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AKERS v. CALLAHAN

February 25, 1998

ROBERT L. AKERS, Plaintiff,
v.
JOHN J. CALLAHAN, Acting Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: LEE

 February 25, 1998

 I. INTRODUCTION

 Plaintiff Robert L. Akers brings this action pursuant to 42 U.S.C. §§ 405(g) seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying his application pursuant to the Social Security Act ("Act") for supplemental security income ("SSI"). *fn1" As is the customary practice in the Western District of Pennsylvania, the parties have submitted cross motions for summary judgment and the record developed at the administrative proceedings, including post hearing submissions of medical reports and documents.

 After careful consideration of the Administrative Law Judge's ("ALJ") Adjudication, the memoranda of the parties, and the entire record, the Court finds the record offers almost no support for any of the ALJ's important findings or his conclusions, and, conversely, offers compelling support for plaintiff's disability based upon a combination of severe impairments, chief of which are an uncontrolled seizure disorder, a long-standing condition of bipolar disorder with panic attacks, and a long-standing peptic ulcer condition. Accordingly, summary judgment will be entered in plaintiff's favor and an award of SSI benefits will be ordered.

 II. PROCEDURAL HISTORY

 Plaintiff filed an application for disability insurance on August 24, 1992, alleging that he was disabled at that time because of ulcers and anxiety. His application was denied initially by the Social Security Administration, and denied again on his application for reconsideration. A hearing was conducted before an ALJ on December 14, 1994. Plaintiff, represented by counsel, testified at the hearing, as did his wife, Vicky Akers, and introduced numerous medical reports and other medical documents. The testimony and the medical evidence adduced at and submitted following the hearing concerned not only Mr. Akers' ulcers and anxiety, but also expanded the mental impairments (anxiety) claim to other emotional and psychological problems, including bipolar disorder, and the physical impairments (ulcers) claim to a seizure disorder which commenced sometime after his application form was filed. (He first received in-patient hospital treatment for his seizures in June, 1993.) Vocational expert Noel Plummer, Ph.D. also appeared and responded to a series of hypothetical questions posed by the ALJ.

 By adjudication dated April 16, 1996, the ALJ denied plaintiff's disability claim, and the Appeals Council upheld the ALJ's adjudication, which thus became the final decision of the Commissioner.

 III. STATEMENT OF THE CASE

 ALJ's Findings of Fact

 The ALJ made the following Findings:

 
1. The claimant has not engaged in substantial gainful activity since July 24, 1992.
 
2. The medical evidence establishes that the claimant has a seizure disorder, disc bulge, right shoulder impairment, headaches, depression and an ulcer, impairments which are severe but do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
 
3. The claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible in light of discrepancies between the claimant's assertions and information contained in the documentary reports and the findings made on examination.
 
4. The claimant lacks the residual functional capacity to climb or balance and can only occasionally crouch, stoop, kneel, or crawl, cannot interact appropriately with co-workers or supervisors, concentrate on or attend to work tasks on a sustained basis, tolerate more than minimal levels of stress and cannot work around environmental hazards.
 
5. The claimant is unable to perform his past relevant work as laborer/grinder and carpenter.
 
6. The claimant's capacity for the full range of light work is diminished by the above set forth limitations.
 
7. The claimant is 44 years old, a "younger individual age 18 - 44."
 
8. The claimant has a high school education.
 
9. The claimant has skilled work experience.
 
10. Based on an exertional capacity for light work, and the claimant's age, education background, and work experience, Section 416.969 and Rules 202.21 and 202.22, Table No. 2, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled." The same result would be reached without regard to transferability of work skills.
 
11. Although the claimant's additional nonexertional limitations do not allow him to perform the full range of light work, using the above-cited Rule as a framework for decision-making, there are a significant number of jobs in the national economy which he could perform. Examples of such jobs are: work as an assembly worker, dispatcher and packager. Tens of thousands of jobs in each of these categories exist in the national economy.
 
12. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.

 Adjudication, R. 23-24.

 Accordingly, the ALJ concluded plaintiff was not eligible for SSI benefits. In his discussion, the ALJ discounted plaintiff's credibility as to the frequency and severity of his seizures and his psychological impairments based in part on perceived "discrepancies" inherent in his testimony and as compared to that of his wife, and purported to have considered all of the medical evidence and listed some reasons for crediting certain medical evidence over other. In reviewing the medical records, however, it is apparent the ALJ failed to give adequate consideration to the treating physician's diagnosis and opinions and chose to selectively credit certain portions of certain physician's opinions and records without principled reason for ignoring other portions which support plaintiff's disability. It is also apparent that the ALJ's hypothetical questions and the answers thereto not only fail to support the ALJ's conclusions and findings, but actually support a finding of disability, and that the perceived "discrepancies" in plaintiff's testimony were highly exaggerated and evaporate when placed in obvious context.

 IV. STANDARDS OF REVIEW

 Because the standards for eligibility under Title II and judicial review thereof are virtually identical to the standards under Title XVI, decisions rendered under 42 U.S.C. § 423 are also applicable to decisions rendered under 42 U.S.C. § 1381a. Sullivan v. Zebley, 493 U.S. 521, 525 n. 3, 107 L. Ed. 2d 967, 110 S. Ct. 885 (1990). The Act limits judicial review of the Commissioner's final decision on disability claims. 42 U.S.C. §§ 405(g) *fn2" and 1383(c)(3) *fn3" Section 405(g) permits a district court to review transcripts and records upon which a determination of the Commissioner is based. If supported by substantial evidence, the Commissioner's factual findings of disability must be accepted as conclusive. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995); Wallace v. Secretary of HHS, 722 F.2d 1150, 1152 (3d Cir. 1983).

 The Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). It consists of more than a scintilla of evidence, but less than a preponderance. ventura, 55 F.3d at 901 (quoting Richardson, 402 U.S. at 401); Stunkard v. Secretary of HHS, 841 F.2d 57, 59 (3d Cir. 1988). The substantial evidence standard allows a court to review a decision of an ALJ, yet avoid ...


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