# Petition for Writ of Certiorari — Fierro v. Bowen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2485%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 480 U.S. 945 ## Text 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 WUOKOLIUN PRESEN CED i P » ie ‘ ’ , . t : ry A aes neChet Chi Pia Vi WAL 3 ee MAM NLS CEA 2OG S b&b ina by 223 OD E@guiation ad dt? ( br yiny tibet 2NGLCLtOns Ltyidery Wich OWNne-Motilon , - + ee << - ' . . , SViecw of Mb AUGMiNsstcuitive Law Phieaty a 4 ! 2 isc ‘ tli ic LAE at 8 ' ’ ’ t . £ t * a-Ft bp ave ba ay | 4 cabal s fae Ties I) rn ‘3 i ; z Ff & takes ear ® & al + s >> ber ry 34 3 lmarila Rabe & ids se ae oth i - FN +-i? 6? ? at * VELOSO IN, pe we | 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 Plaintiff€é 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2485%3A1. Public record. Not legal advice.