Foster v. Bowen, 87-5887

• Decision Date: 05 August 1988
• Docket Number: No. 87-5887,87-5887
• Citation: 853 F.2d 483
• Parties: , Unempl.Ins.Rep. CCH 14073A Annie E. FOSTER, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 483

853 F.2d 483

22 Soc.Sec.Rep.Ser. 537, Unempl.Ins.Rep. CCH 14073A

Annie E. FOSTER, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services,

Defendant-Appellee.

No. 87-5887.

United States Court of Appeals, Sixth Circuit.

Argued June 17, 1988.

Decided Aug. 5, 1988.

Alvin D. Wax (argued), Taustine, Post Sotsky, Berman, Fineman and Kohn, Louisville, Ky., for plaintiff-appellant.

Joseph Whittle, U.S. Atty., Louisville, Ky., Suzanne Warner, Terry M. Cushing, William Campbell (argued), for defendant-appellee.

Before MILBURN, GUY and NORRIS, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

The Secretary of Health and Human Services (the Secretary) found that on September 4, 1985, plaintiff, Annie E. Foster, became disabled within the meaning of the Social Security Act (the Act). Plaintiff appeals the Secretary's determination that she first became disabled on that date, arguing that she is entitled to a finding of an earlier date of onset of disability. Because we find that the Secretary's decision was reached in accordance with applicable law and is supported by substantial evidence, we affirm.

I.

Plaintiff was born on March 8, 1932, and has a sixth grade education. For thirteen years, plaintiff worked for Brown & Williamson Tobacco Company. During that time, she lifted metal trays of cigarettes to the back of machines that packed the cigarettes, ran a tobacco bundling machine, filled hoppers with tobacco, operated a labeling machine, and worked as a member of the cleaning crew where her job duties included cleaning wet tobacco out of tubs, washing walls and windows, and mopping and waxing floors. Prior to her employment with Brown & Williamson, plaintiff worked for Catalyst Chemical Company for approximately four months. She had also worked in restaurants making salads. Plaintiff last worked in September of 1981.

On March 28, 1984, plaintiff filed an application with the Secretary of Health and Human Services for disability insurance benefits and supplemental security income (SSI). 42 U.S.C. Secs. 423, 1382. Her initial application and request for reconsideration were denied. A hearing was then held before an administrative law judge (ALJ). On April 4, 1985, the ALJ issued a decision denying the award of disability insurance benefits and SSI to plaintiff. The Appeals Council subsequently denied plaintiff's request for review of the ALJ's determination.

Thereafter, pursuant to the Social Security Disability Benefits Reform Act, Pub.L. No. 98-460, 98 Stat. 1794, enacted by Congress in 1984, plaintiff requested the Appeals Council to undertake a redetermination of plaintiff's mental impairment claim based on the Secretary's revised criteria for evaluating such a claim. ¹ Thereafter, the Secretary remanded the claim to the Office of Hearings and Appeals. The ALJ then reheard plaintiff's claim and issued a recommended decision on July 21, 1986, finding that plaintiff's condition met the definition of a disability as of September 4, 1985. Thereafter, plaintiff submitted a request to the Appeals Council for review of the ALJ's recommended disability onset date of September 4, 1985. On August 27, 1987, the Appeals Council modified and adopted the decision of the ALJ. This became the Secretary's final decision for purposes of review.

Plaintiff appealed the Secretary's decision to the United States District Court, Western District of Kentucky, where the matter was referred to a magistrate pursuant to 28 U.S.C. Sec. 636(b)(1)(B). The magistrate heard oral argument and on May 1, 1987, issued a report recommending that the Secretary's determination that plaintiff became disabled on September 4, 1985, be upheld and that summary judgment be entered in favor of the Secretary. On June 10, 1987, the district court adopted the report and recommendation of the magistrate and entered summary judgment in favor of the Secretary. Plaintiff now appeals the district court's grant of summary judgment in favor of the Secretary, arguing as follows: (A) the Secretary's finding that plaintiff's mental impairment was not severe prior to September 4, 1985, is not supported by substantial evidence; (B) by definition, the diagnosis of dysthymic disorder required the diagnostician to believe the patient suffered from symptoms of dysthymic disorder for two years prior to that date and the Secretary's finding of onset of disability should be adjusted accordingly; (C) the Secretary failed to properly evaluate plaintiff's mental residual functional capacity; (D) the Secretary failed to consider the plaintiff's impairments in combination; and (E) there is substantial evidence to support a finding that plaintiff's impairment meets or equals the impairments described at section 12.04 of the Listing of Impairments. 20 C.F.R. Part 404, Subpart P, App. 1 Sec. 12.04.

II.

In order to receive disability insurance benefits or SSI, one must be adjudged disabled by the Secretary. 42 U.S.C. Secs. 423, 1382. The Secretary will find a claimant disabled if the claimant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. Secs. 423(d)(1)(A), 1382c(a)(3)(A).

The standard of review in Social Security cases is well established; the Secretary's findings "are not to be overturned unless there is no substantial evidence supporting such conclusions." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 535 (6th Cir.1981). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir.1986). It is more than a mere scintilla, but only that much evidence required to prevent a directed verdict. NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 600 (1939). This court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). Rather, "[i]f the Secretary's findings are supported by substantial evidence then we must affirm the Secretary's decision even though as triers of fact we might have arrived at a different result." Elkins v. Secretary of Health and Human Services, 658 F.2d 437, 439 (6th Cir.1981).

With these principles in mind we shall proceed to address the claims raised on appeal by plaintiff seriatim.

A. Whether There is Substantial Evidence to Support the Secretary's Finding of Disability Commencing September 4, 1985.

The first issue raised by plaintiff is whether the Secretary's finding that plaintiff's disability commenced on September 4, 1985, is supported by substantial evidence. We reiterate that in order to qualify for disability insurance benefits or SSI, the claimant must be disabled. In finding that plaintiff's disability commenced on September 4, 1985, the Secretary reasoned that despite the fact that on April 27, 1984, Dr. Gomez diagnosed plaintiff as suffering from a dysthymic disorder with episodes of depression and occasional crying, the record did not show that at that time or at any other time prior to September 4, 1985, the plaintiff's "mental or emotional state was of such severity as to prevent her from performing 'unskilled' work activities which primarily [sic] working with things rather than with data or people (Rule 202.00(g), App. 2, Subpart P, Regulations No. 4), including her past unskilled job as a labeling machine operator." The ALJ then considered the combined effects of all her health problems, exertional and nonexertional, severe and not severe, and found that plaintiff had not suffered from any impairment or combination of impairments which meets or equals the level of severity of any impairment described in Appendix 1, Subpart P, of Social Security Regulation No. 4. The ALJ then concluded that because the plaintiff retained the capacity to perform her past unskilled job as a labeling machine operator (which did not require significant lifting and allowed her to sit or stand) prior to September 4, 1985, a finding that she was not disabled during that time was required.

The Secretary then went on to note that plaintiff sought and received treatment for her mental condition at Seven Counties Local Services, Inc. (Seven Counties), a local mental health agency, on September 4, 1985. An October 11, 1985, letter from that agency states that plaintiff had a diagnosis of dysthymic disorder, that she continued to be depressed, and that she occasionally experienced suicidal ideation. At this time, it was first opined that plaintiff's depression would interfere with her concentration. In June of 1986, a clinical supervisor of Seven Counties noted that plaintiff's condition had deteriorated to the degree that she continued to experience suicidal ideation, she was unable to resolve feelings of hopelessness and helplessness, and her self-concept had deteriorated to the degree that simple tasks of every day living constituted an overwhelming chore. Based upon this and all other evidence introduced, the Secretary held that beginning September 4, 1985 (the date upon which plaintiff first sought treatment at Seven Counties), but not before then, plaintiff's "dysthymic disorder with impaired concentration, restricted daily activities and social functioning, and diminished capacity to adjust to customary work pressures ha[d] been so severe that the claimant ha[d] been unable to perform even 'unskilled' work activities, as described in the Regulations. (20 C.F.R. 404.1560 and 416.960)."

Plaintiff argues on appeal that the record, taken...