Mongeur v. Heckler, 1433

• Decision Date: 22 November 1983
• Docket Number: No. 1433,D,1433
• Citation: 722 F.2d 1033
• Parties: , Unempl.Ins.Rep. CCH 15,007 George MONGEUR, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant-Appellee. ocket 83-6063.
• Court: U.S. Court of Appeals — Second Circuit

Page 1033

722 F.2d 1033

3 Soc.Sec.Rep.Ser. 298, Unempl.Ins.Rep. CCH 15,007

George MONGEUR, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services,

Defendant-Appellee.

No. 1433, Docket 83-6063.

United States Court of Appeals, Second Circuit.

Argued June 15, 1983.

Decided Nov. 22, 1983.

William R. Marks, Burlington, Vt., for plaintiff-appellant.

Kathleen N. Coleman, Asst. U.S. Atty., (George W.F. Cook, U.S. Atty., D. Vermont, Patti R. Page, Asst. U.S. Atty., Rutland, Vt., on brief), for defendant-appellee.

Before KEARSE and CARDAMONE, Circuit Judges, and BARTELS, District Judge. ^*

PER CURIAM:

George Mongeur appeals from a judgment of the United States District Court for the District of Vermont (Albert W. Coffrin, District Judge) which upheld a final determination of the Secretary of Health and Human Services ("Secretary") denying Mongeur's application for reinstatement of disability insurance benefits under the Social Security Act ("Act"), 42 U.S.C. Sec. 405(g) (Supp. IV 1980). In an Opinion and Order, dated January 14, 1983, the district court found that there was substantial evidence supporting the decision of the Secretary that Mongeur's disability had ceased in October, 1979 and that the additional evidence Mongeur had submitted to

the district court did not qualify as "new" evidence that would justify a remand. We affirm.

BACKGROUND

George Mongeur initially filed for social security disability benefits on December 12, 1977. At the time he was 45 years old, had completed the sixth grade and could barely read and write. His work history included employment for approximately 20 years as a carpenter and laborer in the construction industry and in a lumber mill and a two-year stretch in the Army where he had worked cleaning guns. When he applied for benefits Mongeur had not been working for about a year and was receiving outpatient care at the Veterans Administration Medical Clinic ("VA Clinic") where he had sought help because of fatigability, shortness of breath and exertional chest tightness. The medical personnel at the VA Clinic had diagnosed his condition as Class II anginal symptoms of chest pain and dyspnea.

The Social Security Administration ("SSA") denied his application for benefits, but Mongeur petitioned for and was afforded a hearing before an Administrative Law Judge ("ALJ"). The medical records submitted at that hearing document both a cardiac disorder and moderate obstructive airway disease. In an opinion dated October 25, 1978, the ALJ concluded that while the pulmonary problem was not disabling, the cardiac disorder was. He stated, however, that although he felt "constrained" to find that Mongeur could not work, he was unsure whether Mongeur's disability would be permanent, and he therefore recommended that Mongeur be reexamined within six months by a specialist in cardiac and pulmonary diseases. The basis for his doubt was a report by Dr. Christopher M. Terrien in which he had diagnosed Mongeur's heart condition as mild mitral insufficiency which would not be a disabling condition. The doctor, however, was unable to exclude the possibility that Mongeur might be suffering from angina pectoris, and if that indeed were the case, he opined that Mongeur should be restricted from isometric work and work involving the upper extremities. When presented with that medical restriction, the vocational expert who testified at the administrative hearing concluded that, given Mongeur's limited education, there were no occupations in the New England region that he could perform.

In January, 1980, SSA reevaluated Mongeur's condition and determined that his disability had ceased in October, 1979. Mongeur requested and was afforded an administrative hearing which was conducted by the same ALJ who had previously found Mongeur disabled. At that hearing the ALJ heard testimony from Mongeur, his wife and a vocational expert, and he considered medical reports from two practitioners of the VA Hospital, Dr. Arthur Sauvigne and Nurse Practitioner Elizabeth Laro, and from one consultative physician, Dr. Thomas B. Clairmont. The medical reports indicated that Mongeur's anginal chest pain pattern, which originally had caused the ALJ concern, was stable and mild; its symptoms could promptly be relieved by medication; and Mongeur no longer exhibited any signs of a significant cardiac condition. Mongeur's hypertension was also well controlled, and his moderate airway obstruction was responding to medication. The doctors' reports indicated that Mongeur's only significant remaining health problem was some difficulty in breathing, but both Dr. Sauvigne and Dr. Clairmont explained that this difficulty, probably the result of Mongeur's smoking, would continue as long as he continued to smoke. They concluded that Mongeur was not disabled. Dr. Sauvigne reported that he believed Mongeur's impairments did not meet the criteria for social security disability, and Dr. Clairmont concluded that Mongeur could manage to do work that did not require exertion and was not associated with dust fumes or chemicals that would interfere with his breathing. Nurse Laro implicitly disagreed with the doctors' prognosis, stating that in her opinion Mongeur suffered from both physical and mental impairments which would persist and progress during the rest of his life.

The vocational expert who testified at the hearing stated that, although Mongeur could not return to construction work, he In the form he submitted to SSA requesting a second hearing, Mongeur reported that he had fainting spells. At the hearing he testified that he had no endurance, could not breathe, could not walk more than fifty yards and could not sit still or concentrate on anything for more than thirty minutes. He testified that the medication he received at the VA Hospital helped him, but he still was unable to do much of anything other than make soup for himself, watch t.v. and drive his car for short distances. Mongeur's wife testified that during his coughing spells, Mongeur occasionally fainted, and although he had begun passing out even before the first hearing, the fainting spells were now more frequent--they occurred about two to three times a week--and they lasted for longer periods of time. She reported that sometimes he stopped breathing when he fainted and that at those times she had to "whack" him to revive him.

had skills, specifically his use of small tools and carpentry tools, that were transferrable to jobs which required less exertion and were performed in a clean environment. These jobs included being a circuit board worker, a hand stapler, jewelry maker, packager, bench assembler, machinery tester, ticket marker, heat sealer, and stamping machine operator. According to the vocational expert there were significant numbers of these jobs available in the local and national economies.

In an opinion dated December 2, 1980, in which the ALJ concluded that Mongeur was no longer disabled, he stated

The evidence in this case clearly supports a determination that the claimant's impairment has improved to the point where he is affected by what amounts to moderate chronic obstructive airways disease and he is no longer affected by any significant cardiac deficit except for an anginal syndrome which has been described as mild and which is well controlled with nitroglycerin. The claimant's hypertension also is well controlled with medications. The reports from the Veterans Administration Hospital show that the claimant is capable of at least sedentary work activity. The report of the consultative examiner also supports such a determination.

Monguer thereupon appealed to the SSA Appeals Council and submitted additional medical records: progress notes by Dr. Sauvigne dated January 23, 1981 and a letter from the Chief of Staff of the VA Medical Center. The substance of the additional progress notes was Dr. Sauvigne's new-found belief that Mongeur's long-term anxiety and depression might by symptoms of organic brain syndrome, a belief that resulted in his opinion that Mongeur was totally disabled. Despite Dr. Sauvigne's new diagnosis, the Appeals Council adopted the ALJ's decision. Mongeur then sought review in the district court, submitting still further documents to the court in the form of various medical progress notes and a medical report of Nurse Laro dated August 24, 1981, which had been adopted by Dr. Sauvigne. The crux of the new material was a definite diagnosis by Dr. Sauvigne and Nurse Laro that Mongeur was suffering from "organic brain syndrome," which, in their view, combined with Mongeur's other complications, rendered him totally disabled. In Nurse Laro's report she states in pertinent part:

As far as when the disease was first diagnosed, it was suspected by Dr. Sauvigne in January of 1981. However, I had been caring for George for some time before that and did not notice any great change in his affect or his mental status, but he has always appeared depressed, anxious and of low intellect and lacked understanding of his disease. I first started seeing George around 1977.... [T]his condition has been with George for an indeterminate number of years since even in 1977 he appeared basically the same. ¹

Finding there was substantial evidence to support the Secretary's decision and finding that the new materials were not "new evidence" within the meaning of the Act, the district court affirmed the Secretary's findings. This appeal followed.

STATUTORY FRAMEWORK

In order to be entitled to social security disability benefits, a claimant's health must be so impaired as to prevent him from performing his previous job or any other substantial gainful work that exists in the economy. Thus 42 U.S.C. Sec. 423(d)(2)(A) (1976) provides that

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...