Dumas v. Schweiker, 1053
| Decision Date | 22 June 1983 |
| Docket Number | No. 1053,D,1053 |
| Parties | Paul E. DUMAS, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. ocket 82-6344. |
| Court | U.S. Court of Appeals — Second Circuit |
John S. Hogg, Hamilton, N.Y., for plaintiff-appellant.
Frederick J. Scullin, Jr., U.S. Atty. for the Northern District of New York, Syracuse, N.Y., Nancy S. Jones, Asst. U.S. Atty., Northern District of New York, Syracuse, N.Y., of counsel, submitted a brief, for defendant-appellee.
Before MANSFIELD, MESKILL and NEWMAN, Circuit Judges.
Paul E. Dumas appeals from an order of the United States District Court for the Northern District of New York, Munson, C.J., dismissing his complaint brought under section 205(g) of the Social Security Act (Act), 42 U.S.C. § 405(g) (Supp. IV 1980), and approving the determination of the Secretary of Health and Human Services (Secretary) that Dumas is not entitled to disability benefits. The questions presented are whether the Secretary correctly applied the appropriate legal standards governing disability determinations and whether substantial evidence supports the Secretary's determination that Dumas is not disabled. We affirm.
Paul E. Dumas is 58 years old, married, childless, unemployed and in poor health. He has a ninth grade education and an employment record which includes military service, bartending, a job as a metal piler and, most recently, a highway superintendent position with the Town of Brasher Falls, New York. Dumas retired on April 15, 1977, after fifteen years with the Town, due to an array of physical and psychological ailments which rendered him unable to continue as highway superintendent.
Dumas applied for disability insurance benefits on May 26, 1977, claiming that he was unable to work because of high blood pressure and nerves. The Social Security Administration denied his application finding that while he suffered from essential vascular hypertension and diabetes mellitus, his impairment was "slight" and would not "impact upon normal work activities." Dumas petitioned for and was afforded a hearing before an Administrative Law Judge (ALJ) who affirmed the denial of his application. The ALJ's decision became a final order of the Secretary when affirmed by the Appeals Council on April 6, 1978. Thereafter, Dumas sought review of the Secretary's decision in the district court pursuant to 42 U.S.C. § 405(g) (Supp. IV 1980). Because the taped record of the first hearing had been lost, the district court remanded the case to the Secretary for a de novo hearing.
Dumas was the only witness to testify at the second hearing before the ALJ on October 5, 1979. He recited his employment history, education and family status and explained that he quit working because he "wasn't feeling very good" on account of a burning sensation in his feet, high blood pressure, hypertension and nerves. He complained of poor circulation which causes him problems with his hands: He also complained of Dumas has been relatively inactive since he retired in 1977. While his wife is at work during the day, he putters around the house and lawn and takes short walks, sometimes to a coffee shop not far from his home where he would "stop in and shoot the fat there with the boys." He can drive, but no farther than five to ten miles from home and not at night. He can walk, but for no more than 1500 to 1800 feet before his feet start to ache. He can stand, but only for ten to fifteen minutes before his legs start to ache. If he stoops to tie his shoes he becomes "awful dizzy." He can sit, but not for long or else his legs will "burn from [the] knees down" and his "feet will swell up." Dumas testified that he was unable to perform any gainful employment.
severe recurring headaches. He told the ALJ that he had last suffered a severe headache just four or five days before the hearing and that one week earlier he had suffered for three days from a headache so bad that "I couldn't even sit down, lay down, or walk. They come very quick and they leave very quick." When asked what he would do to relieve the pain, he responded: "Oh, I can't do nothing. Again, it's my nerves. Sometimes they're so severe, so severe that I can't even lay down or set down, or even stand up or walk. I just got to suffer with it till it goes."
The ALJ considered a substantial amount of medical evidence in conjunction with Dumas' testimony. His Recommended Decision dated October 29, 1979, aptly summarized the medical record:
The medical evidence in this case begins with records of a hospitalization at Potsdam Hospital in April 1976 for severe headaches at which time his blood pressure was measured at 240/140 and moderate AV nicking was noted in the fundus. Medication for high blood pressure was prescribed. (Exhibit 15.) Records of Veterans Administration clinic visits between February and June 1977 show detection of beginning neuropathy and retinopathy. However, the retinopathy was found to be mild at most. A renal scan showed no kidney abnormalities. Blood pressure was measured at 150/90, 120/100 and 170/120 at various times during this period. Because Mr. Dumas was obese (66 inches tall, 220 pounds) diet therapy was emphasized. (Exhibit 16.) In October 1977 Richard L. Hehir, M.D., an internist who treated the claimant at the Veterans Administration clinic, diagnosed high blood pressure, hypercholesterolemia, diabetes, peripheral arteriosclerotic heart disease and severe hand pain on exposure to cold as a result of this heart disease due to the nature of Mr. Dumas's job....
Leon C. Benardot, M.D., a family practitioner who has treated Mr. Dumas since 1964, wrote in 1977 that the claimant had diabetes, hypertension, peripheral arteriosclerosis and obesity. He said that although he had treated Mr. Dumas for acute and chronic alcoholism in the past he is no longer drinking. Dr. Benardot also stated that the claimant is unable to continue his duties as highway superintendent. (Exhibit 19.) Dr. Hehir updated his report in June 1979 stating that "I must say that his condition has remained essentially unchanged, mild to moderate hypertension and diabetes both fairly well controlled." (Exhibit B-17.) George J. Fast, M.D., a psychiatrist, examined Mr. Dumas in September 1979 making a diagnosis of agitated depression which he said would prevent him from returning to his previous work where the claimant said he experienced much tension and pressure.
Upon the testimony and medical evidence the ALJ found that Dumas suffered from "hypertension and diabetes, mild to moderate, under fair control; occasional headaches Because the medical-vocational guidelines that comprise the Grid did not become effective until February 1979, more than two years after Dumas sought disability benefits, the district court was concerned that the ALJ's retroactive application of the Grid might have been detrimental to Dumas. Prior to the Grid, the Secretary relied on the testimony of a vocational expert to determine whether a claimant who had been deemed unable to perform his past employment nevertheless retained the physical and vocational capabilities to perform other types of work. Accordingly, the district court remanded the case for a de novo hearing so that the Secretary could determine whether Dumas would have been disabled under the procedures in use prior to the Grid. 2
and some circulatory problems." Nevertheless, he concluded that Dumas retained "a residual functional capacity to perform work related functions except work involving prolonged standing or walking, and prolonged exposure to cold weather." He found that while Dumas was unable to return to his former position with the Town of Brasher Falls, his impairments were not so severe that he was incapable of at least light work. In addition, Dumas had acquired skills from his past employment that the ALJ found could be transferred to other semi-skilled jobs. The ALJ expressly discounted Dumas' complaints of pain as "not to be of sufficient credibility to support a finding of disability by themselves or in combination with other conditions." The ALJ then turned to what is commonly known as the "Grid," a set of medical-vocational guidelines keyed to physical capacity to work. See 20 C.F.R. Part 404, Subpart P, App. 2 (1979). On the facts as found by the ALJ, the Grid mandated a finding of not disabled. After the Appeals Council affirmed the ALJ's Recommended Decision, Dumas sought review in the district court
A vocational expert was summoned to testify on remand. After reviewing all of the exhibits in the case, he testified that the skills Dumas had acquired in his past occupations were transferable to the job of time clerk. He further testified that there were 150 such jobs in the region in which Dumas resided and 112,000 such positions in the national economy. At this point in his testimony, the ALJ posed this hypothetical:
ALJ: An individual with Mr. Dumas's vocational background, and considering his age and his education, and assume that he could only do sedentary work, could he do those jobs that you--
Vocational Expert: In my estimation, yes.
Dumas then took the stand and explained that his condition had deteriorated since his testimony at the second hearing. His legs remained his "worst problem." With only minimal physical exertion they would swell and the resulting pain would spread into his groin and back. Although "[t]he blood pressure's been good," the headaches continued to bother Dumas: "Oh, my God, I'm so--I'm so that I can't even turn my head, I can't even sit down, and I lay down with a soft...
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