appellee.

Appeal from the United States District Court

For the District of New Mexico

(D.C. No. CV#+83+0709JB)

Ray Lewis Fuller of Southern New Mexico

Legal Services, Inc., Las Cruces, New

Mexico , for Plaintiff=Appellant.

Karen J. Behner, Assistant Regional

Counsel (Edwin L. Meese, United States

Attorney General, Washington, D.C.;

William L. Lutz, United States Attorney,

District of New Mexico; Gayla Fuller,

Chief Counsel, Region VI; Patrick A.

Hudson, Principal Regional Counsel, Social

Security Disability, Litigation Branch;

with her on the brief), Dallas, Texas, for

Defendant=-Appellee.

Before McKay, TACHA, and McWilliams,

Circuit Judges.

MCWILLIAMS, Circuit Judge.

Daniel L. Fierro appeals from an

order and judgment of the United States

District Court for the District of New

Mexico which attitued a final decision of

the Secretary of the Department of Health

and Human Services. The Secretary's

decision had denied Fierro’s application

for disability insurance benefits and

supplemental security income benefits. On

appeal, Fierro raises two matters (1) The

Appeals Council had no power of authority

to review the two decisions of the

Administrative Law Judge, each of which

found for Fierro and granted him benefits,

and, alternatively (2) the ultimate

decision of the appeals Council, which

became the decision of the Secretary, is

not supported by the record. We are not

persuaded by either argument and therefore

affirm.

Fierro made application for

disability benefits and | supplemental

security income benefits based on a neck

injury Sustained in an automobile accident

and a residual disability from an old

injury to the left arm. Fierro had been a

barber for some 27 years. Fierro’s

application was administratively denied by

both state and federal agencies. Fierro

then asked for a de novo hearing before an

administrative law judge (ALJ). The

latter, after hearing, rendered a decision

in favor of Fierro and granted him the

benefits sought. Thereafter, the Appeals

Council vacated the ALJ*s decision, and

remanded the case to the ALJ with

direction that there be a pshychiatric

evaluation and psychological testing

followed by further hearings on the case.

On rehearing, at which time Fierro and his

rey

attorney appeared, the ALJ, after taking

additional testimony, again found for

Fierro and granted him the requested

benefits. The Appeals Council thereafter

reviewed the ALJ*s second decision in the

matter and then issued its own decision

that Fierro was not disabled within the

meaning of the Social Security Act and,

accordingly, denied the application. The

decision of the Appeals Board became the

final decision of the Secretary from which

Fierro sought judicial review.!

We must first decide whether we

are going to initially review the decision

of the ALJ and determine whether it is

1 The Social Security Act provides that

federal courts may review the “final

decision” of the Secretary. 42 U.S.C.

Section 405(g). Pursuant to the

Secretary s rulemaking authority under 42

U.S.C. Section 405(a), the Appeals Council

has become the final decision-making body.

See 20 C.F.R. Section 404.9088 (1985).

< ill

yy

supported by substantial evidence, or, by*

pass the ALJ*s decison and proceed to a

consideration of whether the Secretary's

decison is supported by substantial

evidence.” In this regard, Fierro, the

appellant, argues that under 28 C.F.R.

Section 404.970(a) the Appeals Council may

only review a decision of an ALJ if it

finds that one the four conditions

3

specified in the regulation exists. In

2 In our view, we are only concerned with

the ALJ*S second decison, which was

rejected by the Appeals Council. The

ALJ*s first decision was merely vacated,

and the case remanded for further hearing,

which was in fact held.

3 20 C.F.R. Section 404.970(a) provides:

The Appeals Council will review

a case if-+

(1) There appears to be an abuse

ofdiscretionbythe administraé

tive law judge;

(2) There is an error of law;

(3) The action, findings or

conclusions of the administra-

tive law judge are not

Supported by substantial

evidence; or

the instant case, says Fierro, the Appeal

Council indicated that it was reviewing

the ALJ*s decision because of a belief

that the ALJ*s action, findings, or

conclusions were not supported by

substantial evidence, and that, such being

the case, a review of the ALJ*s decision

to determine whether it is, in fact,

Supported by substantial evidence is

necessary in order to first determine

whether the Appeals Council had any power

Or authority to review the ALJ*s decision.

In thus arguing, Fierro relies on Scott v.

Heckier, 768 F.2d 172 (7th Cir. 1985);

Shepherd v. Secretary, 758 F.2d 196 (6th

Cir. 1985); and Parker v. Heckler, 763

F.2d 1363 (llth Cir. 1985).4

(4) There is a broad policy or

procedural issue that may affect

the general public interest.

4 We are advised that petitions for

&Oe

rehearing en banc were granted in both

Shepherd and Parker. As-.of the date of

this opinion, Shepherd has not been

decided by the en banc court, but Parker

has been decided and appears at 788 F.2d

1512 (Lith Cir. i986). The Eleventh

Circuit held en banc that where "the

Appeals Council reverses an ALJ*s decision

on its own motion, judicial review is

limited to determining whether the Appeals

Council*s decision is supported by

substantial evidence." 788 F.2d at 1519-

20.

In Scott, the Seventh Circuit held the

Secretary to its choice to exercise review

of the ALJ*s decision under 20 C.F.R.

Section 494.970(a) and therefore

determined that it had to decide as a

threshold matter whether the Secretary's

decision to conduct “own-motion" review

based on the condition that the ALJ award

was not supported by substantial evidence

was correct. 768 F.2d at 179. Ina later

case, Delong v. Heckler,, 771 F.2d 266

(7th Cir. 1985), however, the Seventh

Circuit recognized the broad power fo the

Secretary in making “own*motion"™ review

under Section 464.969. See our note 5

infra, The claimant in DeLong had sought

review under another section, and the

Seventh Circuit held that the Appeals

Council’s review and subsequent reversal

of the ALJ*s award of shortéterm benefits

waS proper even though the Council had not

sought review itself. "TF the Appeals

Council has, as it unquestionably does,

the power to review a grant of benefits on

its own initiative, it must have that

The Secretary argues that the Secretary,

who, unier the statutory scheme, has

delegated his authority in this regard to

the Appeals Council, makes, in a given

case, the “final and reviewable decision,"

and not the ALJ, citing, inter alia,

Weinberger v. Salfi, 422 U.S. 749, 766

(1975). Further, the Secretary argues

that the provisions of 2@ C.F.R. Section

404.978 (a) spell out when the Appeals

Council will review an ALJ decision, but

that such does not cut back on the

provisions of 20 C.F.R. Section 404.969,

which grants broad authority to the

Appeals Council, under certain time

limitations, to review any action of an

ALJ.> In support of its position, the

power in an appeal initiated by the

Claimant himself." 771 F.2d at 268.

> Section 404.969 provides in pertinent

4

Secretary relies on such cases as Kellough

v. Heckler, 785 F.2d 1147 (4th Cir. 1986);

Howard v. Heckler, 782 F.2d 1484 (9th Cir.

1986); Peylor ¥. Heckler, 765 F.2d 872,

875 (9th Cir. 1985); Lopez*+Cardona v,.

Secretary 747 F.2d 1681 (lst Cir. 1984);

Baker v. Heckler, 730 F.2d 1147 (8th Cir.

1984); and Beavers v. Secretary, 577 F.2d

383, 386 (6th Cir. 1978). The Secretary's

interpretation of its regulations is

reasonable in terms of the words of the

regulation and the purposes of the statute

and is therefore entitled to great

deference. E.I. DuPont de Nemours & Co.

ve Collins, 432 U.S. 46, 54+55 (1977);

Baker v. Heckler, 730 F.2d 1147 1149

(1984).

part: Anytime within 6@ days after date

of a hearing decision or dismissal, the

Appeals Council itself may decide to

review the action that was taken.

+9e

We believe the Secretary*s

position on this procedural matter is the

preferable and correct one, and is

6 to

supported by the weight of authority.

hold that our task is to review the ALJ*s

decision and decide whether it is

supported by substantial evidence, and

ignore the Secretary's decision, is, ina

sense, allowing the tail to wag the dog.

A hearing before an ALJ is an intermediate

step, albeit an important one, in the

6 In addition to cases cited in text, see

Deters v. Secretary, 789 F.2d 1181 (5th

Cir. 1986); Lovejoy v. Heckler, 79@ F.2d

1114 (4th Cir. 1986); and Parker v. Bowen,

788 F.2d 1512 (Llth Cir. 1986). In White

v. Schweiker, 725 F.2d 91, 93#94 (10th

Cir. 1984), in a factual situation

different from that of the instant case,

this court recognized the Appeals

Council*s full power to substitute its

judgment for that of the ALJ, citing,

inter alia, Beavers v. Secretary, 577 F.2d

383 (6th Cir. 1978).

=l1¢@*

*

:

overall scheme set up by statute and

implementing regulations for the

disposition of applications for disability

benefits. The Social Security

Administration has hundreds of

administrative law judges deciding in the

aggregate hundreds of thousands of

disability cases a year. Review of ALJ

decisions under Section 404.969 is a means

to achieve critically needed consistency.

DeLong v. Heckler, 771 F.2d 266, 268 (7th

Circ. 1985).

In view of its overriding power to

review any decision of an ALJ, the fact

tnat the Appeals Council initially

assigned as its reason for review 286

C.F.R. Section 404.970 (a) (3) does not

mean that we first examine the ALJ° 5

decision and determine whether it is

Supported by substantial evidence. Si

48

~

-lle

in this regard, Lopez#*Cardona, 747 F.2d at

1683, where the First Circuit, after

noting that the Appeals Council had

initially referred to 20 C.F.R. Section

464.970 (a)(3), i.e., lack of substantial

evidence, as grounds for reviewing the

ALJ*s decision, went on to state that even

though it might later develop, on actual

review, that the ALJ*s decision was

Supported by substantial evidence, the

"Appeals Council did not violate its

regulations by initiating review." In

this same connection, see also Baker v.

Heckler, 730 F.2d at 1150, where the

Eighth Circuit commented as follows:

Secondly, Baker*s argument

overlooks the fact that the

decision by the Appeals Council to

Single out a given case for own-=

motion review necessarily occurs at

the beginning of the Appeals Council

process. The Council may believe

for example, that the case fits one

of the four categories listed in

-]2+

the regulations, but it may turn

out, after full examination, the

at this initial impression was

mistaken. We do not believe that

the Council is then required to

abandon its own review and to allow

the ALJ's decision to stand, even

when it has a definite and firm

conviction that the ALJ was mistaken.

The question of power to review

must, aS a practical matter, be

addressed and decided at a

preliminary state, not after the

review is completed, at a time when

a negative answer to the question

would render the whole review

process nugatory.

(Emphasis added). See also Razey v.

Heckler, 785 F.2d 1426, 1428+29 (9th Cir.

1986).

Being of the firm view that the task

of the judiciary in a situation of the

present sort is to review the decision of

the Secretary, and not that of the ALJ, we

proceed to consider whether the findings

of the Secretary are supported by

substantial evidence, which, if they are,

is, of course, conclusive on the matter.

-13

42 U.S.C. Section 405(g). Substantial

evidence has been defined as “such

relevant evidence as a reasonable mind

might accept as adequate to support a

conclusion.” Richardson v. Perales, 462

U.S. 389, 401 (1971); Teter v. Heckler,

775 F.2d 1104, 1105 (10th Cir. 1985).

However, where the Secretary, acting

through the Appeals Council, overturns a

decision of the ALJ granting benefits, and,

in so doing, differs with the ALJ*‘s

assessment of witness credibility, the

Secretary should fully articulate his

reasons for so doing, and then, with

heightened scrutiny, we must decide

whether such reasons find support in the

record, Webber v. Secretary, 784 F.2d

293, (8th Cir. 1986); Howard v. Heckler,

782 F. 2d at 1487; Lopez*®Cardona, 747 F.2d

at 1084.

+146

Our study of the administrative

record leads us to conclude that the

Secretary fully articulated his reasons

for Ae ee ALJ and that such are

supported by the record. Fierro’s claim

of disability is based on his own

testimony and the testimony of his

personal physician, the latter testifying

that Fierro was totally and permanently

disabled. Fierro’s subjective complaint

of pain is by itself insufficient to

establish disability. See 42 U.S.C.

Section 423 (d) (5) (a); 20 C.F.R. Section

404.1529; Taylor v. Heckler, 765 f.2d 872,

See “eee Ci. 1985). In rejecting the

testimony of Fierro’s doctor, the Appeals

Council, in a commendably detailed

explanation, noted, inter alia, that

clinical testing simply did not

corroborate the doctor’s opinion of total

~15*

AVAILABLE COPY ji)

and permanent disability and that

testimony of an orthopedic surgeon, a

neurologist, a clinical psychologist, and

a caviehi act iat. each of whom personally

examined Fierro, was, essentially, at odds

with the testimony of Fierro and his

doctor. The combined testimony of these

other doctors supports the conclusion that

Fierro was not capable of “at least light

level work activity," which includes

barbering. In this regard, and by way of

example only, the clinical psychologist

testified that if Fierro is compensated

for his claimed disability, it will become

a “way of life."

Judgment affirmed.

~166

ote

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. 838&7098JB

DANIEL L. FIERRO,

AT

Plaintiff, ALBUQUERQUE

Ve SEP 18, 1985

MARGARET M. HECKLER, Secretary,

Department of Health and Human

Services,

Defendant.

MEMORANDUM OPINION

This is an action pursuant to 42

U.S.C. Section 4085(g) to review the final

decision of the Secretary of Health and

Human Services that plaintiff is not

entitled to disability benefits under

Title II of the Social Security Act, 42

i.8.C. Section €161(1) 2nGg 423, ene

Supplemental security income benefits

based on disability under Title XVI of the

1 Defendant

act, 42 U.S.C. Section 1381la.

filed a Motion to Affirm Administrative

Agency Decision with supporting

memorandum, Plaintiff filed an opposing

memorandum,

Plaintiff applied for disability

benefits on October 6, 19880 alleging he

became disabled on August 36, 1980 because

of a neck injury and an injury to his left

arm. Plaintiffs application was denied

both initially and upon reconsideration at

the administrative level. Plaintiff

requested a de novo hearing before an

Administrative Law Judge (ALJ). A hearing

was held, and on January 19, 1982 the ALJ

lall citations to regulations will be to

the reguiations for disability

determinations under Title i:

Supplemental security income regulations

tract the language of the disability

regulations verbatim, so the parallel

citations will not be given.

21864

rendered a decision finding Plaintiff to

Ebe disabled. (R. 153854.) This decision

was apparently rejected by the Appeals

Council, and the case was remanded to the

ALJ for further consideration. A second

hearing was held, and the ALJ again issued

a favorable decision. (R. 18824). On

April 14, 1983 the Appeals Council

reviewed the decision on its own motion,

see 26 C.F.R. Section 404.969 (1984) and

reversed the ALJ*s decision. Plaintiff

then filed this action seeking judicial

review of the Secretary's decision.

Plaintiff°s first allegation of error

is that the record before the Court is

incomplete, which precluded adequate

judicial review. The following documents

2The Appeals Council’s rejection of that

decision is not in the record before this

ECourt. (R. 182.)

F196

are not inlcuded in the record on appeal:

Plaintiffs application for Supplemental

Security Income, the first notice to

Plaintiff denying disability benefits, two

preliminary disability determinations and

the Appeals Council*s remand order dated

March 1424 :1982. (RsOcy Ax) Plaintiff

contends that the record is inadequate to

determine whether the administrative

proceedings were conducted in accordance

with the applicable regulations, and cites

Bailey v. Heckler, 576 F.Supp. 621 (D.

D.C. 1984) as support for this

proposition. In Bailey the district court

found that judicial review was impossible

because the record was incomplete

regarding a determinative fact,

Plaintiff*\s educational level. The

portion of the hearing transcript where

the claimant discussed his ability to read

820%

BEST AVAILABLE COPY

and write were inaudible. Id. at 6228623.

‘That is not the case in the action before

this Court. The complete hearing

transcript and all of the medical evidence

are in the record. Although several

administrative documents are not in the

record, these are not necessary to the

Court's review. Perhaps the most

important document not included in the

record is the Appeals Council’s remand

order, but even that is not necessary,

because the Court has before it the

Appeals Council*s final decision, and the

ALJ*s decision which was reviewed by the

Appeals Council. Although the Court does

not condone the Secretary's loss of these

documents, in this instance a review on

the merits if not precluded.

The medical evidence can be

Summarized as follows. Plaintiffs

2216

treating physician, Dr. Rodriguez, first

treated Plaintiff in February 19886.

Plaintiff was admitted to a hospital in

September 1988 for back pain, cervical

Strain and migraine headaches. An

examination by Dr. Rodriguez revealed

tenderness and pain in Plaintiff*s neck

and spine. (R. 81481). A lumbar spine

series Yrevealed degenerative disc

narrowing between L445 and L58S1, an old

avulsion fracture at L4, and mild to

moderate spondylosis”

of the lumbar spine.

(R. 86.) Plaintiff was treated

conservatively and did very well.

In October 1980, Dr. Rodriguez

reported that Plaintiff*s condition was

the same, with continued neck and lower

3pegenerative joint disease affecting the

lumber vertebrae and disks, causing pain

and stiffness. Doralnd*s Medical

Dictionary at 1239 (26th ed. 1981)

#226

, itil

» BEST AVAILABLE COPY

spine pain, stress ulcer syndrome,

gastroduodenitis, acute anxiety reaction

and depression. (R. 91892.)

Plaintiff was admitted to the

hospital in April 1981 for migraine

headaches and breast pain. He was treated

| conservatively with good results. (R. 98)

While Plaintiff was hospitalized, a

consultative examination was performed by

Dr. Bieganowski. Plaintiff had a full

range of neck motion without pain,

although there was tenderness in the area.

A motor examination was normal, with full

strength in all muscle groups. Based on

these findings Dr. Bieganowski diagnosed

4

cervical myositis and recommended

electromyograms and nerve conduction

4Inflammation of a voluntary muscle.

Dorland*s Medical Dictionary at 863 (26th

ed. 1981).

e236

studies of the neck. He noted that

Plaintiff had little intention of

returning to work, except possibly part®

time, and Plaintiff*‘s illness was

therefore thought to be difficult to

treat. (R. 1018103.) The day after Dr.

Bieganowski*S consultation, the

recommended electrodiagnostic study of

Plaintiff*s upper extremities, shoulder

girdles and neck was performed, and the

results were normal, (R. 118), as were

motor nerve conduction studies. (R.119826.)

In June 1981, Dr. Rodriguez stated

that Plaintiff‘s medical problems had not

improved, that he had local neck pain and

joint pain, but that there were “no

definite stiff joints or deformed joints

to any degree." Dr. Rodriguez stated that

Plaintiff is totally and permanently

disabled. (R. 96.)

#248

Plaintiff was hospitalized once again

Bin April 1982, complaining of neck and

/ lower back pain, with numbness in his arms

and legs. Plaintiff was found to have

cervical strain and osteoarthritis. He

was given medications and physical therapy

and released after improvement. (R. 121,

132.)

In January 1983 Dr. Rodriguez

reported that Plaintiff has a great deal

of pain and muscle spasm upon flexion and

extension of his trunk. Dr. Rodriguez

Stated that he believes Plaintiff has a

serious illness even though the EMG and X#

rays results have been negative. (R. 149.)

Plaintiff was examined by Dr.

Boggiano, an orthopedic surgeon, in

December 1988. Dr. Boggiano stated that

in answering questions about all of the

Systems of his body, Plaintiff had

e256

complaints of problems with every system.

Dr. Boggiano’s examination revealed that

Plaintiff was not in pain, and that

although he wore a cervical collar to the

office, he didn’t need it. Dr. Boggiano

stated that when Plaintifé undressed and

dressed himself, he moved his spine

perfectly with no signs of pain or

weakness. Plaintiff had an excellent and

asymtomatic range of motion of the

cervical dorsolumbar spine. There was no

tenderness over the spinous processes, and

no paravetebral muscle spasm. Plaintiff

had full range of motion of all of the

joints of his upper body. There were no

signs of atrophy, his grips were strong,

and the motor, sensory and reflex tests

were all normal. Upon examination of the

lower extremities Dr. Boggiano noted a

2268

Yslight genu valgus.” Plaintiff walked

Buitn a normal step, could squat and could

Dies tocn the straight legs raising test.

There were no signs of atrophy. X4rays of

the cervical spine showed spondylophytes

on the anterior borders of the lower

cervical vertebrae, which Dr. Boggiano

feels is “a very common condition at this

age." (R. 89.) The intervertebral discs,

facets, pedicles and vetebral bodies were

all within normal limits. Dr. Boggiano

diagnosed multiple symptoms of functional®

Origin, and an asymptomatic cervical and

lumbar spine which radiologically exhibits

spondylophytes. Dr. Boggiano concluded

that Plaintiff could perform a manual type

>Knock#knee. Dorland*s Medical Dictionary

at 547 (26th ed. 1981).

®saia of disburbaces of function with no

detectable organic cause. Id. at 531.

w278

of work for eight hours a day, including

his past relevant work as a barber. Dr.

Boggiano strongly recommended that

Plaintiff be seen by a psychiatrist. (R.

88689.) Plaintiff was evaluated by a

psychologist and a nauvehtesulin in April

1982. Br. Curtie, a clinical

psychologist, noted that Plaintiff did not

appear depressed or anxious, although his

affect was quite flat generally.

Plaintiff*‘s concentration was poor, his

abstract thinking was impaired, and he had

a generalized perceptual deficit. Dr.

Curtis noted that none of these deficits

are significant handicaps for working.

Regarding Plaintiff*s complaints of pain

Dr. Curtis stated the following:

However, the Rorschach is

essentially normal, and we

certainly cannot confirm the

presence of any type of

mental process disorder in

thinking. He is fairly open

e288

on his Rorschach, and this is

unusual for a man with as

many somatic complaints as he

has. This Rorschack really

raises the question of #* Are

all of these complaints based

upon real pain or it there

some exaggeration or

malingering?

Certainly, I can say with

pretty sound evidence that he

is not disabled by any major

psychological disorder.

Dr. Curtis went on to say that if

‘Plaintiff is not compensated, his pain

‘will become a way of life for him.

Plaintiff was thought to be capable of

doing any number of jobs. Dr. Curtis”

Final diagnosis was psychogenic’

pain

Dr. McCann, a psychiatrist, also

examined Plaintiff in April 1982. Bf.

THaving an emotional or psychologic

Origin, as opposed to an organic basis.

Dorland*s Medical Dictionary at 1091 (26th

ed. 1981).

e296

BEST AVAIL

McCann noted that Plaintiff wore a neck

collar during the interview and appeared

to be in a mild degree of discomfort.

There appeared to be a mild restriction of

Plaintiff*s daily activities. There was

no evidence of jenetiakie depression or a

basic thinking disorder. Dr. McCann

concluded that Plaintiff*s psychiatric

examination was within normal limits,

Plaintiff testified at the hearing

that he can’t move his body suddenly

without dizziness and nausea and that he

has lower back and neck pain. He cant

sit or stand for long periods and he can‘t

litt heavy objects. (R. 45649.)

The limited function of this Court on

judicial review under 42 U.S.C. Section

485(g) is to determine whether there is

substantial evidence in the record, taken

as a whole, to support the findings and

& 30%

ABLE COPY

ecisions of the Secretary. Hedge v.

Richardson, 458 F.2d 1665 (16th Cir.

0 a ae

1972). If supported by substantial

evidence, the Secretary's findings are

conclusive and must be affirmed,

Richardson v. Perales, 402 U.S. 389

(1971). Substantial evidence is more than

a scintialla and is relevant evidence

which a reasonable mind might accept as

adequate to support a conclusion, Id.

The burden is on Plaintiff to prove

his disability by establishing an

impairment which lasts at least twelve

months and prevents him from engaging in

Substantial gainful activity. 20 C.F.R.

Section 404.1505 (1984); Valentine v.

Richardson, 468 F.2d 588 (1@th Cir. 1972).

However, once a claimant shows he is not

able to perform his past relevant work,

the burden shifts to the Secretary to show

B31e

the claimant has the residual ability to

do some other types of work. Kelback v.

Harris, 634 F.2d 1304 (10th Cir. 1980).

The Secretary’s conclusion that

Plaintiff is not disabled is based on the

finding that Plaintiff can perform his

past relevant work as a barber, which

requires continuous standing and minimai

lifting. (2. £3, @702 Chee dtice:

contrary to Plaintiff*s assertions, the

burden never shifted to the Secretary, but

remained on the Plaintiff to prove his

disability. If the Secretary*’s conclusion

that Plaintiff can perform the work of a

barber is supported by substantial

evidence this Court is bound by that

Finding. Byron v. Heckler, 1232, 1234

(106th Cir. 1984).

This Court does find substantial

evidence in the record to support the

e328

Cp ee? ee, —

Secretary’ s findings, in spite of the fact

Mthat, as Plaintiff points out, a

" Plaintiff*s treating physician's testimony

“must be accorded substantial weight.

Byron v. Heckler, 742 F.2d at 1235. In

this case the Appeals Council complied

c

3 with the requirement of Byron that “{i}f

~ the opinion of the claimants physician is

- to be disregarded, specific legitimate

reasons for this action must be set

forth." Id. (citation omitted). The

Appeals Council*s opinion contains the

following passage indicating its reasons

for disregarding Dr. Rodriguez opinion.

There is a stark contrast

present in the severity of

the fingings reported by

neurologist Bieganowski and

orthopedist Boggiano with

regard to the claimants

musculoskeletal impairment.

Dr. Rodriguez*s reports,

covering the period from

September 1986 through

January 1983, consistently

2332

mentions the presence of

acute neck pain, severe

muscle spasm and unspecified

amounts of motion loss.

Contrastingly {sic}, Dr.-:

Boggiano, who is a Boardé

certified octhopedist,

diagnosed multiple symptoms

of functional origin and an

asymptomatic cervical and

lumbar spine. Dr. Boggiano’s

report details a very

complete examination of the

claimant, whereas Dr.

Rodriguez’s reports contain

Few clinical findings in

support of the multiple

diagnoses he has rendered.

Dr. Bieganowski, who examined

the claimant at Of «

Rodriguez s request on April

ee 2 Lai reported no

significant motor, sensory,

or reflexive abnormalities.

He did note tenderness upon

palpation of the claimants

cervical occipital region and

some pain upon full extention

of the claimant’s neck,

however, neither Dr.

Bieganowski*s nor Dr.

Boggiano’s reports detail an

impairment nearly as severe

as that described in the

reports from Dr. Rodriguez.

X#®ray examinations have shown

the presence of moderate

osteoarthritis in the

claimant*s cervical and

&34¢

s Sc is ait i i daa a :

! , eke eee Di ie alg Tr : :

Ae aac oo pie oe) Et eg NEN oS RR ge

Ca ~ SAAS. E EZ Ded Whee REE Oe ed ce eee

:

(R.

lumbosacral spine. Electroe

myographic and nerve

conduction velocity studies

have been negative. These

studies corroborate more

closely the findings of Dr.

Boggiano than those of Dr.

Rodriguez. Dr. Rodriguez has

repeatedly stated that the

claimant is permanently

incapable of any work

activity. Said opinion has

not been lightly regarded by

the Council and could be

controlling ina given case,

However, the weight to be

accorded Dr. Rodriguez’s

opinion must be determined by

the extent to which his

opinion is supported by

specific clinical and

laboratory findings. In this

case, Dr. Rodriguez’s reports

are not well documented with

such findings. He describes

an impairment which is much

more severe than that

indicated by laboratory

studies and by other

physician’s of record. The

Appeals Council believes that

the opinion of Dr. Rodriguez

is contraverted by evidence

from other sources which is

more persuaSive as to the

true ability of the claimant

to perform work#trelated

functions,

11#12)

&35¢

This Court must not weigh the

evidence, and can not substitute its

discretion for that of the agency.

Broadbent v. Harris, 698 F.2d 407, 414

(16th Cir. 1983); Cagle v. Califano, 638

F.2d 219 (1@th Cir. 1981). The Appeals

Council properly weighed the conflicting

evidence, giving specific and legitimate

reasons for not according controlling

weight to Dr. Rodriguez opinions, and its

conclusion will not be disturbed by this

Court.8

Splaintifé States in his argument that an

independent, objective medical examination

upon his hospitalization in 1982 showed

that Plaintiff was in chronic distress,

with marked limitation of motion,

Plaintiff's Memorandum at 9, filed June

17, 1985. A review of the record at the

page indicated by Plaintiff reveals that

the examination report quoted by Plaintiff

was completed by Dr, Rodriguez,

Plaintiff*s treating physician, not by an

independent physician as asserted by

Plaintiff.

=368

Plaintiff contends that the Appeals

Council erred by ignoring the physicians

Sreports favorable to Plaintiff and

Plaintiff°s complaints of pain. Plaintiff

also alleges error in the Aogopeals

Council*s rejection of the ALJ*s findings

that Plaintiff°s complaints of pain are

; credible.

! Plaintiff°s contentions are not well

taken. The ALJ did not specifically Find

3 that Plaintiff€*s complaints of pain were

credible. The ALJ stated that Plaintiff*s

psychogenic pain disorder “is not of a

; severe nature and therefore it does not

Significantly affect his maximum sustained

work capability." (R. 23.) The ALJ went

on to find that Plaintiff is unable to

pies ta re.

perform sedentary work because of his

Physical condition only. (Id.) In light

of these findings the Court does not agree

e374

that the Appeals Council rejected the

ALJ*s findings that Plaintiff£*s complaints

of pain were credible.

The Appeals Council did consider the

physician’s reports that were favorable to

Plaintiff, as reflected in the passage

quoted at pp. 9 and 10 of this Opinion,

supra, and also considered Plaintiff*s

complaints of pain, as shown by the

following passage.

In concluding that the

claimant has the residual

capacity for light work

activity, the Appeals Council

does not wish to minimize the

factor of pain and its effect

on the claimant*s ability to

function, The claimant has

consistently alleged dis#®

abling pain, yet on December

2, 1980, he told Dr. Boggiano

that he prepares breakfast

for his children, cuts theirc

hair, works in his yard,

drives his car and shops. He

does jumping*jacks and walks

several miles per day. These

activities are not consistent

with the claimants

allegation of disabling pain

#386

ee

and would not be inconsistent

with the Council*s contention

that the claimant retains the

ability to perform light work

activity. Some pain

medication as detailed in

Exhibit 27 ¢ has been

prescribed by Dr. Rodriguez,

however, the type and dosages

and medications would not be

expected to significantly

interfere with the claimant's

ability to perform work+

related functions, Further,

the claimant has not alleged

any untoward side#fteffects

from his medications, The

report of Dr. Boggian»

indicates that many of the

claimant's complaints may be

functional in nature, Ne.

Curtis” report raises a

distinct possibility that the

" claimant may be exaggerating

his somatic complaints. In

view of the foregoing, the

Council has concluded that

the claimant’s pain does not

Significantly diminish his

Capacity to pecform light

work activity.

NTE ye hy

(R. 12+#13.) These findings are supported

by Substantial evidence.

Plaintiff€*s last assertion of error

is that the Secretary improperly applied

ee

2398

the. “area. The grids are medical

vocational guidelines used by the

Secretary to assist in the determination

of social security claims. The guidelines

are only used, however, if the Secretary

determines that a claimant cannot perform

his past relevant work. 20 C.F.R. Section

404.1426(a) & (e). The Secretary found

that Plaintiff can perform his past

relevant work as a barber, (R. 13.), and

did not apply the grids to Plaintiff*s

claim. Plaintiff€*s contention that the

Secretary improperly applied the grids is

not well taken.

Based upon the record as a whole, the

Court finds that the Secretary's decision

1S supported by substantial evidence, and

will be affirmed,

UNITED STATES DISTRICT JUDGE

-40#

Mv: Swit? 4,5

—

Ae EA

; attorneys

RAY

Petitioners

cectify

Petition,

CERTIFICATE

States Supreme Court, do hereby

that on this 19th day of November,

served a copy of the foregoing

by mail, postaye prepaid to tne

of record herein for all parties:

Solicitor General

Department of Justice

Washington, DC 205386

Karen J. Behner, Asst. Reg.

Counsel Office of the General

Counsel Dept. of Health & Human

Services

1206 Main Tower, Room 13340

Dallas, TX 75202

SH~(

RAY LEWIS FULLER

LEWIS FULLER, an attorney for

and a member of the Bar of the

CERTIFICATE

I, RAY LEWIS PULLER, an attorney for

Petitioner and a member of the Bar of the

United States Supreme Court, do hereby

certify that on this 5th day of December,

1986, I served a copy of the foregoing

supplemented Petition, by mail, postage

prepaid to the attorneys of record herein

for all parties:

Solicitor General

Department of Justice

Washington, DC 26536

Karen J. Behner, Asst. Reg.

Counsel

Office of the General Counsel

Dept. of Health & Human

Services

1200 Main Tower, Room 13306

Dallas, TX 75262

RAY LEWIS FULLER