Dionne v. Heckler

• Decision Date: 20 April 1984
• Docket Number: Civ. No. 82-0273 P.
• Citation: 585 F. Supp. 1055
• Parties: Claudia DIONNE, Plaintiff, v. Margaret HECKLER, Secretary, U.S. Department of Health & Human Services, Defendant.
• Court: U.S. District Court — District of Maine

585 F. Supp. 1055

Claudia DIONNE, Plaintiff, v. Margaret HECKLER, Secretary, U.S. Department of Health & Human Services, Defendant.

Civ. No. 82-0273 P.

United States District Court, D. Maine.

April 20, 1984.

Patrick N. McTeague, McTeague, Higbee, Libner, Reitman & Priest, Brunswick, Me., for plaintiff.

Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

This is an action under 42 U.S.C. §§ 405(g), 1383(c)(3) for review of the final decision of the Secretary of Health and Human Services terminating Plaintiff's disability benefits which she had been receiving pursuant to 42 U.S.C. §§ 416(i) and 423 since March 1973. Before review by the Secretary, benefits were denied to Plaintiff both by an Administrative Law Judge (ALJ) and by the Appeals Council, which reviews the decision of the ALJ and evidence submitted subsequent to the ALJ's determination. Plaintiff has exhausted all other administrative remedies.

Plaintiff began receiving Disability Insurance Benefits in March 1973 for a mental impairment diagnosed as a passive-aggressive personality with endogenous depression and accompanying colitis. Her disability benefits were terminated in June 1981 when it was determined by the Social Security Administration that Plaintiff became able to do substantial gainful activity in April 1981. Plaintiff's request for a hearing was filed December 29, 1981. Although her request was not filed within the "60 days after the date you receive notice" of termination as required by 20 C.F.R. § 404.909(a)(1), the ALJ determined that "good cause existed for the late filing." Tr. at 12. Substantively, the ALJ determined that Plaintiff's disability ceased in April 1981. Plaintiff then requested, and was denied, review by the Appeals Council, thereby rendering the ALJ's findings the final decision of the Secretary. Thereafter, Plaintiff sought review by this Court of the Secretary's decision, in accordance with 20 C.F.R. § 404.981, by filing a Complaint on September 24, 1982. The Secretary filed as part of her answer a certified copy of the transcript of the record, including evidence upon which the findings and conclusions were based. Plaintiff subsequently filed a Motion for Summary Judgment, and Defendant filed a Motion for an Order Affirming the Decision of the Secretary.

The standard of this Court's review is whether the determination made by the ALJ is supported by substantial evidence. 42 U.S.C. § 405(g); Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir.1981). The determination must therefore be supported by "such relevant evidence as a reasonable mind might accept as adequate" to support the conclusions drawn. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

In his consideration of the evidence to determine whether Plaintiff was disabled, the ALJ followed the procedure dictated by 20 C.F.R. § 404.1520. First, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since March 1973. Next, the ALJ examined medical records and testimony presented by several treating physicians and one medical advisor and concluded that Plaintiff's non-exertional impairments were severe. The ALJ then resolved, based on the same medical evidence, that Plaintiff's impairment was not listed in, or equivalent to, the Listing of Impairments in 20 C.F.R. § 404 Subpart P, App. 1. After determining that Plaintiff also had no past relevant work, the ALJ examined evidence of Plaintiff's age, education and residual functional capacity. Because Plaintiff was successfully enrolled in nursing school to become a licensed practical nurse, the ALJ determined that Plaintiff had "clearly demonstrated a capability to perform substantial gainful work activity," Tr. at 14, was capable of performing "low stress type work activity," id., and was therefore no longer disabled.

Plaintiff argues in her Motion for Summary Judgment that the ALJ's holding that Plaintiff is no longer disabled is unsupported by substantial evidence. Chiefly, Plaintiff contends that the ALJ ignored relevant evidence in reaching his conclusion.

Plaintiff correctly notes that the ALJ ignored the evidence of Plaintiff's psychophysiologically induced colitis in the record of his (hearing) decision. However, Plaintiff errs in assessing the impact of the ALJ's omission. Plaintiff contends that the testimony regarding Plaintiff's colitis by Dr. Kamm, Plaintiff's treating psychiatrist, was uncontradicted and thus binding upon the ALJ. Smith v. Schweiker, 520 F.Supp. 27, 35 (D.N.H.1981). In fact, Dr. Kamm's testimony is neither overwhelmingly supportive of a finding that Plaintiff's colitis is severe and severely disabling, nor is his testimony uncontradicted. Where Dr. Kamm indicates in his testimony that he believes that taken together, "her personality disorder, these mood swings, and this bowel problem will again prevent Plaintiff from working," Tr. at 24, he nonetheless qualifies his assessment with the provision that Plaintiff will be prevented from working "at least in nursing." Id. Dr. Kamm also testified to his belief that Plaintiff had "a psychophysiologic disorder, that is the emotionally mediated colitis." Tr. at 31. However, when later asked by the ALJ which provisions under Appendix 1 § 12.04 "Listing of Impairments" Plaintiff's impairments satisfied, Dr. Kamm agreed that her impairments were embraced by §§ 12.04(A)(2) and (3) but did not mention § 12.04(A)(1) which encompasses psychophysiological disorders. Tr. at 33. In addition, Dr. Voss, the medical advisor, testified that Plaintiff "does not have severe colitis." Tr. at 161. Since it is well within the ALJ's province to determine the weight to be given to conflicting medical testimony, Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1st Cir.1981), and since the evidence of the severity of Plaintiff's colitis was not overwhelmingly conclusive, the ALJ could properly have determined that Plaintiff's colitis was not severe.¹

Plaintiff also argues that the ALJ's finding that Plaintiff is not disabled is unsupported by substantial evidence since it is contrary to the medical evidence in the record. The record reveals no foundation for Plaintiff's assertion.

Plaintiff contends that the "expert testimony of the treating physician should establish the Claimant's disability." Plaintiff's brief at 13. Indeed, Dr. Kamm did testify not only that he believed the Plaintiff to be totally disabled, but also that her disability was included in Appendix 1 §§ 12.04(A)(2), (3) and (B), thus automatically qualifying Plaintiff for disability benefits. Dr. Kamm's testimony was contradicted, however. Dr. Sattin, Plaintiff's treating psychologist, testified that since her hospitalization in the late spring of 1981, Plaintiff's condition had improved and was, at the time of the hearing, no longer severe. Tr. at 155. In addition, while Dr. Sattin testified that at the time of the hearing, he thought Plaintiff was still disabled, Tr. at 157, and that it would be "if'y," Tr. at 154, whether Plaintiff could do full time work, he also testified that if her success continued in nursing school, he would then encourage Plaintiff to try to work. Dr. Voss, the medical advisor, also contradicted Dr. Kamm's testimony. Although Dr. Voss concurred with Dr. Kamm's diagnosis of Plaintiff's endogenous depression and personality disorder, and with Dr. Sattin's assessment of Plaintiff's hysterical personality, Tr. at 159, Dr. Voss disagreed that Plaintiff's impairments were included in or equivalent to the listed impairments in 20 C.F.R. § 404 Subpart P, App. 1, § 12.04. Tr. at 161. Additionally, although he acknowledged that if Plaintiff had severe depression, she would be unable to work, Dr. Voss felt that Plaintiff's depression at the time of the hearing appeared to be fairly well under control, and that in a specific type of supportive and gratifying environment, Plaintiff would be able to work. Tr. at 164.

Clearly, the ALJ's finding was not contrary to the medical evidence on the record. Although it is true that "expert opinions of a treating physician as to the existence of a disability are binding on the factfinder unless contradicted by substantial evidence to the contrary," Smith v. Schweiker, 520 F.Supp. 27, 35 (D.N.H.1981), in this instance substantial evidence to the contrary does exist. Not only does the medical advisor offer evidence differing from that of Dr. Kamm, but also, Dr. Sattin, Plaintiff's treating psychologist, disagrees with Dr. Kamm's assessment of Plaintiff's irreversible disability. The "resolution of conflicting evidence is solely within the province of the Secretary." Gonzalez v. Richardson, 455 F.2d 953, 954 (1st Cir.1972). Accordingly, this Court finds that the ALJ could have deemed that substantial medical evidence to contradict the treating physician's testimony existed, and therefore, that the ALJ was not bound by Dr. Kamm's testimony.

Although the ALJ was within his discretion in the weighing of the various medical testimonies, he erred in his finding that although Plaintiff was severely impaired, she was "nonetheless capable of performing work functions of a low stress type work activity," Tr. at 14, since, in reaching that conclusion, the ALJ ignored vital testimony of the vocational expert.

Title 20 C.F.R. 404.1520 dictates that once Plaintiff is determined to have a severe impairment, the ALJ must examine whether or not her impairment falls within those listed in Appendix 1 and thus qualifies automatically for disability benefits. If Plaintiff's impairment is not delineated in Appendix 1, the ALJ must determine next whether Plaintiff's impairment prevents her from doing any work she has done in the past. If claimant cannot do her past relevant work, or has no past relevant work, the ALJ will consider the Plaintiff's age, education,...