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FLOYD v. SCHWEIKER

August 30, 1982

RUBY M. FLOYD, PLAINTIFF,
v.
RICHARD S. SCHWEIKER, SECRETARY OF HEALTH & HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Moran, District Judge.

MEMORANDUM AND ORDER

Ruby M. Floyd brings this suit under 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health & Human Services denying her application for Social Security disability benefits and for Supplemental Securing Income (hereinafter collectively referred to as "disability benefits"). Cross motions for summary judgment have been filed asking this court to determine whether the Secretary's decision is supported by substantial evidence or, alternatively, whether the claim should be remanded to the Secretary and another hearing held with counsel present. For the reasons set forth below, the motion to remand is granted.

  42 U.S.C. § 423(d)(1)(A) defines disability as "inability
to engage in any substantial gainful activity by reason of any
medical impairment that can be expected to last for over twelve
months." More specifically, disability means not only inability
to do the previous type of work but also the incapacity to do
any other kind of work which exists in the national economy,
"considering opportunities that exist either in the claimant's
region or in the several regions of the country."
42 U.S.C. § 423(d)(2)(A). See Spencer v. Schweiker,
678 F.2d 42 (5th Cir. 1982), Hogan v. Schweiker, 532 F. Supp. 639
 (D.Colo. 1982).

To be eligible for disability benefits a claimant must make a prima facie showing of an impairment sufficiently severe to preclude a return to his or her previous employment. Decker v. Harris, 647 F.2d 291, 293 (2d Cir. 1981). Once this is established the burden shifts to the Secretary to present evidence showing that there exists in the national economy substantial gainful work which claimant, considering his or her age, education, experience and training, is able to perform. Spencer v. Schweiker, supra; Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974).

In response to criticism over disparate treatment of seemingly similar claims, the Social Security Administration recently promulgated new and detailed regulations which establish an orderly sequence of adjudication for Social Security disability claims. Kirk, et al. v. Secretary of Health & Human Services, 667 F.2d 524 (6th Cir. 1981). The Seventh Circuit described the "sequential evaluation for adjudication of disability claims as follows:

  The first inquiry under the sequence concerns
  whether a claimant is currently engaged in
  substantial gainful employment. If it is found
  that he is, the claim is denied without reference
  to the other steps in the sequence. If he is not,
  the second inquiry is whether the claimant has a
  "severe" impairment. If he does not, the claim is
  denied. If a severe impairment is present, the
  third inquiry is whether such impairment meets or
  equals one of the impairments listed under
  Appendix I to Subpart P of the Administrative
  Regulations No. 4. If it does, the claim is
  approved. If it does not, the fourth inquiry is
  whether the claimant's impairments prevent him
  from performing his past relevant work. If he is
  found to be capable of returning to his past
  relevant work, the claim is denied. If he is not
  found to be so capable, the fifth and final
  inquiry is whether claimant is able to perform
  other forms of substantial gainful activity,
  considering his age, education and prior work
  experience. If he is not, the claim is approved.
  The medical-vocational guidelines, which are
  contained in Appendices 2, Subparts P and I, Parts
  404 and 416, 20 C.F.R., are used in determining
  whether the claimant is disabled when and if the
  fifth step in the evaluation process is reached.
  To apply the guidelines, the ALJ must make
  findings of fact as to the claimant's vocational
  factors, i.e., age, education, and work
  experience, as those terms are defined by the
  regulations . . . and his residual functional
  capacity. . . . When the findings of fact made as
  to all factors coincide with the criteria of a
  rule [contained in the guidelines], that rule
  directs a factual conclusion of disabled or not
  disabled.

Cannon v. Harris, 651 F.2d 513 (7th Cir. 1981). See also Cummins v. Schweiker, 670 F.2d 81 (7th Cir. 1982), Hogan v. Schweiker, supra, at 643. These regulations necessarily require a detailed factual analysis of plaintiff's background and medical condition.

Ms. Floyd was born on April 12, 1924, has an eleventh grade education and has minimal additional training as a nurse's aid. With the exception of a two-year stint as a cook's helper, plaintiff's primary work experience between 1962 and 1979 was as a nurse's aid, a job that requires a significant amount of standing, bending and lifting. Plaintiff maintains that she is incapable of performing her prior work or pursuing any other type of employment because she suffers from high blood pressure, depression, and arthritis in various joints. Such ailments, of undeterminate dates of origin, evidently worsened over time and ultimately caused her to quit her work as a nurse's aid in May of 1979. One year later Ms. Floyd filed a claim for disability benefits with the Social Security Administration. That claim was denied initially and upon reconsideration. Exercising her right to an independent de novo review of the matter, plaintiff appeared without counsel at a hearing before an Administrative Law Judge ("ALJ") on April 8, 1981.

Ms. Floyd was the only witness to testify at the hearing. Under questioning by the ALJ she stated the following: In addition to arthritis in her side, hands and knees, plaintiff experiences shortness of breath, she can walk only two blocks before tiring, she cannot climb steps without resting every third or fourth step, and she is unable to stoop or run. As for lifting, Ms. Floyd said, "I can't lift anything too well that is over ten pounds. Maybe around seven or eight pounds, roughly. It makes me so tired." Other physical complaints include high blood pressure, which occasionally causes dizziness, a tumor in the womb, with unspecified effect on her ability to work, cancer, which was not elaborated upon, and pain around her heart, stomach and chest. Finally, plaintiff testified that she suffers from emotional disorders and at some point in the past had a nervous breakdown. When asked how her nervous condition affected her now, plaintiff responded

  Well, noises and depression. I can't stand worry
  and noises. I have to have something for insomnia.
  I have to take these nerve pills there. I got two
  of the same nervous pills there, but one of them
  is a higher milligram.

Because of these ailments Ms. Floyd visits a doctor once a month. Dr. J. Niazir has been her treating physician at least since 1978. Her prescribed medications include Clinoril, 20 milligrams twice a day, presumably for arthritis; Valium, 5 milligrams twice a day, and Tylenol #3 which plaintiff says she takes twice a day to alleviate pain.

With regard to her daily activities Ms. Floyd testified that she cooks, washes dishes and cares for her personal needs, although experiencing some difficulties. In exchange for free rent plaintiff cleans the kitchen and halls, collects the rent and moves empty garbage cans. Finally, while she used to visit friends and relatives frequently, she rarely does so now except for attending church on Sunday.


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