Difford v. Secretary of Health & Human Services, 89-3445

• Decision Date: 07 February 1991
• Docket Number: No. 89-3445,89-3445
• Parties: , 30 Soc.Sec.Rep.Ser. 681, Unempl.Ins.Rep. CCH 15624A Robert DIFFORD, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1316

910 F.2d 1316

59 USLW 2130, 30 Soc.Sec.Rep.Ser. 681,

Unempl.Ins.Rep. CCH 15624A

Robert DIFFORD, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee.

No. 89-3445.

United States Court of Appeals Sixth Circuit.

Argued Feb. 2, 1990.

Decided Aug. 10, 1990.

Rehearing Denied Feb. 7, 1991.

Eric P. Allen (argued), Shapiro, Kendis & Assoc. Co., Cleveland, Ohio, for plaintiff-appellant.

Maureen E. Murphy, Asst. U.S. Atty., Lynne H. Buck, Office of U.S. Atty., Cleveland, Ohio, Carlotta P. Wells (argued), Department of Health & Human Services, Office of Gen. Counsel, Baltimore, Md., for defendant-appellee.

Before MERRITT, Chief Judge, and JONES and RYAN, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-appellant Robert Difford appeals the district court judgment affirming the termination of his social security disability benefits. For the following reasons, we reverse.

I.

Robert Difford was born on February 2, 1947 and has an eleventh grade education. He worked as a crane operator from 1966 to 1975 and then as a carpenter's helper from June 1984 to January 1985.

On October 19, 1976, Difford applied for social security disability benefits, claiming he was disabled from transverse myelitis, an inflammatory problem affecting the spinal cord. That application for benefits was approved and Difford began receiving disability benefits from the onset date of April 2, 1976. In June 1982, he was notified of a proposal to terminate his benefits because current medical records showed "no abnormal neurological findings, no evidence of neurological disease and no loss of motion of the spine." J.App. at 93. Difford's disability benefits were terminated as of August 31, 1982 and his request for reconsideration of the termination was denied.

Difford did not appeal the termination, but instead filed a new application on May 16, 1983 for disability benefits. That application was denied and the Appeals Council denied claimant's request for review on April 13, 1984. This appeal does not involve the 1983 application.

In June 1984, Difford obtained employment as a carpenter's helper, cutting plywood panels for seats in recreational vehicles. Difford stated that he had trouble lifting the plywood because of pain and that he missed work often. On January 2, 1985, Difford injured his knee and back in an accident at work. He had surgery on his right knee in January 1985 and has been unemployed since then.

Because Difford is a member of the Holden class, ¹ he received notice in February 1985 that he had the right to apply for a reinstatement of his disability benefits and to have that request reviewed under the appropriate medical improvement standard. On March 19, 1985, Difford requested review of his case.

On October 8, 1986, the Secretary found, upon review of Difford's case, that the original termination decision was correct. That finding was affirmed on reconsideration. On January 28, 1988, an Administrative Law Judge ("ALJ") affirmed the Secretary's decision. The ALJ found that Difford's disability ceased as of June 1982 because his condition had medically improved and limited review of the evidence of Difford's condition to 1982, considering no evidence after that date. On April 14, 1988, the Appeals Council refused claimant's request for review. Claimant then sought judicial review. United States Magistrate David S. Perlman affirmed the Secretary's termination of claimant's disability benefits. This appeal followed.

II.

This case turns on the correct interpretation of certain provisions of Sec. 2(a) of the Social Security Benefits Amendments of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (1984), codified at 42 U.S.C. Sec. 423(f), which sets the standard of review for termination of disability benefits. Those provisions, in relevant part, provide as follows:

(f) Standard of review for termination of disability benefits

A recipient of benefits under this subchapter or subchapter XVIII of this chapter based on the disability of any individual may be determined not to be entitled to such benefits on the basis of a finding that the physical or mental impairment on the basis of which such benefits are provided has ceased, does not exist, or is not disabling only if such finding is supported by--

(1) substantial evidence which demonstrates that--

(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and

(B)(i) the individual is now able to engage in substantial gainful activity....

* * * * * *

Any determination under this section shall be made on the basis of all the evidence available in the individual's case file, including new evidence concerning the individual's prior or current condition which is presented by the individual or secured by the Secretary. Any determination made under this section shall be made on the basis of the weight of the evidence and on a neutral basis with regard to the individual's condition, without any initial inference as to the presence or absence of disability being drawn from the fact that the individual has previously been determined to be disabled.

42 U.S.C. Sec. 423(f) (Supp. III 1985) (emphasis added).

The regulations promulgated pursuant to this statute set forth the evaluative steps to be used in determining if an individual is still disabled. The steps at issue here include the following:

(6) If medical improvement is shown to be related to your ability to do work or if one of the first group of exceptions to medical improvement applies, we will determine whether all your current impairments in combination are severe (see Sec. 404.1521). This determination will consider all your current impairments and the impact of the combination of those impairments on your ability to function.

* * * * * *

(7) If your impairment(s) is severe, we will assess your current ability to engage in substantial gainful activity in accordance with Sec. 404.1561. That is we will assess your residual functional capacity based on all your current impairments and consider whether you can still do work you have done in the past. If you can do such work, disability will be found to have ended.

(8) If you are not able to do work you have done in the past, we will consider one final step. Given the residual functional capacity assessment and considering your age, education and past work experience, can you do other work? If you can, disability will be found to have ended. If you cannot, disability will be found to continue.

20 C.F.R. Sec. 404.1594(f)(6)-(8) (1989) (emphasis added).

Under the rules of statutory construction, if the intent of Congress is clear from the language of the legislation itself, then the courts, as well as the implementing agency, must give effect to the statute as written. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); Bradley v. Austin, 841 F.2d 1288, 1293 (6th Cir.1988). Where statutory language is ambiguous, the courts should review the legislative history in conjunction with the statutory provision at issue. See, e.g., Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). If Congress declined to address a specific question raised in a particular case, then the court must determine whether the agency's resolution of or response to the ambiguity is derived from a permissible construction of the statute. See Chevron, U.S.A., 467 U.S. at 843, 104 S.Ct. at 2782.

A.

Difford argues that the statutory language makes it clear that termination may not occur if the individual is currently unable to engage in substantial gainful activity, and that review must give weight to any new evidence in the file which the individual presents concerning his present condition. Difford claims that the ALJ erred in failing to assess all of his present impairments, and considering just those impairments existing at the time of termination. Difford claims that if the ALJ had applied the law correctly, he would have assessed his condition as of January 28, 1988. Difford cites to the language of 20 C.F.R. Sec. 404.1594(f)(6)-(8) (1985) and points out that the statute clearly speaks of current impairments and the individual's present ability to work. Difford also refers to the legislative history which states:

(N)o one will be found to be no longer disabled unless he or she is now able to engage in SGA [substantial gainful activity] when all of his or her current impairments have been considered.... This provision allows consideration of all impairments in assessing whether a person meets the definition of disability and provides that only persons who have medically improved and can presently do SGA are found no longer disabled.

50 Fed.Reg. 50,122 (1985) (emphasis added).

In addition, Difford cites to this court's decisions in Haynes v. Secretary, 734 F.2d 284, 288 (6th Cir.1984) and Gist v. Secretary, 736 F.2d 352, 355-57 (6th Cir.1984), which state that the applicable standard of judicial review is whether the Secretary's finding that there has been medical improvement in the claimant's condition to the extent that the claimant is now able to engage in substantial gainful activity is supported by substantial evidence. Both of these decisions, however, involve contemporaneous review of termination of benefits and do not involve the seven year retrospective inquiry of interim employment factors present in the instant case.

The Secretary argues that the term "current," as used in the...