Davis v. Shalala

859 F. Supp. 1011, 1994 U.S. Dist. LEXIS 16603, 1994 WL 446023
CourtDistrict Court, N.D. Texas
DecidedFebruary 16, 1994
DocketNo. 5:93-CV-175-C
StatusPublished

This text of 859 F. Supp. 1011 (Davis v. Shalala) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Shalala, 859 F. Supp. 1011, 1994 U.S. Dist. LEXIS 16603, 1994 WL 446023 (N.D. Tex. 1994).

Opinion

ORDER REMANDING TO SECRETARY OF HEALTH AND HUMAN SERVICES

CUMMINGS, District Judge.

The Plaintiff, Harold E. Davis, is appealing a decision of the Secretary of Health and Human Services denying his application for disability insurance benefits, 42 U.S.C. § 405(g). The United States Magistrate Judge entered Findings, Conclusions and Recommendation. No Objections have been filed by either the Plaintiff or the Defendant to such Findings, Conclusions and Recommendation. The Court has made an independent examination of the records.

It is, Ordered the findings of fact, conclusions of law and recommendation of the U.S. Magistrate Judge are hereby adopted.

It is, therefore, Ordered there is not substantial evidence to support the decision of the Secretary finding “no disability” at the Fifth Sequential Step of the decision making process because of the lack of utilization of a medical advisor to establish an onset date of disability.

It is, further Ordered there is not substantial evidence to support the decision of the Secretary finding “no disability” at the Fifth and final Sequential Step of the decision making process.

It is, Ordered the Plaintiff does suffer a “disability” for disability insurance purposes at the Fifth Sequential Step of the decision making process. However, because of the failure to use a medical examiner the onset date of the disability is ambiguous. Plaintiff’s last date of eligibility for disability insurance payments was in March, 1988. [1013]*1013Therefore, the determination of the disability-date is critical.

It is, further Ordered this Court retains jurisdiction of this case because this Remand Order is for the taking of additional evidence, and is under 42 U.S.C. § 405(g) a sentence six remand, and not the entry of a final judgment under sentence four of such statute, Sullivan v. Finklestein, 496 U.S. 617, 625-80, 110 S.Ct. 2658, 2664-66 (1990), Friz-zell v. Sullivan, 937 F.2d 254 (5th Cir.1991), and Kane v. Heckler, 731 F.2d 1216 (5th Cir.1984).

It is, therefore Ordered the case is remanded to the Secretary only for reconsideration of the onset date of the disability at the Fifth Sequential Step of the decision making process.

It is, further Ordered six (6) months from the date of this Order and each six (6) months thereafter both' the Plaintiff and the Defendant are required to file with this Court a report of the status and progress of this Social Security claim for both disability insurance and supplemental security income benefits.

FINDINGS, CONCLUSIONS AND RECOMMENDATION

WARNICK, United States Magistrate Judge.

The Plaintiff, Harold E. Davis, is appealing a decision of the Secretary of Health and Human Services denying his application for disability insurance benefits, 42 U.S.C. § 405(g).

The Plaintiff had his initial Administrative Law Judge (ALJ) Hearing on November 29, 1990. The ALJ entered his decision at the Fourth Sequential Step of the decision making process on February 15, 1991. Then on January 14, 1992, the Appeals Council set this decision aside and remanded it for a second ALJ Hearing. The second Hearing was held on March 16, 1992. The ALJ entered his determination this time at the Fifth Sequential Step of the decision making process on July 29, 1992. The ALJ made a finding based upon the Medical Vocational Guidelines, and in addition, upon the testimony of a vocational expert. On May 13, 1993, the Appeals Council found there was no basis for a review of the ALJ decision. The Appeals Council considered the post-ALJ Hearing submission made by the Plaintiff. Thus, the ALJ’s July 29, 1992, determination became the final decision of the Secretary.

Plaintiff was born on June 12,1935. Plaintiff has a high school education. Plaintiff claims both an onset date of his disability and the last date on which he was gainfully employed as March 15,1988. Plaintiff claims he suffers residuals from poliomyelitis, which he contracted in 1952. He also initially claimed he suffered from hypoglycemia.1 It later will develop he does suffer from a mild form of hypertension. Plaintiff suffered the polio while he was in high school. According to his testimony, it delayed his graduation by about one and a half years. He even attempted to serve in the Armed Forces. However, he was in less than 90 days and given an honorable discharge for medical reasons. Plaintiffs father was in the electric motor repair business. Plaintiff simply went to work for his father. Plaintiff later will own the business, and electric motor repair will be the single source of his vocational or work experience.

The purpose of the Plaintiffs claim is to establish a disability under the Social Security Act, 42 U.S.C. § 405(g).

Pursuant to the Statutory provisions, the Secretary has promulgated regulations which establish a five-step sequential process for determining the presence or absence of disability to award or to deny disability payments, 20 C.F.R. § 404.1520 (1984). All of the various regulatory definitions, etc., appear in 20 C.F.R. § 404.1501, Sub-part P, et seq. The Plaintiff bears the burden of proving the first four sequential steps in the test for disability. Then on the final step, if it is reached, the Secretary bears the burden of proof.

[1014]*1014 FIRST STEP

The first step is the Plaintiff at the time of the claim of disability and thereafter must not be engaged in substantial gainful activity, If Plaintiff is engaged in substantial gainful activity then the Plaintiff is not disabled, 20 C.F.R. §§ 404.1520(b) and 404.1510.

SECOND STEP

If the ALJ decides Plaintiff is not engaged in substantial gainful activity, the second determination is to find if there is an (1) impairment and (2) whether it’s severe, 42 U.S.C. § 423(d)(2)(A). The Plaintiff under this severity regulation must have an impairment which is severe to be found disabled, 20 C.F.R. §§ 404.1520(c), 404.1508, 404.1513, 404.1520-1530, Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and Sewell v. Heckler, 764 F.2d 291 (5th Cir.1985).

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Bluebook (online)
859 F. Supp. 1011, 1994 U.S. Dist. LEXIS 16603, 1994 WL 446023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-shalala-txnd-1994.