Fowler v. Califano

• Decision Date: 10 April 1979
• Docket Number: No. 78-2185,78-2185
• Citation: 596 F.2d 600
• Parties: Merle C. FOWLER, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 600

596 F.2d 600

Merle C. FOWLER, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Appellee.

No. 78-2185.

United States Court of Appeals, Third Circuit.

Argued Feb. 23, 1979.

Decided April 10, 1979.

J. Howard Womsley (argued), Ryan & Bowser, Pittsburgh, Pa., for appellant.

Robert J. Cindrich, U. S. Atty., Craig R. McKay, Asst. U. S. Atty., Pittsburgh, Pa., Stephanie W. Naidoff, Regional Atty., M. Michael Leonard (argued), Asst. Regional Atty., Dept. of Health, Education, and Welfare, Philadelphia, Pa., for appellee.

Before HUNTER and WEIS, Circuit Judges and MARKEY, Chief Judge of the Court of Customs and Patent Appeals. ^*

OPINION OF THE COURT

WEIS, Circuit Judge.

Claimant Merle Fowler is presently disabled by multiple sclerosis. Hampered by the necessity to establish an onset date within her coverage period, she has been unsuccessful in securing disability benefits from the Social Security Administration. Difficulties in proof abound, for the disease is a progressive one, the initial date of disability is seldom easy to determine, and periods of remission are common. And as if these problems were not enough, they were compounded by the Department of Health, Education, and Welfare's loss or destruction of critical records relating to claimant's first application for benefits. After a thorough review of the case, we conclude the HEW determination that no disability existed on the last day of coverage, June 30, 1966 is not supported by the evidence. Finding adequate evidence to reconstruct the missing record, we remand to the Secretary for consideration of Miss Fowler's request to reopen because of error on the record.

From the early 1950's on, Miss Fowler worked for various medical schools as a recordkeeper, secretary, and nurse. From 1963 to 1967, she was employed at the University of California at Los Angeles Medical Center. That institution did not participate in the Social Security program and her coverage earned while at other jobs terminated on June 30, 1966. Claimant's testimony before the administrative law judge revealed that it was during her service at U.C.L.A. that she began to encounter increasingly serious and bizarre physical disabilities. These difficulties included: problems in maintaining her balance that were severe enough to attract accusations of being intoxicated or under the influence of drugs; a four-week period during which she had to crawl because of an inability to stand; slurred speech resulting in communication problems with coworkers and patients; difficulty in typing. Miss Fowler was forced to use up all of her vacation time as well as her sick leave because of her illness. Additionally, she often found it necessary to rest over long lunch hours.

Miss Fowler continued to cling to her employment because she was living alone and was her own sole means of support. In February 1967, her condition was such that she could no longer be retained even by the most sympathetic and understanding employer. At about this time her condition was finally diagnosed as multiple sclerosis. She then went to live with her sister in Florida, and for a period of about a year and a half was both bedridden and mentally disoriented. During this interval, her sister filed a disability claim for her with the Social Security Administration, which was rejected, according to the sister, because the claimant did not have enough quarters of coverage.

The claimant enjoyed a period of remission from 1970 to 1973 when she was able to obtain limited employment in Pittsburgh, Pennsylvania, but thereafter her disease was again disabling. She filed for disability benefits on March 25, 1974, alleging disability from 1965. After an initial denial, the Secretary referred her case for disability evaluation to the Pennsylvania Bureau of Vocational Rehabilitation. That agency, based on information that severe symptoms were observable at some time in 1965 or early 1966, concluded that a closed period of disability was established between December 31, 1965 and February 1, 1970, when remission occurred. The Secretary, however, disallowed the payment of any benefit because the 1974 claim had been filed more than twelve months after the first period of disability had ceased in 1970. See 42 U.S.C. § 416(i)(2)(E). The claimant then requested a hearing, asserting that the 1968 claim filed by her sister had been erroneously denied and should be reopened. On the basis of the Bureau of Vocational Rehabilitation disability evaluation, claimant believed she was entitled to benefits for the 1965-1970 period. The ALJ, however, bypassed the 1968 claim issue altogether, finding instead that there had been no disability before June 30, 1966. The Appeals Council affirmed and the district court ruled there was substantial evidence supporting the Secretary's decision.

Looking first to the determination of the onset of disability, we conclude that there is not substantial evidence to support the ALJ's decision.

The claimant's description of her difficulties in the 1965-1966 period is convincing. She tried desperately to hold her job and exerted extraordinary efforts to cope with her disability. Her case did not rely upon her testimony alone but was supported by several statements from persons familiar with her at that time. A letter from Justine Walker, a coworker, was received into evidence and corroborated Miss Fowler's account of her difficulties. In addition, the detailed statements of two physicians who were aware of her condition during the period were made part of the record. Dr. Donald A. Adams, her treating physician, stated:

"(B)eyond question . . . she had multiple sclerosis dating back probably to 1965 and early 1966."

He said further:

"were she an employee of mine during late 1965 and early 1966 I would have had no other alternative except to terminate her due to her illness even though the consequences would have been that she would be unable to procure another job."

Dr. Jack A. Cannon, her employer in 1965, said that she should not have been working at that time.

"However, in considering what would happen to her if I did recommend that she be terminated, I had to realize that she would be unable to secure another position because of the problems, and that I could not recommend her for other employment based on her mental and physical condition."

Her physician at the time of the hearing, Dr. Lawrence D. Ellis, came to a similar opinion after reviewing Miss Fowler's records. He believed she was unable to engage in substantial gainful employment for a period beginning in late 1965. Moreover, the Bureau of Vocational Rehabilitation report, which, after careful study, found that disability existed as of December 31, 1965, was totally ignored in the ALJ's decision. The ALJ did not refer to any of the foregoing evidence, but merely summarized the medical reports relating to the disability period prior to June 30, 1966 as giving "no indication of severe and protracted disability prior to that date."

This conclusory statement misses the mark on several counts. It fails to observe the appropriate legal standard, whether claimant is unable "to engage in any substantial gainful activity," 42 U.S.C. §§ 416(i)(1), 423(d)(1), and substitutes a far harsher requirement. Additionally, the statement is directly contrary to the evidence submitted by the physicians familiar with claimant's condition. In fact, it is not supported by any medical opinion in this case. As we commented in Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978), an ALJ is not free to set his own expertise against that of physicians who present competent medical...