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March 31, 1995

THOMAS DAVIS, SS#: 229-54-1409, Plaintiff, against DONNA SHALALA, Secretary of the Department of Health & Human Services, Defendant.

The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge:

 The plaintiff, Thomas Davis ("plaintiff" or "Davis") appeals a decision by the Secretary of the Department of Health and Human Services ("Secretary") denying him Social Security disability benefits under section 223 of the Social Security Act, 42 U.S.C. § 423 (1988) ("Title II"). Davis moves pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for a judgment on the pleadings in his favor. On behalf of the Secretary, the United States ("defendant" or "Government") moves for judgment on the pleadings in its favor.


 Social Security disability benefits under Title II of the Social Security Act ("Act") are governed by the statutory Provisions at 42 U.S.C. § 423. Supplemental Security Income ("SSI") disability benefits are governed by section 1614 of the Act, 42 U.S.C.A. § 1382 (West Supp. 1994) ("Title XVI"). See Chester v. Heckler, 610 F. Supp. 533, 534 (S.D. Fla. 1985) (explaining the difference between the two disability provisions).

 In the present case Davis applied for both Title II and Title XVI disability benefits. The Secretary approved Davis' application for SSI disability benefits, but denied the application for Social Security benefits under Title II. The Secretary's approval of SSI disability benefits is not being appealed, and the Court will only deal in this decision with the Secretary's denial of disability benefits under Title II.

 Entitlement for disability benefits under Title II requires that the individual must (1) be insured for disability insurance benefits by having accumulated a requisite amount of coverage -- measured in quarters of years -- for years worked after 1950 or age twenty-one, (2) not have attained retirement age, (3) have filed an application for disability benefits, and (4) be under a "disability." 42 U.S.C. § 423(a)(1).

 The statute defines "disability" in relevant part to mean:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months;
. . . .
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

 42 U.S.C. §§ 423(d)(1)(A) and (d)(2)(A).

 The regulations promulgated by the Social Security Administration ("SSA") to implement the statutory provisions governing eligibility for disability benefits under Title II establish a five-step evaluation process for determining disability benefits. See 20 C.F.R. § 404.1520-1575. According to 20 C.F.R. § 404.1520, the five-step evaluation process entails consideration in serial fashion of the applicant's current work activity, the severity of his or her physical and/or mental impairments, the applicant's physical and mental limitations, whether the applicant can perform any other kind of work in light of his or her limitations, and his or her age, education and past work experience.

 In the first stop, a determination must be made that the applicant is not working and doing "substantial gainful activity." If the applicant is involved in such activities, then he or she is not disabled. 20 C.F.R. § 404.1520(b). If the applicant is not working and doing "substantial gainful activity," then the Secretary must conduct the second step and determine whether the applicant has a "severe impairment." If it is determined that the applicant's impairment or combination of impairments does not significantly limit his or her physical or mental ability to do basic work activities, then the applicant does not have a "severe impairment" and cannot be disabled. 20 C.F.R. § 404.1520(c). Third, if the applicant has a severe impairment which meets the twelve month duration requirement specified in the statute, and is (i) listed among the impairments in Appendix 1 to 20 C.F.R. § 404 subpart P ("Appendix 1"), or (ii) is considered as "equal" to the listed impairments in Appendix 1 as determined by 20 C.F.R. § 404.1526, then the Secretary must deem the applicant disabled. 20 C.F.R. § 404.1520(d).

 If the Secretary cannot make a disability decision on the basis of the first three steps and the applicant has a severe impairment, then under the fourth step the SSA reviews the applicant's "residual functional capacity" and the physical and mental demands of the work the applicant has done in the past. Residual functional capacity is the applicant's physical and mental strength capability to perform work despite the limitations resulting from his or her impairment. See 20 C.F.R. § 404.1545(a); Appendix 2, 20 C.F.R. § 404 subpart P sec. 200.00(c). If the applicant can still perform the kind of work he or she performed in the past, they are deemed not to be disabled. 20 C.F.R. § 404.1520(e).

 With regard to the fifth step, the factors to consider when reviewing the applicant's vocational skills, education and age are set forth in 20 C.F.R. §§ 1560-1569a. In order to simplify and expedite the determination of disability under step five, Appendix 2 to 20 C.F.R. § 404 subpart P ("Appendix 2") contains several tables, called GRIDs, which provide predeterminations of disability or non-disability for individual cases based on various combinations of residual functional capacity, age, education and work skill. See 20 C.F.R. § 404.1569. The GRIDS are categorized according to whether the individual's residual functional capacities can sustain sedentary work, light work and medium work. See Appendix 2, Tables 1-3. The predeterminations of disability and non-disability contained in the GRIDs are delineated by rules reflecting different criteria encompassing the applicant's age, educational level and vocational skills, measured against the applicant's residual functional capacity.


 1. Davis' Relevant Medical History.

 The plaintiff is presently fifty four years old. He has a tenth grade education. Prior to the onset of his disability, which he alleges began on July 1, 1989, Davis primarily worked as a heavy construction worker and steeple jack. His duties entailed, among other things, digging foundations, lifting and carrying bricks, cinderblocks and bags of cement, pushing wheelbarrows and climbing scaffolds.

 Davis was hospitalized at Huntington Hospital on June 28, 1986 as the result of sustaining injuries to his right foot and calf after being hit by a car and dragged for approximately 120 feet. An open reduction and fixation of the right ankle was performed on June 29, 1986 by Dr. J. Ellstein. The prognosis by Dr. Ellstein in Davis' discharge summary, dated July 11, 1986, states that Davis may develop post-traumatic arthritis of the right ankle. A metallic rod transfixing the distal fibula remains in Davis' right ankle.

 During the time he was hospitalized, Davis was also examined by several other doctors. After the operation, Davis was diagnosed with borderline labile blood pressure by Dr. Robert Ringler. In the summary of his examination, Dr. Ringler noted that Davis smoked and drank about one-half pint of whisky per day, but did not suffer from alcohol withdrawal symptoms when denied the whisky. Dr. Ringler also stated that he thought that some day Davis would end up being treated for hypertension. Dr. Robert Goodman reviewed X-rays of Davis' skeleton. He noted degenerative changes of the C5-6 and C6-7 discs, and a deformity in the right clavicle due to either a previous trauma or a large osteochondroma. The remaining skeletal parts seemed to be normal and intact.

 More than four years after his accident, on November 2 1990, Davis went to the emergency room at Huntington Hospital complaining of pain in his right side. According to the emergency room notes, Davis stated the pain appeared the previous day when he attempted to lift a bag of cement. An emergency room nurse prescribed moist heat, naprosyn and tylenol. The diagnosis on discharge was right lumbar sprain.

 On October 31, 1991 Davis protectively applied for disability benefits. He then went to see Dr. Ringler for an examination in conjunction with his disability application. Dr. Ringler completed a musculoskeletal medical examination of Davis on November 13, 1991. As part of his examination, Dr. Ringler performed a residual functional capacity exam on Davis, consisting of evaluating the amount of physical exertion Davis could perform. The test results showed that Davis' range of physical exertion was "less than sedentary." According to Dr. Ringler, Davis could only lift less than 10 pounds, stand or walk for less than two hours a day and sit for less than six hours a day. Dr. Ringler also concluded that, because of the back pain, Davis could not stoop or bend for long periods, remain seated for long periods, crouch, squat or climb.

 Dr. Ringler diagnosed the plaintiff as suffering from ankle dislocation, lumbar back pain and hypertension. He also found that Davis had both a limited range of motion in the lower back, as well as a shortened and painful right leg. In describing Davis' history, Dr. Ringler wrote that Davis sustained a leg/ankle injury from ...

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