Ross v. Chater

930 F. Supp. 1452, 1996 U.S. Dist. LEXIS 3723, 1996 WL 134854
CourtDistrict Court, D. Kansas
DecidedMarch 12, 1996
DocketNo. 95-4055-RDR
StatusPublished

This text of 930 F. Supp. 1452 (Ross v. Chater) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ross v. Chater, 930 F. Supp. 1452, 1996 U.S. Dist. LEXIS 3723, 1996 WL 134854 (D. Kan. 1996).

Opinion

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is an action for review of a decision to deny applications for benefits under Title II and Title XVI of the Social Security Act. Review is requested under 42 U.S.C. § 405(g) and 5 U.S.C. § 706. Plaintiff has also requested a jury trial.

There is no right to a jury trial in this type of ease. Ginter v. Secretary of Dept, of H.E.W., 621 F.2d 313 (8th Cir.1980). Therefore, plaintiff’s request for a jury trial shall be denied. Plaintiffs right to review is set out under § 405(g); it is unnecessary to consider review under the Administrative Procedure Act.

Under § 405(g), this court must decide whether the decision to deny benefits is supported by substantial evidence and whether the correct legal standards were applied. Castellano v. Secretary of Health & Human Services, 26 F.3d 1027, 1028 (10th Cir.1994). “Substantial evidence” is ‘“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id., quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

Plaintiff has filed several applications for social security benefits. He was granted disability benefits for a period in 1976. After these benefits ended, he filed applications for benefits in 1985. These applications were denied. In 1990, he filed applications alleging a disability onset date of September 13, 1990. These applications were denied at the final level by an administrative law judge (ALJ) on May 28, 1992. This decision was not appealed.

On March 3, 1993, plaintiff filed the applications for Title II and Title XVI benefits which are at issue in this case. Again, plaintiff alleged a disability onset date of September 13,1990.

The ALJ did not find good cause to reopen the decision of May 28, 1992 that plaintiff was not qualified for benefits. This court does not have jurisdiction to review the decision not to reopen. Nelson v. Secretary of Health & Human Services, 927 F.2d 1109, [1455]*14551110-11 (10th Cir.1990); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990). Accordingly, the decisions which this court must review are that defendant was not disabled on May 29,1992 for the purposes of receiving Title II benefits and that defendant was not disabled on March 3, 1993 for the purposes of receiving Title XVI benefits.

These decisions were detailed in an opinion by the ALJ dated August 10,1994. The ALJ found that plaintiff did not have an impairment or combination of impairments which prevented him from performing his past work as a security guard. Following a request for reconsideration and review of additional evidence, the decision of the ALJ was confirmed by the Appeals Council on February 9,1995. This appeal followed.

The record indicates that defendant has had a bad back for many years. He had back surgery in the mid-1980s. One of the medical reasons he has listed to support his claim for disability benefits is degenerative disc disease. Defendant also alleges that he is functionally illiterate. This is another reason plaintiff lists in support of his claim for benefits.

The court believes substantial evidence supports the denial of benefits in this case. Plaintiff’s treating physician, Dr. Moorhead, has made statements which contradict plaintiffs claim of disability. For instance, Dr. Moorhead has stated that: “Mr. Ross would be capable of doing some light activity” (Tr. 21); “[he] could carry 10 pounds an unlimited number of times” (Tr. 22); “no neurological problem prevents him from doing repetitive work with his hands” (Tr. 22); “he may have degenerative changes, but does not have anything which would render him disabled.” (Tr. 26).

A consulting physician, Dr. John Chamber-lin, noted that plaintiff complained that he could not sit or stand more than five to ten minutes without his legs giving out. (Tr. 620). However, plaintiff also reported that he shops for food, and cooks and cleans about the house. (Tr. 622). The doctor considered plaintiff to be “dramatic” during the evaluation and was surprised that plaintiff was able to dress himself in thirty seconds after the examination, considering the pain he corn-plained of during the examination. (Tr. 621 & 623).

In the latest intelligence test taken by plaintiff, the results demonstrated that he is functioning in the average range of intelligence, although his nonverbal abilities are more greatly developed than his verbal abilities. (Tr. 642). The test suggested significant limitations in his verbal abilities which indicated there might be difficulty in training plaintiff to perform clerical work. (Tr. 644). We note that in a previous intelligence test, plaintiff was found to be of above average intelligence. (Tr. 384). Other statements in the record indicate that plaintiff is of average intelligence. (E.g., Tr. 478).

A vocational expert testified that plaintiff could return to a job as a security guard if he: could stand or walk for 6 hours out of an 8 hour day; could sit for 6 hours out of an eight hour day; lift or carry 10 pounds frequently and 20 pounds occasionally; could occasionally climb, balance, stoop, kneel, crouch and crawl; and had an IQ such as that shown by plaintiffs tests. (Tr. 697-98).

Plaintiff argues that his functional illiteracy prevents his employment as a security guard. However, substantial evidence supports a finding of literacy for the purposes of the social security regulations as well as a finding that plaintiff can work as a security guard.

The regulations only require the ability to read and write simple messages. 20 C.F.R. §§ 404.1564(b)(1) and 416.964(b)(1). The evidence indicates that plaintiff was able to read a booklet required to get a driver’s license and pass the examination, although he was slow to accomplish it. The vocational expert’s testimony indicated that plaintiff could be a security guard. Indeed, since plaintiff has already worked as a security guard, it appears that he is intellectually capable of doing the work. The test is not whether plaintiff will be hired for a job under the particular hiring practice of a security company, but whether he is physically and mentally capable of performing the job. 20 C.F.R. §§ 404.1505, 404.1566(a), 416.905 and 416.966(a). Finally, we note that plaintiff has completed several hours of vocational education, spent time in the military, and has [1456]*1456some college credit, although he asserts his wife did the written work in his college courses.

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930 F. Supp. 1452, 1996 U.S. Dist. LEXIS 3723, 1996 WL 134854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-chater-ksd-1996.