Anthony v. Sullivan

Decision Date25 February 1992
Docket NumberNo. 90-1667,90-1667
Parties, Unempl.Ins.Rep. (CCH) P 16472A, 2 NDLR P 259 Elizabeth ANTHONY, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary Health and Human Services, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Hansel Anthony Jones, Jackson, Miss., for plaintiff-appellant.

Daniel E. Lynn, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, Miss., Michael S. Feinstein, Asst. Regional Counsel, Holly A. Grimes, Asst. Regional Counsel, Mary A. Sloan, Principal Regional Counsel, Mack A. Davis, Deputy Chief Counsel, Bruce R. Granger, Chief Counsel, Scott C. Briles, Dept. of Health and Human Services, Office of Gen. Counsel, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, Chief Judge, JOHNSON, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Elizabeth Anthony (Anthony) seeks review, pursuant to 42 U.S.C. § 405(g), of the denial of disability benefits by the Secretary of Health and Human Services (the Secretary). On appeal, Anthony argues that the Secretary's finding that she was not disabled within her eligibility period is not supported by substantial evidence. We affirm.

Facts and Proceedings Below

At the time she filed her application for disability benefits, Anthony was a forty-four-year-old woman with a tenth grade education. The administrative record reveals that her prior work experience consisted of employment as a waitress, charge nurse, cashier, and school picture inspector. Her insured status expired on June 30, 1985.

In her application for benefits, Anthony claimed disability due to a progressive muscle disease that has rendered her incapacitated since December 1979. She complained that she gets nervous during the day, and is exhausted by noon. She also stated that her vision is poor, she suffers from allergies, and is frequently depressed. Despite these ailments, however, she reported that she is still able to drive an automobile, goes to church every week, and is able to care for herself. Other than a hysterectomy several years ago, she has had no major surgery; moreover, she has never been hospitalized for mental illness.

Anthony was first examined by Dr. Shri Mishra for her muscle disease on October 26, 1981. At this visit, she reported a progressive muscular weakness in both her upper and lower extremities. She related that she had difficulties in getting up from chairs, climbing stairs, and lifting objects above her shoulders. She also reported leg cramping. Upon examination, Dr. Mishra discovered that Anthony had slightly enlarged calves, but otherwise was physically unremarkable. A neurological examination produced no abnormal results. A sensory examination was also normal. However, Anthony's strength was somewhat reduced, and she had difficulty walking in tandem and in stepping on a stool without bilateral hand support. Dr. Mishra concluded at that point that Anthony "has an interesting myopathy," 1 but further stated that he did not know "the etiology at this point."

Dr. Mishra again examined Anthony on June 28, 1982. Anthony complained of muscle pain and fatigue. She stated that the pain became more severe after exercise and during cold weather, but improved following periods of rest. She also reported previous falling episodes and difficulty in swallowing. She denied, however, having common signs of muscular dystrophy, 2 such as muscle twitching and myoglobinuria. 3 Upon examination, Anthony's coordination was normal, as were her head, eyes, ears, nose and throat. Her overall muscle tone was normal, but her facial muscles were mildly weak. The strength in the muscles of both the upper and lower extremities was decreased. A sensory examination was normal, and Anthony's reflexes were also normal. Dr. Mishra's impression at that time was possible metabolic myopathy. An examination in June 13, 1983 revealed substantially similar results.

On September 26, 1983, Anthony again consulted Dr. Mishra. At this visit, Anthony reported bladder difficulties, some myoglobinuria, muscle pain, and difficulty walking. A physical examination was essentially normal, with some proximal weakness. Diagnosis was proximal myopathy, etiology undetermined.

Dr. Mishra admitted Anthony to the University of Mississippi Medical Center (UMMC) on December 5, 1983. The attending physician noted that Anthony had mild ptosis--drooping of the eyelids--but no muscle twitching. Anthony appeared alert and oriented. She had approximately 70-80% strength universally, and somewhat better strength distally than proximally. She walked well, but could not walk on her heels. Myoglobin was negative in her urine. The physician, acknowledging that a preliminary electromyelogram (EMG) did not document any myopathy, diagnosed Anthony as suffering from generic weakness.

Dr. Mishra examined Anthony again in January, 1984. A physical examination revealed essentially unchanged results. Dr. Mishra informed Anthony that a final EMG provided some abnormal readings, and suggested that Anthony suffered an inherited limb girdle muscular dystrophy. Additionally, the results of a muscle biopsy taken during her stay in the UMMC (but not yet completed as of the time of her release report) was abnormal myopathic, suggestive of limb girdle muscular dystrophy. Anthony was advised to visit a Muscular Dystrophy Association (MDA) clinic to be fitted for braces.

On April 23, 1984, Anthony filed an application for disability insurance benefits, alleging disability due to muscle disease and constant physical pain. Pending review of her application, Anthony visited Dr. James McIlwain, Jr., a family practice physician in Clinton, Mississippi on June 9, 1984. Dr. McIlwain noted that Anthony had no difficulty walking and climbing on the examination table without assistance. The physical examination revealed nothing extraordinary: Anthony was determined to have a full range of motion in all joints and experienced no focal muscular wasting in the extremities. Aware of Dr. Mishra's previous diagnosis of muscular dystrophy, Dr. McIlwain nevertheless concluded that he could not find any "functional incapacity of a major nature." On June 27, 1984, Anthony was notified that the Secretary had denied her claim for benefits. Anthony filed a motion for reconsideration on July 11, 1984.

Anthony was examined by a psychiatrist, Dr. Gray Hilsman, on August 8, 1984. Dr. Hilsman noted that Anthony exhibited signs of anxiety and depression. Although her speech was slow and monotonous, it was relevant and clear. Orientation and memory were intact. Anthony denied hallucinations or phobias, but did admit to occasional nightmares. Her general fund of information was discovered to be fair, her judgment was normal, and her insight was fair. Diagnosis was dysthymic mood disorder 4 secondary to failing physical health.

On August 28, 1984, the Secretary denied Anthony's application on reconsideration, stating that the initial denial was correct. Anthony then sought review from an Administrative Law Judge (ALJ) of the denial of her claim. At the hearing before the ALJ on October 25, 1984, Anthony admitted that she was able to dress and bathe herself and that she regularly washed the dirty dishes in the house. She also related that she drove the car to the store once or twice a week and regularly attended church. The ALJ observed that Anthony's subjective complaints of constant and debilitating pain were not credible, based on her appearance at the hearing, her complaints to examining physicians, and her lack of need for medication. The ALJ recognized that Anthony had a provisional diagnosis of limb girdle muscular dystrophy and dysthymic mood disorder, but concluded that "the claimant does not have a severe impairment." The Appeals Council adopted the ALJ's decision, making it the final decision of the Secretary.

On November 12, 1985, the district court determined that the ALJ had evaluated the "severe impairment" requirement for disability under an incorrect legal standard, and remanded the cause for reconsideration in light of Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985). On remand, the ALJ again concluded that Anthony did not have a severe impairment. Evaluating the claim under the standard articulated in Stone, the ALJ recited that "[t]he claimant's impairments, taken singly or in combination, are only slight abnormalities having such minimal effect on the claimant that they would not be expected to interfere with her ability to work, irrespective of her age, education and work experience." The Appeals Council adopted the ALJ's decision on November 17, 1987, making it the final decision of the Secretary.

Having exhausted all administrative remedies, Anthony timely filed a complaint in the United States District Court for the Southern District of Mississippi, seeking review of the administrative decision pursuant to 42 U.S.C. § 405(g). The district court assigned the case to a magistrate for recommendations.

The magistrate issued his recommended findings on June 20, 1990, determining that substantial evidence supported the ALJ's second opinion that Anthony was not physically or mentally disabled, and did not suffer from debilitating pain, within the eligibility period. The district court adopted the magistrate's findings and affirmed the Secretary's denial of Anthony's claim.

Discussion

This Court limits its review of a denial of disability insurance benefits to two issues: (1) whether the Secretary applied the proper legal standards, and (2) whether the Secretary's decision is supported by substantial evidence on the record as a whole. Wingo v. Bowen, 852 F.2d 827, 829 (5th Cir.1988). The facts of this case raise both issues.

I. Determination of "Severe Impairment"

The Social Security Act (the Act), as amended, permits the payment of insurance benefits to persons...

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