Cassiday v. Schweiker

• Decision Date: 05 November 1981
• Docket Number: No. 81-1460,81-1460
• Parties: Anna J. CASSIDAY, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 745

663 F.2d 745

Anna J. CASSIDAY, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.

No. 81-1460.

United States Court of Appeals Seventh Circuit.

Argued Oct. 1, 1981.

Decided Nov. 5, 1981.

Richard H. Finley, Kendallville, Ind., for plaintiff-appellant.

Steven J. Plotkin, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, FAIRCHILD, Senior Circuit Judge, and BROWN, Senior District Judge. ^*

CUMMINGS, Chief Judge.

In March of 1974 Anna J. Cassiday applied for disability benefits under the Social Security Act, 42 U.S.C. § 423 (1976). Her claim was based on a diagnosis of thoracic outlet syndrome and bilateral median and ulnar neuropathy. In laymen's terms, occlusion of the blood vessels leading from the chest to the arms and compression of major nerve roots were causing Mrs. Cassiday to experience pain in her chest and pain, numbness, tingling, and weakness in her arms and hands. Mrs. Cassiday's claim was denied on July 29, 1974. Subsequently it was reconsidered and approved, with benefits made retroactive to February 25, 1974.

At roughly annual intervals, Indiana Rehabilitation Services, acting under contract to the Social Security Administration, reviewed Mrs. Cassiday's case to see if her condition had improved. The first such review, in November of 1975, found that her disability was continuing. On November 15, 1976, however, Mrs. Cassiday was notified that her benefits would be terminated, because she could then engage in substantial gainful employment. ¹ This time reconsideration was unavailing. An administrative law judge (ALJ) conducted a de novo hearing and denied benefits on June 29, 1979. The Appeals Council declined to review his decision. On September 28, 1979, Mrs. Cassiday sought reversal of the administrative decision in federal district court. On January 21, 1981, Judge Eschbach denied Mrs. Cassiday's motion for summary judgment and granted the motion for summary judgment of the Secretary of Health and Human Services. Mrs. Cassiday then appealed to this Court. For the reasons set out below, we reverse and remand to the Secretary for the allowance of disability benefits to Mrs. Cassiday.

I

On appeal Mrs. Cassiday makes two arguments. First, had the Secretary given the proper weight to the opinions of treating, examining, and reviewing physicians as required by our decisions in Carver v. Harris, 634 F.2d 363 (7th Cir. 1980), and Allen v. Weinberger, 552 F.2d 781 (7th Cir. 1977), there would have been insufficient evidence in the record to support a determination that she was no longer disabled. Second, had the Secretary followed established precedents and his own regulations, he could not alternatively have concluded that, though disabled, Mrs. Cassiday was barred from receiving benefits because she refused to undergo surgery to cure or ameliorate her condition.

In reviewing the decision to terminate Mrs. Cassiday's benefits, we find sound guidance in the analysis in Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir. 1975) (citations and footnote omitted), where Judge Levin Campbell stated:

The concept of "burden of proof" is in this context rather confusing. It is true that one claiming benefits is sometimes described as having the "burden of proof", meaning that he must furnish requisite medical and other evidence within his grasp, see 42 U.S.C. § 423(d)(5), and show reasonable diligence in maintaining his claim. * * * For his part, however, the Secretary must make an investigation that is not wholly inadequate under the circumstances. And once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant's condition is not as serious as was at first supposed. As for the claimant, he remains at all times under a duty to exercise reasonable diligence in furnishing the Secretary with evidence relevant to his claim.

A

It is necessary to begin with a brief chronology of Mrs. Cassiday's various medical examinations. Dr. Carl Stallman, a general practitioner in Kendallville, Indiana, had been Mrs. Cassiday's family doctor since 1960. Early in 1974 he referred her to Dr. Roger Murray, a Kendallville family practitioner and general surgeon. Dr. Murray hospitalized her and made the first tentative diagnosis of her condition. Dr. Murray in turn referred Mrs. Cassiday to Dr. Louis Romain, a neurologist in Fort Wayne. Dr. Romain hospitalized her for extensive tests in April 1974, confirmed the diagnosis of moderate to severe bilateral thoracic outlet syndrome, and recommended surgical removal of four ribs, two on either side of Mrs. Cassiday's heart. ² Four additional doctors examined but did not treat Mrs. Cassiday. Each of them saw her only once. Dr. William LaSalle, an orthopedic surgeon in Fort Wayne, saw Mrs. Cassiday in August of 1974 and could find no explanation for her severe symptoms. ³ Dr. Antonio Donesa, a Fort Wayne neurosurgeon, saw her in November 1975. He concluded that she did have bilateral thoracic outlet syndrome and that her back and neck pain might be relieved by surgery. He pronounced her capable of doing "sedentary light work on a sustained basis." Dr. Fred Lamb, a neurologist in Fort Wayne, examined Mrs. Cassiday in September 1976; like Dr. Donesa, he assumed that Mrs. Cassiday's condition had been accurately diagnosed but believed that she could do light sedentary work. Dr. Lee Cattell, an orthopedic surgeon in Indianapolis, examined Mrs. Cassiday in December of 1976. He, too, concurred in the diagnosis. However, he thought that Mrs. Cassiday could engage in no continuous useful activity because of the loss of circulation in her hands. Finally, Mrs. Cassiday's history was reviewed by two more doctors, both staff members of Indiana Rehabilitation Services. In January 1977 Dr. William Franklin, an orthopedic surgeon, suggested that disability benefits be continued, based on documented nerve root compression. ⁴ A month later, Dr. A. H. Oleynick, a neurologist, recommended termination: Mrs. Cassiday could do any work that did not require her arms to be raised above shoulder level, and surgery might relieve all of her symptoms.

The Social Security Administration acknowledges that "(t)he weight to be given (a) physician's statement depends on the extent to which it is supported by specific and complete clinical findings and is consistent with other evidence as to the severity and probable duration of the individual's impairment or impairments." 20 C.F.R. § 404.1526 (1980). ⁵ Our decisions do no more than give practical application to this general principle. We summarized our position in Carver v. Harris, 634 F.2d 363, 364 (7th Cir. 1980) (per curiam ):

In Allen v. Weinberger, 552 F.2d 781 (7th Cir. 1977), * * * (w)e held first that the opinions of a treating physician are entitled to greater weight than those of a doctor who examined plaintiff only once. Id. at 786. We then considered the conclusions of the physicians who did not examine plaintiff but looked at his medical file:

Although their reports were not inadmissible as hearsay at the hearing before the ALJ, ... the weight to be attached to the reports must be considered in light of the fact that neither physician examined the plaintiff .... Their reports, "without personal examination of the claimant, deserve little weight in the overall evaluation of liability. The (medical) advisers' assessment of what other doctors find is hardly a basis for competent evaluation ...."

Id. (quoting Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir. 1974)).

The Secretary argues that his decision comports with our guidelines. He notes that in Allen we reversed the agency's finding that there was no disability, basing our decision on the weight that should have been given to the treating physician's findings. He argues that in Mrs. Cassiday's case the treating physicians' opinions were adequately weighed in determining initially that the disability existed. However, the Secretary also notes that in Allen we upheld a decision that the disability had later improved, allowing the Secretary to resolve the conflict between the opinions of two examining physicians. He therefore maintains that he is equally free here to resolve conflicts, choosing to credit Dr. Lamb over the other examining physicians and Dr. Oleynick over his fellow reviewing physician (Tr. 17-18).

The difficulty with the Secretary's position is that it allows the agency to isolate parts of what is essentially a continuous medical record and then apply tie-breaker rules to each of the constituent elements. Taken separately, each application may accord with the letter of Allen and Carver; cumulatively they have an arbitrary quality that is far from the spirit of those decisions.

Thus, for example, the Secretary relegates the reports of Drs. Murray and Romain to the status of "examinations preceding the September, 1976 basis for cessation." The sole event that occurred in September 1976 was Dr. Lamb's examination of Mrs. Cassiday, and it only furnished a "basis for cessation" if it was entitled to be accorded decisive weight. The circularity of this reasoning is thus apparent.

Further, Dr. Cattell's December report directly contradicted Dr. Lamb's. The conflicting assessment, the Secretary argues, "is of no fatal concern," because the Secretary was entitled to "resolve ( ) this conflict by giving full credence to the report of Dr. Lamb at the time of his examination" (Tr. 17). The Secretary relies on language from Allen, 552 F.2d at 787, without appreciating the factual limitations in that case. In Allen, the Secretary was choosing between nearly contemporaneous opinions, and "(t)he record does...