Black v. Shalala
Opinion of the Court
ORDER
The Court, having received the Findings and Recommendation of the United States
The clerk is directed to mail a certified copy of this Order to all counsel of record.
FINDINGS AND RECOMMENDATION
In this action, filed under the provisions of 42 U.S.C. § 405(g), plaintiff seeks review of the final decision of the Secretary of Health and Human Services to the extent that decision denied his application for disability insurance benefits for the period prior to March 4, 1992. The case is presently pending before the Court on plaintiffs motion for summary judgment and defendant’s response in opposition thereto.
Plaintiff filed his application on March 11, 1992, alleging disability commencing October 5,1990, as a result of a right shoulder injury. On appeal from an initial and reconsidered denial, an administrative law judge, after hearing, found plaintiff not disabled. Thereafter, the Appeals Council granted plaintiffs request for review, reversed the administrative law judge’s decision, and granted benefits based on its finding that plaintiff became disabled on March 4, 1992, but not before. Plaintiff then timely filed this action seeking review of the Secretary’s decision.
At the time of the Appeals Council's decision, plaintiff was sixty-two years of age and had obtained a ninth grade education. His past relevant employment experience consisted of work as a glass blower and blocker at a glass factory. The Appeals Council found, and the medical evidence establishes, that plaintiff suffers from “a severe right rotator cuff tear, and that be has hypertension, degenerative arthritis of his right shoulder, shortness of breath, and venous insufficient [sic]____” In its decision, the Appeals Council determined that plaintiff had the residual functional capacity for light level work with some restrictions and that the applicable guideline rule, Rule 202.02,
Review of the record establishes deficiencies which will require remand for further proceedings. A careful examination of the decision fails to indicate the evidence relied upon by the Appeals Council in support of its finding that the work performed by plaintiff from August of 1991 to March 3, 1992 constituted substantial gainful activity. Unquestionably, this work was gainful, and, in light of plaintiffs earnings, may, presumptively, be substantial.
RECOMMENDATION
In light of the foregoing, it is RESPECTFULLY RECOMMENDED that this case be remanded to the Secretary for further proceedings consistent with these Findings and Recommendation.
Plaintiff and defendant are hereby notified that a copy of these Findings and Recommendation will be submitted to the Honorable Robert J. Staker, United States District Judge, and that, in accordance with the provisions of Rule 72(b), Fed.R.Civ.P., the parties may, within thirteen days of the date of filing these Findings and Recommendation, serve and file written objections with the Clerk of this Court, identifying the portions of the Findings and Recommendation to which objection is made and the basis for such objection. The judge will make a de novo determination of those portions of the Findings and Recommendation to which objection is made in accordance with the provisions of 28 U.S.C. § 636(b) and the parties are advised that failure to file timely objections will result in a waiver of their right to appeal from a judgment of the district court based on such Findings and Recommendation. Copies of objections shall be served on all parties with copies of the same to Judge Staker and this Magistrate Judge.
The Clerk is directed to file these Findings and Recommendation and to mail a copy of the same to all counsel of record.
. 20 C.F.R. Part 404, Subpart P, Appendix 2, Table No. 2.
. See, 20 C.F.R. § 404.1574(b)(2); Garnett v. Sullivan, 905 F.2d 778, 780 n. 1 (4th Cir. 1990).
. While the administrative law judge may have been in error in characterizing the work as an unsuccessful work attempt, a finding to this effect does not resolve the issue of whether the work performed by plaintiff constituted substantial gainful activity.
. See also, Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir. 1987).
. See, Sigmon v. Califano, 617 F.2d 41 (4th Cir. 1980).
Reference
- Full Case Name
- John BLACK v. Donna E. SHALALA, Secretary of Health and Human Services
- Status
- Published