Petition for Writ of Certiorari — Everette-Oates v. Barnhart (No. 05-888)
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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.
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Entered for a panel composed of Judge Traxler, Judge
King, and Judge Gregory.
For the Court,
/s/ Patricia S. Connor
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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.