Petition for Writ of Certiorari — Everette-Oates v. Barnhart (No. 05-888)

Supreme Court brief2005

Ask Donna

What actually matters in this document.

Text

functional capacity for light work, meaning she could lift up

to 20 pounds, walk and stand six hours out of an eight-hour

day, bend, stoop, and carry. The ALJ determined that

Petitioner did not have any significant non-exertional

limitations during this period. App. at 33.

In her decision dated March 18, 1997, ALJ Mary

Bisantz stated that Petitioner underwent a Wechsler Adult

Intelligence Scale-Revised test administered by Evans E.

Harrell, Ph.D., which determined that Petitioner wa:

suffering from mental retardation with a valid full-scale 1.Q.

of 66. On this basis, Petitioner was found to meet the

criteria of the Listing of Impairments with onset of disability

as of September |, 1987. [Although the Listing ts not cited

in the ALJ's decision, the only Listing met by a claimant

with a valid full-scale I.Q. between 60 and 69 and another

severe medically determinable impairment, which does not

meet or equal a Listing is 12.05(C).]. The ALJ states that

prior to 1987 there was no evidence that Petitioner "suffered

from any impairment singly or in combination which met or

equaled the criteria of the Listing of Impairments or

precluded her from performing her past work." App. at 12.

A Psychiatric Review Technique form was completed

by W. Henry Perkins, Ph.D., DDS Psychological Consultant

on 12/21/87. The Listing is cited under Section D of the

form, titled Mental Retardation and Autism. Under Section

D, Dr. Perkins checked the box, which states:

Significantly subaverage general

intellectual functioning with deficits in

adaptive behavior initially manifested during

the developmental period (before age 22), or

pervasive developmental disorder

characterized by social and significant

communicative deficits originating in the

developmenta! period, as evidenced by at

least one of the following:

Dr. Perkins then checked the box which indicates that

Petitioner meets Listing 12.05(C) based on a "valid verbal,

performance, or full scale 1.Q. of 60 to 69 inclusive and a

physical or other mental impairment imposing additional

and significant work-related limitation of function."

ARGUMENTS

The general procedure of a Social Security disability

inquiry is well established. Five questions are to be asked

sequentially during the course of a disability determination.

$$ 20 C.F.R. 404.1520, 1520a (1988). An Administrative

Law Judge must consider: (1) whether the claimant 1s

engaged 1n substantial gainful activity; (2) whether the

claimant has a severe impairment; (3) whether the claimant

has an impairment that meets or equals a condition

contained within the Social Security Administration's

official list of impairments; (4) whether the claimant has an

impairment which prevents past relevant work; and (5)

whether the claimant's impairment prevents the performance

of any substantial gainful employment. An ALJ's factual

determinations must be upheld if supported by substa™tial

evidence, Smith v. Schweiker, 795 F.2d 343, 345 (4" Cir.

1986). This Court is not so restrained in determining

whether correct legal standards were applied. Hines v.

Bowen, 872 F.2d 56, 58 (4" Cir. 1989).

The ALJ has a duty to weigh and address all the

competent evidence in the record whichbears on the outcome.

In the course of this analysis, "[t]he ALJ has a duty to explore

all relevant facts and inquire into the issues necessary for

adequate development of the record, and cannot rely only on

the evidence submitted by the claimant when that evidence is

inadequate." Cook v. Heckler, 783 F.2d 1168, 1173 (4" Cir.

1986). The Secretary must analyze all relevant evidence and

state the weight afforded to the evidence before denying a

claim for benefits. Gordon v. Schweiker, 725 F.2d 231, 236

(4" Cir. 1984).

>»

The Social Security Regulations likewise require a

careful examination of all relevant evidence in the record. 20

C.F.R.§ 404.1527(d)(2). Social Security Ruling 96-8p requires

a "thorough discussion and analysis of the objective medical

and other evidence."

THE ALJ ERRED IN FINDING PLAINTIFF'S

SEVERE MEDICALLY DETERMINABLE

IMPAIRMENTS DID NOT MEET OR

MEDICALLY EQUAL ONE OF THE LISTED

IMPAIRMENTS IN APPENDIX 1, SUBPART

P, REGULATION NO. 4.

_ Petitioner was found by ALJ Stephen Jones to have the

residual functional capacity for light work between October

15,1975 and September |, 1987. Petitioner was found by both

ALJ Jones and ALJ Bisantz to meet or equal a Listing under

the Regulations after September 1, 1987. Both ALJ Jones and

ALJ Bisantz found Petitioner did not meet the Listing prior to

September 1, 2001. ALJ Jones specifically determined that

Petitioner did not have any nonexertional impairments prior to

September |, /987.

The Fourth Circuit presumes mental retardation is a

lifelong condition. Branham v. Heckler, 775 F.2d 1271, 1274

(4th Cir. 1985). Branham cites the very wording of Listing

12.05 for Mental Retardation as the basis for its decision,

ruling that the Regulations "expressly define mental

retardation as denoting ‘a lifelong condition."' Listing

12.05(C) states, in pertinent part:

Listing 12.05(C). Mental Retardation:

Mental retardation refers to significantly

subaverage general intellectual functioning

with deficits in adaptive functioning initially

manifested during the developmental period:

App. 46-47

The Listing unequivocally describes mental _

retardation as a lifelong condition. The evaluation

by Dr. Perkins indicated frequent deficiencies of

concentration, persistence or pace resulting in

Failure to complete tasks in a timely manner (in

work settings or elsewhere)" Dr. Perkins's

evaluation also noted repeated (three or more)

"episodes of deterioration or decompensation tn

work or work-like settings which cause the

individual to withdraw from that situation or to

experience exacerbation of signs and symptoms

(which may include deterioration of adaptive

behaviors)" (Id.)

A. THE ALJ ERRED BY FAILING TO

ADDRESS IMPORTANT MEDICAL

10

EVIDENCE IN THE RECORD,

WHICH TENDS TO PROVE THAT

PLAINTIFF MEETS OR EQUALS

LISTING 12.05 (C) PRIOR TO

SEPTEMBER 1, 1987.

The ALJ did not consider these deficiencies in Plaintiffs level

of mental functioning as a part of his determination that

Petitioner did not meet or equal a listing in the Listings of

Impairments at step three of the sequential evaluation

process. App. at 23 - 32. A claimants mental

impairments, however, should be analyzed or reviewed

under the categories supported by the individual's clinical

findings. 20 C.F.R., Part 404, Subpart P, App. |, $12.00

(A). The Commissioner "[h]as a duty to explore all relevant

facts and inquire into the issues necessary for adequate

development of the record" Cook v. Heckler, 783 F.2d 1168,

1173 (4th Cir. 1986), and §12.05(C) clearly defined the

category under which Petitioner’s mental impairment

should be analyzed.

Listing 12.05(C) also requires the presence of a

“physical or other mental impairment imposing additional

and significant work related limitation of function." Such

a significant work related limitation has been defined as

one "[w]here the effect on the claimant's ability to work is

more than slight or minimal." Pud/en v. Bowen, 820 F.2d

105, 109 (4th Cir. 1987). Also, "[t]}he significant limitation

under section § 12.05(C) need not be disabling in and of

itself... . therefore something less than a preclusion from

any gainful employment must apply." /¢. Both ALJ Jones

and ALJ Bisantz found that Petitioner suffered from a

1]

medically determinable severe impairment which limited

Petitioner to light work. App. at 15 and 32-33. This

limitation, though not precluding any gainful employment,

has certainly more than a slight or minimal effect on

claimant's ability to work. The ALJ failed to address this

evidence and its implications in his decision. Contrary to

the ALJ's decision, Petitioner met the criteria for Listing

12.05C prior to September |, 1987. The ALJ's decision

should therefore be reversed.

CONCLUSION

The psychological tests performed by Dr. Harrell in

1987, which were confirmed by Dr. Perkins on December

22, 1987 (showing that Petitioner has a Full Scale IQ of 66)

are indicative of a lifelong condition. From October 15, 1975

to September 1, 1987. Petitioner also suffered from a

medically determinable impairment which Jimited her residual

functional capacity to light work. Therefore the ALJ erred by

not finding Petitioner met Listing 12.05(C) from October 15,

1975 to September |, 1987.

Fundamental faimess and efficiency require remand of

this matter to the Commissioner. For the foregoing reasons,

Petitioner seeks a reversal pursuant to sentence four of Section

405(G) and entry of judgment reversing the Commissioner's

final decision. In the alternative, Petitioner seeks a reversal

with remand pursuant to sentence four and entry of judgment

reversing the Commissioner's final decision.

Respectfully submitted this the 13th day of November,

2005.

PRISCILLA EVERETTE-OATES

Pro Se

316 Russell Drive

Princeville, NC 27886

j?

cs

APPENDIX TABLE OF CONTENTS

OPINION O fF 1b FOURTH CIRCUIT . 0s. i ek A |

JUDGMENT OF THE FOURTH CIRCUIT .......... A3

DECISION OF THE OFFICE OF HEARINGS AND

EU See ERLE ON OP REY bo eee ks A4

CPP Or APE AL COUR e 6s eccicc ice cau nce. A 17

DECISION ON REMAND BY APPEALS COUNCIL A 19

ACTION OF APPEALS COUNCIL ON REQUEST FOR

eC iw RR ee OOK DERE Cee A 34

U.S. DISTRICT COURT JUDGMENT ............ A 37

FOURTH CIRCUIT DECISION ON PETITION FOR

PE UCPERNURETNRE 0.9 cho een aN GRC Ra ae CR A 39

Re A OCCUR sce eh ae eR CAN Cees rn ON A 40

20 C.F.R. §404.1520 and 1520(a)(1988) ........... A 42

Be A ER PORTED 6 kick oa eed ware aes A 43

20 C.F.R., Part 404, Subpart P, App. 1, § 12.00(A) ... A 44

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-2422

PRISCILLA EVERETTE, as

personal representative the

estate of Maggie Everette,

Plaintiff - Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL

SECURITY,

Defendant - Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at

New Bern. Malcolm J. Howard, District Judge.

(CA-02-48-E)

Submitted: April 11, 2005

Decided: May 13, 2005

Before TRAXLER, KING, and GREGORY. Circuit Judges.

Affirmed by unpublished per curie opinion.

Priscilla Everette, Appellants Pro Se. Barbara Dickerson

Kocher, OFFICE OF THE UNITED STATES ATTORNEY,

Raleigh, North Carolina, for Appellee.

Al

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36(c).

PER CURIAM:

Priscilla Everette, personal representative of the estate

of Maggie Everette, appeals the district court's order granting

the Commissioner of the Social Security Administration's

("Commissioner") motion for judgment on the pleadings and

affirming the Commissioner's denial of disability insurance

benefits, widow's insurance benefits, and supplemental

security income benefits to Maggie Everette prior to 1987. We

must uphold the decision to deny benefits if the decision is

supported by substantial evidence and the correct law was

applied. See 42 U.S.C. 5 405(g) (2000); Craig v. Chater, 76

F.3d 585, 589 (4th Cir. 1996). Having thoroughly reviewed

the administrative record, we agree with the district court that

substantial evidence supports the Commissioner's final

decision denying benefits. Accordingly, we affirm for the

reasons stated by the district court. See Everette v. Barnhart,

No. CA-82-46-H (E.D.N.C. Sept. 8, 2004). We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

JUDGMENT

FILED: May 13, 2005

UNITED STATES COURT OF APPEALS

for the

Fourth Circuit

No. 04-2422

CA-02-43-H

PRISCILLA EVERETTE, as personal representative Of the

estate of Maggie Everette

Plaintiff - Appellant

v.

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL

SECURITY

Defendant - Appellee

Appeal from the United States District Court for the

Eastern District of North Carolina at New Bern

In accordance with the written opinion of this Court

filed this day, the Court affirm the judgment of the District

Court.

A certified copy of this judgment will be provided to

the District Court upon issuance of the mandate. The

judgment willtake effect upon issuance of the mandate.

/s/ Patricia S. Connor

CLERK

A3

SOCIAL SECURITY ADMINISTRATION

Office of Hearings and Appeals

DECISION

IN THE CASE OF CLAIM FOR

Period of Disability,

Disability Insurance Benefits,

and Supplemental Security

MAGGIE EVERETTE Income

(Claimant)

238-556-8869

(Wage Earner) (Social Security number)

PROCEDURAL HISTORY

The claimant filed applications for a period of disability and

‘disability insurance benefits on January 10, 1983, disabled

widow's insurance benefits on January 24. 1983, and

supplemental security income benefits on April |, 1983,

alleging an inability to work since January NP, 1978. She

was denied initially and on reconsideration. She filed a

request for hearing before an Administrative Law Judge, and

on September 28, 1983, a decision was issued finding that the

claimant was not under a "disability within the meaning of

the Social Security Act. The Appeals Council denied the

claimant's request for review of that decision November 28,

1983.

The claimant subsequently completed a form indicating that

she wanted to be made a member of the Swart class in order

to have her case reviewed again, and on July 10, 1995, the

A4d

Appeals Council remanded the claimant's case to an

Administrative Law Judge for a new hearing and decision in

accordance with the Order of United States District Court for

the Western District of North Carolina in the case of Patrick

Hyatt et al., v. Margaret Heckler (Exhibit 29). Pursuant to the

Appeals Council Remand, a hearing was held before an

Administrative Law Judge and a decision dated June 29.

1987, was issued finding that the claimant was not disabled

(Exhibit 33).

Che claimant again filed applications for a period of

disability, disability insurance benefits, and supplemental

security income on September 9, 1987, alleging an onset of

disability of October 15, 1975, and was subsequently found

disabled for supplemental security income purposes only as

of September |, 1987, but not prior thereto, by state agency

determination of January 5, 1988.

In April 1989, the claimant was determined to be a "deemed

member" of the class in the can of Hyatt v. Bowen, (WDNC,

December 10. 1987). She had requested a review of her 1983

applications as a member of the Hyatt class, and her case was

referred to an Administrative Law Judge for Hyatt

readjudication (Exhibit 36). However, the Administrative

Law Judge found that the claimant did not meet the criteria

for class membership tn the case of Hyatt y. Bowen, and

entitlement to readjudication of the June 29, 1987,

determination. Accordin*ly, on November 13, 1990, the

Administrative Law Judge dismissed the claimant's request

for readjudication of her 1983 applications citing the fact that

she was not properly determined to be a member of the class

in the case of Hyatt v Bowen (Exhibit 45).

On November 21, 1994, the claimant requested review under

Hyatt v. Shalala, No.C-C-893-655-MU (WDNC, March 21.

1994), and was subsequently identified as a Hyatt III class

member and, as such, entitled to review of her applications

for a period of disability and disability insurance benefits

filed January 10, 1983, and September 9, 1987, widow's

disability benefits filed January 24, 1983, and supplemental

security income benefits filed Apri! |, 1983 (Exhibit 46). A

hearing was held on January 24, 1987, in Greenville, North

Carolina. The claimant appeared and testified and after being

advised of her right to be represented, elected to proceed

without representation. Barbara Everette, the claimant's

daughter, also appeared and testified on her behalf.

The tssues in this case are whether the claimant ts under a

“disability” as defined in section 216(1), 223, 1602, and

1614(a)(3) (A) of the Social Security Act and in accordance

with the sequential evaluation process described in 20 CFR

404.1520 and 416.920 and, if so, when her disability

commenced and the duration of the disability.

To be entitled to a period of disability and disability

insurance benefits, an individual must meet the disability

insured status requirements of the Act. To be found disabled

for a period of disability, disability insurance benefits, and

supplemental security income, an individual must not be

performing substantial gainful activity and must have a

“severe impairment or combination of impairments which

either meets or equals the criteria in the Listing of

[Impairments or prevents the individual trom performing both

work performed in the past and other work existing in

significant numbers in the national economy (20 C.F.LR.

404.1520 and 416.920).

To be entitled to widow's disability insurance benefits, an

individual must have attained age 50, be the widow of the

wage earner who died fully insured, unmarried, and establish

that her disability started not later than seven years after the

A6

insured died or after the individual was last entitled to

survivor's benefits, whichever is later. To be found disabled

for widow's insurance benefits for months prior to January

1991, an individual must have a disabling impairment which,

of itself, was so severe that it met or equalled a set of criteria

in the Listing of Impairments (20 CFR 404.1511).

DISCUSSION

After caretully reviewing all of the evidence, the

Administrative Law Judge finds that the claimant met the

disability insured status requirements of the Act as of the

alleged onset date and continued to meet them through

December 31, 1979, but not thereafter. The Administrative

Law Judge further finds that the claimant attained age SO as

of June 9, 2976, is the widow of the wage earner who died

fully insured, is unmarried, and meets the prescribed period

requirements through April 30, 2986, but not thereafter.

The Administrative Law Judge concludes that the claimant

has not engaged in substantial gainful activity since her

alleged onset date due to severe impairments; however, prior

to September |, 1987, the date that disability was established

for purposes of entitlement to supplemental security income

benefits, the evidence does not support that the claimant.

suffered from an impairment which met or equalled the

criteria in the Listing of Impairments or precluded her from

returning to her past work as she described it. Thus, the

Administrative Law Judge finds that the clamiant has not

been disabled at any time prior to September |, 1987.

The claimant has alleged an inability to work since October

15, 1975, due to a back problems, diabetes mellitus,

hypertension, a nervous condition, arthritis, and sinus

problems: however, the evidence of record reveals that prior

to September |, 1987, the claimant's severe impairments

A7

caused only mild restrictions in her ability to work. In fact,

prior to 1987 when Wechsler Adult Intelligence

Scale-Revised testing by Evans E. Harrell, Ph.D., showed

that the claimant was suffering from mental retardation with

a valid full scale 1.Q. was 66, and she was found to meet the

criteria of the Listing of Impairments with onset of disability

as of September |, 1987 (See Exhibits 35 and 41), the

evidence of record does not support a finding that the

claimant suffered from any impairment singly or in

combination which metor equalled the criteria of the Listing

of Impairments or precluded her from performing her past

work.

In a report dated September 13, 1987, the claimant's treating

physician, P. L. Temple, M.D., indicated that the claimant

had long standing hypertension and diabetes mellitus and was

status post lumbar disc surgery. However, Dr. Temple was of

the opinion that the claimant's above conditions only caused

mild restrictions in her capacity to work and that she had a

good prognosis. Dr. Temple's opinion is supported by his

treatment records which reveal that the claimant's

hypertension and diabetes mellitus have been well controlled

with medications and diet. In fact, the evidence of record

reveals that the claimant has only occasionally experienced

episodes of elevated blood pressure or blood sugars, but

during these "eriods, the claimant has either been off her

medications or had an increase in her weight and with restart

of her diet and medications has regained control of these

conditions. Further, the medical record shows no evidence of

end organ damage due to these conditions. While the

claimant has been treated for flares of scleritis and keratitis

sicca by David it. Anderson, M.D., these conditions have

resolved with treatment, and the claimant's vision has

remained essentially 20/20 in both eyes (Exhibits 21, 22, 25,

27, 37, 38, and 39).

A8&

The claimant was admitted to Wilson Memorial Hospital in

February 1975 because of increasing low back pain and left

sciatic and underwent lumbar laminectomy with excision of a

herniated disc. However, the claimant reported to A. T.

Jennette, M.D., in January 1976 that her left sciatic pain had

improved with the use of a hard mattress and bedboard, and

on examination at that time, she had no paravertebral muscle

spasm in the lumbar area, negative straight leg raising

bilaterally, and no point tenderness or leg length discrepancy.

Dr. Jennette noted at that time that he had nothing else to

offer the claimant and suggested that she lose weight and

continue the use of her bedboard: The claimant reported that

her chrontc back ache was fairly well controlled with Anacin

or Tylenol when seen by Dr. Temple in April 1982. She had

full range of motion of the lumbosacral spine on consultative

examination by Dr. Sirisena in February 1983, and x-ray of

the lumbosacral s’ine at that time showed no significant

degenerative changes. She had no evidence of swelling,

inflammation, or deformity of her joints, and there was full

range of motion. Further, when examined by Dr. Sirisenain

October 1987, there was no evidence of sensory, motor, or

reflex changes on examination of the lumbar s"ine (Exhibits

21,22,24; 39, and 43).

Dr. Sirisena noted on consultative evaluation in February

1983 that the claimant appeared to suffer with chronic

anxiety per her history. However, he indicated that there

was no evidence of psychosis, and the claimant

acknowledged that she had received no institutional

treatment or mental health facility treatment for any mental

condition. She stated at that time that she took a nerve pill

which helped relieve her "nervous tension,” a statement

which she repeated when seen by Dr.. Sirisena in

October! 987. Further, the treatment records from Or.

AQ

Temple, her treating physician, do not reveal that the

claimant reported any recurring and ongoing problems with

anxiety ;Exhibits 21, 22, 25,27, 38, and 39).

The claimant has alleged difficulties with sinus problems;

however, there are no records of treatment for any sinus

condition. The claimant has a history of inactive pulmonary

tuberculosis, fibrocaseous granuloma, confirmed by scalene

node biopsy in May 1973, for which ‘she has been followed

at Carolina Clinic. She was hospitalized in November 1977

after x-rays showed an increase in her lung lesions and tissue

was suggestive of caseating necrosis; however, no organism

was found, and when seen in Feoruary 1978, the claimant

was doing extremely well, had no symptoms of active

tuberculosis, and clear lungs. She was hospitalized again in

August 1979 after x-rays showed possible new infiltrates, but

upon review of the pulmonary x-rays, it was determined that

there was no evidence of any active sites of disease. The

claimant continued to do well, and followup chest x-rays in

November 1980 showed no changes. Her weight remained

stable and x-rays continued to show no changes in November

1981. The treating physician noted at that time that the

claimant had done extremely well over the past year and had

been quite active with no acute problems. When last seen at

the Carolina Clinic on April 21, 1983, the claimant had

weight gain and was feeling good. There was no cough,

sputum production, chills, fever, or other problems at that

time, and the treating physician was of the opinion that the

granuloma of the claimant's lungs was quiescent (Exhibits 23

and 24).

The claimant was diagnosed with hyperthyroidism after a

thyroid scan in August 1979 was elevated. However, she

was subsequently treated with RAI uptake, and when seen

at the Carolina Clinic in December 1979, TSH level was

normal and studies at that time showed that the claimant

was not hypothyroid. Further, examination in October 1982

A 10

showed no evidence of thyroid enlargement. In fact, there

are no records of treatment for a thyroid condition since

1979 (Exhibits 23 and 24).

The Administrative Law Judge has evaluated all of the

claimant's symptoms, including pain, in accordance with

Social Security Ruling (SSR) 96-7p, Fourth Circuit law as

sec forth in Hyatt v. Sullivan, 899 F.2d 329 (4th Cir.

1990), and 20 CFR 404.1529 and 416.929. The court in

Hyatt set forth the following standard regarding the

evaluation of pain:

Once an underlying physical or mental impairment

that could reasonably be expected to cause pain is

shown by medically acceptable objective evidence,

such as clinical or laboratory diagnostic techniques,

the adjudicator must evaluate the disabling effects of

a disability claimant's pain, even though its intensity

or severity is shown only by subjective evidence. If

an underlying impairment capable of causing pain is

shown, subjective evidence of the pain, its intensity

or degree can, by itself, support a finding of

disability. Objective medical evidence of pain, its

intensity or degree (i.c., manifestations of the

functional effects of pain such as deteriorating nerve

or muscle tissue, muscle spasm, or sensory or motor

disruption), if available, should be obtained and

considered. Because pain is not readily susceptible of

objective proof, however, the absence of objective

medical evidence of the intensity, severity, degree or

functional effect of pain is not determinative.

Id. at 337.

In accordance with SSR 96-7p, Hyatt v. Sullivan, and 20

CFR 404.1529 and 416.929, the Administrative Law Judge

has not required the presence of objective medical evidence

in determining the intensity, severity, degree or functional

All

effect of the pain and other symptoms alleged. Specifically,

the Administrative Law Judge has considered the nature,

location, onset, duration, frequency, radiation, and intensity

of any symptom, including pain; the precipitating and

aggravating factors; the type, dosage, effectiveness, and

adverse side effects of any medication; the treatment, other

than medication, for relief of pain or other symptoms the

claimant has undergone; the alleged functional restrictions;

and the claimant's daily activities.

The claimant has alleged an inability to work since October

15, 1975, due back problems causing pain, diabetes mellitus,

and hypertension. However, as is noted above, the evidence

of record has revealed that the claimant's diabetes and

hypertension has been well controlled with medication and

dict. Further, despite her allegations of continued back pain

subsequent to her lumbosacral surgery, the claimant testified

at the hearing that the surgery in fact helped her pain and that

she just never returned to work. She reported nervous tension

but stated that it was relieved with medication. In fact, she

testified that she was independent in living after her surgery.

Her treating physician, Dr. Temple, indicated in his report of

September 1987 that the above conditions caused only mild

restrictions in her ability to work and that she had a good

prognosis. When seen at the Carolina Clinic in November

1981, note was made that the claimant was quite active and

suffering no acute problems at that time. Further, in a life

activities questionnaire completed in January 1983, the

claimant stated that she did housework, shopped, attended

church, cooked, washed dishes, mopped, did laundry, and

worked in her yard and garden. She indicated that she took

care of her personal needs as well as cared for her teenage

daughter.

She further reported that she visited and entertained friends

A 12

at home, all despite her statement that her medications made

her sleepy. Additionally, the claimant reported to Dr. Harrell

in December 1987 that she cleaned house, fixed meals,

occasionally grocery shopped, and attended church.

Thus, having considered all of the evidence, to include the

testimony at the ‘hearing, the Administrative Law Judge finds

that prior to September |, 1987, the date that disability was

established for purposes of entitlement to supplemental

security income benefits, the claimant suffered from status

post laminectomy with residual pain, hypertension, and

diabetes. However, the Administrative Law Judge concludes

that the claimant's impairments did not singly or in

combination meet or equal any Criteria in the Listing of

impairments or preclude her from lifting 20 pounds with

frequent lifting and carrying of up to 10 pounds, walking or

standing six hours out of an eight-hour workday, or sitting

with some pushing or pulling of arm or leg controls prior to

that date. The claimant did not suffer from any severe mental

impairment prior to September |, 1987, which imposed more

than a minimal limitation on her ability to perform basic

work-related functions. Thus, the Administrative Law Judge

finds that prior to September |, 1987, the claimant retained

the residual functional capacity to perform a full range light

work activity.

The claimant has past relevant work experience as a hospital

maid which she indicated required lifting 15 to 20 pounds

and standing approximately two hours and walking

approximately six hours per day. This job, as the claimant

has described it, would fall into the light category in terms of

exertional requirements. As sct forth above, prior to

September |, 1987, the claimant retained the residual

functional capacity to perform a full range of light work

activity. Accordingly, the Administrative Law Judge finds

that the claimant could perform her past relevant work as a

A 13

hospital maid as she described it prior to September |, 1987.

Thus, the Administrative Law Judge finds that the claimant

was not disabled at any time prior to Sep.zmber |, 1987.

FINDINGS

After careful consideration of the entire record, the

Administrative Law Judge makes the following findings:

l. The claimant met the disability insured status

requirements of the Act on October 15, 1975,

the date the claimant stated she became unable

to work, and continued to meet them through

December 31, 1979, but not thereafter. The

claimant met the prescribed period requirements

of the Act through May 31, 1986, but not

thereafter, is the widow of the wage earner, who

died a fully insured individual on September 26,

1970, and is not married.

hm.

The claimant has not engaged in substantial

gainful activity since October 15, 1975.

3: The medical evidence establishes that prior to

September |, 1987, the claimant had severe

status post lumbar laminectomy with residual

pain, hypertension, and diabetes mellitus, but

that she did not have an impairment or

combination of impairments listed in, or

medically equal to one listed in Appendix |,

Subpart P, Regulations No. 4, prior to this date.

4. ‘The claimant's testimony at the hearing

regarding her subjective complaints, including

A 14

pain, is not credible to the extent that prior to

September |, 1987, she would have been

precluded from performing a full range of light

work activity.

A)

Prior to September |, 1987, the claimant had

the residual functional! capacity to lift 20

pounds with frequent lifting and carrying of up

to 10 pounds, walk and stand six hours out of

an eight-hour workday, and sit with some

pushing or pulling of arm or leg controls. Prior

to September |, 1987, the claimant did not

suffer from any severe mental impairment

which imposed more than a minimal limitation

on her ability to perform basic work-related

functions (20 CFR 404.1545 and 416.945).

6. The claimant's past relevant work as hospital

maid, as she described it, did not require the

performance of work-related activities

precluded by the above limitation(s) (20 CFR

404.1565 and 416.965).

rs Prior to September |, 1987, the claimant's

impairments did not prevent her from

performing her past relevant work.

8. The claimant was not under a “disability” as

defined in the Social Security Act. at any time

prior to September!, 1987 (20 CPR 404.1520(e)

and 416.920(e)).

DECISION

It is the decision of the Administrative law Judge that, based

A l5

upon the applications filed on January 10, 1983, January 24,

1983, April 1, 1983, and September 9, 1987, the claimant is

not entitled to a period of disability or disability insurance

benefits under sections 216(1) and 223, respectively, of the

Social Security Act, is not entitled to widow's insurance

benefits based on disability under section 202(e) of the

Social Security Act, and is not eligible for supplemental

security income under sections 1602 and 1614(a)(3))A) of

the Act at anytime prior to September |, 1987.

Mary E. Bisantz

Administrative Law Judge

March 18, 1997

Date

A 16

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

ORDER OF APPEALS COUNCIL

REMANDING CASE TO ADMINISTRATIVE LAW

JUDGE

In the case of Claim for

Period of Disability

Disability Insurance Benefits

Supplemental Security

Income

Maggie Everette Widow's Insurance Benefits

(Claimant) (Disability)

Julius Everette 238-56-8869

239-48-3820

(Wage Earner) (Leave blank (Social Security Number)

if same as above)

The Administrative Law Judge issued a decision on March

18. 1997. The claimant has asked the Appeals Council to

review this decision.

The Appeals Council grants the request for review under the

substantial evidence provisions of the Social Security

Administration regulations (20 CFR 404.970 and 416.1470).

Under the authority of 20 CFR 404.977 and 416.1477. the

Appeals Council vacates the hearing decision and remands

this case to an Administrative Law Judge for further

proceedings, including a new decision.

A 17

The Appeals Council was unable to take action on the

claimant's request for review at the time it was filed because

the record upon which the Administrative Law Judge based

his decision could not be located. When extensive efforts to

locate the record were unsuccessful, it was decided to

reconstruct it.

The Appeals Council has been nimble to locate or redevelop

that evidence. Because of this, the Appeals Council is unable

to determine whether the decision is supported by substantial

evidence. Accordingly, the Appeals Council finds that the

claimant should have an opportunity for a new bearing and

decision on the issues raised by her applications.

The Administrative Law Judge will provide the claimant an

opportunity for a new hearing and will also provide the

claimant an opportunity to submit additional evidence.

including any available medical evidence.

The Administrative Law Judge may take say further

action needed to complete the administrative record.

The Appeals Council regrets the delay involved.

APPEALS COUNCIL

Mark E. Mika

Administrative Appeals Judge

Andrew E. Wakshul

Administrative Appeals Judge

Date:

A 18

SOCIAL SECURITY ADMINISTRATION

Office of Hearings and Appeals

ON REMAND BY THE APPEALS COUNCIL

DECISION

In the case of Claim for

Period of Disability

Disability Insurance Benefits

Widow's Insurance Benefits

Maggie Everette (Disability) and Supplemental

(Claimant) security income

XREF: 239-48-3820

Julius Everette (Deceased 238-56-8869

(Wage Earner) (Social Security Number)

INTRODUCTION

This case is before the Administrative Law Judge pursuant

to an Order of Remand issued by the Appeals Council on

June 6, 2000, which vacated the hearing decision issued by

an Administrative Law Judge on March 18, 1997, on the

ground that the record upon which it was based could not be

located and the Appeals Council was unable to determine if

substantial evidence existed to support it. Since the Appeals

Council could not locate or redevelop the evidence, the

record has been reconstructed (Exhibits B16 and B14).

This case was before the previous Administrative Law Judge

on the claimant's request for review of her prior claims

pursuant to the Stipulation and Order of Settlement approved

by the United States District Court for the Western District

A 19

of North Carolina in the case of Hyatt v. Shalala, No.

C-C-83-665-MU (W.D.N.C., March 21, 1994). The claimant

had been identified as a member of the Hutt III class by the

Social Security Administration. The procedural history of

this case is set out fully and succinctly in that hearing

decision as follows: "The claimant filed applications for a

period of disability and disability insurance benefits on

January 10, 1983. disabled widow's insurance benefits on

January 24. 1983. and supplemental security income benefits

on April |, 1983, alleging an inability to work since January

NF, 1978. She was denied initially and on reconsideration.

She filed a request for a hearing before an Administrative

Law Judge, and on September 28, 1983, a decision was

issued finding that the claimant was not under a ‘disability’

within the meaning of the Social Security Act. The

Appeals-Council denied the claimant's request for review of

that decision on November 28, 1983.

"The claimant subsequently completed a form indicating that

she wanted to be made a member of the Hyatt class in order

to have her case reviewed again, and on July 10, 1986, the

Appeals Council remanded the claimants case to an

Administrative Law Judge for a new hearing and decision in

accordance with the Order of United States District Court for

the Western District of North Carolina in the case of Patric

Hyatt et al., v. Margaret Heckler (Exhibit 29). Pursuant to

the Appeals Ccuncil Remand, a hearing was held before an

Administrative Law Judge and a decision dated June 29,

1987, was issued finding that the claimant was not disabled

(Exhibit 33).

"The claimant again filed applications for a period of

disability. disability insurance benefits. and supplemental

security income on September 9, 1987, alleging an onset of

disability of October 15, 1975, and was subsequently found

disabled for supplemental security income purposes only as

A 20

of September I, 1987. but not prior thereto, by state agency

determination of January 5, 1988.

"In April 1989, the claimant was determined to be a 'decmed

member” of the class in the case of Hyatt v. Bowen,

(WDNC, December 10, 1987). She had requested a review

of her 1983 applications as a member of the Hyatt class,

and her case was referred to an Administrative Law Judge

for Hyatt readjudication (Exhibit 36). However, the

Administrative Law Judge found that the claimant did not

meet the criteria for class membership in the case of Hyatt

v. Bowen, and entitlement to readjudication of the June 29,

1987, determination. Accordingly, on November 13, 1990,

the Administrative Law Judge dismissed the claimant's

request for readjudication of her 1983 applications citing

the fact that she was not properly determined to be a

member of the class in the case of Hyatt v. Bowen (Exhibit

45)" (Exhibit B14).

Pursuant to the current Order of Remand and the claimant's

request for review of her several applications under the

Hyatt v. Shalala decision, the undersigned Administrative

Law Judge scheduled a hearing to be held on November 17,

2000. in Greenville. North Carolina. By letter dated

October 16, 2000, the claimant waived her right to a

hearing. Therefore, based on the claimant's waiver of her

right to a hearing, the Administrative Law Judge has

reviewed her applications for a period of disability, and

disability insurance benefits filed on January 10, 1983.

widow's disability benefits filed on January 24, 1983, and

supplemental security income benefits filed on April 1,

1983, and September 9, 1987, under the Hyatt v. Shalala

decision based on the evidence of record, as reconstructed,

and without a formal hearing (Exhibits B |, B3, and B6).

The general issues are whether the claimant is entitled to a

period of disability, Disability Insurance Benefits, and

Disabled Widow's Insurance Benefits under Sections 216()),

223, and 202(c) of the Social Security Act, and whether she

A 21

was disabled under Section 1614(a)(3)(A) of the Act prior to

September |, 1987, the established date of disability. The

specific issue is whether, prior to September |, 1987, she

was under a disability, which ts defined as the inability to

engage in any substantial gainful activity by reason of any

medically detect finable physical or mental impairment that

can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12

months.

With regard to the application for Disabled Widow's

Insurance Benefits, additional issues are whether the

claimant was the widow of the deceased wage carner. had

attained age 50, was unmarried (unless one of the exceptions

in 20 CFR 404.335(e) apply), and was under a disability that

began no later than 7 years after the wage earner's death or 7

years after she was last entitled to Survivor's Benefits. To be

found disabled for widow's insurance benefits for months

prior to January 1991, the claimant must have had a

disabling impairment which, of and by itself, was so severe

that it met or equalled a set of criteria in the Listing of

Impairments [20 CFR 404.151 1(b)}].

Upon reviewing all of the evidence of record. the

undersigned Administrative Law Judge concludes the

claimant was not disabled within the meaning of the Social

Security Act prior to September |, 1987.

To be entitled to a period of disability and disability

insurance benefits, the claimant must meet the disability

insured status requirements of the Act. To be found disabled

for a period of disability, disability insurance benefits, and

supplemental security income, she must not be performing

substantial gainful activity, and must have a “severe"

impairment or combination of impairments which either

meets or equals the criteria of an impairment that is

included in the Listing of Impairments or prevents her from

performing any past relevant work or other work that exists

in significant numbers in the national economy [20 CFR

404.1520 and 416.920].

After carefully reviewing all of the evidence, the

Administrative Law Judge finds that the claimant met the

disability insured status requirements of the Act as of the

alleged onset date and continued to meet them through

December 31. 1979, the date her insured status expired. The

f Administrative Law Judge further finds that the claimant

attained the age of fifty years as of June 9, 1976, that she is

the widow of the wage earner, Julius Everette. who died

fully insured, that she is unmarried, and that she met the

prescribed period requirements through April 30. 1986. Tne

Administrative Law Judge further finds that the claimant did

not engage in substantial gainful activity between October

15. 1975, her alleged onset date. and September |. 1987. the

date her disability was established for purposes of eligibility

for supplemental security income (Exhibit B4).

A medically determinable impairment or combination of

impairments is severe if tt significantly limits an individual's

physical or mental ability to do basic work activities (20

CFR §§ 404.1521 and 416.921). The Regulations require that

if a severe impairment exists. all medically determinable

impairments must be considered in the remaining steps of the

sequential analysis (20 CFR §§ 404.1523 and 416.923).

MAGGIE EVERETTE (238-56-8869)

The medical evidence indicates that, prior to September I.

1997, the claimant had severe impairments o f status post

lumbar laminectomy with residual pain, hypertension, and

A 23

diabetes mellitus. but that she did not have an impairment or

combination of impairments that met or medically equalled

one of the impairments listed in Appendix |. Subpart P,

Regulations No. 4. A determination must therefore be made

whether she retains the residual functional capacity to

perform the requirements of her past relevant work or other

work existing in significant numbers in the national

economy. The term "residual functional capacity" is

defined in the Regulations as the most an individual can

still do after considering the effects of physical and/or

mental limitations that affect the ability to perform

work-related tasks (20 CFR §§ 404.1545 and 416.945 and

Social Security Ruling 96-8p).

In making this assessment the undersigned must consider all

symptoms. including pain, and the extent to which these

symptoms cari reasonably be accepted as consistent with the

objective medical evidence and other evidence based on the

requirements of 20 CFR §§ 404.1529 and 416.929, and

Social Security Ruling 96-7p.. The undersigned must also

consider any medical opinions, which are statements from

acceptable medical sources. which reflect judgments about

the nature and severity of the impairments and resulting

limitations (20 CFR §§ 404.1527 and 416.927 and Social

Security Rulings 96-2p and 96-6p).

The evidence shows that the claimant has been followed and

treated for medical problems at the Tarboro Clinic since at

least 1974. The progress notes of Dr. Peter L. Temple, the

claimant's treating physician there, show that she was seen

on September 14. 1974. for complaints "...of pain in the

retrostemal area radiating around under both costal margins

to the infracapular areas". Dr. Temple's examination of her

neck heart, lungs, and abdomen was negative. A chest x-ray

and electrocardiogram were normal. His impression was

A 24

functional pain versus upper G. |. discomfort. When the

claimant returned on September 23, 1974, Dr. Temple noted

that she was "still having problems with what sounds like

left sided sciatica of a mild degree. "The examination today

reveals no back tenderness or spasm. Straight leg raising is

negative. Reflexes are all right". On May 27, 1975, his

impression was that the claimant's essential hypertension

was well controlled. On October 7, 1975, he treated her for

a diagnosis of acute tonsillitis (Exhibit B17).

On her visit of April 7, 1976, to the Tarboro Clinic, the

claimant was seen by Dr. Charles M. Almond who noted that

she "had small amount of dizziness and headache yesterday,

but otherwise has been asymptomatic since her last visit".

His assessment was that her hypertension was under good

control. On May 3, 1976 and August 24, 1976, Dr. Temple

said that the claimant's blood pressure was "doing well" and

on her visit of December 10, 1976, he noted that "she has no

complaints". Dr. Temple's impression on December 13,

1976, was that the claimant had diabetes and his notes show

that she received diabetic teaching and was instructed in

1500 diabetic diet. His notes of March 21, 1977, state that

her diabetes and blood pressure were well controlled and on

September 16, 1977, he said that "all conditions doing well".

On December 16, 1977, the claimant reported no complaints.

On her visits of March 17. 1978, and January 23. 1979, Dr.

Temple said that her diabetes and blood pressure were well

controlled. This was his observation also on her visits of

June 5, 1980, September 15, 1980, January 15, 1981, April

16. 1981, June 21, 1982, and June 27, 1983. In his notes of

March 14, 1985, Dr. Temple said that the claimant had some

minor discomforts in her dise surgery scar and noted that her

blood sugar was well controlled. On January 19. 1986, he

stated that "(Other than having an urinary tract infection. she

is doing quite well”. In her follow up visit of January 12,

1988, for check of her blood sugar and blood pressure, he

A 25

said that she had "no complaints except for a twinge or

twitch in her anterior chest at times". On April 15, 1988, he

said that her diabetes and blood pressure were fairly stable

(Exhibit B 17).

In the hearing decision issued on March 18, 1997, the

Administrative Law Judge referred to a report that is dated

September 13, 1987, in which Dr. Temple expressed the

opinion that the claimant's impairments "...only caused mild

restrictions in her capacity to work and that she had a good

prognosis". This opinion is supported by Dr. Temple's

treatment records which are set out above. They demonstrate

that the claimant's diabetes mellitus and hypertension were

well controlled almost all the time and when there was poor

control it was attributed to her failure to follow her diet or

take her medications. The Administrative Law Judge noted

that there was no evidence of any end organ damage from

these impairments (Exhibits B14 and B17).

The hearing decision also tncluded the following evidence:

"The claimant was admitted to Wilson Memorial Hospital in

February 1975 because of increasing low back pain and left

sciatic and underwent lumbar laminectomy with excision of

a herniated disc. However, the claimant reported to A. J.

Jeanette, M.D., in January 1976 that her left sciatica pain had

improved with the use of a hard mattress and bedboard. and

on examination at that time. she had no paravertebral muscle

spasm in the lumbar area negative straight leg raising

bilaterally, and no point tenderness or leg length

discrepancy.

"Dr. Jeanette noted at that time that he had nothing else

toofter the claimant and suggested that she lose weight and

continue the use of her bedboard. The claimant reported that

her chronic back ache was fairly well controlled with Anacin

or Tylenol when seen by Dr. Temple in April 1982. She had

A 26

full range of motion of the lumbosacral spine on consultative

examination by Dr. Sirisena in February 1983, and x-ray of

the lumbosacral spine at that time showed no significant

degenerative changes. She had no evidence of swelling,

inflammation, or deformity of her joints, and there was full

range of motion. Further, when examined by Dr. Sirisena in

October 1987, there was no evidence of sensory, motor, or

reflex changes on examination of the lumbar spine (exhibit

numbers omitted).

"Dr. Sirisena noted on consultative evaluation in February

1983 that the claimant appeared to suffer with chronic

anxiety per her history. However, he indicated that there was

no evidence of psychosis, and the claiment acknowledged

that she had received no institutional treatment or mental

health facility treatment for any mental condition. She stated

at that time that she took a nerve pill which helped relieve

her ‘nervous tension’, a statement which she repeated when

seen by Dr. Sirisena in October 1987. Further, the treatment

records from Dr. Temple, her treating physician do not

reveal that the claimant reported any recurring and ongoing

problems with anxiety" (exhibit numbers omitted).

The hearing decision also states that "(t)he claimant was

diagnosed with hyperthyroidism after a thyroid scan in

August 1979 was elevated. However, she was subsequently

treated with RAI uptake. and when seen at the Carolina

Clinic in December 1979, TSH level was normal and studies

at that time showed that the claimant was not hypothyroid.

Further.’examination in October 1982 showed no evidence of

thyroid enlargement In tact there are no records of treatment

for a thyroid condition since 1979" (exhibit numbers

omitted).

The hearing decision sets out that the claimant testified at

that hearing that her lumbosacral surgery helped to relieve

A 27

her pain and that she just never returned to work. It said that

"(further, in a life activities questionnaire completed in

January 1983, the claimant stated that she did housework.

shopped. attended church, cooked, washed dishes, mopped,

did laundry. and worked in her yard and garden. She

indicated that she took care of her personal needs as well as

cared for her teenage daughter. She further reported that she

visited and entertained friends at home. all despite her

statement that her medications made her s/eepy.

Additionally, the claimant reported to Dr. Harrell in

December 1987 that she cleaned house, fixed meals,

occasionally grocery shopped, and attended church" (Exhibit

B14).

This evidence fails to demonstrate that the claimant's

impa'rments prevented her from performing substantial

gainful activity on a sustained basis prior to September I.

1987. What the evidence does demonstrate ts that she had

improvement in her pain following her lumbosacral surgery

and that over the years her diabetes mellitus and blood

pressure were controlled by medication and dict under the

auspices of Dr. Temple. Following her back surgery. she

underwent a consultative evaluation in February 1983 by Dr.

Sirisena whose examination showed a full range of motion

and no evidence of swelling, inflammation, or deformity of

her joints. An x-ray taken of the lumbosacral spine taken at

that time showed no significant degenerative changes. When

Dr. Sirisena examined the claimant again in October 1987 he

found no evidence of sensory, motor or reflex changes of the

lumbar spine. It is noteworthy to observe that the rates of Dr.

Temple, which cover a period of time from 1974 to 1988,

rarely allude to the claimant's back surgery and/or mention

any complaints by her of back pain and, or of incapacity. For

example, his notes of April 20. 1982, state that, other than

her hypertension and diabetes, "(s)he has no other

A 28

complaints or problems except for a chronic backache

related to previous disc surgery many years ago. This is

fa'rly well controlled on Anacin and or Tylenol". His

treatment notes and objective medical findings over those

many years simply do not support the claimant's allegation

that her impairments during this time were disabling.

Based on this evidence, it is reasonable to conclude that

between October 15, 1975, and September |, 1987, the

claimant was able to engage in work that involved standing

and walking for prolonged periods of time, bending,

stooping, and carrying, and lifting up to twenty pounds at a

time. Thus, during this period of time. she retained the

residual functional capacity to perform a full range of light

work activity on a sustained basis.

The Administrative Law Judge has evaluated all of the

claimant's symptoms, including pain, in accordance with 20

CFR 404.1529 and 416.929, Social Security Rulings (SSR)

96-3p. 96-4p, 96-7p, and Fourth Circuit law, including Hyatt

v. Sullivan. In accordance with the above, once the medical

signs or laboratory findings show that the claimant has a

medically determinable impairment that could reasonably be

expected to produce the alleged symptoms, such as pain, the

Administrative Law Judge must evaluate the alleged

intensity and persistence of the claimant's symptoms by

considering all of the available evidence. The undersigned

has not required the presence of objective medical evidence

in determining the intensity and persistence of the pain and

other symptoms alleged. Rather, the Administrative Law

Judge has specifically considered the nature. location, onset.

duration, frequency, radiation. and intensity of any symptom.

including pain; the precipitating and aggravating factors; the

type. dosage, effectiveness, and adverse side effects of any

medication; the treatment other than medic; for relief of pain

A 29

or other symptoms the claimant has undergone: the alleged

functional restrictions; and the claimant's daily activities.

As explained previously, although the evidence shows that

from October 15, 1975, to September |, 1987, the claimant

had a medically determinable impairment that could

reasonably be expected to produce the pain and other

symptoms alleged, it does not support her allegations of the

intensity and persistence of such pain and other symptoms.

Specifically, the treatment notes of the Tarboro Clinic show

that the claimant had an uneventful post-operative course

following her back surgery in /975. She said afterwards that

it had improved her pain. In April 1982 Dr. Temple said that

her back pain was fairly well controlled on Anacin and or

Tylenol. Implicit in that comment is that her pain was rather

mild and not at a level where she required prescription pain

medication such as Percocet or Darvocet. Her treatment

notes also show that her hypertension and diabetes mellitus

have been well controlled on medications and diet. All of

this evidence is consistent with the conclusion of the

Administrative Law Judge that the claimant had the capacity

to perform a full range of light work on a regular and

continuing basis from October 15, 1975, to September 1.

1987.

Based upon the claimant's residual functional capacity for a

full range of light work, the Administrative Law Judge must

determine whether the claimant can perform any of her past

relevant work. The phrase "past relevant work” is defined in

the Regulations at 20 CFR 33 404.1565 and 416.965. The

work usually must have been performed within the last 15

years or 15 years prior to the date that disability must be

established. In addition, the work. must have lasted long

enough for the claimant te learn to do the job and meet the

A 30

definition of substantial gainful activity.

The evidence in this case establishes that the claimant has

past relevant work as a hotel maid during the period of time

under consideration. In her disability reports she said that

she cleaned patients’ rooms and that this entailed lifting,

mopping floors, making beds, and cleaning bathrooms. In the

hearing decision the Administrative Law Judge said that the

claimant indicated that this work "...required lifting 15 to 20

pounds and standing approximately two hours and walking

approximately six hours per day". Accordingly, this past

relevant work. as the claimant described it. would fall into

the light category in terms of exertional requirements. Thus,

she could have returned to this work during the period of

time from October 15, 1975, and September |, 1987. She

could have returned to this work as she had performed it

(Exhibits B 11, B12, and B14).

Accordingly, the undersigned finds the claimant was not

under a disability as defined in the Social Security Act, at

any time prior to September |, 1987 (20 CFR §§ 404.1520(e)

and 416.920(e)). .

The claimant 1s currently receiving supplemental security

income benefits.

FINDINGS

After careful consideration of the entire record, the

administrative Law Judge makes the following findings:

|. The claimant met the nondisability requirements fora

period of disability and Disability Insurance Benefits set

forth in Section 216(1) of the Social Security Act on

October 15, 1975, the date she stated that she could no

longer work, and continued to meet them through

A 31

December 31, 1979, the date her insured status expired.

The claimant meets all of the nondisability requirements

for Disabled Widow's Insurance Benefits set forth in

Section 202(c) of the Social Security Act. Her

prescribed period begins April 30, 1983, and ends April

30, 1986.

The claimant has not engaged in substantial gainful

activity since the alleged onset of disability.

The medical evidence establishes that before September

|, 1987. the claimant had severe impairments of status

post lumbar laminectomy with residual pain,

liypertension, and diabetes mellitus.

The claimant's medically determinable impairments that

existed prior to September |, 1987, did not meet or

medically equal one of the listed impairments in

Appendix |, Subpart P, Regulation No. 4.

The undersigned finds the claimant's allegations

regarding her limitations during the period of time in

question are not consistent with the evidence as set forth

in the body of the decision.

The undersigned has carefully considered all of the

medical opinions in the record regarding the severity of

the claimant's impairments (20 CFR §§ 404.1527 and

416.927).

Prior to September |, 1987, the claimant had the

residual functional capacity to lift up to 20 pounds, walk

and stand six hours out of an eight-hour day, bend,

stoop, and carry. Thus, she could have performed a full

range of light work activity on a sustained basis between

A 32

October 15, 1975, to September |, 1987. She did not

have any significant non-exertional limitations during

this period of time.

9. The claimant's past relevant work as a hospital maid, as

she described st, did not require the perforrmance of

work-related activities precluded by her residual

functional capacity as set out in Finding Number 8,

above (20 CFR §§ 404.1565 and 416.965).

10. Prior to September |, 1987, the claimant's medically

determinable impairments of status post lumbar

laminectomy with residual pain, hypertension, and

diabetes mellitus did not prevent her from performing

her past relevant work.

11. The claimant was not under a "disability" as defined in

the Social Security Act, at any time prior to September

1.1987 (20 CFR §§ 404.1520(e) and 416.920(e)).

DECISION

It is the decision of the Administrative Law Judge that, based

on the applications filed on January 10, 1983, January 24,

1983, April 1, 1983, and September 9, 1987, the claimant is

not entitled to a period of disability, Disability Insurance

Benefits, Disabled Widow's Insurance Benefits, and not

eligible for Supp!emental Security Income payments under

Sections 216(1), 223, 202(e), 1602, and 1614(a)(3)(A)

respectively, of the Social Security Act at any time prior to

September |. 1987.

STEPHEN A. JONES 3

Administrative Law Judge

_27 DEC 2000

Date

A 33

SOCIAL SECURITY ADMINISTRATION

Refer to: TAHBB Office of Hearings and

Appeals

238-56-8869 5107 Leesburg Pike

X-ref: 239-48-3820 Falls Church, VA 22041-3255

ACTION OF APPEALS COUNCIL CN REQUEST

FOR REVIEW

Ms. Priscella Everette

o/b/o Ms. Maggie Everette

316 Russell Drive

Tarboro, NC 27886

Dear Ms. Everette:

The Appeals Council has considered the request for review

of the Administrative Law Judge's decision issued on

December 27, 2000.

Social Security Administration regulations provide that the

Appeals Council will grant a request for review where: (1)

there appears to be an abuse of discretion by the

Administrative Law Judge; (Z) there is an error of law; (3)

the Administrative Law Judge's action, findings, or

conclusions are not supported by substantial evidence; or (4)

there is a broad policy or procedural issue which may affect

the general public interest. The regulations also provide that

where new and material evidence is submitted with the

request for review, the entire record will be evaluated and

review will be granted where the Appeals Council finds that

the Administrative Law Judge's actions, findings, or

conclusion is contrary to the weight of the evidence currently

of record (20 CFR 404.970 and 416.1470).

A 34

The Appeals Council has concluded that there is no basis

under the above regulations for granting your request for

review. Accordingly, your request is denied and the

Administrative Law Judge's decision stands as the final

decision of the Commissioner of Social Security in your

case. In reaching this conclusion, the Appeais Council has

considered the applicable statutes, regulations, and rulings in

effect as of the date of this action.

The Appeals Council has also considered the contentions

raised in your representative's brief dated February 2, 2001,

that Maggie Everette's past relevant work as a hospital maid

required more than light exertion. The Dictionary of

Occupational Titles (DOT) defines cleaner, housekeeping

(any industry), alternate titles: maid, 323.687-014, performed

at the light exertional level. The description of duties

provided in the DOT reflects the claimant's duties, as she

performed it, described in Exhibits B-11 and B-12. Further.

the contention regarcing illiteracy is contrary to Exhibit

B-11, page 2, which indicates She can read English. The

DOT also shows that the light maid position 1s unskilled

(SVP 2).

If you desire a court review of the Administrative Law

Judge's decision, you may commence a civil action by filing

a complaint in the United States District Court for the

judicial district in which you reside within sixty (60) days

from the date of the receipt of this letter. It will be presumed

that this letter is received within five (5) days after the date

shown above unless a reasonable showing to the contrary is

made. The complaint should name the Commissioner of

Social Security as the defendant and should include the

Social Security number(s) shown at the top of this notice.

The right to court review ts provided for in sections 205(g)

and 1631(c)(3) of the Social Security Act, as amended (42

A 35

U.S.C. 405(g) and 1383(c)(3)).

If you cannot file your complaint within 60 days, you may

ask the Appeals Council to extend the time in which you

may begin a civil action. However, the Council will only

extend the time if you provide a good reason for not meeting

the deadline. Your reason(s) must be set forth clearly in your

request.

If a civil action is commenced, the Commissioner must be

served by sending a copy of the summons and complaint by

registered or certified mail to the General Counsel, Social

Security Administration, Room 611, Altmeyer Building.

6401 Security Boulevard. Baltimore, MD 21235. (See rules

4(c) and (1) of the Federal Rules of Civil Procedure). In

addition, you must serve the United States Attorney for the

district in which you file your complaint and the Attorney

General of the United States, as provided in the Federal

Rules of Civil Procedure.

Sincerely yours,

original signed by

Elizabeth C. Palacios

Appeals Officer

Cc.

Michael J. Jacula, Esq.

A 36

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

PRISCILLA EVERETTE as

the Personal Representative

of the Estate of Maggie Everette,

Plaintiff

JUDGMENT IN A CIVIL CASE

v. CASE NO. 4:02-CV-48-H |

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant

Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried

and the jury has rendered its verdict.

X Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED the court

hereby denies the plaintiff's motion for judgment on the

pleadings, grants the defendant's motion for judgment on the

pleadings and upholds the decision of the Commissioner.

SO ORDERED - s/Malcolm J. Howard, United States

District Judge

This Judgment filed and entered on September 8, 2004 and

copics mailed to:

Michael J. Jacula

Attorney at Law

1002 Durham Rd.

A 37

Suite 1000

Wake Forest, NC 27587

David J. Cortes

Assistant United States Attorney

310 New Berm Avenue

Suite 800

Raleigh, NC 27601

September 8, 2005 MICHAEL D. BROOKS

Date Acting Clerk

(By) Deputy Clerk

A 38

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

August 9, 2005

No. 04-2422

CA-02-48-H

PRISCILLA EVERETTE, as personal representative of the

estate of Maggie Everette

Plaintiff - Appellant

v.

JO ANNE B. BARNHART, COMMISSIONER OF

SOCIAL SECURITY

Defendant - Appellee

The appellant's petition for rehearing and rehearing en

banc was submitted to this Court. As no member of this

Court or the panel requested a poll on the petition for

rehearing en banc, and

As the panel considered the petition for rehearing and

is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

rehearing en banc ts denied.

A 39

Entered for a panel composed of Judge Traxler, Judge

King, and Judge Gregory.

For the Court,

/s/ Patricia S. Connor

A 40

42 U.S.C. §405(g) provides, in relevant part:

(g) Judicial review

Any individual, after any final decision of the

Commissioner of Social Security made after a hearing to which

he was a party, irrespective of the amount in controversy, may

obtain 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 further time as the Commissioner of

Social Security may allow. Such action shall be brought tn 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 noi reside or have his principal place of

business within any such judicial district, in the United States

District Court for the District of Columbia. As part of the

Commissioner's answer the Commissioner of Social Security

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 power to enter,

upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding

the cause for a rehearing. The findings of the Commissioner of

Social Security as to any fact, if supported by substantial

evidence, shall be conclusive, and where a claim has been

denied by the Commissioner of Social Security or a decision 1s

rendered under subsection (b) of this section which is adverse

to an individual who was a party to the hearing before the

Commissioner of Social Security, 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 regulations. The court

may, on motion of the Commissioner of Social Security made

for good cause shown before the Commissioner files the

Commissioner's answer, remand the case to the Commissioner

A 4l

of Social Security for further action by the Commissioner of

Social Security, and it may at any time order additional

evidence to be taken before the Commissioner of Social

Security, but only upon a showing that there is new evidence

which is material and that there is good cause for the failure to

incorporate such evidence into the record in a prior proceeding;

and the Commissioner of Social Security shall, after the case is

remanded, and after hearing such additional evidence if so

ordered, modify or affirm the Commissioner's findings of fact

or the Commissioner's decision, or both, and shall file with the

court any such additional and modified findings of fact and

decision, and a transcript of the additional record and testimony

upon which the Commissioner's action in modifying or

affirming was based. Such additional or modified findings of

fact and decision shall be reviewable only to the extent

provided for review of the original findings of fact and

decision. 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 survive notwithstanding any change in the

person occupying the office of Commissioner of Social

Security or any vacancy in such office.

20 C.F.R. §404.1520 and 1520(a)(1988) provide in

relevant part:

§ 404.1520 Evaluation of disability in general.

(a) Steps in evaluating disability. We consider all evidence in

your case record when we make a determination or decision

whether you are disabled. When you file a claim fora period of

disability and/or disability insurance benefits or for child's

benefits based on disability, we use the following evaluation

process. If you are doing substantial gainful activity, we will

determine that you are not disabled. If you are not doing

substantial gainful activity, we will first consider the effect of

your physical or mental impairment; if you have more than one

A 42

impairment, we will also consider the combined effect of your

impa'rments. Your impairment(s) must be severe and meet the

duration requirement before we can find you to be disabled.

We follow a set order to determine whether you are disabled.

We review any current work activity, the severity of your

impairment(s), your residual functional capacity, your past

work, and your age, education, and work experience. If we can

find that you are disabled or not disabled at any point in the

review, we do not review your claim further. Once you have

been found entitled to disability benefits, we follow a

somewhat different order of evaluation to determine whether

your entitlement continues, as explained in § 404.15940)(6).

20 C.F.R. §404.1527(d)(2) provides in relevant part:

(d) How we weigh medical opinions. Regardless of

its source, we will evaluate every medical opinion we reccive.

Unless we give a treating source's opinion controlling weight

under paragraph (d)(2) of this section, we consider all of the

following factors in deciding the weight we give to any

medical opinion.

(1) Examining relationship. Generally, we give

more weight to the opinion of a source who has examined

you than to the opinion of a source who has not examined

you.

(2) Treatment relationship. Generally, we give more

weight to opinions from your treating sources, since these

sources are likely to be the medical professionals most able to

provide a detailed, longitudinal picture of your medical

impairment(s) and may bring a unique perspective to the

medical evidence that cannot be obtained from the objective

medical findings alone or from reports of individual

examinations, such as consultative examinations or brief

hospitalizations. If we find that a treating sources opinion on

the issue(s) of the nature and severity of your impairment(s) ts

well-supported by medically acceptable clinical and laboratory

A 43

diagnostic techniques and is not inconsistent with the other

substantial evidence in your case record, we will give it

controlling weight. When we do not give the treating source's

opinion controlling weight, we apply the factors listed in

paragrap 1s (d)(2)(1) and (d)(2)(11) of this section, as well as the

factors ‘n paragraphs (d)(3) through (d)(6) of this section in

determining the weight to give the opinion. We will always

give good reasons in our notice of determination or decision for

the weight we give your treating source's opinion.

(1) Length of the treatment relationship and the

frequency of examination. Generally, the longer a treating

source has treated you and the more times you have been seen

by a treating source, the more weight we will give to the

source's medical opinion. When the treating source has seen

you a number of times and long enough to have obtained a

longitudinal picture of your impairment, we wiil give the

source's opinion more weight than we would give it if it were

from a nontreating source.

(il) Nature and extent of the treatment relationship.

Generally, the more knowledge a treating source has about

your impairment(s) the more weight we will give to the

source's medical opinion. We will look at the treatment the

source has provided and at the kinds and extent of

examinations and testing the source has performed or ordered

trom specialists and independent laboratories. For example, if

your ophthalmologist notices that you have complained of

neck pain during your eye examinations we will consider his

or her opinion with respect to your neck pain, but we will give

it less weight than that of another physician who has treated

you for the neck pain. When the treating source has reasonable

knowledge of your impairment(s), we will give the source's

opinion more weight than we would give it if it were from a

nontreating source.

20 C.F.R., Part 404, Subpart P. App. 1, § 12.00(A)

12.00 Mental Disorders

A4d4

A. Introduction. The evaluation of disability on the basis of

mental disorders requires documentation of a medically

determinable impairment(s), consideration of the de zree of

limitation such impairment(s) may impose on your ability to

work, and consideration of whether these limitations have

lasted or are expected to last for a continuous period of at least

12 months. The listings for mental disorders are arranged in

nine diagnostic categories: Organic mental disorders (12.02);

schizophrenic, paranoid and other psychotic disorders (12.03);

affective disorders (12.04); mental retardation (12.05);

anxiety-related disorders (12.06); somatoform disorders

(12.07); personality disorders (12.08); substance addiction

disorders (12.09); and autistic disorder and other pervasive

developmental disorders (12.10). Each listing, except 12.05 and

12.09, consists of a statement describing the disorder(s)

addressed by the listing, paragraph A criteria (a set of medical

findings), and paragraph B criteria (a set of impairment-related

functional limitations). There are additional functional criteria

(paragraph C criteria) in 12.02, 12.03, 12.04, and 12.06,

discussed herein. We will assess the paragraph B criteria before

we apply the paragraph C criteria. We will assess the paragraph

C criteria only if we find that the paragraph B criteria are not

satisfied. We will find that you have a listed impairment if the

diagnostic description in the introductory paragraph and the

criteria of both paragraphs A and B (or A and C, when

appropriate) of the listed impairment are satisfied. The criteria

in paragraph A substantiate medically the presence of a

particular mental disorder. Specific symptoms, signs, and

laboratory findings in the paragraph A criteria of any of the

listings in this section cannot be considered in isolation from

the description of the mental disorder contained at the

beginning of each listing category. Impairments should be

analyzed or reviewed under the mental category(ies) indicated

by the medical findings. However, we may also consider

mental impairments under physical body system listings, using

A 45

the concept of medical equivalence, when the mental disorder

results in physical dysfunction. (See, for instance, 12.00D12

regarding the evaluation of anorexia nervosa and other eating

disorders.)

The criteria in paragraphs B and C describe

impairment-related functional limitations that are incompatible

with the ability to do any gainful activity. The functional

limitations in paragraphs B and C must be the result of the

mental disorder described in the diagnostic description, that ts

manifested by the medical findings in paragraph A. The

structure of the listing for mental retardation (12.05) is

different from that of the other mental disorders listings.

Listing 12.05 contains an introductory paragraph with the

diagnostic description for mental retardation. It also contains

four sets of criteria (paragraphs A through D). If your

impairment satisfies the diagnostic description in_ the

introductory paragraph and any one of the four sets of criteria,

we will find that your impairment meets the listing. Paragraphs

A and B contain criteria that describe disorders we consider

severe enough to prevent your doing any gainful activity

without any additional assessment of functional limitations. For

paragraph C, we will assess the degree of functional limitation

the additional impairment(s) imposes to determine if it

significantly limits your physical or mental ability to do basic

work activities, 1.c., isa "severe" impairment(s), as defined in

Sec. Sec. 404.1520(c) and 416.920(c). If the additional

impairment(s) docs not cause limitations that are “severe” as

defined in Sec. Sec. 404.1520(c) and 416.920(c), we will not

find that the additional impairment(s) imposes an additional

and stenificant work-related limitation of function," even if you

are unable to do your past work because of the unique features

of that work. Paragraph D contains the same functional criteria

that are required under paragraph B of the other mental

disorders listings. The structure of the listing for substance

addiction disorders, 12.09, is also different from that for the

A 46

other mental disorder listings. Listing 12.09 is structured as a

reference listing; that is, it will only serve to indicate which of

the other listed mental or physical impairments must be used to

evaluate the behavioral or physical changes resulting from

regular use of addictive substances. The listings are so

constructed that an individual with an impairment(s) that meets

or is equivalent in severity to the criteria of a listing could not

reasonably be expected to do any gainful activity. These

listings are only examples of common mental disorders that are

considered severe enough to prevent an individual from doing

any gainful activity. When you have a medically determinable

severe mental impairment that does not satisfy the diagnostic

description or the requirements of the paragraph A criteria of

the relevant listing, the assessment of the paragraph B and C

criteria is critical to a determination of equivalence. If your

impairment(s) does not meet or is not equivalent in severity to

the criteria of any listing, you may or may not have the residual

functional capacity (RFC) to do substantial gainful activity

(SGA). The determination of mental RFC is crucial to the

evaluation of your capacity to do SGA when your

impairment(s) does not meet or equal the criteria of the listings,

but is nevertheless severe. RFC is a multidimensional

description of the work-related abilities you retain in spite of

your medical impairments. An assessment of your RFC

complements the functional evaluation necessary for

paragraphs B and C of the listings by requiring consideration

of an expanded list of work-related capacities that may be

affected by mental disorders when your impairment(s) is severe

but neither meets nor is equivalent in severity to a listed mental

disorder.

20 C.F.R., Part 404, Subpart P, App. 1, Part A § 12.05 Mental

Retardation and Autism: Mental retardation refers to a

significantly subaverage general intellectual functioning with

deficits in adaptive behavior initially manifested during the

A 47

developmental period (before age 22). (Note: The scores

specified below refer to those obtained on the WAIS, and are

used only for reference purposes. Scores obtained on other

standardized and individually administered tests are acceptable,

but the numerical values obtained must indicate a similar level

of intellectual functioning.) Autism is a_ pervasive

developmental disorder characterized by social and significant

communication deficits originating in the developmental

period.

The required level of severity for this disorder is met when the

requirements in A, B, C, or D are satisfied.

A. Mental incapacity evidenced by dependence upon

others for personal needs (e.g., toileting, eating, dressing, or

bathing) and inability to follow directions, such that the use of

standardized measures of intellectual functioning ts precluded:

OR

B. A valid verbal, performance, or full scale 1Q of 59 or

less;

C. A valid verbal, performance, or full scale IQ of 60

through 70 and a physical or other mental impairment imposing

additional and significant work-related limitation of function:

OR

D. A valid verbal, performance, or full scale 1Q of 60

through 70, or in the case of autism, gross deficits of social and

communicative skills, with either condition resulting in two of

the following:

|. Marked restriction of activities of daily living; or

A 48

2. Marked difficulties in maintaining social functioning; or

3. Deficiencies of concentration, persistence or pace

resulting in frequent failure to complete tasks in a timely

manner (in work settings or eleswhere); or

4. Repeated episodes of deterioration or decompensation in

work or work-like settings which cause the individual to

withdraw from that situation or to experience exacerbation of

signs and symptoms (which may include deterioration of

adaptive behaviors).

A 49

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.

Petition for Writ of Certiorari — Everette-Oates v. Barnhart (No. 05-888) | Frix