Bush v. Shalala

• Decision Date: 23 August 1996
• Docket Number: D,No. 1295,1295
• Citation: 94 F.3d 40
• Parties: , Unempl.Ins.Rep. (CCH) P 15542B Florence BUSH, Plaintiff-Appellee, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellant. ocket 95-6215.
• Court: U.S. Court of Appeals — Second Circuit

Page 40

94 F.3d 40

51 Soc.Sec.Rep.Ser. 555, Unempl.Ins.Rep. (CCH) P 15542B

Florence BUSH, Plaintiff-Appellee, v. Donna E. SHALALA, Secretary of Health and Human Services,

Defendant-Appellant.

No. 1295, Docket 95-6215.

United States Court of Appeals, Second Circuit.

Argued May 20, 1996.

Decided Aug. 23, 1996.

Edith M. Kallas, Milberg Weiss Bershad Hynes & Lerach, New York City, for plaintiff-appellee.

Bruce H. Nims, U.S. Attorney's Office, Brooklyn, NY, for defendant-appellant.

Before: KEARSE, WINTER and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

This case, an ordinary social security disability claim, has been wandering up, down, and around the administrative and judicial systems for over ten years. It has now reached this Court for the first time. Because of its tortuous trajectory, we will spend a considerable amount of time describing the process that the plaintiff has received in the name of administrative efficiency and better service, those often used twin justifications of administrative decisionmaking. In the end, though, the case turns on whether a straightforward burden of evidence has been met, and on that basis, we reverse the district court and affirm the Secretary.

BACKGROUND

Eleven years ago, the plaintiff-appellee, Florence Bush, filed an application for disability insurance benefits under Title II of the Social Security Act. Her application stated that, due to a chronic cough, she was unable to work. Since the filing of her claim, she has not been employed. Before that date, Ms. Bush had worked as a file clerk/typist and as a bank teller. It may or may not be relevant that just prior to the filing of her application, her husband relocated his work to New York City from Albany, where both had previously been employed.

A hearing concerning Ms. Bush's application for disability benefits took place in March of 1986 before Administrative Law Judge ("ALJ") Sidney Fenster. Ms. Bush, appearing pro se, testified that she was unable to work due to her cough. Brookward Bush, the plaintiff's husband, also testified and stated that, based on his own annoyance with her cough, he thought the cough would annoy bank customers and people in other employment settings. ALJ Fenster denied the plaintiff's claim, finding that Ms. Bush was able to return to her past relevant work:

There is no objective evidence in the record to establish that claimant has any significant restriction of her ability to engage in basic work activities. Claimant has recently worked as a file-clerk/typist and a bank teller. She is capable of returning to such work activity. As claimant is able to engage in her past relevant work activity she cannot be found "disabled" as defined by the Social Security Act.

Ms. Bush then sought review by the Appeals Council of the Social Security Administration ("SSA"). In July 1986, the Council denied her appeal.

Ms. Bush next filed a complaint against the Secretary of Health and Human Services ("the Secretary") in the Eastern District of New York. The district court (Sifton, J.), after a May 1987 hearing, held that ALJ Fenster ignored a residual functional capacity assessment that was in the administrative record. The assessment, Judge Sifton noted, showed that the plaintiff suffered from allergies and that she needed to avoid certain work environments:

[T]he performance by the ALJ in evaluating this claim was lamentable, ignoring the only residual functional capacity evaluation in the record which recognized that this woman suffered from allergies, asthma, should avoid work environments including dust, humidity, temperature extremes, et cetera. The Administrative Law Judge ignored that completely, simply consigned the woman to her past work without investigating the situation in which she had been working.

Judge Sifton remanded the case to the SSA for further investigation of the plaintiff's medical situation.

Pursuant to the district court's order, in September of 1987, Dr. James Vevaina, whom the Secretary at oral argument described as a Social Security doctor, examined Ms. Bush. He noted that plaintiff's symptoms were coughing, sputum production, wheezing, and shortness of breath. Dr. Vevaina's diagnosis stated that Ms. Bush suffered from chronic bronchitis and a post-nasal drip. He found no limitation with respect to Ms. Bush's ability to lift and carry, stand, or walk. The only work limitations he noted were that she was to avoid temperature extremes, chemicals, dust, and fumes.

A second hearing before ALJ Fenster was held in January of 1988. Plaintiff, now represented by counsel, argued that Dr. Vevaina's examination was deficient because the doctor did not follow up on an abnormality present in a 1985 x-ray taken at Astoria General Hospital. ¹ Reviewing the evidence, ALJ Fenster again found that the plaintiff was not disabled from performing her past relevant work as a file clerk/typist or as a bank teller, and denied her application for disability benefits.

Ms. Bush, for the second time, sought review by the Appeals Council. She attached the findings of her own physician, Dr. Gary Weinstock, which stated that the plaintiff suffered from allergic rhinitis and bronchial asthma. The Council refused to hear her claim, and her case returned to the district court.

In August 1989, the district court (Sifton, J.) remanded the case. The court found that ALJ Fenster had erred by relying on Dr. Vevaina's report without more testing. It also found that the ALJ had misapplied the burdens of proof in requiring the plaintiff, on her own, to pursue additional testing to support her claims. Finally, the court ordered further inquiry regarding any environmental restrictions on the plaintiff's ability to perform her past relevant work.

Plaintiff's entitlement to social security disability insurance ended on December 31, 1989. ² Pursuant to the district court's remand, plaintiff saw Dr. Vevaina again in May of 1990. She claimed that her cough had worsened. Dr. Vevaina reported that the plaintiff had symptoms of cough and sinusitis, that there was no evidence of asthma or emphysema, and that she was not disabled.

Dr. Weinstock, in a July 1990 letter to the plaintiff's attorney, wrote that he continued to treat the plaintiff for allergic rhinitis and asthma. He reported that Ms. Bush still required medication for her allergies and that she had severe symptom exacerbations with exposure to dust, damp weather, or flowers. She also had developed food allergies that increased her rhinitis. He stated that Ms. Bush should avoid work environments with cigarette smoke, dust, mold spores, or flowers. Dr. Laura Schmitt, the plaintiff's dentist, also submitted a note to plaintiff's attorney in July of 1990. Dr. Schmitt reported that her dental work on the plaintiff often had to be interrupted to permit the plaintiff to cough, that the plaintiff gasped for breath at times, and that the plaintiff had to sit with her head raised during dental procedures due to a large quantity of mucus.

Pursuant to the district court's remand, a third hearing was held in August of 1990. Because her entitlement to disability insurance benefits expired on December 31, 1989, Ms. Bush had to show that she was disabled before that date in order to be eligible for disability benefits. Ms. Bush submitted, as evidence, the Weinstock and Schmitt letters as well as Medicare billing statements and bills. Dr. Morton Rosen, a vocational expert apparently called by the government, testified that a person with a moderate asthmatic condition who requires an allergen-free environment is nonetheless able to function in an Ms. Bush again sought review by the Appeals Council. And the Council in May of 1991 remanded the case for further administrative inquiry into plaintiff's symptoms. It requested that an ALJ "make specific findings as to the credibility of the claimant's complaints and their effect on her ability to function."

air-conditioned environment such as a bank. Based on this testimony, ALJ Fenster issued his third decision finding that the plaintiff was not disabled; Ms. Bush's allergies, he held, did not preclude her from functioning in her past relevant work.

In due course, a hearing was held before ALJ Richard Karpe. At that hearing, Dr. Richard Wagner was called by the government as a medical advisor. He testified that Ms. Bush's bronchoscopy and chest x-ray results were normal and that she suffered only from allergies. He testified that the plaintiff should avoid temperature extremes, dust, and fumes, and that she should not lift heavy objects. After the hearing, ALJ Karpe denied Ms. Bush's application, finding that she was not disabled because she was capable of returning to her past relevant work.

Ms. Bush asked the Appeals Council to review the decision yet again. In December of 1992, the Council remanded the case once more, for an additional evaluation of plaintiff's subjective complaints of pain. It ordered the ALJ to:

address the issue of the claimant's subjective complaints during the period at issue within the guidelines set forth in 20 CFR 404.1529 and in accordance with the criteria in Social Security Ruling 88-13. The rationale will include, as appropriate, such factors as the claimant's daily activities, the kinds, amounts, and frequency of any medications taken during the period at issue, pertinent medical findings and opinions, and observations of the claimant.

Pursuant to the Appeals Council decision, a fifth administrative hearing was held in May 1993 before ALJ David Nisnewitz. Judge Nisnewitz, after reviewing the medical evidence, found that "[a]lthough the claimant has established that she suffers from a severe respiratory impairment, said impairment fails to meet or equal the level of severity of any disabling condition contained in Appendix 1, Subpart P of Social Security Regulations No. 4." Judge Nisnewitz went on to make the following findings:

. The plaintiff's "impairment did not prevent...