Gilliland v. Heckler

• Decision Date: 19 March 1986
• Docket Number: No. 85-3196,85-3196
• Citation: 786 F.2d 178
• Parties: , Unempl.Ins.Rep. CCH 16,702 Robert L. GILLILAND, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services.
• Court: U.S. Court of Appeals — Third Circuit

Page 178

786 F.2d 178

13 Soc.Sec.Rep.Ser. 122, Unempl.Ins.Rep. CCH 16,702

Robert L. GILLILAND, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services.

No. 85-3196.

United States Court of Appeals Third Circuit.

Argued Jan. 7, 1986.

Decided March 19, 1986.

Regional Atty., Michael Leonard, Asst. Regional Atty. Deborah Fitzgerald (argued), Vincent J. Quatrini, Jr. (argued), Greensburg, Pa., for appellant.

J. Alan Johnson, U.S. Atty., Albert W. Schollaert, Asst. U.S. Atty., Pittsburgh, Pa., James C. Newman, Acting Regional Atty., William Reinhart, Supervisory Asst. Regional Atty., Michael Leonard, Asst. Regional Atty., Deborah Fitzgerald (argued), Philadelphia, Pa., for appellee.

Before GARTH and STAPLETON, Circuit Judges, and BISSELL, District Judge ^*

OPINION OF THE COURT

STAPLETON, Circuit Judge.

In this appeal, we review the Secretary's decision that Appellant, Robert L. Gilliland, is not entitled to disability payments. The district court granted the Secretary's motion for summary judgment. Appellate jurisdiction exists pursuant to 28 U.S.C. Sec. 1291. We reverse.

I.

Robert L. Gilliland ("Claimant"), filed an application for disability benefits in October, 1982, alleging disability based on both mental and physical grounds commencing as of March 17, 1982. ¹ His application was denied initially and again upon reconsideration. After a hearing, held on May 31, 1983, an administrative law judge ("ALJ") determined that Claimant possessed the ability to engage in sedentary work and thus was not disabled. The Appeals Council denied review and Claimant then sought judicial relief in the district court. The district court affirmed the Secretary's evaluation. The Claimant's appeal challenges that determination as it relates to his mental condition.

II.

Claimant was 59 years old at the time of the hearing before the ALJ. He had a college degree in business administration and one year of graduate study in finance. He had last been employed as an executive vice president of a bank which he served for 35 years.

Sometime in 1980, Claimant and those around him noticed that he was having difficulty with his memory and in performing calculations and other work-related procedures. His family physician referred him to a neurologist. On March 17, 1982, he was placed on a medical leave of absence from the bank because of his memory deficit and never thereafter returned to this employment. Claimant's physicians agree that he is suffering from a dementing and progressive illness, most likely Alzheimer's disease.

The relevant medical record begins in 1981, when Claimant, because of concerns about memory loss, was seen by a neurologist, David D. Wright, M.D. Dr. Wright's report noted that Claimant had difficulty naming recent Presidents (omitting Eisenhower, Kennedy, Ford and Carter) and thought the date was April 20, 1981, when in fact it was May 1, 1981. Dr. Wright recommended further observation and tentatively diagnosed Claimant's condition as "a very mild depression or very early gray matter degeneration such as Alzheimer's Disease."

Claimant underwent a more comprehensive examination on May 20 and 21, 1982 by Terence McGillen, B.S., at the University of Pittsburgh, Western Psychiatric Institute and Clinic. The testing revealed that, although Claimant was currently functioning within an average range of intelligence his condition was consistent with the onset of dementia. The examiners concluded that the Claimant was unable to return to his prior employment and suggested that the progressive nature of the disorder rendered further pursuance of alternate vocational activities as inadvisable. They recommended supportive psychotherapy or rehabilitation counseling as well as avocational or recreational counseling.

Dr. Paul S. Applebaum, M.D., a psychiatrist, examined Claimant on May 11, 1982, and evaluated the Claimant's condition based on both his examination of Claimant and the University of Pittsburgh testing. Among other observations, Dr. Applebaum reported that Claimant was unable to name any presidents other than Reagan, Carter, Nixon and Johnson. He knew he had been married since 1947, but did not know how long ago that was. In the neuropsychological testing, the patient was found to demonstrate "average intelligence, but to display profound deficits in memory, spacial reasoning, abstract thinking and generalizing ability, logical planning and sequencing ability, and in stereognostic and kinesthetic abilities [the ability to perceive position, movement, tension, etc. of parts of one's body]."

Dr. Applebaum concluded that the Claimant was suffering from the initial states of a dementing illness, "most likely Alzheimer's Disease," and that the Claimant's condition could continue to deteriorate. Applebaum stated that Claimant would be unable to return to his job as a bank vice president, and wrote that "if he is able to obtain substitute employment, it will inevitably be at a substantially lower level." In an interview with the Claimant held on June 8, 1982, Applebaum discussed "the possibility of his obtaining alternate employment, which seems to me to be possible, but almost certainly at a level well below that to which he is accustomed."

In December, 1982, Dr. Wright reported to the Social Security office concerning his most recent examination of Claimant, which had taken place on September 7, 1982.

On the last neurological examination on September 7, 1982, he was oriented but vague on current events. He could name recent Presidents but not in order. He had difficulty with simple calculations such as 28 plus 17 and 21 minus 7 although he did come up with the right answer after a second try. More complicated subtractions were performed on paper but there was some perseverations [The persistent continuation of a line of thought or activity once it is underway; inappropriate repetition] with more figures being produced than were asked for ... [E]ven though his outward appearance appears normal[,] [b]ased on the current knowledge available, I do not expect that this patient will become employable in the near future.

A residual functioning capacity assessment was performed by V. Rama Kumar, M.D., a family practitioner, on November 22, 1982. Dr. Kumar found that Claimant had "profound deficits in memory, spatial reasoning, and abtract thinking, suggesting significant organic involvement." He further noted "[m]arked impairment of attention, concentration, memory of past performance, [and] visual analysis...." Dr. Wright examined Claimant again on June 3, 1983. He reported on that examination to the ALJ as follows:

Since I saw Mr. Gilliland last September, he has apparently lost further ground intellectually. He is quite aware of his incapacity and unemployable state. It has been our opinion that he has a progressive deterioration in brain function consistent with a diagnosis of Alzheimer's Disease. (This is a clinical diagnosis and can only be confirmed at autopsy).... A mental status examination showed that he was oriented to the date and able to give his address. He was unable to name the Governor of Pennsylvania and took some time to come up with the name of the Mayor of Pittsburgh. The only Presidents he could name were Reagan, Truman, and Eisenhower. With extensive hints, the only other President he could name was Johnson.... He was able to do simple additions of one digit such as 7 + 7 but could not calculate more complicated addition such as 28 + 13. His language testing was normal. On testing of recall, he could remember two out of three objects at the end of three minutes.... When I asked him to take off his socks and shoes, he only took off his shoes. On another simple maneuver, he became perplexed.

... [I]n June, 1982, when Mr. Gilliland was functioning at a better level than he is now, we had him evaluated with neurological testing at Western Psychiatric Institute. At that time he was found to have "profound deficits" in intellectual functioning of multiple types as is mentioned in the report by Dr. Appelbaum. Therefore, this was not in any sense a borderline case. It has been my experience that in Alzheimer's Disease, it would be extremely unusual for a patient to move successfully from one type of employment to another such as from more skilled to less skilled keeping pace with the deterioration in intellect. That Mr. Gilliland expressed some desire to attempt jobs which were less intellectually demanding was unusual; it showed his desperate need to remain a useful citizen and family man in the face of a bleak future. In other words, it shows that he does not in any way have the personality of a malingerer. From an intellectual standpoint, this attempt at continued employment probably shows his lack of insight and judgment into his severe cognitive impairment. As one might expect, he failed. Because of the severe limitations which have been well documented by both neuropsychological and neurological testing, careful clinical follow-up, thorough testing to rule out reversible medical disorders, I do not believe Mr. Gilliland can carry out even the most elementary, simple, repetitive tasks of sedentary unskilled employment. I expect his condition will gradually worsen in the future.

At the hearing before the ALJ, Claimant recounted the employment efforts mentioned by Dr. Wright and described his memory problems. In December 1982, Claimant had attended a training course offered by Sears Roebuck and Company on cash registers and sales procedures in the hope of qualifying as a part-time cashier. His participation in the course lasted only two days, however, because he was unable to complete the sequences necessary to run the cash registers.

On another occasion he had attempted to help a friend with some interior house-painting. He had "some difficulty," however, being unable to recall that latex rather than oil-based paint was required, and improperly using the latter.

Claimant...