Underwood v. Shalala

985 F. Supp. 970, 1997 U.S. Dist. LEXIS 20914, 1997 WL 726436
CourtDistrict Court, D. Colorado
DecidedSeptember 25, 1997
DocketCivil No. 94-B-2418
StatusPublished
Cited by1 cases

This text of 985 F. Supp. 970 (Underwood v. Shalala) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Underwood v. Shalala, 985 F. Supp. 970, 1997 U.S. Dist. LEXIS 20914, 1997 WL 726436 (D. Colo. 1997).

Opinion

ORDER

BABCOCK, District Judge.

On this court’s special order of reference for recommendation, Magistrate Judge Patricia A. Coan recommends that this action be reversed and remanded to the secretary for an award of benefits. The recommendation was issued and served on September 5,1997. The defendant has failed to file specific written objections to the recommendation. Accordingly, the plaintiff is barred from a de novo determination of the proposed findings and recommendation. United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), 28 U.S.C. § 636(b)(1). The court now being sufficiently advised,

IT IS ORDERED that the decision of the Secretary is REVERSED AND REMANDED for an award of benefits to the plaintiff.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

COAN, United States Magistrate Judge.

This matter is before the court on a May 12, 1997 special order of reference from District Judge Lewis T. Babcock. Plaintiff appeals the decision of the secretary terminating his social security disability benefits. Judicial review of the Secretary’s decision is appropriate under 42 U.S.C. § 405(g). For the reasons discussed below, it is recommended that the matter be reversed and remanded to the Secretary.

I. Background

Mr. Underwood (“claimant” or “Underwood”) was bom August 4, 1942. Ree. 312. Claimant is now fifty five years old and is right-handed. Ree. 78. After a June 1990 on the job injury to his right wrist which developed into Kienbock’s disease with lunate collapse and radiocarpal changes (Rec.15), claimant had two wrist fusions, one on August 30,1990 and the second on July 5, 1991. Ree. 72. He attempted to return to work twice and on both occasions, his hand swelled up and hurt. Ree. 34, 88. He complained of constant aching pain in the wrist and throbbing pain at times, which was aggravated by changes in the weather, moving his wrist and letting his arm just hang. Rec. 36. Underwood takes Tylenol PM for pain (Rec.251), and has not received medical treatment for his wrist since May 11, 1992. Rec. 234. Claimant maintains further that his activities and sleep were disturbed by pain in the affected wrist. Ree. 247-48, 250.

Underwood pursued a worker’s compensation claim and a hearing was held June 19, 1992. Rec. 90. At that hearing, vocational [974]*974evaluator Wise testified that Underwood did not possess transferable work skills and that there was no job he knew of that Underwood could perform. Rec. 92. The employer’s insurer hired Kaye Consultants whose vocational expert report of May 13, 1992 stated that Underwood was employable, but that he would suffer loss of earning capacity due to the injury. Rec. 226. The state administrative law judge found that Underwood was permanently and totally disabled as a result of the June 19,1990 injury. Rec. 93.

A hearing was held before a Social Security Administration (“SSA”) Administrative Law Judge (“ALJ”) on January 14, 1994. SSA consulting examiner Dr. Deverell opined on October 13,1992 that there was “satisfactory distal radius-carpal arthrodesis, but the intercarpal joint, again, does not look as though it has gone on to union,” and “[claimant] could function within certain limitations.” Rec. 232. Vocational evaluator Wise testified that he considered Underwood to be a “one armed, one handed man” ánd therefore not employable. Rec. 44-45. Vocational evaluator Shriver said that Underwood was physically qualified to perform unskilled light work, such as a school crossing guard. Rec. 51, 54.

The ALJ found that the medical evidence established that plaintiff sustained an injury to his right wrist, followed by two surgical repairs. The ALJ did not find that the plaintiffs complaints of pain were sufficient to disable him. Rec. 16-17. She determined that, after February 27, 1992, plaintiff had the ability to perform a limited range of light work. Accordingly, she concluded, after considering plaintiffs age, education, past relevant work and residual functional capacity, that, although plaintiff was disabled from July 10, 1990 through February 27, 1992, he was not disabled after that date. Rec. 14.

Plaintiff filed his complaint October 24, 1994, seeking reversal of the Appeals Council decision of August 24, 1994 which affirmed the ALJ. The Appeals Council’s decision was the final decision of the Secretary for purposes of judicial review under 42 U.S.C. § 405(g). Fierro v. Bowen, 798 F.2d 1351, 1354-55 (10th Cir.1986).

II. Standard of Review

Judicial review of the Secretary’s decision is limited to whether the Secretary’s decision is supported by substantial evidence upon review of the record as a whole and whether she applied the correct legal standards. Andrade v. Secretary of Health and Human Services, 985 F.2d 1045, 1047 (10th Cir.1993); Castellano v. Secretary of Health and 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.” Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir.1983) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). In reviewing the Secretary’s decision, the court cannot reweigh the evidence or substitute its judgment for that of the Administrative Law Judge. Hamilton v. Secretary of Health & Human Services, 961 F.2d 1495, 1498 (10th Cir.1992). A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if it is based on a mere scintilla of evidence, but the court will scrutinize evidence that constitutes mere conclusion. Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988). The court must affirm the Secretary’s decision if it is based on substantial evidence. Eggleston v. Bowen, 851 F.2d 1244, 1246 (10th Cir.1988).

III. Administrative Law Judge’s Decision

The issue was whether Underwood was disabled and entitled to disability benefits and supplemental security income under the Social Security Act after February 27, 1992.

In Reyes v. Bowen, 845 F.2d 242

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985 F. Supp. 970, 1997 U.S. Dist. LEXIS 20914, 1997 WL 726436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/underwood-v-shalala-cod-1997.