Cannon v. Harris

• Decision Date: 17 June 1981
• Docket Number: No. 80-1957,80-1957
• Citation: 651 F.2d 513
• Parties: Ella Mae CANNON, Plaintiff-Appellant, v. Patricia HARRIS, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 513

651 F.2d 513

Ella Mae CANNON, Plaintiff-Appellant, v. Patricia HARRIS, Secretary of Health, Education and Welfare Defendant-Appellee.

No. 80-1957.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 1981.

Decided June 17, 1981.

Deborah Spector, Chicago, Ill., for plaintiff-appellant.

Steven J. Plotkin, Dept. of Health & Human Services, Chicago, Ill., for defendant-appellee.

Before SWYGERT, BAUER and CUDAHY, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Ella Mae Cannon appeals from an order of the district court affirming the decision of the Secretary of Health, Education and Welfare which denied her applications for disability insurance benefits and Supplemental Security Income under Sections 216(i), 223, and 1601 et seq. of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. She claims that the Secretary's decision is unsupported by substantial evidence in the record, that the Administrative Law Judge (ALJ) improperly applied the Administration's medical-vocational guidelines in determining that she was not disabled within the meaning of the Social Security Act, and that she was denied a full and fair hearing by virtue of the ALJ's failure to orally advise her of her right to legal representation at the hearing and by his failure to order a consultative psychiatric examination to determine the severity of any impairment she may have suffered from her history of chronic alcoholism.

We conclude that the ALJ erred in not inquiring into the present severity of plaintiff's chronic alcoholism and its possible effects upon her residual functional capacity. Accordingly, we reverse the judgment of the district court and remand for further proceedings.

I

Plaintiff is a fifty-one year old woman with eight years of formal education. She worked for twenty-one years as a "manager girl" at Vulcan Container Corporation, a job which consisted of picking up empty five- -gallon pails and placing them on an assembly line. Before her employment at Vulcan, she worked for three months as a presser at a cleaning establishment.

Plaintiff ceased working on December 20, 1977, because of abdominal pains. Shortly thereafter, she underwent surgery for a pancreatic pseudocyst. On May 11, 1978, she filed an application for disability insurance benefits, listing "surgery-pancreatic cysts" as her disability. Several months later, on October 4, 1978, she filed an application for Supplemental Security Income. Both applications were administratively denied initially and on reconsideration. Plaintiff then sought and was granted a hearing before an ALJ.

The ALJ considered various medical and vocational reports and plaintiff's own testimony in making his determination. The medical reports consist of the records from Northwestern Memorial Hospital, where plaintiff's surgery was performed, and reports from Dr. John Tekla, plaintiff's personal physician, and Dr. A. Behrooz Eshaghy, a consultative physician.

The hospital records show that plaintiff was admitted on April 23, 1978, complaining of abdominal pain. During her hospitalization an exploratory laparotomy was performed and a pancreatic pseudocyst was aspirated and irrigated. The surgery also revealed numerous adhesions of the pancreas which had to be lysed. The hospital records contain the following diagnoses: pseudo-pancreatic cyst, mild adult onset diabetes, chronic alcoholism, and mild essential hypertension. One of the reports noted that since December of 1977, plaintiff had discontinued her former habit of consuming a quart of rum and six beers daily and now drank only beer.

The reports by Dr. Tekla, plaintiff's treating physician, consist of the written summaries of two telephone calls made by him to the Administration. The first indicates that Dr. Tekla saw plaintiff on July 6, 1978, and found her blood pressure to be 150/100. He stated she was being treated medically for hypertension and noted she had no chest pains. He also noted she had diabetes with Grade II retinopathy, ¹ but stated it was controlled with medication.

In the second report dated October 12, 1978, Dr. Tekla stated he had examined plaintiff on October 9, 1978, and found her hypertension "not very well controlled at this time." He stated she has no chest pains, but does have upper gastric pain. Dr. Tekla stated he had no recent lab work and did not know if there was any retinopathy present. He noted her recent hospitalization and indicated there were no complications other than repeated pain. He also stated that her diabetes was well controlled at this time.

The only other communication by Dr. Tekla was a handwritten notation on a page from a prescription pad which states that plaintiff "suffers from large pancreatic mass and is disabled for indefinite period of time." This note was dated May 9, 1978, approximately one month after plaintiff had undergone surgery for the removal of her pancreatic pseudocyst.

Dr. Eshaghy examined plaintiff in October, 1978, at the request of the Social Security Administration. He found plaintiff to be obese and noted atrophy in both her hands with decreased superficial sensation. Based on his examination and test results, Dr. Eshaghy diagnosed bilateral carpal tunnel syndrome, ² a history of diabetes mellitus, a history of hypertension, and a post-operative status pancreatic cyst.

The record also contains a physical capacities evaluation of plaintiff, completed in November, 1978, by a consultative physician for the Illinois Disability Determination Service. The physician found plaintiff capable of sitting and walking six to eight hours a day, able to operate foot controls frequently, and able to climb stairs, reach above shoulder level, and bend or stoop occasionally. She was found capable of lifting ten to twenty pounds and using her hands to push, pull, and perform gross manipulations. The report cautioned against plaintiff's operating machinery in which the sense of touch is needed, however, because of her manual impairment.

Finally, the record contains a vocational assessment report by a specialist from the Illinois Division of Vocational Rehabilitation. The specialist concluded that while unable to perform her past work because of the amount of bending and reaching involved, plaintiff could perform other work which existed in the region in which she lived. The specialist cited several examples of light work activity which involved routine, non-machine, handling tasks that could be learned within thirty days.

The only testimony taken at the hearing was that of the plaintiff who appeared without counsel. Plaintiff testified that despite her abdominal surgery, she continued to experience pain in her abdominal region. She further testified that she was unable to grasp with her fingers and experienced numbness radiating down from her wrist. She testified to daily nausea, headache and pain, and stated she normally takes medication for high blood pressure, chest pains, diabetes and nerves, although she had not taken any medication recently because she ran out and was without money to buy more. She stated she was able to dress and feed herself, but her daughter does the housework and grocery shopping for her. Plaintiff testified she does not exercise because she's stiff and does little walking. She described her normal day as consisting primarily of watching television, and stated she was presently receiving $175 per month general assistance and $50 worth of food stamps.

Noting that one of the medical reports indicated that she had recently discontinued her former habit of consuming a quart of rum daily, the ALJ asked plaintiff if she was presently drinking that much rum. Plaintiff responded: "No, they asked me how much. I said whenever I drink, I get as much as I can. Whenever I drink it, I just drink as much as I can."

Based on the foregoing evidence, the ALJ found that plaintiff suffers from bilateral carpal tunnel syndrome, mild adult onset diabetes millitus, mild essential hypertension and chronic alcoholism. Although plaintiff was unable to perform her previous job, the ALJ concluded that she retained the residual functional capacity for light work as defined under sections 404.1510(c) and 416.910(c) of Subparts P and I, Regulations No. 4 and 16, 20 C.F.R. §§ 404.1510(c) and 416.910(c) (1979). Applying the Administration's medical-vocational guidelines to a person of plaintiff's age, education and previous work experience, the ALJ concluded that she was not disabled within the meaning of the Act and that she was not entitled to the benefits sought.

The ALJ's decision was affirmed by the Appeals Council, making it the final decision of the Secretary, on August 17, 1979. Plaintiff at that point retained counsel and commenced this action for review of the Secretary's decision in the district court. She sought and was granted leave to proceed in forma pauperis.

On cross-motions for summary judgment, the district court affirmed the Secretary's Decision on May 30, 1980. This appeal followed.

II

In concluding that plaintiff was not disabled within the meaning of the Act, the ALJ relied on the Administration's medical-vocational guidelines. These guidelines are used in conjunction with the Administration's 1979 regulations and were promulgated in an attempt "to consolidate and elaborate upon long standing medical-vocational evaluation policies for adjudicating disability claims in which an individual's age, education, and work experience must be considered in addition to the medical condition." 43 Fed.Reg. 55.349 (1978). ³ The regulations established a "sequential evaluation" for the adjudication of disability claims in which a series of inquiries are made of the individual to determine whether his claim meets the standards set down in the Act. The procedure has been succinctly described as follows:

The first inquiry under the sequence concerns whether a claimant is currently engaged in substantial gainful employment. If...