Petition for Writ of Certiorari — Johnson v. Bowen

Supreme Court, U.S,

FILED

SEP 8 1988

JOSEPH F. SPANIOL JR

CLERK

In The Supreme Court Of The Anited States

OCTOBER TERM 1986

BERLIN B. JOHNSON

PETITIONER

V.

OTIS R. BOWEN,

SECRETARY OF HEALTH AND

HUMAN SERVICES

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Hon. Wolodymyr Iwan Cybriwsky

John Kirk Law Offices

715 North Lake Drive

Prestonsburg, Kentucky 41653

(606) 886-8389

Counsel Of Record

{7

QUESTIONS

I

Whether the Secretary’s refusal to consider evidence

previously submitted in Petitioner’s claim constitutes

actions that are arbitrary and capricious.

i

Whether the Secretary’s failure to hold a fair hearing

on all the evidence constitutes a violation of due pro-

cess that should be accorded the Petitioner.

ll

LIST OF PARTIES

The parties to the proceedings below were the peti-

tioner, Berlin B. Johnson, and the respondent was

Otis R. Bowen, Secretary of Health and Human Ser-

vices.

The Respondent before this Court is Otis R.

Bowen, Secretary of Health and Human Services.

Petitioner, Berlin B. Johnson, is an individual and as

such has no parent companies, subsidiaries, or af-

filiates to list pursuant to Rule 28.1.

111

TABLE OF CONTENTS

Page

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REASONS FOR GRANTING THE WRIT ........... 7

1. The Secretary’s actions are so arbitrary and

capricious as to be unsupported by substantial

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2. The Secretary’s actions have deprived the Peti-

tioner due process in his administrative hearing .... 9

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(Opinion and Judgment of Court of Appeals, Order

denying Petition for Rehearing by Court of Ap-

and Memorandum Opinion of District Court).

1V

TABLE OF AUTHORITIES

Cases: Page

Alaska Roughnecks and Drillers Association v. NLRB,

G55 Bd 7520 Che. 1977) occnscccsaccninssssonncsessosssnece 9

Batterton v. Francis, 432 U.S. 426 (1977) .....cssceseeees 7

Califano v. Sanders, 430 U.S. 99 (1977) ....cccesccsseseeeees 8

Farris v. Sec. of HHS, 773 F. 2d 85 (6th Cir. 1985) ..... 8

Fleming v. Nestor, 336 U. S. 603 (1960) .........scesceeeees 9

Hannah v. Larche, 363 U.S. 420 (1960) ........ceesseeeees 9

Haywood v. Califano, 699 F. 2d 277 (6th Cir. 1983) .. 5

Heckler v. Campbell, 461 U. S. 458 (1983) .......eeeeeeee 8

Kane v. Heckler, 776 F. 2d 1130 (3rd. Cir. 1985) ....... 6

Richardson v. Perales, 402 U. S. 389 (1971) ............ 7,9

Schweiker v. Gray Panthers, 453 U. S. 34 (1981) ........ 7

Statutes and Rules:

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Federal Regulation 55349 (1978) ........ssscssscscesseseeeees 7

1

3n The Superme Court Of The United States

October Term 1986

BERLIN B. JOHNSON

Petitioner

V.

OTIS R. BOWEN,

Secretary of Health and Human Services

Respondent

Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

The petitioner, Berlin B. Johnson, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Ap-

peals for the Sixth Circuit rendered on April 30, 1986.

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth

Circuit has not been reported, and is reprinted in the

Appendix hereto, p. 1a, infra.

Likewise, the Order denying the Petition for

Rehearing is also reprinted in the Appendix hereto,P.

4a, infra.

Finally, the Memorandum Opinion decision of the

United States District Court for the Eastern District

of Kentucky, Pikeville Division, (Unthank, D.J.) has

not been reported. It is reprinted in the Appendix

hereto, p.5a, infra.

2

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C. §405a

(g), the petitioner brought this suit in the Eastern

District of Kentucky. On March 29, 1985, the

Eastern District denied the petitioner’s Motion for

Summary Judgment. See p. 5a, infra.

On petitioner’s appeal, the Sixth Circuit on April

30, 1986, entered a judgment affirming the Eastern

District’s orders and directing the petitioner’s Com-

plaint be dismissed on the grounds that the Secretary’s

determination was supported by substantial evidence.

See p. 1a, infra.

A Petition for Rehearing was filed, but the Sixth

Circuit denied said petition on June 11, 1986. See p.

4a,infra.

The jurisdiction of this Ccurt to review the judg-

ment of the Sixth Circuit is invoked under 28 U.S.C.

§1254 (1).

STATUTES INVOLVED

42 U.S.C. §405(g) Judicial Review

Any individual, after any final decision of the

Secretary made after a hearing to which he was a par-

ty, irrespective of the amount in controversy, may

obtain a review of such decision by a civil action com-

menced within sixty days after the mailing to him of

notice of such decision or within such further time as

the Secretary may allow. Such action shall be

brought in the district court of the United States for

the judicial district in which the plaintiff resides, or

has his principal place of business, or, if he does not

reside or have his principal place of business within

3

any such judicial district, in the United States District

Court for the District of Columbia. As part of his

answer the Secretary shall file a certified copy of the

transcript of the record including the evidence upon

which the findings and decision complained of are

based. The court shall have the power to enter, upon

the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

Secretary, with or without remanding the cause for

rehearing. The findings of the Secretary as to any fact

if supported by substantial evidence, shall be con-

clusive, and where a claim has been denied by the

Secretary or a decision is rendered under subsection

(b) of this section which is adverse to an individual

who was a party to the hearing before the Secretary,

because of failure of the claimant or such individual to

submit proof in conformity with any regulation

prescribed under subsection (a) of this section, the

court shall review only the question of conformity

with such regulations and the validity of such regula-

tions. The court may, on motion of the Secretary

made for good cause shown before he files his answer,

remand the case to the Secretary for further action by

the Secretary, and it may at any time order additional

evidence to be taken before the Secretary, but only

upon a showing that there is new evidence which is

material and that there is good cause for failure to in-

corporate such evidence into the record in a prior

proceeding; and the Secretary shall, after case is

remanded, and after hearing such evidence if so

ordered, modify or affirm his findings of fact or its

decision, or both, and shall file with the court any ad-

ditional and modified findings of fact and decision,

and a transcript of the additional record and

testimony upon which his action in modifying or af-

firming was based. Such additional or modified fin-

4

dings of fact and decision shall be reviewable only to

the extent provided for review of the original findings

of fact and decision. The judgrient of the court shall

be final except that it shall be subject to review in the

same manner as the judgment in other civil actions.

Any action instituted in accordance with this subsec-

tion shall survive notwithstanding any change in the

person occupying the office of Secretary or any vacan-

cy in such office.

Fifth Amendment to the United States Constitution

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in ac-

tual service in time or War or public danger; nor shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be

taken for public use, without just compensation.

STATEMENT OF THE CASE

Petitioner is a fifty-one (51) year old married man

who resides with his wife and one (1) dependent child

in an isolated and rural Eastern Kentucky community

named Wayland, Kentucky.

Mr. Johnson’s mental as well as physical im-

pairments have prevented him from engaging in any

substantial gainful activity since June 21, 1977.

From an intellectual standpoint, Mr. Johnson had

an incomplete second grade education which limited

him to being able to sign his name. Mr. Johnson can-

2

not read even the “stop” in a roadway sign

(Transcript of Record, hereinafter “TR”, p. 29).

Moreover, Mr. Johnson’s functional illiteracy is com-

pounded by his mental retardation. Both a clinical

psychologist as well as a psychiatrist who examined

the Petitioner at the request of the Secretary found

the Petitioner to have mild mental retardation, having

an I. Q. of 60. (TR 60). Finally, even the Hearing Of-

ficer observed the petitioner to be of low intelligence

at his formal hearing on February 15, 1984. (TR 11).

In spite of his mental limitations, Petitioner suceed-

ed in becoming a productive member of society. For

some twenty-three (23) years, Mr. Johnson labored as

an underground coal miner in our nation’s mines.

This employment was forced to end on June 21, 1977

when the Petitioner’s coal worker’s pneumoconiosis

had progressed to a point where it prevented Mr.

Johnson from any sort of laboring. Coal Worker’s

Pneumoconiosis is a respiratory disease caused by

prolonged exposure to coal dust and other noxious

fumes found in coal mining. It is both progressive

and irreversible in nature. See Haywood v. Califano,

699 F. 2d 277 (6th Cir. 1983).

After being forced to stop mining due to his

respiratory condition, Petitioner filed for benefits

under the Kentucky Workers’ Compensation Act,

and Federal Black Lung Act, 30 U.S.C. §901. Both

programs have found that Mr. Johnson became total-

ly and permanently disabled as the result of his coal

worker’s pneumoconiosis. Although the Petitioner

recognizes that these adjudications of total and perma-

nent disability were not binding on the Social Securi-

ty Administration, said determinations should have

been entitled to substantial weight before the

6

Secretary of Health and Human Services. Kane v.

Heckler, 776 F. 2d 1130, 1135 (3rd Cir. 1985). Instead,

they appear to have been ignored.

Petitioner filed two (2) prior applications for Social

Security benefits which were denied. The current ap-

plication for benefits was filed February 8, 1983. Mr.

Johnson continued to argue that his disability com-

menced back in June 1977, but in light of the

Secretary’s unwillingness to revise or reopen those

previous denials, he argued, in the alternative, that his

disability became compensable under the Act bet-

ween October 21, 1982 through December 31, 1982.

In spite of uncontested medical evidence and

testimony, the Secretary held that the Petitioner had

no “‘severe” impairment and denied his claim.

Throughout this claim, Petitioner contends that the

uncontradicted medical evidence demonstrates that

his combined mental and physical impairments satisfy

the severity requirements set forth in Listing 12.05 (c),

of the Secretary’s Listings of Impairments, 20 CFR

§404.1520 (d) (referring to Impairments | listed in 20

CFR part 404, Subpart P, Appendix 1).

Listing 12.05 (c) provides that if the Petitioner has

an I.Q. of 60 to 69, and a physical or other mental im-

pairment imposing additional and significant work

related limitations of function, then the Secretary

acknowledges that these impairments are so severe

that they prevent a person from pursuing and gainful

work. Petitioner notes that the mental impairment

has been long-standing and that the respiratory im-

pairment became apparent on June 21, 1977.

For these reasons, the Petitioner contends that the

7

Secretary’s denials can only be viewed as arbitrary and

capricious.

REASON FOR GRANTING THE WRIT

I

The Secretary’s actions are so arbitrary and

capricious as to be unsupported by substantial

evidence

The Social Security Act has been with us since

August 14, 1935. See Act of August 14, 1935, 49 Stat.

620. It affects nearly all of us. The system’s ad-

ministrative structure and procedures, with its essen-

tial determinations numbering into the millions, are

of a size and extent difficult to comprehend. But as

the Secretary argued in Richardson v. Perales, at its

essence, “‘such a system must be fair - and it must

work” 402 U. S. 389, 399 (1971).

Recognizing the enormous task before the Social

Security Administration, Congress “‘conferred on the

Secretary exceptionally broad authority to prescribe

standards for applying certain sections of the Social

Security Act’ pursuant to 42 U. S. C. §405 (a). See

Schweiker v. Gray Panthers, 453 U. S. 34 (1981); Bat-

terton v. Francis, 432 U. S. 416, 425 (1977).

In 1978, the Secretary promulgated regulations im-

plementing the definition of ‘“‘disabled.’’ See Fed Reg.

55349 (1978).

Those regulations recognize that certain !m-

pairments are so severe that they prevent a person

from pursuing any gainful work. See 20 CFR

8

§404.1520 (d) (1982). A Claimant vho establishes that

he suffers from one of these impairments will be con-

sidered disabled without further inquiry. Heckler v.

Campbell, 461 U. S. 458, 460 (1983).

The uncontradicted medical evidence supports the

Petitioner’s contention that his combined mental

retardation along with his respiratory impairment

meet Listing 12.05 (c) since June 21, 1977, or at the

latest, October 21, 1982.

The Secretary’s response, which has been affirmed

by both lower courts, is that the Plaintiff’s previous

denials will not be reopened in spite of the unam-

biguous requirements posed by Listing 12.05 (c).

Both lower courts have noted that reopening earlier

determinations is within the Secretary’s discretion

and is not reviewable. See Califano v. Sanders, 430 U.

S. 99, 109 (1977).

However, neither the Secretary nor the courts have

explained how the Secretary’s refusal to reopen prior

determinations would justify the Secretry’s refusal to

evaluate proper medical evidence which was

generated in a prior application in the Petitioner’s

current application, given the continuing relevance of

that medical evidence.

When this issue was, in part, addressed by the Sixth

Circuit in Farris v. Secretary of Health and Human Ser-

vices, 773 F. 2d 85 (6th Cir. 1985), the majority of the

Court acknowledged its importance.

The Petitioner recognizes that the scope of this

review is very narrow, but also notes that given the

fact that many other potential Claimants might be

9

placed in the same helpless situation by the

Secretary’s failure to abide by its own adopted regula-

tions and mandates, that this court’s defining the

breath of the Secretary’s shield of discretion would be

a worthy issue for review.

I]

The Secretary’s Actions Have Deprived the Peti-

tioner Due Process in His Administrative Pro-

ceeding

The application of due process to administrative

procedings in not novel. Hannah v. Larche, 363 U. S.

420 (1960); Alaska Roughnecks and Drillers Association

v. NLRB, 555F. 2d 732, 735 (9th Cir. 1977), cert.

denied, 434 U. S. 1069 (1978).

The Social Security Act provides that each Clai-

mant has a right to a de novo hearing. 42 U.S.C.

§405 (b) and due process under the Fifth Amendment.

Fleming v. Nestor, 363 U. S. 603, 611 (1960).

In carrying out those dictates, the Secretary adopted

20 CFR §404. 927 which provides, in relevant parts:

The hearing examiner shall inquire fully into the

matters at issue and shall receive in evidence the

testimony of witnesses and any documents which

are relevant and material to such matters, ... the ...

procedure at the hearing generally ... shall be at the

discretion of the hearing examiner and of such

nature as to afford the parties a reasonable oppor -

tunity for a fair hearing. Richardson v. Perales,

402 U. S. 389 400 (1971).

As before, failure to abide by its own rules and

regulations has allowed the Secretary to cause unjust

discrimination to not only the Petitioner in this case

10

but also to the many Claimants who may or have fil-

ed their Social Security disability applications after a

final earlier denial. For this reason, the need for some

guidance is needed from this court to insure that the

Social Secuvity system remains working and con-

tinues being fair to those who seek benefits.

CONCLUSION

For the above reasons, it is respectfully submitted

that the petition should be granted.

Wolodymyr Iwan Cybriwsky

John Kirk Law Offices

715 North Lake Drive

Prestonsburg, Kentucky 41653

(606) 886-8389

Counsel Of Record

la

Appendix

Rendered April 30, 1986

Not Recommended for Full-Text Publication

No. 85-5484

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BERLIN B. JOHNSON,

Plaintiff-Appellant,

Vv.

SECRETARY OF HEALTH AND HUMAN

SERVICES

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DISTRICT OF KENTUCKY

BEFORE: Jones and Wellford, Circuit Judges; and

Gilmore, District Judge.* Per Curiam. Appellant

Berlin B. Johnson appeals from the denial of Social

Security Disability benefits. Two previous applica-

tions had also been denied, the latter in a memoran-

dum issued by an Administrative Law Judge on Oc-

tober 20, 1982. The prior denials had been appealed

to the district court which affirmed in both cases; no

further appeal was taken. Johnson last met the special

earnings requirement of the Act on December 31,

1982.

Like the earlier applications, this third claim

asserted that Johnson had become disabled in June

*Honorable Horace W. Gilmore, United States District Court for the Eastern District of

Michigan, sitting by designation.

ee te ee ee

2a

1977, the month he ceased working as a coal miner.

After the claim was administratively denied, a hearing

was held before an ALJ. The ALJ considered the

prior denials of benefits as “establishing that the clai-

mant was not disabled as of October 20, 1982”. This

was proper. While findings of fact made in a deter-

mination on one claim “‘may be revised in determin-

ing or deciding” a subsequent claim brought on the

same earnings record, 20 C. F. R. § 404.995, the

Secretary is not required to reopen an earlier deter-

mination and the decision not to do so is not

reviewable by the court. See Califano v. Sanders, 430

U.S. 99, 109 (1977). Because his eligibilty for benefits

ended December 31, 1982, Johnson’s burden was to

show that he became disabled in the two-month

period between October 20 and December 31, 1982.

See Gibson v. Secretary of H. H. S., 678 F.2d 653 (6th

Cir. 1982). The ALJ’s conclusion that Johnson had

not met that burden must be affirmed if supported by

substantial evidence. Id.

The records of five physicians were introduced, but

all had examined or treated Johnson after December

1982; the earliest of these records was dated in July

1983. While these records would arguably support a

finding that Johnson was disabled at the time of the

hearing in 1984, none of the medical evidence relates

back to the crucial period in 1982; nor did any of the

physicians express an opinion of Johnson’s condition

during that period. Johnson himself stated at the

hearing that his symptoms had worsened since 1982.

In short, there was simply no evidence that could

have supported a finding that Johnson was disabled

between October 20 and December 31, 1982. The

Secretary’s determination that he was not disabled

3a

must be upheld.

The judgment of the district court is AFFIRMED.

——————eeeooOooOo

4a

Rendered June 11, 1986

No. 85-5484

United States Court of Appeals

For the Sixth Circuit

BERLIN B. JOHNSON,

Plaintiff-Appellant

V.

SECRETARY OF HEALTH AND HUMAN

SERVICES,

Defendant-Appellee

ORDER

BEFORE: Jones and Wellford, Circuit Judges; and

Gilmore, District Judge.* Appellant Berlin Johnson

has petitioned the Court to rehear its decision of

April 30, 1986, affirming the judgment of the district

court.

The court has considered the petition for rehearing

offered in support thereof. Finding no issue of law or

fact that was overlooked or misapprehended, the peti-

tion is found not to be well-taken.

It is therefore, ORDERED that the petition for

rehearing is denied.

Entered by Order of the Court

John P. Hehman, Clerk

*Honorable Horace W. Gilmore, United States District Court for the Eastern District of

Michigan, sitting by designation.

ee

5a

Rendered March 29, 1985

Civil Action No. 84-213

United States District Court Eastern District of

Kentucky Pikeville

BERLIN B. JOHNSON,

Plaintiff

4 MEMORANDUM OPINION

MARGARET HECKLER, SECRETARY

OF HEALTH AND HUMAN SERVICES

Defendant

INTRODUCTION

Berlin B. Johnson, a forty-seven year old man

former coal miner filed an application for disability

insurance benefits on February 8, 1983,! alleging that

he became unable to work on June 21, 1977 due to

breathing problems and arthritis. (Administrative

Transcript (Tr. 69-72). After his application was

denied during intitial administrative processing, he

was afforded a hearing before an Administrative Law

Judge (ALJ), an employee of the Office of Hearings

and Appeals ot the Social Security Administration

(Tr.21-55). In a written decision issued thereafter, the

AL] recommended that benefits be denied (Tr. 7-12).

Since even after receiving additional evidence, the Ap-

peals Council declined to review the matter, the ALJ’s

opinion stands as the final action of the Secretary. (Tr.

3).

The present action, seeking judicial review pursuant

6a

to provisions of the Social Security Act, was filed in

June, 1984. It is currently before the Court on cross-

motions for summary judgment.

FACTS

At the hearing, the plaintiff testified concerning his

background and physical condition. According to

this testimony, the plaintiff was then a forty-nine year

old man, who had been born in February of 1935, and

had a second grade education. (Tr. 28, 29). He in-

dicated that he could barely read and write and had

had no vocational or military training after he left

school. (Tr. 29-30). All of his twenty-three years’

work experience have involved working underground

in the mines; although he had to be switched off of at

least one job because of his back, he finally quit work

altogether in June, 1977? because of his breathing pro-

blems. (Tr. 30-31, 32, 44, 46, 48-49). Since he stopped

working, he ‘‘lays around the house”’ watching televi-

sion (Tr. 32, 34); although he attends Church, drives

about five miles weekly and can care for his personal

needs except for washing his back and head, he has

stopped helping his wife with the housework, lets his

son take care of the yardwork and gardening, keeps

no animals, engages in no hobbies except walking,

and sleeps no more than five hours a night (Tr. 28, 32,

33, 34, 35, 41, 47). His lung conditions causes

coughing, smothering and chest pain (Tr. 34, 36); he

now uses a breathing machine three to four nights a

week and takes medicine to help with this condition.

(Tr. 36, 37, 45). His arthritis causes his back to hurt,

his legs to get numb, and his knees to be stiff and

swell; although a back brace has not been recom-

mended, he has had to take medicine for this condi-

tion as well. (Tr. 38, 39-40, 50, 53). Although he in-

dicated that his problems were with his arthritis and

7a

lungs, there is some indication that he has a problem

grasping objects with his left hand, had suffered a

heart attack at work at some point in time, and ex-

periences a decreased appetite, although he was not

on a special diet. (Tr. 33-34, 44, 48). He said he

felt his conditions had gotten worse since December,

1982 and that, as of the present time, he did not feel

that he could stand for more than twenty minutes at a

stretch, remain seated for more than forty minutes

without moving or walk more than a block without

resting (Tr. 35, 37, 51, 52). Moreover, he specifically

indicated that not only could he not do a sitting job

now, but that he probably could not have performed

this type of job back in December, 1982; he is still

receiving Worker’s Compensation. (Tr. 40, 54).

Besides the hearing testimony, the ALJ also had

before him the reports of five different physicians:

Dr. Syed Ikramuddin, a surgeon > (Tr. 102-105); Dr.

E. E. Musgrave, a specialist in Occupational Diseases

(Tr. 106-109); Dr. Ira Potter, a family practitioner.

(Tr. 110-115); Dr. Bashir Ameji, a family practitioner

(Tr. 116-117, 129, 130, 132); Dr. R. Sundaraam, a

specialist in Pulmonary Diseases and Internal

Medicine (Tr. 118-119).

Dr. Ikramuddin apparently saw the plaintiff on two

occasions. In the General Medical Report form com-

pleted in July, 1983, the doctor indicated that based

on a physical examination alone he found ‘‘some

evidence” of arthritis of the small joints and, based on

wheezing, rhonchi and an expanded chest, sufficient

evidence of pneumoconiosis with chronic obstructive

pulmonary disease; in his conclusion, Ikramuddin

noted that his patient was “totally disabled at this

time because of his lung problems.” (Tr. 102-105).

8a

The plaintiff was seen again by the same doctor in

February of the next year; based on patient history

and an exhibition of some stiffness and tenderness of

the spine and restriction of movement, the doctor felt

that the plaintiff was suffering from arthritic pain.

(Tr. 131). Both reports, it should be noted, do not

reflect the performance of any laboratory testing.

In a General Medical Report forin completed in

mid-August, 1983, Dr. Musgrave indicated that he had

seen the plaintiff professionally from April, 1977 to

the date of the report. (Tr. 106). During a physical

examination on the latter date, the doctor noted

wheezes, rales and an increased AP diameter of the

chest, tenderness and limitation of motion of all large

joints, a slow and stiff gait, and marked clubbing of

the nail beds. (Tr. 106-107). Laboratory examinations

included an _ electrocardiogram, which showed

bradycardia, a chest x-ray, which demonstrated an-

thrasilicosis,* and a large spine x-ray, which revealed

osteophyte spurring. (Tr. 109). Based on a diagnosis

of anthrasilicosis stage II and osteoarthritis, the doctor

indicated that he felt the patient was unfit for manual

labor and, therefore, restricted to sedentary activity.

(Tr. 109).

On September 12, 1983 Dr. Ira Potter performed a

consultative examination at the request of the Social

Security Administration. (Tr. 110). During the

physical examination, the doctor observed wheezing,

a small ventral hernia, Haberdene’s nodes in the

fingers with some deformity, a twenty percent loss in

the range of motion of the lumbar spine with

tenderness over L-5, a slight decrease in size of the

right calf, a slight depression of the left achilles reflex,

and irregular scattered sensory deficit at L-5 der-

9a

matome on the left side. (Tr. 111). An x-ray of the

lumbar spine was said to reveal very early

degenerative changes; a chest x-ray was interpreted to

be normal. (Tr. 112). Although the doctor noted that

the pulmonary function study results were compati-

ble with a severe restrictive process and a superimpos-

ed moderate expiratory obstruction with a partially

reversible airway disease, he indicated that the plain-

tiff “probably” did not exert maximum effort. (Tr.

112). In his conclusion, Potter stated that the plaintiff

was suffering from degenerative joint disease, low

back syndrome with some evidence of radiculopathy

and x-rays showing degenerative changes, a shortness

of breath with pulmonary function sudies indicating

severe restrictive lung disease and moderate ex-

piratory obstruction, chronic functional abdominal

pain and bilateral visual decrease. (Tr. 112).

In the reports submitted by Dr. Ameji, it is in-

dicated that the plaintiff saw that doctor on a number

of occasions from September, 1983 through early

1984.5 In an undated report issued sometime after Oc-

tober 10, 1983, the doctor indicated that an examina-

tion of the plaintiff's chest revealed wheezing and

rales .n the lungs, a reduced chest expansion, and dis-

tant air sounds; the plaintiff’s voice was also noted to

be hoarse. (Tr. 117); the musculoskeletal examina-

tion demonstrated pain in the lumbar sacral area,

positive straight leg raising at forty to fifty degrees,

and pain on forward flexion (Tr. 117). The doctor’s

final impression at that time was of chronic obstruc-

tive lung disease, secondary to pneumoconiosis,

chronic low back pain, secondary to osteoarthritis in

the spinous process of the back and chest pain of

undetermined etiology; because of these conditions,

the patient was advised to refrain from any work in-

10a

volving a dusty atmosphere, squating, bending, lif-

ting, walking on hard surfaces, and standing or sitting

for long periods of time - in other words, no gainful

employment. (Tr. 117). In cursory, handwritten

notes from February, 1984, the doctor reiterated the

diagnoses concerning the plaintiff’s lungs and back

(Tr. 129-130). In a report dictated in mid-March,

1984, the doctor indicated that he had reviewed his

previous reports as well as the results of pulmonary

function studies and x-rays taken by Dr. Potter and

concluded that the plaintiff has chronic obstructive

lung disease probably secondary to pneumoconiosis,

chronic back pain secondary to L-5 and S-1 disc nar-

rowing, and radiculopathy of the left lower extremi-

ty. (Tr. 132). In conclusion, the doctor stated that,

inspite of repeated visists and continuing treatment,

there was no improvement and the patient was “‘total-

ly and permanently disabled at the moment.” (Tr.

132).

The fifth physician of record, Dr. R. Sundaram, ap-

parently performed no examination on the plaintiff

other than pulmonary function study testing done in

November, 1983. (Tr. 118-119). According to his

notes, the results indicated moderate obstructive air-

way disease with significant involvement of small air-

ways, which could not be taken as a true value

because of poor effort on the part of the patient. (Tr.

118).

Based upon a review of the aforementioned

evidence, the ALJ made the following comments:

. There is no medical evidence in the record concern-

ing the period from October 20, 1982 through

December 31, 1982 from which to determine

lla

whether there was any change in the severity of the

claimant’s impairments such as would justify the con-

clusion that his condition had worsened during such

time. Dr. . . Ikramuddin diagnosed

pneumoconiosis and chronic obstructive pulmonary

disease in July 1983 .. . [and stated that the claimant

was disabled but] performed no pulmonary function

studies. .. Dr. .. Musgrave, in August 1983, diagnosed

anthracosis, chronic obstructive airway disease and ar-

thritis and indicated that the claimant was limited to

sedentary activity [but]... performed no pulmonary

function studies. [These] . . . studies were performed

by Dr. Ira Potter on September 12, 1983 [but]...

cooperation was only fair [and] . . . the tracings ap-

parently reveal a minima! effort on the part of the

claimant. The studies were repeated by Dr. Raghu

Sundaram on November 8, 1983 [but]. . . effort ...

was observed to be so poor as to render the results in-

valid. Dr. Bashir Ameji, on examining the claimant in

September 1983, diagnosed chronic obstructive air-

way disease and chronic low back pain secondary to

osteoarthritis [but] . . . offered few objective findings

to support the severe limitations set forth in the final

paragraph of his report...

The claimant at the hearing . . . appeared healthy,

well nourished, of seemingly low intelligence and ex-

hibited no physical impairment other than a persis-

tent cough. :

There is evidence from which one can concluded

that the claimant has some osteoarthritis of the spine

and coal worker’s pneumoconiosis. However, there

are few findings which support the expressed opi-

nions that the conditions are disabling . . .

12a

Most persuasive is the fact that there is not evidence

to show that from the time of Judge Napier’s decision

in October to the expiration of the claimant’s insured

status in December 1982 his condition had

deteriorated to such an extent as to render him disabl-

ed.

(Tr. 10-11). At the conclusion of the report, the

following findings and conclusions appeared:

The claimant met the disability insured status of the

Act during the period under consideration from Oc-

tober 20, 1982 through December 31, 1982.

The claimant has not engaged in substantial gainful

activity since June 21, 1977.

The claimant has the foilowing impairment(s):

osteoarthritis of the spine and coal worker’s

pneumoconiosis.

The claimant’s allegations of a disabling lung im-

pairment are not supported by the objective medical

evidence.

The claimant does not have any impairment or im-

pairments which significantly limit his ability to per-

form bvasic work-related activities; therefore, the

claimant does not have a severe impairment. (20 CFR

404.1521).

The claimant was not under a “disability,” as defin-

ed in the Social Security Act, at any time through the

date of this decision.

(Tr. 11-12).

ig el“

13a

APPLICABLE LAW

In a recent decision, the Sixth Circuit Court of Ap-

peals set out the following seven step test for judicial

analysis of Social Security benefit denial cases:

1. Is the claimant currently engaged in substantial

gainful activity? If yes, the claimant is not disabled. If

no, proceed to Step 2. See 20 C.F.R. §404.1520(b);

§20-416.920(b).

2. Does the claimant have any medically deter-

minable physical or mental impairment(s)? If yes,

proceed to Step 3. If no, the claimant is not disabled.

See 20 C.F.R.§404.1508; 20 C.F.R.§416.908.

3. Does the claimant have any severe

impairment(s)-i.e., any impairment(s) significantly

limiting the claimant’s physical or mental ability to

do basic work activities? If yes, proceed to Step 4. If

no, the claimant is not disabled. See 20 C.F.R.

§§404.1520(c), 404.1521; 20 CER. §§416.920(c),

416.921.

4. Can the claimant’s severe impairment(s) be ex-

pected to result in death or last for a continuous

period of at least 12 months? If yes, proceed to Step 5.

If no, the claimant is not disabled. See 20 C.F.R.

§404.1509; 20 C.F.R. §416.909.

5. Does the claimant have any impairment or com-

bination of impairments meeting or equalling in

severity an impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (Listing of Impairments)? If

yes, the claimant is disabled. If no, proceed to Step 6.

See 20 C.F.R. §§404.1520(d), 404.1526(a); 20 C.E.R.

14a

§§416.920(d), 416.926(a).

6. Can the claimant, despite his impairment(s), con-

sidering his residual functional capacity, age education

and past work experience, do other work - i. e., any

other substantial gainful activity which exists in the

national economy? If yes, the calimant is not disabl-

ed. See 20 C.F.R. §§404.1505(a), 404.1520(f)(1); 20

C.F.R. §§416.905(a), 416.920(f)(1).

Garner v. Heckler, 745 F. 2d 383, 387 (6th Cir. 1984).

In applying this analysis, it must be remembered

that the principles applicable to the judicial review of

administrative agency action apply. Judicial review of

the Secretary’s decision is limited in scope to deter-

mining whether the findings of fact made are sup-

ported by substantial evidence and in deciding

whether the Secretary employed the proper criteria in

reaching her conclusion; the findings as to any fact, if

supported by substantial evidence, shall be conclusive.

Id. This “substantial evidence”’ is ‘‘such evidence as a

reasonable mind shall accept as adequate to support a

conclusion;”’ it is based on the record as a whole and

must take into account whatever in the record fairly

detracts from its weight. Id.

In applying the specific steps of the test in this par-

ticular case, additional emphasis on the third stage is

in order. This step, as noted previously, involves the

issue of the ‘‘severe impairment.” This term is defin-

ed by the regulations to mean an impairment which

significantly limits one’s ability to perform basic

work activities, which is in turn defined as the

abilities and aptitudes necessary to do most jobs.”’ 20

C.F.R. §404.1521. Examples of such activities are

15a

physical functions, the use of the special senses, use of

judgment, ability to understand and carry out instruc-

tions and to respond appropriately to the work en-

vironment. 20 C. F. R. 404. 1521.

DISCUSSION

Applying the aforementioned principles to the facts

of the present case, it is clear that the decision of the

Secretary must be affirmed.

The critical issue in the present case was whether

the plaintiff could produce evidence that he was

disabled as of the narrow two-month period between

the last administrative decision and the expiration of

his insured status. This he did not do as to his ar-

thritic and lung conditions - the earliest of the reports

submitted in connection with his present application

for benefits was months after the expiration period

and, further, none of the physicians referred to the

earlier time frame.

Accordingly, the Secretary’s decision must be af-

firmed. A separate order consistent with this opinion

will be entered this same date.

This the 29th day of March, 1985.

G. Wix Unthank, (sig) Judge

16a

'The plaintiff filed prior applications for disability insurance benefits in

June, 1977 and September, 1978; the June, 1978 and October, 1982 denials

by ALJ were later affirmed at both the Appeals Council and Federal District

Court Level, and are thus, not subject to reopening. The question before

the Court at the present time is whether the plaintiff has established disabili-

ty between the date of the last ALJ decision denying benefits, in October,

1982, and December, 1982, the date the plaintiffs insured status expired.

?Although the plaintiff at one point in the testimony indicated that he had

last worked in June, 1981, this is presumed to be a misstatement in view of

the other evidence of record. (Tr. 30, 44, 95).

*The professional qualifications form for ‘Dr. Ikramuddin” which were

included in the administrative record are those of a partner and possible

relative; thus, while the partner’s practice is that of obstetrics and

gynecology, the Dr. Ikramuddin who examined the plaintiff has a practice

limited to surgery. (Tr. i121, 131).

‘Although the handwritten notes are difficult to decipher, it is assumed

that the term is anthrasilicosis, which is defined a mixed condition of an-

thracosis and silicosis. Dorland’s Illustrated Medical Dictionary 104 (25th

ed. 1974).

‘The doctor at one point seemed to indicated that he had been treating the

plaintiff for “eight years” (Tr. 132). However, from the language of an

earlier report, the Court’s conclusion is that although the plaintiff has had

complaints of shortness of breath for an eight year period, he has only been

treated by Dr. Ameji since 1983. (Tr. 116).