Petition for Writ of Certiorari — Pierce v. Chater

Supreme Court, U.S.

r3a8 8

Y 96 689 MAY 2 3 19%

No.office Ue He CLERK

In The

Supreme Court of the United States

October Term, 1995

HARRY E. PIERCE,

Petitioner.

VS.

SHIRLEY S. CHATER,

Commisioner of Social Security,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

DWIGHT M. WELLS

Attorney for Petitioner

304 South Albany Avenue

Tampa, Florida 33606-1715

(813)254-0030

QUESTIONS PRESENTED

Certiorari should be granted to clarify whether a

determination by the United States Department

of Labor that an individual is totally disabled

under the Federal Worker’s Compensation Act

must be accorded great weight in a subsequent

proceeding for disability insurance benefits under

the Socoal Security Act

PARTIES TO THE PROCEEDING

Petitioner, Harry E. Pierce, is a resident of Tampa, Florida.

He was the Claimant before the agency proceedings below,

Plaintiff in the lower court proceedings of this case, and was the

Appellant before the United States Court of Appeals for the

Eleventh Circuit.

Respondent, Shirley S. Chater, is the Commissioner of Social

Security. Pursuant to the provisions of section 106(d) of the

Social Security Independence and Program Improvement Act of

1994, (Public Law Number 103-296), the former function of the

Secretary of the U.S. Department of Health and Human Services

in Social Security cases was transferred to the Commissioner,

effective March 31, 1995. While the underlying proceedings

were originally brought against the Secretary, for the sake of

clarity, the Respondent herein is frequently referred to as the

Commissioner. Thus, the Commisioner was the Appellee before

the Eleventh Circuit Court of Appeals, and the Defendant in the

district court below.

There are no other parties to this proceeding.

TABLE OF CONTENTS

Page

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Reasons for Granting the Writ... 2... ccc ee cw nes 10

I. Certiorari should be granted to clarify whether a

determination by the United States Department

of Labor that an individual is totally

under the Federal Worker’s Compensation Act

must be accorded great weight in a subsequent

proceeding for disability insurance benefits under

the Socoal Security Act

ste a i eg a eee 12

rABLE OF CITATIONS

Cases

Falcon v. Heckler, 732 F.2d 10 (11th Cir. 1984) ....... 1]

Walden v. Schweicker, 672 F.2d 835 (11th Cir. 1982) ... 11

Walker v. Bowen, 826 F.2d 996 (11th Cir. 1987) ....... 12

Statutes

de ae 6 TES i i OS CE Eas 2

On 33.4, GRAS voi bs as A FRR A 3

Other Authority

Social Security Independence and Program Improvement Act of

SIG, SEG os ie ies) OE Es i

IV

INDEX TO APPENDIX

Appendix A - Opinion of the United States Court

Appendix B -

Appendix C -

of Appeals for the Eleventh Circuit,

led Pomrumry 23, 1996... co... kee ee ee la

Order of the United States Court

for the Middle District of Florida,

filed November 14,1994 ............. 3a

Report and Recommendation of

United States Magistrate Judge

Elizabeth Jenkins, dated .............. Sa

In The

Supreme Court of the United States

October Term, 1995

HARRY E. PIERCE,

Petitioner,

vs.

SHIRLEY S. CHATER,

Commisioner of Social Security,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

On February 23, 1996, the United States Court of Appeals

for the Eleventh Circuit issued its opinion, (1a) affirming per

curiam the decision of the district court below. Pursuant to

Eleventh Circuit Rule 36-2, and Internal Operating Procedure 5

of that Rule, that opinion was not published.

The order underlying that appeal was entered on November

14, 1994, by the Honorable Elizabeth A. Kovachevich, District

Judge, United States District Court for the Middle District of

Florida. (3a ) That order adopted and incorparated by reference

the Report and Recommendation of United States Magistrate

Judge Elizabeth A. Jenkins, (5a) which recommended that the

Commissioner’s final decision denying Petitioner’s claim for

social security disability insurance benefits be affirmed.

l

STATEMENT OF JURISDICTION

Petitioner seeks to invoke this Honorable Court’s

discretionary jurisdiction to review the opinion of the United

States Court of Appeals for the Eleventh Circuit and its

judgment of February 23, 1996. That opinion affirmed per

curiam the district court’s entry of judgment in favor of the

Respondent, and which affirmed the administrative decision of

the Commissioner to deny Petitioner’s application for social

security disability benefits. Petitioner invokes the certiorari

jurisdiction conferred upon this Court by 28 U.S.C. § 1254(1).

STATUTE(S) INVOLVED

42 U.S.C. § 243(d) in relevant part provides:

(1) The term “disability” means-

(A) inability to engage in any substantial ganiful activity

by any reason of any medically determinable physical or

mental impairment which can be expected to last for a

continuous period not less than 12 months

* * *

(2) For purposes of paragragh (1)(A),

(a) An individual shall be determined to be under a disability

only if his physical or metal impairment or impairments are of

such severity that he is not only unable to do his previous work

but cannot, considering his education, and work experience,

engage in any other kind of substantial gainful work which exists

in the national economy...

STATEMENT OF THE CASE

After receiving a medical discharge from a brief period of

service in the United States Marine Corps, the Petitioner, Harry

E. Pierce, gained employment as an electrician with the

Tennessee Valley Authority. He was assigned to the

construction of the Watts Bar Nuclear Power Plant located in

Spring City, Tennessee.

On February 8, 1977, Petitioner, who was 40 years of age at

the time, fell while climbing an assembly of scaffolding at the

power plant, and sustained significant injuries to his right knee.

During this accident, he also injured his shoulder and re-

aggravated an existing back injury, and thereafter, suffered

generally from radiating pain throughout his back and

extremeties. Significantly, Petitioner had previously injured his

right knee in 1953, resulting in the surgical removal of cartilidge

from within the knee.

The followng day, Petitioner was seen by a physician, Dr.

Wallace Grissom, whose diagnosis included a finding that

Petitioner had suffered a right knee sprain with traumatic

effusion, and who opined that this injury would restrict

Petitioner from performing any work involving standing or

walking.

In light of these injuries and resulting disability, Petitioner

returned to his home in Tampa, Florida, in order to recouperate

with the assistance and support of his family. Having timely

reported this accident to his employer, Petitioner filed a claim

for benefits under the Federal Employee’s Compensation Act

(“FECA”), Title U.S.C. section . Petitioner immediately began

to receive compensatory benefits, including “continuation pay”

from February 9th through March 25, 1977.

Petitioner was referred for treatment to Dr. Donald Keller,

a Tampa orthopaedic surgeon, who examined Petitioner in late

March, 1977, and found him to be temporarily totally disabled.

Lunseth referred Petitioner to several other area surgeons for

evaluation and treatment, including Dr. Paul A. Lunseth, who

began primary care and treatment of Petitioner’s injuries in

April, 1977. Lunseth performed both arthroscopy arthrotomy,

which revealed significant internal derangement of the knee,

coupled with the presence of degenerative athritis. While

Lunseth opined that atotal knee replacement was indicated, he

did not recommend such in light of petitioner’s age and level of

work activity. Alternatively, Lunseth recommended that

Petitioner undergo additional surgery -- a valgus osteotomy.

Petitioner underwent the osteotomy surgery a few months

later but continued to suffer from dibilitating pain stemming

from his knee. While both Drs. Keller and Lunseth were

optimistic (pre-surgery) that Petitioner would recover and return

to the workforce, Petitioner continued to suffer from pain

throughout the year following surgery, and was found by the

treating physicians to be totally disabled. From March 25, 1977,

through October, 1980, petitioner continued to receive

compensation for total temporary.

On October 7, 1980, the Office of Workers’ Compensation

Program issued Petitioner a schedule award for a 36 percent

disability loss of use of his right leg, for the period from

September 11, 1980, through September 6, 1982. In January,

1983, this award was reduced to temporary partial benefits,

based upon a finding that Petitioner had developed the ability to

perform the duties of an office clerk. Petitioner administratively

appealed that decision to the Employee’s Compensation Appeals

Board, and in October, 1983, the Board reversed the reduction

decision. The reversal was based on the Board’s finding that

there had not been any showing that Petitioner possessed the

ability to engage in such sedentary activities, and that there was

conflicting evidence regarding the onset of Petitioner’s

psychological impairments associated with, and stemming from,

his 1977 accident.

On July 28, 1986, Petitioner filed an application for for

disability insurance benefits, alleging that such disability

commenced on the date of his accident, February 8, 1977. This

claim was denied on initial determination on August 8, 1986,

and Petitioner’s subsequent request for reconsideration was

likewise denied on August 29, 1986.

On March 21, 1988, Petitioner filed a second application for

benefits, which was denied at the initial and reconsideration

review level, on the ground that the second application was

barred under the equitable doctrine of res judicata. Petitioner

timely requested an administrative hearing, which was

conducted on December 20, 1988, by Administrative Law Judge

(ALJ) Charles P.Lockwood. Petitioner was represented by

counsel at the hearing, and provided testimony as to his

disability. Futher, vocational expert James Finley appeared and

testified.

On February 16, 1989, ALJ Lockwood issued his decision

finding that Petitioner was not under a “disability,” as defined in

the Social Security Act, at any time prior to June 30, 1982, the

expiration date of his insured status for Title I] benefits.

Petitioner’s request for review to the Appeals Council was

denied on October 25, 1989, and ALJ Lockwood’s decision was

left standing as the final decision of the Secretary.

On December 22, 1989, Petitioner filed a complaint in the

United States District Court for the Middle District of Florida,

seeking judicial review of the Secretary’s final decision, pursuant

to Title 42 U.S.C. § 405(g). Therein, he argued that the

Secretary had erred in denying his claim for benefits.

On December 28, 1990, Magistrate Judge Jenkins

recommended that the case be remanded to the Secretary for

several reasons, including the fact that the AALJ had failed to

accord the proper weight to the DOL’s finding that Petitioner —

was disabled, and that the DOL records were apparently not

provided to the ALJ.

ALJ Lockwood conducted a new hearing on April 19, 1991,

and after considering additional documents, he issued a new

decision on May 20, 1991, again finding that Petitioner had not

been “disabled” within the meaning of the law prior to the

expiration of his disability insured status on June 30, 1982.

According to the ALJ,

Subsequently, the Appeal Council denied Petitioner’s timely

appeal of the ALJ decision, and the Secretary filed a transcript

of the supplemental hearing with the district court. At a status

conference conduected by Magistrate Judge Jenkins on May 15,

1992, Petitioner demonstrated that Department of Labor had yet

to provide the entire record of his worker’s compensation claim.

Underlying Petitioner’s claim regarding the DOL’s failure was

the March 28, 1989 letter of Dr. Lunseth, wherein he

unambiguously stated that not only had DOL failed to authorize

the release of such records, but that DOL had “told us

specifically not to release any records to anybody for any

reason.” As the Secretary stipulated to these facts, Jenkins

recommended that the decision denying Petitioner benefits be

reversed, and the case be remanded for a second time. The

purpose of the second remand was to require the Secretary to

consider the DOL’s disability determination and all records

pertinent to that determination, which records Jenkins

recommended that the district court order DOL to disclose.

By order of June 16, 1992, the district court adopted and

confirmed Magistrate Jenkins R & R, and thereby remanded the

case to the Secretary to consider the DOL’s disability

determination, with directions that DOL “cooperate fully” by

releasing the records sought by Petitioner. The Appeals Council

thereafter vacated its prior denial of review, and again ordered

the case remanded to the ALJ to effectuate the district court’s

order.

On remand, ALJ Andrew Rodnite conducted a supplemental

hearing on November 10, 1992, at which Petitioner appeared

and testified. No further information was received from the

DOL which would have explained the rationale or decision-

making with regard to DOL’s total disability finding. Additional

medical evidence was introduced by Petitioner. ALJ Rodnite

found the majority of these records to be cumulative or

duplicative of the existing record regarding Petitioner’s

musculoskeletal injuries.

The remaining portion of the newly submitted record was

related to Petitioner’s psychological problems. These included

numerous letters from a psychiatrist who had treated Petitioner

subsequent to the expiration of his insured status. On January

23, 1993, ALJ Rodnite enter his decision that Petitioner was not

entiotled to benefits, as he was not “disabled” within the

menaing of the law. The ALJ found that DOL’s determination

that Petitioner was totally disabled after his 1977 accident did

not preclude Petitioner from engaging in sedentary work.

Petetioner’s request for review to ther Appeals council was later

denied, and the suppimental transcript was filed with the district

court.

On October 24, 1994, Magistrate Judge Jenkins issued her

Report and Recommendation, wherein she recommended that

the Secretary’s decision denying Petitioner benefits be affirmed.

(5a) As to the issue regarding the DOL’s finding that Petitioner

was “totally disabled” prior to the expiration of his insured

Status, the Magistrate found that the ALJ, while not articulating

the differences between the standards employed by DOS and

Social Security to determine whether an individual is disabled,

( 13a) had correctly found that the two standards were

“significantly different.” /d. Further, despite binding precedent

in the Eleventh Circuit which requires a reviewing court and

Social Security to accord “great weight” to the disability

findings of another agency, Jenkins nonetheless found that the

ALJ's application of an “ordinary weight” standard to DOL’s

total disability finding was correct. (14a)

On November 14, 1994, U.S. District Judge Elizabeth

Kovachevich entered an order adopting and incorporating the

Magistrate’s Report andf Recommendation. (3a) Therein, Judge

Kovachevich simply agreed with the Magistrate’s findings,

without comment or explanation. (4a)

In its decision affirming this order, the Eleventh Circuit

provided no explanation as to the basis for its decision, (1a)

other than to say that substantial evidence supported the

decision to deny Petitioner’s claim. (2a) Petitioner timely seeks

relief from this silent but damaging decision.

REASONS FOR GRANTING THE WRIT

I.

Certiorari should be granted to clarify

whether a determination by the United States

Department of Labor that an individual is

totally disabled under the Federal Worker’s

Compensation Act must be accorded great

weight in a subsequent proceeding for

disability insurance benefits under the Socoal

Security Act

In reaching its decision to deny Petitioner disability insurance

benefits under Social Security, the Respondent accorded only

“ordinary weight” to the decision of the U.S. Department of

Labor in its previous determination that Petitioner was unable to

engage in work activity because of his significant impairment.

This was error, and Petitioner respectfully requests that this

Honorable Court exercise its jurisdiction to correct.

It is well-settled in administrative jurisprudence that the

disability determinations of other agencies or departments of the

U.S. Government must be given greight weight unless there is

good cause not to do so. Falcon v. Heckler, 732 F.2d 827

(11th Cir. 1984); Walden v. Schweiker, 672 F.2d 835, 840 (11th

Cir. 1982). Thus, where, as here, an individual applicant relies

upon the diability determinations of another federal agency, the

burden rests with the government to demonstrate that the

determination is not entitled to “great weight.”

In the instant case, the Government failed to meet this

burden. First, the Magistrate Judge readily admitted that upon

the most remand of this case to the ALJ to determine the

standards which were used in the DOL’s decision-making

process, the ALJ failed to make such findings. (13a) Given the

clear directions of the District Court Judge in her remand order,

10

the ALJ was to identify those standards used in the DOL’s

process, in order to determine the scope and extent to which

they were either similar or different than that used by the

Commissioner in the Social Security disability determintaion

process.

Second, the Magaistrate’s finding that DOL’s award of a

36% permanent partial loss award to Petitioner did not implicate

that he was disabled within the meaning of the Social Secuirty

Act is equally faulty. In each of the DOL documents submitted

by Petitioner to the Commissioner, the DOL clearly referred to

his impairment as totally disabling.

Underlying the numerous administrative decisions, the

reports and recommendations and the district court orders is the

simple fact that Petitioner’s injuries were significant and

prevented him from engaging in a full range of work prior to the

expiration of his insured status. In the Eleventh Circuit, such

claimant will be found to be unable to perform a full range of

work were he cannot perform work that requires prolonged

standing or walking, or repetitive bending or stooping. See e.g.,

Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987).

Despite Petitioner’s demonstration that he was physically

incapable of bending and sitting for any length of time, the

Commissioner arbitrarily found that he could perform sedentary

work activity. Thus, it is evident that his inability to perform a

full range of work during his period of disbality should prevent

the Secretary from reaching this finding. Given the fact that the

administrative record is replete with evidence that Petitioner

suffered continuing pain, both exertional and non-exertional,

coupled with a significant injury to his weight bearing extremity,

there is simply no substantial evidence underlying the

Commisioner’s decision, and accordinghly, it should be vacated.

It is black letter law that the proper interpretation of the

11

Social Security Act’s disability provisions favor coverage, not

exclusion. Rasmussen v. Gardner, 374 F.2d 589, 592 (10th Cir.

1967). In the instant circumstances, this long-standing policy

should be applied to reach the only result that is just -- the

disability determination of the DOL should have been accorded

great weight by the Commissioner, and Petitioner’s claim for

disability insurance benefits should have been granted.

CONCLUSION

For these reasons, Petitioner submits that this Honorable Court

should accept jurisdiction in this case to correct the injustice

imposed below. Petitioner was totally disabled under a proper

determination by the U.S. Department of Justice, received

benefits under that finding for many, many years, and is entitled

to rely upon that finding in subsequently seeking disability

insurance benefits.

Respectfully Submitted,

DWIGHT M. WELLS

Attorney for Petitioner

304 South Alabany Avenue

Tampa, Florida 33606-1715

(813)254-0030

12

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

FILED FEBRUARY 23, 1996

(Do Not Publish)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-2071

Non-Argument Calender

D.C. Docket No. 89-1700-CIV-T-17

HARRY E. PIERCE,

Plaintiff- Appellant,

versus

SHIRLEY S. CHATER,

Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District court

for the Middle District of Florida

[Decided and Filed on] (February 23, 1996)

Before KRAVITCH, COX and BLACK, Circuit Judges.

la

PER CURIAM:

Harry E. Pierce appeals the judgment of the district court

affirming the Commissioner’s denial of his application for

disability benefits. On appeal, Pierce raises the following issues:

(1) whether receipt of benefits under the Federal Employees

Compensation Act entitles him to Social Security disability

benefits; (2) whether the administrative law judge properly

considered the disability findings of the Department of Labor;

and (3) whether the administrative law judge properly

disregarded certain medical opinions of treating psychiatrists.

Our review of the record persuades us that the

Commissioner’s decision to deny Pierce disability benefits is

supported by substantial evidence and was reached by a proper

application of the law. We affirm the judgment of the district

court.

AFFIRMED.

2a

APPENDIX B

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

FILED NOVEMBER 14, 1994

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

HARRY E. PIERCE,

Plaintiff,

vs. CASE NO. 89-1700-CIV-T-17

DONNA E. SHALALA,

Defendant.

/

ORDER ADOPTING REPORT AND RECOMMENDATION

This cause is before the Court on report and

recommendation issued by Magistrate Judge Elizabeth A.

Jenkins, on October 28, 1994. The Magistrate Judge found that

the Administrative Law Judge (ALJ) complied with this Court’s

remand order and she recommended that the decision of the

ALJ, finding that Plaintiff was not under a “disability” as defined

by the Social Security Act, be affirmed.

Pursuant to Rule 6.02, Rules of the United States

District Court for the Middle District of Florida, the parties had

3a

ten (10) days after service to file written objections to the

proposed findings and recommendations, or be barred from

attacking the factual findings on appeal. Nettles v. Wainwright,

677 F.2d 404 (Sth Cir. 1982) (en banc). The plaintiff filed his

objections on November 8, 1994.

The Court has reviewed the report and recommendation

as promulgated by the magistrate judge and as well as making an

independent review of the file. The Court concurs with the

recommendation made by the Magistrate Judge. Accordingly,

it is

ORDEREDthat the report and recommendation, dated

October 28, 1994, be adopted and incorporated by reference;

the objections of the plaintiff (Docket No. 50) be overruled; the

decision of the defendant to deny the plaintiff “disability” status

under the Social Security Act be affirmed; and the Clerk of the

Court be directed to enter judgment for the defendant

consistent with this order.

DONE and ORDERED in Chambers, in Tampa,

Florida, this 14th day of November, 1994.

/s/ ELIZABETH A. KOVACHEVICH _

ELIZABETH A. KOVACHEVICH

United States District Judge

Copies to:

All parties and counsel of record

Assigned Magistrate Judge

4a

APPENDIX C

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

ELIZABETH A. JENKINS

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

HARRY E. PIERCE,

Plaintiff,

VS. Case No. 89-1700-Civ-T-17C

DONNA E. SHALALA,

Secretary of Health

and Human Services,

Defendant.

/

REPORT AND RECOMMENDATION

Plaintiff brings this action pursuant to the Social

Security Act (the Act), as amended, Title 42, U.S.C..,

405(g) to obtain judicial review of the final decision of the

Secretary of Health and Human Services (the Secretary)

Sa

denying claims for disability insurance benefits under the Act.

On May 22, 1992, this court remanded this case to

the Secretary for the limited purposes of considering the

Department of Labor's disability determination. The prior

Report and Recommendation, which was adopted by the

District Court in its order, stated that:

The decision of the Secretary denying

benefits be reversed and the case be

remanded for the purpose of considering the

Department of Labor disability determination

and all records pertinent to that determination

which shall be disclosed by the Department of

Labor to plaintiff for use in this proceeding.

(Dkt. 36, Prior R&R, p.4)

Upon remand, the ALJ held a supplemental hearing

and received and incorporated into the evidence of record

in this case, all pertinent documents and records made

available by the Department of Labor. (Supp. T. 442).

The ALJ found that the Department of Labor's disability

determination did not suggest that plaintiffs impairments

prevented sedentary work. The ALJ concluded that the

Department of Labor standards are different from the

standards used by the Social Security Administration to

evaluate disability. The ALJ affirmed the prior findings

that plaintiff retained the residual functional capacity to

'This matter has been referred to the undersigned by the District

Judge for consideration and a report and recommendation. See Local Rule

6.01(b) and 6.01(c), M.D. Fla.

6a

engage in a full range of sedentary work and denied the

application for disability benefits. (Supp. T. 439-451).

Plaintiff appealed the ALJ's order contending that: 1)

the ALJ did not properly respond to this Court's Remand

Order to consider the Department of Labor's disability

determination; and 2) the ALJ was not presented with all

of the claimant's records and information available from the

Department of Labor. (Dkt. 45). The Appeals Council

affirmed the decision of the ALJ. (Supp. T. 427-428).

Thereafter, a copy of the supplemental transcript was

filed by the Secretary with this court.

A. Plaintiff contends that the Secretary did not

properly respond to this Court's remand order to consider

the Department of Labor's disability determination.

The ALJ's decision stated that since this Court's most

recent remand order, no additional information concerning

the disability standards employed by the Department of Labor

had been received by him. (Supp. T. 442). Further, no

formal decision or rationale has been entered into evidence

with respect to the Department of Labor's disability

determination of the plaintiff. (Supp. T. 446). The ALJ

reviewed all of the pertinent evidence admitted in this case,

including the information received from the Department of

Labor, and concluded that the standards employed by the

Department of Labor in making disability determinations

must be different from those used by the Social

Security Administration. (Supp. T. 446). The ALJ further

noted,

that under the regulations, the disability determinations of

another agency or Department of the U.S. Government are

not binding upon the Social Security Administration. See

20 C.F.R. 404.1504. (Supp. T. 447-448).

Ta

The plaintiff argues that the ALJ did not properly

respond to this Court's Order of Remand to consider the

Department of Labor's disability determination. (Dkt. 45

p.2). The plaintiff further contends that the ALJ should

have examined the standards of the Federal Employee's

Compensation Act in considering this issue and argues that,

had the ALJ done so, he would have found the definition

of disabled essentially the same. (Dkt. 45 p.6).

The Secretary, on the other hand, contends that

"disability" is determined and defined differently by the

Department of Labor. Further, the Secretary provided this

Court with statutory sections, regulations, and cases in its

Supplemental Memorandum with regard to the standards

applied by the Department of Labor in making disability

determinations. Upon a general review of the Federal

Employee's Compensation Act, applicable regulations, and

citations provided by the Secretary, I find that the

definition of disability and the determination of disability

standards of the Department of Labor are different from

those of the Social Security Administration.

Under the Social Security Act, "disability" is defined as

the inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or

which lasted or can be expected to last for a continuos

period of not less than 12 months. 42 U.S.C.

423(d)(1)(A). An individual shall be determined to be

under a disability only if his/her physical or mental

impairment or impairments are of such severity that he/she

is not only unable to do his/her previous work but cannot,

considering his/her age, education, and work experience,

engage in any other kind of substantial gainful work .... See

8a

42 U.S.C. 423(d)(1)(B).

The Federal Employees Compensation Act (hereinafter

FECA) defines "disability" as the incapacity, because of

employment injury, to earn the wages the employee was

receiving at the time ofthe injury. 20 C.F.R. 10.5(a)(17).

In contrast, the Social Security Act does not require that

the employee be capable of earning a wage comparable to

the pre-injury wage. The FECA provides workers’

compensation coverage for wage loss to federal civilian

employees who are injured while in the performance of

their duties. 5 U.S.C. 8102(a); Woodruff v U.S. Department

of Labor, 954 F.2d 634, 636 (11th Cir. 1992). The grant of

total disability under the FECA is apparently premised on

the agency's determination of the total and. complete

disability of the recipient to perform his/her normal work.

Cunningham v United States, 549 F.2d 753,760 (Ct. Cl.

1977); Everett v United States, 340 F.2d 352, 354-55 (Ct.

Cl. 1965).

The procedure and standards for determining disability

applied by the Department of Labor are essentially as follows:

1) An injured employee may receive "continuation of

pay" atthe same rate of pay for up to 45 calendar days

of disability upon the proper filing of a Claim for Wage

Loss with his immediate superior on a form approved by

the Secretary of Labor. See 5U.S.C. 8118; 20 C.F.R.

10.201. This is provided as an option because the

employee is essentially not entitled to wage loss

compensation for his disability until the disability exceeds

14 days. See 5 U.S.C. 8117(1).

9a

2) Once a Claim for compensation for disability is

filed it is processed by claims examiners at the Office of

Workers’ Compensation Program (OWCP). It is their duty

to apply the law to the facts as reported, received, or

obtained upon investigation. 20 C.F.R. 10.130. The Federal

Employees Compensation Act requires that a decision with

respect to entitlement contain findings of fact and be based

on consideration of the claim presented by the claimant, the

report of his immediate superior, and the completion of

such investigation as the Office may deem necessary. 5 U.S.C.

8124(a)(1),(2); 20 C.F.R. 10.130. There is no required

procedure for production of evidence but the evidence should be

in written form. 20 C.F.R. 10.130. The employee has the

burden of proofwith regard to establishing the disability

and the causal relationship to employment. See 20 C.F.R.

10.110(a).

3) After considering all the information provided or

obtained, the Secretary of Labor makes a decision

regarding the extent of disability and its causal relationship

to the claimant's employment. If the claimant is found to

have suffered a_ disability the Secretary will award

compensation for wage loss based on the degree of

disability found to be suffered by the claimant. The

Secretary may review an award for or against

payment of compensation at any time on his own motion

or on application. The Secretary, in accordance with the

facts found on review, may end, decrease, or increase

compensation previously awarded; or award compensation

previously refused or discontinued. See 5 U.S.C.

8128(a)(1),(2).

4) The Secretary may issue a schedule award of

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compensation for specified periods of time for permanent

or partial loss or loss of use (referred to as impairment) of

each of certain members, organs and functions of the body.

See 20 C.F.R. 10,302(a). Compensation for loss of

wage-earning capacity may be paid after the schedule

expires.

In the case at bar, the plaintiff received "continuation

pay" pursuant to 20 C.F.R. 10.201 from February 9, 1977

to March 25, 1977 after which he was paid wage loss

compensation for temporary total disability. (Dkt. 41 p.1).

In a report dated January 5, 1978, Dr. Lunseth opined that

the plaintiff would probably be unable to return to his

normal previous job and recommended job rehabilitation

counseling. (Dkt. 41 p.1). Some months later, the Office

of Workers' Compensation referred the plaintiff to the

State of Florida's Office of Vocational Rehabilitation.

After psychological testing and vocational counseling, it

was determined that with 12 to 18 months of vocational

retraining the plaintiff would be qualified for a general

office clerk position. A vocational plan was agreed upon

and begun by the plaintiff, but after one month of training

the plaintiff dropped out of the program due to difficulties

using the school's stairs because of his knee condition. (Dkt. 41

p.2-3).

The Office of Workers’ Compensation subsequently

issued a schedule award to the plaintiff on October 7,

1980 for a 36 percent permanent loss of use of his right

leg, based on findings reported by Dr. Lunseth in an April

7, 1980 examination. The period of the award covered

September 11, 1980 to September 6, 1982. This award

was based on a partial disability or loss of the use of

lla

member of the body. See 20 C.F.R. 10.304.

Temporary disability reimburses the employee for

his temporary wage loss; a _ scheduled award

compensates him _ for permanent loss of use of a bodily

member or function. Staacke v U.S. Secretary of Labor, 841

F.2d 278, 281 (9th Cir. 1988). Compensation for loss of

wage earning capacity may be paid after the schedule

award expires. See 20 C.F.R. 10.304(a). In the instant

case, the Department of Labor found the plaintiff was

temporarily totally disabled for the purpose of wage-earning

capacity, for his usual work, from March 25, 1977 to

September 11, 1980. (Dkt. 41 p.1-3). From September 11,

1980 to September 6, 1982, the plaintiff received a

schedule award compensating him for permanent partial loss

of use of right lower extremity. (Exhibit 27, Dkt. 41 p.3).

On October 16, 1982, Dr. Lunseth completed an Office of

Workers’ Compensation work tolerance limitations form, in

which he indicated that the plaintiff could perform at a

sedentary work position. (Dkt. 41 p.3). On January 11,

1983, the Office of Workers’ Compensation Program

reclassified the plaintiff as temporarily partially disabled

for wage-earning capacity purposes effective January 17,

1983 based on his ability to perform the duties of an

Office clerk. (Dkt. 41 p.3). It is unclear what the

plaintiffs compensation status was from September 7, 1982

to January 27, 1983.

Subsequent requests for reconsideration of the

modification of plaintiffs wage loss status were denied by

the Secretary of Labor. The plaintiff appealed to the

Employee Compensations Appeals Board and __ the

modification of the plaintiffs wage loss status was reversed

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and ruled erroneous, because the plaintiff had not completed

the vocational training required to qualify him as an office clerk.

(Dkt. 41 p.6-7).

The Secretary argues, as aforementioned, that the

determination of disability under the FECA is made once

and employee cannot perform his usual work. See

Cunningham, 549 F.2d at 760; Everett, 340 F.2d at

354-55. Further, the Department of Labor determination in

January 1983 was not a medical determination; it was a

vocational determination that the plaintiff could no longer

perform his usual work but could presumably perform the

job of an office clerk. This was based on a variety of

factors many of which are not considered in the Social

Security Act's definition of disability. (Dkt. 48 p.6).

The ALJ did not make specific findings or articulate

the differences between the two agency's standards, and

therefore, did not completely comply with the intent of the

Order of Remand from this Court. However, the ALJ did

address the records supplied by the Department of Labor

and its actual findings in his decision. (Supp. T. 442-447).

After reviewing the aforementioned statutes, regulations,

and cases as well as the information provided by the

Department of Labor, this Court finds that the ALJ's

determination that the standards used by the Department of

Labor for determining disability are significantly different

than the standards used under the Social Security Act to

be correct. As the ALJ points out, under the Social

Security regulations, the disability determinations of

another U.S. agency or department are not binding upon

the Social Security Administration. See 20 CFR.

404.1504. However, in Falcon v Heckler, 732 F.2d 827

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(11th Cir. 1984), this Circuit held that disability

determinations of other agencies or departments of the U.S.

Government must be given great weight unless there is

good cause not to do so. The ALJ referred to this

standard in his decision and found that the Department of

Labor determination was entitled to no more than "ordinary

weight" under the circumstances because the standards for

evaluating disability were different. The ALJ found that the

medical and other evidence in this case does not support

a finding that the plaintiff is "totally disabled for ll

types of gainful employment,” as determined by the

Department of Labor in one report. Upon review, the

Secretary did comply with this court's remand order and

the decision is not contrary to law.”

B. Plaintiff also maintains that the Department of

Labor failed to completely comply with this Court's order

to release records sought by the plaintiff and thus, the ALJ

was not presented with all of the plaintiff's records.

At the supplemental hearing held November 10,

1992, plaintiff contended that all of his records from the

Department of Labor still were not in evidence. (Supp. T.

470-478). He further alleged that they had been willfully

destroyed by an agent of the Department of Labor. (Supp.

T. 472). However, plaintiff was unable to specify what

* At oral argument in this case, plaintiff referred to an October,

1993 decision of the Department of Labor finding him disabled. This

is not in the record. The administrative proceedings on remand

concluded on July 14, 1993. Even if the Department of Labor did make

additional findings, such evidence would be too remote in time

considering plaintiffs date last insured of June 30, 1982. (Supp. T.

427-428).

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records were missing, other than treatment records of Dr.

Guest. There was no evidence submitted to substantiate

his claim that records had been destroyed. (Supp.

T.470-478).

The ALJ advised the plaintiff that all of the medical

evidence available from Department of Labor had been

incorporated into the record. Additionally, the ALJ allowed

the plaintiff to submit additional evidence in the form of

medical reports from the plaintiffs treating psychiatrist,

Osberto B. Fernandez, M.D.. The ALJ also allowed the

plaintiff to present lay witness testimony from the plaintiffs

wife, brother, and son. (Supp. T. 27-33). The ALJ

reviewed the new documentary evidence submitted by the

Department of Labor appearing in the record as Exhibits

50 through 68. The new exhibits which dealt with the

plaintiff's musculoskeletal complaints and psychological

complaints were specifically enumerated in the ALJ's

decision with specific findings regarding each one.

The ALJ found Exhibits 51 through 53 dealt with the

plaintiffs musculoskeletal complaints prior to the date last

insured. However, he found them to be cumulative or a

duplication with respect to evidence previously submitted by

plaintiff in this case. (Supp. T. 442). The ALJ found that

Exhibits 55, 56, 59, 61, 62, and 64 dealt with treatment

of plaintiffs musculoskeletal complaints for our or more

years after the date of last insured, and cannot reasonably

be used to infer the claimant's medical condition prior to

the date last insured. (Supp. T. 442). Exhibit 68 was found

to be a duplicate of Exhibit 52.

Finally, the ALJ found that the remainder of evidence

lSa

ee en ee ara ene

submitted into the record, Exhibits 50, 54, 57, 58, 60, 63

and 66 dealt with plaintiffs psychological condition. (Supp.

T. 443). He found that Exhibit 54, an October 25, 1978

report of a psychological examination conducted for the

Department of Labor for Vocational Rehabilitation purposes,

established that the plaintiff retained the mental capacity

to successfully engage in rehabilitative vocational training.

(Supp. T. 443). The ALJ examined Exhibit 57, a July 26,

1989 psychiatric evaluation which referenced a letter by

Maurice C. Guest, M.D., who treated the plaintiff from

1963 to 1982. The letter expressed the opinion that the

plaintiff was physically and mentaily unable to engage in

gainful employment up until 1982 when Dr. Guest retired.

It also indicated that he recommended psychotherapy to the

plaintiff in 1977 but the plaintiff rejected that idea. (Supp.

T. 575). The ALJ also noted that Dr. Guest's letter stated

he treated plaintiff for "minor problems" consisting primarily

of gastrointestinal and recurrent arthritic pain. (Supp. T.

278, 444). The ALJ concluded that the record did not

appear to reflect any significant psychological complaints

during the period of 1977 to 1982 which were discussed

in Dr. Guest's letter. The ALJ further noted that the

psychiatrist expressed the opinion that the plaintiff did not

suffer from a_ psychiatric condition which required

treatment, or which was related to physical problems arising

prior to the date last insured. (Supp. T. 444, 578).

The ALJ found Exhibit 58, a letter dated June 28,

1990 from Paul A. Lunseth, M.D., to be a duplicate of

Exhibit 36, previously reviewed by ALJ Lockwood and

thus, it did not directly fall within the limited scope of this

Court's order of remand. The ALJ found that Exhibit 60,

a report of a January 30, 1992 psychiatric examination of

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the plaintiff was not relevant because it assessed the plaintiff's

psychological condition as of the date of the examination

and did not relate back in time to the date the plaintiff was

last insured. (Supp. T. 444).

Exhibits 50, 63, and 66 are reports from Osberto B.

Fernandez, M.D., the plaintiffs treating psychiatrist since

June 21, 1989. Dr. Fernandez’ opinion was that the

plaintiff is suffering from a major depressive disorder that

dates back to atime prior to 1982. This opinion was

based on his review of medical reports prior to 1982 which

were provided by the plaintiff. (Supp. T. 541). However,

the ALJ gave Dr. Fernandez’ opinion little weight because

he did not specifically describe the records upon which his

opinion was based and, it was not supported by other

evidence of record. (Supp. T. 445).

Medical evidence of a plaintiffs condition subsequent to

the expiration of insured status may bear on the severity

of the plaintiffs condition before the expiration of insured

status. See e.g. Basinger v Heckler, 725 F.2d 1166,

1169-70 (8th Cir. 1984); see also Boyd v Heckler, 704

F.2d 1207, 1211 (11th Cir. 1983) (a treating physician's

opinion is still entitled to significant weight notwithstanding

the failure to treat plaintiff until after the relevant

determination date), superseded by statute on other grounds

as stated in Hand v Heckler, 761 F.2d 1645 (11th Cir.

1985). Medical opinions are entitled to persuasive weight

only insofar as they are supported by clinical or laboratory

finds or other medically accepted evidence. See 20 C.F.R.

404.1527, Reg. 4; 20 C.F.R. 416.927, Reg. 16. Therefore, it

is within the ALJ's discretion to reject the opinion of any

physician, even a treating physician, when the weight of the

17a

evidence supports a contrary conclusion. Oldham v

Schweiker, 660 F.2d 1078, 1084-1086 (Sth Cir. 1981). The

ALJ's decision to give Dr. Fernandez’ opinion little weight

was based on the lack of specificity with regard to what

medical reports dated prior to 1982 that he relied on, and

no articulation as to what those reports indicated. The

plaintiff apparently provided Dr. Fernandez with the medical

reports on which he based his opinion. (Supp. T. 541).

This Court agrees with the ALJ's finding that the medical

reports that have been entered into evidence in this case do

not support that opinion. The plaintiff alleges that all of

his medical records have not been admitted into evidence

and that the Department of Labor did not completely

comply with this Court's Order to cooperate. (Supp. T.

470-478). The plaintiff has failed to substantiate his claim

that records held by the Department of Labor had been

destroyed. Furthermore, it appears from the record, that

the plaintiff was in possession ofthe medical records on

which Dr. Fernandez based his opinion at some point in

time, and Dr. Fernandez was in possession of these records

as well. (Supp. T. 541). Yet, the plaintiff has failed to

produce these records and submit them into evidence in this

case.

Conclusion

The Secretary properly complied with this court's

remand order. The decision of the ALJ that the plaintiff

was not under a "disability," within the meaning of the

Social Security Act as amended, at any time on or before June

30, 1982, when he last met the disability insured status

requirements of the Act, is supported by substantial and

competent evidence and should be affirmed.

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It is therefore RECOMMENDED that:

(1) The decision of the Secretary be affirmed.

/s/) ELIZABETH A. JENKINS

ELIZABETH A. JENKINS

United States Magistrate Judge

Dated: October 28, 1994.

NOTICE TO PARTIES

Failure to file written objections to the proposed

findings and recommendations contained in this report

within ten (10) days from the date of its service shall bar

an aggrieved party from attacking the factual findings on

appeal. 28 U.S.C. 636(b)(1).

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