Deblois v. Secretary of Health and Human Services

• Decision Date: 27 August 1982
• Docket Number: No. 82-1059,82-1059
• Citation: 686 F.2d 76
• Parties: Maurice DEBLOIS, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 76

686 F.2d 76

Maurice DEBLOIS, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 82-1059.

United States Court of Appeals, First Circuit.

Argued June 9, 1982.

Decided Aug. 27, 1982.

David R. Patterson, Worcester, for appellant.

Donna C. McCarthy, Asst. Regional Atty., Dept. of Health and Human Services, Washington, D. C., for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, ROSENN ^*, Senior Circuit Judge.

ROSENN, Senior Circuit Judge.

We have before us an appeal by plaintiff from a final order of the district court affirming the administrative denial by the Secretary of Health and Human Services (Secretary) of social security disability insurance benefits under 42 U.S.C. § 423. On appeal, plaintiff raises two issues. First, he directly challenges the district court's conclusion that the Secretary's determination was supported by substantial evidence. Second, he argues that the presiding administrative law judge (ALJ) should have more fully developed the record probative of the claim of disability because the plaintiff lacked counsel and was obviously suffering mental impairment at the time of his hearing.

We agree with the district court that on the record before the ALJ the Secretary's determination is supported by substantial evidence. We are persuaded, however, that under the circumstances the ALJ should have developed the record more fully in attempting to ascertain whether plaintiff's mental disability existed on March 31, 1972 the date he last qualified for disability coverage, and whether it was then and has continued to be of such severity as to be disabling within the terms of the Social Security Act, 42 U.S.C. § 423(d). We therefore vacate the order of the district court and remand to the district court for entry of an order remanding to the Secretary.

I.

Plaintiff sustained serious wounds when he was accidentally shot while serving in Vietnam in 1969. The impact of the bullet caused extensive damage to his leg, which almost required amputation. The Veterans' Administration (VA) initially awarded him a pension based on an 80% disability rating, and subsequently increased the rating to 100%. In evaluating the plaintiff's disability, the VA assigned a value of 10% to what it termed a "nervous condition" caused by the episode. Plaintiff claims that he filed for social security disability benefits at this time, but his claim is not supported by the record.

Upon completing a period of convalescence, including a six-month hospital stay, claimant in 1971 enrolled in an architectural program at Rensselaer Polytechnic Institute. He completed three consecutive semesters, maintaining a cumulative grade point average between 2.0 and 2.5. Over the next seven years plaintiff attended the school only sporadically, however, completing only an additional one and one-half years worth of schooling. During this same period, he appears to have had only one job for a very brief time. The parties agreed that under the applicable provisions of the Social Security Act plaintiff last met the earnings requirement qualifying him for disability benefits on March 31, 1972.

Sometime in the mid-to-late 1970's, plaintiff was convicted of a criminal offense and sentenced to two years' imprisonment. The conviction was overturned on appeal. In connection with the conviction, however, plaintiff in 1977 was referred for psychiatric treatment because of his sociopathic behavior. He was also examined in 1977 under the auspices of the VA by the Lahey Clinic at Boston. That examination revealed that although plaintiff's gunshot injury had healed substantially, he possessed symptoms of mental disorder. Plaintiff has since been diagnosed as a schizophrenic, undifferentiated type.

On August 1, 1978, plaintiff filed for disability benefits with the Social Security Administration (SSA), stating that he had been unable to work since August 12, 1969, because of his gunshot wound. The SSA ruled that he did not qualify for disability benefits, a determination that was affirmed on reconsideration. Plaintiff thereafter requested and received a hearing before an ALJ on May 3, 1979, at which he was not represented by counsel. Although the ALJ found that plaintiff had sustained a serious gunshot wound in 1969, he determined that plaintiff's injuries had healed well and that he physically appeared capable of working. The ALJ attributed claimant's inability to work successfully to severe psychiatric illness, which he found of disabling severity.

Symptoms of mental disorder are noted in the Lahey Clinic report as well as in reports from the claimant's treating psychiatrist, George Irving Gahm. The existence of such an illness is confirmed in extensive post hearing psychological and psychiatric examinations conducted by Drs. Irwin Klepper and Sand(f)ord Bloomberg, respectively. In sum these reports indicate that if he had current insured status, he would be eligible for payment of benefits.

The ALJ concluded, however, that plaintiff was not entitled to benefits because he had failed to establish that he had been continuously disabled since March 31, 1972, the last day he qualified for coverage. ¹

The Appeals Council denied plaintiff's request for review, thus rendering the decision of the ALJ a final decision of the Secretary. Plaintiff then commenced an action in the United States District Court for the District of Massachusetts seeking judicial review of the adverse determination under 42 U.S.C. § 405(g). The matter was referred to a magistrate for proposed findings of fact pursuant to 28 U.S.C. § 636(b).

The magistrate found that there was substantial evidence to support the decision of the Secretary and recommended that plaintiff's motion for an order reversing the decision be denied. Subsequently, the district court entered judgment for the defendant. The court concluded, first, that the decision of the Secretary to deny benefits was supported by substantial evidence, and second, that the Secretary did not breach a duty to aid claimant in meeting his burden of proof.

II.

On appeal, the plaintiff does not press a disability claim because of the leg injury. Rather, plaintiff advances two arguments predicated on his mental condition. Plaintiff contends that there is medical and non-medical evidence in the record establishing that he has been disabled by his psychological impairment since the period of his insured status. In addition, plaintiff maintains that the ALJ should have more fully developed the evidence probative of plaintiff's entitlement to disability.

To be considered disabled, plaintiff must have "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically accepted clinical and laboratory techniques." 42 U.S.C. § 423(d)(3). The impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). Moreover, because plaintiff last qualified for disability coverage on March 31, 1972, he had the burden of establishing by credible evidence that his mental impairment was of a disabling level of severity as of that date. Ragan v. Finch, 435 F.2d 239, 241 (6th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1685, 29 L.Ed.2d 152 (1971). It is not sufficient for him to establish that his mental impairment had its roots prior to that date. See Sampson v. Califano, 551 F.2d 881, 882 (1st Cir.), cert. denied, 434 U.S. 854, 98 S.Ct. 171, 54 L.Ed.2d 124 (1977).

The extent of our appellate review of the Secretary's determination is, like that of the district court, circumscribed. We are not called upon to examine the evidence as initial factfinder. Rather, our review is limited to a determination of whether the findings of the Secretary were supported by substantial evidence. 42 U.S.C. § 405(g); Miranda v. Secretary of HEW, 514 F.2d 996, 998 (1st Cir. 1975); Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969).

Our review of the record convinces us that, based on the evidence before him, the ALJ's finding that the plaintiff's psychological disability has not existed continuously since March of 1972 is supported by substantial evidence. The record contains no medical evidence of significant psychological disorder of disabling severity between 1969 and 1977. And the nonmedical evidence of plaintiff's mental condition is not so probative of a disabling psychiatric illness that we can say that the ALJ's finding is not supported by substantial evidence.

Plaintiff's contention that the record clearly supports a finding of continuous disabling psychological impairment is based on favorable inferences he draws from his mental history of 1977-79, from the asserted "claim of a nervous condition" that he filed on September 11, 1970, with the VA, and from the subsequent award of 10% increased disability compensation for this condition. In his zeal to find support for his position, however, plaintiff's counsel has not correctly represented the content of the record. Counsel represents in his brief that the VA's diagnosis of plaintiff in connection with its...