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MONTEIRO v. HECKLER

July 24, 1986

FERNANDO MONTEIRO, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: KRAM

SHIRLEY WOHL KRAM, U.S.D.J.

MEMORANDUM OPINION AND ORDER

 This case is before the Court on the parties' cross-motions for judgment on the pleadings. Fed. R. Civ. P. 12(c). Plaintiff Fernando Monteiro seeks a reversal of the Secretary's decision denying his application for Social Security Disability Insurance Benefits (DI). 42 U.S.C. § 423. The Secretary moves for affirmance, claiming the decision that plaintiff was capable of light work and thus not disabled is supported by substantial evidence.

 LEGAL FRAMEWORK

 A court's role in reviewing a finding a disability is limited to an assessment of whether the Secretary's findings are supported by substantial evidence. Rivera v. Harris, 623 F.2d 212 (2d Cir. 1980). If so, the finding is conclusive. 42 U.S.C. § 405(g). "Substantial evidence" means more than a mere scintilla, it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Schauer v. Schweiker, 675 F.2d 55 (2d Cir. 1982).

 An individual is disabled if he suffers from an impairment which prevents him from engaging in his previous work or any work in the national economy and which is expected to last for at least twelve months. 42 U.S.C. § 423(d).

 The claimant bears the initial burden of showing that his impairment prevents him from returning to his prior type of employment. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). If the claimant meets this burden, the burden then shifts to the Secretary to prove the existence of alternative gainful employment which exists in the national economy and which the claimant could perform, considering his mental and physical capabilities, age, education, experience, and training. Id.

 The Secretary has incorporated this burden of proof in a five step process to be utilized in evaluating disability claims. 20 C.F.R. § 404.1520. First, if the Secretary finds that the applicant is engaged in substantial gainful activity, a finding of not disabled is required. Second, the Secretary determines whether the applicant has a severe impairment. *fn1" Third, if the claimant has a severe impairment, the Secretary must decide, based on medical evidence alone, whether the applicant has an impairment which is listed in Appendix 1 of the regulations. If he does, he is disabled. Fourth, if the claimant does not have a listed impairment the Secretary determines whether the applicant has the residual functional capacity to do his past work. Fifth, if he does not, the Secretary then determines whether, based on the applicant's residual functional capacity, age, education, and past work experience, he can do any other work. If he can, the Secretary will find him not disabled.

 THE DECISION BELOW

 In the present case, the Administrative Law Judge (ALJ) found that Monteiro was not working, suffered from a severe, non-listed impairment, and could not perform his previous work. The ALJ found, based on the "negative clinical findings and claimant's account of his daily activities", "that the claimant is able to sit and stand alternatively in an eight-hour work day, walk short distances, and lift and carry up 20 pounds. . . ." and thus "retains the functional capacity for light work." (R.16) The ALJ also stated that Monteiro "testified that he drives, shops with his wife, and takes care of his personal needs." (R.16) Under a section marked "Findings" the ALJ found that "[a]lthough claimant continues to suffer from leg pain, the evidence shows that such pain is caused by excessive ambulation and that light work could be performed . . .", and that "[t]he claimant has the residual functional capacity to perform the physical exertion requirements of work except for prolonged walking and lifting and carrying more than 20 pounds. . . ." (R. 16-17) The ALJ then applied 20 C.F.R. Pt. 404, Subpt. P, App. 2 (the grids) to Monteiro, and found that Monteiro was not disabled.

 Monterio challenges the ALJ's finding that he had the residual functional capacity to engage in light work. Monteiro claims he retained only the capacity to perform sedentary work and based on his age, work experience, and education, application of the grids requires a finding of disability. Monteiro returned to work on September 6, 1983, so he claims he is entitled to benefits from September 3, 1982 until then. *fn2"

 PERSONAL HISTORY

 Monteiro was born in Portugal on July 2, 1934. (R. 44) He attended school for four years in Portugal, and has received no other vocational or job training. (R. 27) Monteiro came to the United States in 1970, and does not speak, read, or write English. (R. 23, 28) He cannot read or write Portuguese either. (R. 28)

 Monteiro's only work experience has been as a gardener. (R. 48) He has held a number of landscaping jobs while in the United States, most recently at a cemetery. His responsibilities at the cemetery included ...


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