Cohen v. Secretary of Dept. of Health and Human Services

• Decision Date: 20 May 1993
• Docket Number: No. 91-2011,91-2011
• Citation: 964 F.2d 524
• Parties: , Unempl.Ins.Rep. (CCH) P 16618A, 2 NDLR P 336 Elizabeth L. COHEN, Appellant, v. SECRETARY OF DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 524

964 F.2d 524

37 Soc.Sec.Rep.Ser. 341, Unempl.Ins.Rep. (CCH) P 16618A,

2 NDLR P 336

Elizabeth L. COHEN, Appellant, v. SECRETARY OF DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee.

No. 91-2011.

United States Court of Appeals, Sixth Circuit.

Argued April 3, 1992.

Decided May 7, 1992.

As Amended on Denial of Rehearing

June 12, 1992.

Second Rehearing Denied June 30, 1992.

Rehearing Denied May 20, 1993.

Gerald Benjamin (argued), Levine, Benjamin, Tushman, Bratt, Jerris and Stein, (briefed), Southfield, Mich., for plaintiff-appellant.

Edward L. Koven (argued), Dept. of H & HS, Chicago, Ill., for defendant-appellee.

Before: KEITH and NELSON, Circuit Judges; and TIMBERS, ^* Senior Circuit Judge.

TIMBERS, Circuit Judge.

Appellant Elizabeth L. Cohen commenced this action in the district court pursuant to § 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. § 405(g) (1988), for review of a final decision of the Secretary of Health and Human Services (Secretary) which denied her application for disability insurance benefits. The Secretary's decision is the September 18, 1989 decision of an administrative law judge (ALJ) which became final when it was affirmed by the Appeals Council on July 31, 1990. The district court, Robert E. DeMascio, District Judge, referred the case to Magistrate Marcia Cooke, who, in her May 31, 1991 Report and Recommendation (a copy of which is attached to our opinion as Appendix pages 532-35), concluded that the Secretary's denial of benefits was not supported by substantial evidence and recommended that summary judgment be granted in appellant's favor. The Magistrate Judge was convinced that Cohen was "clearly disabled" by the Epstein-Barr virus and accompanying chronic fatigue syndrome. Following timely objection by the Secretary, the district court reviewed the case and rejected the Magistrate's Report and Recommendation. On July 25, 1991, the district court held that the Secretary's denial of benefits was supported by substantial evidence and affirmed the Secretary's decision.

For the reasons that follow, we reverse the judgment of the district court and remand for an award of benefits.

I.

We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

(A)

Appellant Cohen was born on July 24, 1938. She was 51 years old at the time of the ALJ's decision. She holds a doctorate degree in Educational Sociology which she received from Wayne State University in 1977. From 1978 to October 4, 1984, Cohen worked as Assistant to the Dean at Wayne State School of Medicine at a salary of $45,000 a year. She also served as Adjunct Assistant Professor of Medical Sociology at the Wayne State School of Medicine during that period.

Cohen claims benefits for the period October 4, 1984 through June 29, 1988. She has not engaged in substantial gainful activity since October 4, 1984, when she left her positions at Wayne State University. She alleges that she stopped working at that time because she was experiencing symptoms associated with Chronic Epstein-Barr virus, including chronic fatigue syndrome, memory impairment, swollen glands, and balance disorders. The earliest medical report on Cohen's condition is an August 27, 1987 report by Dr. Paul Cheney. When Dr. Cheney examined Cohen her symptoms included chronic fatigue syndrome, urinary tract infections, vision impairment in one eye, weight loss, cognitive function problems, mouth ulcers and sleep disturbances. Cohen also had elevated EBV (Epstein-Barr virus) antibody titers. Dr. Cheney thought she might be suffering from a genetic immunodeficiency unmasked either spontaneously or by some sort of viral infection. He was of the opinion that "I believe [Cohen] meets the published criteria for chronic fatigue syndrome and she may also be evolving multiple sclerosis as a complication of this syndrome.... I doubt very seriously that Elizabeth Cohen will be able to maintain employment in the national economy given the length and severity of her illness."

Dr. Neil Johnson, an internist, examined Cohen on September 14, 1988. He diagnosed Chronic Epstein-Barr virus infection, but stated that "[t]here is no localizing motor weakness. Gross neurological functions are intact. I would be unable to detect minor neuropsychiatric deficiencies in this patient. She is very intelligent and even a decrease in function leaves her well above average." Dr. Johnson, however, recommended a neuropsychological evaluation, which "would likely document various mental neurological deficiencies." He further reported that marked fatigue and the development of mental deficiencies were major problems and that it "appears that this illness is most disabling to this individual."

On June 30, 1989, Cohen was examined by Dr. Hess, an expert on chronic fatigue syndrome and immune dysfunction. He reported that Cohen had another exacerbation of her syndrome on March 23, 1989, during which she experienced fever, headache, rapid heart rate, further impairment of mental function, and weight loss. He further reported that Cohen's deterioration in cognitive function was most noticeable as visual dyslexia (misinterpreting printed words) and difficulty with non-verbal reasoning. He concluded that Cohen's "high level of native intelligence makes it possible for her to compensate for some of these functional losses, but the deterioration has reached a point where the losses are becoming more obvious, even to her.... Ms. Cohen continues to experience extreme fatigue exacerbated by minor levels of exertion.... Even simple tasks such as grocery shopping can overtax her energy level and cause her to become faint and nearly collapse on the spot. She needs 2-3 hours of sleep to recover from fatigue induced by short trips away from her home. She requires 10-12 hours of sleep at night plus 4-6 hours of sleep during the day.... There is no doubt that Ms. Cohen's health and functional capacity has deteriorated further in recent months. The probability that she will experience significant remission of any of her symptoms is quite small even though periodic fluctuations in severity can be expected."

In July 1989, Cohen also was examined by Dr. Tarras Onischenko, a licensed practicing psychologist, who performed a battery of neuropsychological tests, including a WAIS-R IQ test and the Halstead-Reitan Neuropsychological test battery, to evaluate Cohen's "high order" brain function. Dr. Onischenko found that, although Cohen's performance on the WAIS-R IQ test--test result of 112, with performance and verbal scores of 104 and 109, respectively--still placed her in the "high average" range of intellectual ability, the difference between her Verbal IQ and Performance IQ scores "suggested that [Cohen's] right cerebral hemisphere is more compromised than the contralateral cortical region. In terms of functional considerations, the identified areas of deficit performance suggest that [Cohen] will experience problems managing daily activities which are dependent to a large extent on the identified cognitive skill areas." Dr. Onischenko concluded that the test results "suggested that the client is currently manifesting certain dysfunctions of her highest-order brain-behavior relationships that will debilitate her daily functional status ... [and] suggest[ed] that Ms. Cohen will experience major obstacles in accomplishing many of her goals at a level of performance that was characteristic of her pre-morbid functional status."

Cohen also was examined by Lois P. Brooks, Ed.D., a psychologist and vocational expert. Dr. Brooks concluded that Cohen could still perform unskilled industrial sedentary jobs such as assembling, packaging, and sorting, and that there were approximately 12,000 of these jobs in the metropolitan Detroit area.

Cohen has attempted to remain active despite her illness. In 1986, she founded a national support group for those suffering from the Chronic Epstein-Barr virus. Her involvement with the group consisted primarily of talking on the telephone for approximately two to three hours per week with others suffering from Chronic Epstein-Barr Syndrome. In 1988 Cohen withdrew from the group when her condition worsened.

According to her own testimony, from 1984 to 1987 Cohen, who was a professional ballroom dancer, danced twice a week for three to four hours at a time. From 1987 to March 1989, Cohen continued dancing, though at a reduced schedule of approximately twice a month for an hour at a time. She testified that her condition worsened to the point where "it took a whole day of resting to be able to go out for an hour of dancing. And very soon I realized that an hour of dancing meant two days flat on my back in bed, so I stopped doing that."

In 1986, Cohen enrolled part-time at the University of Detroit Law School. Thereafter she attended that school for six hours per semester. Cohen attended classes three days a week between 12:30 and 4:30 in the afternoon, and did homework for approximately two hours a day. At the time of her hearing before the ALJ on July 31, 1989, Cohen had completed successfully slightly over one full year of law school classes. Despite exacerbation of her symptoms in March 1989, she passed her law school final exams in May 1989.

(B)

The ALJ concluded that, although Cohen has severe Chronic Epstein-Barr virus, she does not have an impairment or a combination of impairments (or medically equivalent thereto) that qualify for disability under the Act. The ALJ concluded, moreover, that Cohen has the residual functional capacity to perform her past relevant work as an Assistant to the Dean and Adjunct Assistant Professor at the Medical School, or, in the alternative, that she had the capacity to perform jobs that exist in significant numbers in the national economy. The ALJ's conclusions were based primarily on the evidence of Cohen's level of activities for the period in question,...