Bailey v. Chater

• Decision Date: 18 October 1995
• Docket Number: No. 94-2241,94-2241
• Parties: , Unempl.Ins.Rep. (CCH) P 14844B Verle J. BAILEY, Plaintiff-Appellant, v. Shirley CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 75

68 F.3d 75

49 Soc.Sec.Rep.Ser. 229, Unempl.Ins.Rep. (CCH) P 14844B

Verle J. BAILEY, Plaintiff-Appellant, v. Shirley CHATER, Commissioner of Social Security, Defendant-Appellee.

No. 94-2241.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1995.

Decided Oct. 18, 1995.

ARGUED: Margaret Cuthbert Broaddus, Cuthbert Law Offices, P.C., Petersburg, Virginia, for Appellant. Margaret J. Krecke, Assistant Regional Counsel, Office of the General Counsel, Department of Health & Human Services, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Charlotte Hardnett, Chief Counsel, Region III, James C. Newman, Division Chief, Office of the General Counsel, Department of Health & Human Services, Philadelphia, Pennsylvania; Helen F. Fahey, United States Attorney, Debra J. Prillaman, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Judge HALL wrote the opinion, in which Judge WILLIAMS and Senior Judge PHILLIPS joined.

OPINION

K.K. HALL, Circuit Judge:

The disability onset provisions of Social Security Ruling 83-20 are at issue in this appeal from the district court's grant of summary judgment to the Commissioner. The claimant, Verle Bailey, filed this lawsuit after the Appeals Council denied her request for review of the ALJ's decision to award benefits, but only as of December 4, 1991, two years beyond the date on which Bailey asserts that she became disabled.

Because the onset date selected by the ALJ was not supported by substantial evidence, we conclude that the district court's judgment must be vacated and the case remanded. We instruct the district court to further remand the case to the Commissioner so that the ALJ may, consistent with the dictates of SSR 83-20, obtain the assistance of a medical advisor to determine the onset date of Bailey's disability.

I.

In November 1989, Bailey was working as a certified nurse assistant at a training center in Petersburg, Virginia, providing care for retarded children. On November 28, 1989, Bailey was hospitalized for diabetic ketoacidosis; she remained in the hospital until December 11. ¹

Bailey never again performed any substantial work. About a year after her hospitalization, she tried to become recertified to return to her old job, but, after about three weeks, she could not continue to sit through the classes because of anxiety and back pain. Eventually her job benefits ran out, forcing her to pay the full premium to maintain her health insurance. In 1991, Bailey twice took minimum-wage jobs assisting the sick and elderly, but she found that she could work no longer than three weeks either time.

Bailey applied for Disability Insurance Benefits on May 14, 1990, alleging that she had been disabled since November 30, 1989 because of diabetes, high blood pressure, and poor vision. Her claim was turned down. She reapplied on January 22, 1991, asserting that she was disabled because of high blood pressure, blurred vision, glaucoma, diabetes, and allergies. This application was also denied, as was her request for reconsideration. In the course of processing the applications, Bailey's medical records were twice referred to the appropriate state agency for review; the state's evaluators concluded both times that, because her ailments were controlled by medication, Bailey was not disabled.

After her request for reconsideration of the second application was denied, Bailey was granted an administrative hearing. The hearing took place on January 29, 1992, and Bailey's attorney delivered a short opening statement:

We would ask that you find Ms. Bailey to be disabled ... by a combination of diabetes, glaucoma, ... high blood pressure ... [a]nd arthritis.... [After] the sudden onset of her problem with diabetes, she was unable to [return to work] because of constant fatigue, blurred vision, and dizziness and depression. She, additionally, now suffers from pain in her back and knee.

Bailey then testified about all the problems her attorney mentioned. She mentioned that she had difficulty performing routine household chores, and said that she had experienced "terrible headaches." In response to a question from the ALJ regarding her memory, Bailey answered, "I don't remember like I used to."

Bailey's husband, Tate, also testified. He corroborated much of his wife's anecdotal evidence concerning her diminished physical capabilities. Tate was asked whether he had noticed problems with his wife's memory:

TATE: Yes. She really--she don't know what she really--I mean, when I met her at first, she was [a] very sharp person, you know, but her memory is nothing--

Q: Had you had problems with the bills being paid?

TATE: Yes, yes, because--I mean coming up to Christmas, I thought everything was--but then she's kind of a private person, you know.... I mean, just a bunch of bills, you know, running behind, ready to have--

Q: She'd just forgotten about them?

TATE: Had forgotten about them....

The ALJ ordered cardiac, ophthalmologic, and psychological consultative examinations; these took place in late April and early May 1992.

Dr. Martha Griswold, an internal medicine specialist, reported that Bailey had complained of chest pain. Griswold surmised that her subject's chest pain was probably not related to a heart condition, but could have arisen from long-standing hypertension, which the doctor described as "severe and poorly controlled." Dr. Griswold also noted Bailey's decreased ability to walk and stand because of her back problem; the doctor opined that Bailey could lift no more than five pounds and could stand no longer than thirty minutes of an eight-hour work day. Significantly, Dr. Griswold reported that "[h]er mental status is slightly strange, in that she seems to be sort of out of it; and when I tell her to do something, she is very slow in responding. However, I think this is possibly related to perhaps over-medication with some tranquilizers."

The ophthalmologist diagnosed glaucoma, "apparently currently ... not well controlled." He suspected that Bailey had not been regularly using her prescribed eye drops.

The psychologist, Dr. Leigh Hagan, reported the following:

She seemed a bit confused. She did not deal well with a lot of questions, one right after another.... She could name a few past presidents spontaneously.... She has trouble incorporating new information, particularly if it involves any details of complex or novel material. She could not exercise passive recall of three objects after 5 minutes.... She could count on her fingers from 1 to 20 and knew the letters of the alphabet but was very slow and was not at all competitive on even this simple task of recall....

and

Depression is the overriding feature here. [Bailey stated that] "I used to be good at this (problem-solving and recall)." "I'm not crazy. I used to be like a computer in the office. This is so frustrating." ... She has feelings of worthlessness because she is not competitively engaged in the work force.... The subject's [verbal] IQ scores ... would approximate the sixth percentile falling within the borderline range.... The data does not match up with the performance expected of someone who "used to operate like a computer in the office".... The cognitive performance ... must be interpreted in the context of the other disorders including pain, depression and the exertional issues.

The ALJ took additional testimony from Bailey and her husband in December 1992 (Bailey then reported an enlarged heart), and issued his findings and conclusions on March 22, 1993. The ALJ found that "[t]he medical evidence establishes that the claimant has severe hypertension, diabetes mellitus, back pain, left arm weakness, glaucoma with diminished visual fields, [and] borderline intellectual functioning and depression...." The ALJ did not find Bailey's testimony credible with regard to her musculoskeletal pain and limitations prior to December 1991, but said that "her testimony as to her other conditions and resulting limitations was credible in reflecting a deterioration in her overall functional capabilities by the time of her hearings."

The ALJ found that "when seen consultatively for physical, ophthalmological and psychological impairments in May 1992, examiners reported findings suggesting a significant deterioration in the claimant's functional capability." However, the ALJ also found that, through the end of 1991, Bailey's diabetes and high blood pressure were "well controlled" by medication, and that her glaucoma had not severely restricted her visual fields as of May 1991:

These reports, coupled with claimant's admitted ability to walk a mile a day ... and her lack of use of pain medication through 1989,...