Greenspan v. Shalala, 93-5131

Decision Date21 November 1994
Docket NumberNo. 93-5131,93-5131
Citation38 F.3d 232
Parties, Unempl.Ins.Rep. (CCH) P 14224B Patricia GREENSPAN, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Patricia Greenspan, pro se.

Joanna Tate, Rodney A. Johnson, Asst. Regional Counsel, DHHS, Dallas, TX, Donna Shalala, Secretary of HHS, Washington, DC, Bob Wortham, U.S. Atty, Tyler, TX, for appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and BERRIGAN, District Judge. *

JERRY E. SMITH, Circuit Judge:

Patricia Greenspan ("Greenspan"), an applicant for Social Security disability insurance and supplemental security income benefits ("SSI"), appeals the Secretary's determination that Greenspan was not disabled within the meaning of the Social Security Act (the "Act"). Because we find that the Secretary's decision is based upon substantial evidence and is in accordance with law, we affirm.

I.

Patricia Greenspan was fifty-two years old when she applied for disability payments. She has a high school education, one year of junior college, and one year of vocational school. For most of her life, she worked primarily as a sales manager, clothing buyer, and supervisor in the clothing business; she also has held numerous clerical positions. From 1984 to 1987, she in turn worked at Lefcourts Imports, a Jordon Marsh department store, and the Doral Country Club Pro Shop. She was also a part-time bookkeeper for her landlord and a receptionist and clerk at a hospital. All these positions were held for only a brief period of time.

Greenspan's relevant medical history began in 1979 with the diagnoses of her treating physician, Dr. Martin Cohen, a specialist in endocrinology and metabolism. While Greenspan had alleged complaints relating to virtually every body system, 1 Cohen's examination found no physical basis for Greenspan's problems. He opined that "there is an enormous amount of emotional overlay contributing to her illness."

From March 1983 to May 1985, Greenspan saw Dr. Hobart Feldman, a specialist in allergy and immunology. He is also a "clinical ecologist." Feldman concluded, in contrast to Cohen's diagnoses, that Greenspan was "severely affected with ecological illness, and multiple allergies." According to Feldman, Greenspan's condition prevented her from being able to perform any type of work.

Greenspan's condition did not prevent her from consulting medical professionals, however. During this approximate period, she was counseled for emotional problems by a psychology intern of the Department of Youth and Family Development. At separate times, Greenspan also was examined by Dr. Norman Gaylis, Dr. Norman Azen, Dr. Robert Fox, and numerous physicians and interns at the Jackson Memorial Hospital and the North Miami Hospital. The blanket findings of these examinations was that no physical explanation could be found for Greenspan's numerous complaints, test results were within normal limits, and she suffered from emotional or psychosomatic aliments. Significantly, Azen did observe "dermographism," the raising of whelps resulting from moderately firm stroking or scratching of the skin.

In September 1985, Greenspan applied for disability insurance and SSI benefits under titles II and XVI of the Act, 42 U.S.C. Secs. 423 and 1381a (1991), claiming she suffered from ecological illness and chronic anxiety reaction. She contended that she had multiple allergies to almost everything in the work environment that caused respiratory, arthritic, neurological, cerebral, and other symptoms. She later amended her application to reflect a March 1983 onset date.

Meanwhile, upon Feldman's recommendation, Greenspan began seeing Drs. William Rhea and Ralph Smiley, specialists in clinical ecology and "environmental medicine." Rhea placed Greenspan in a "safe-house," a chemically free environment, where she was instructed to consume only organic foods and bottled water. Rhea also made a list of Greenspan's subjective responses to various molds, plants, animals, and chemicals. Some medical testing was done, and Rhea found evidence of Epstein-Barr virus. Greenspan, however, did not follow up on this testing, and no conclusive result was reached. Based upon their observations, Rhea and his associates concluded that Greenspan would not be able to perform any occupation because of her immune system dysfunction.

A hearing was held before an ALJ, who rendered a decision partially favorable to Greenspan, whom he found to be disabled after June 19, 1987.

Greenspan requested reconsideration. Additional evidence was entered into the record. Russell Mitchell, a clinical psychologist, conducted a psychological evaluation and diagnosed atypical somatoform disorder and histrionic personality. Dr. Joel Mulhauser, a specialist in internal medicine, submitted a report questioning the validity of "ecological medicine." His review of Greenspan's medical records showed no objective medical findings of immune deficiency or other physical explanation for her alleged symptoms. The Appeals Council vacated the ALJ's decision and remanded for additional medical evidence.

A second hearing was convened, and the ALJ considered evidence derived from three consultive examinations. Dr. Lawrence Muirhead, a clinical psychologist, concluded that Greenspan was not impaired by any psychological dysfunction. Another consultative psychiatric evaluation was performed by Dr. Henry Gardiner, whose findings were consistent with Muirhead's.

Dr. John Pippin performed a consultative internal medicine examination and found no objective evidence of any major illness and no physical limitations except for avoiding dust, fumes, and chemicals. This time, the ALJ determined that Greenspan's impairments did not preclude her from performing her past relevant work, and, therefore, she was not disabled within the meaning of the Act.

Again Greenspan appealed, and the Appeals Council determined that further evaluation of the record was necessary, this time on the question of her subjective complaints. The decision was vacated and remanded, and a third hearing was held.

Further medical evidence was gathered. Dr. William Lumry, an allergist, was unable to make a diagnosis that would explain Greenspan's reported symptoms. Because of Greenspan's dermographia, he was unable to perform skin testing for allergies. He instead ordered a "RAST" screen, which was completely negative and ruled out a significant number of possible allergies. Lumry also noted that dermographia would cause falsely positive results from skin tests such as those performed by Smiley and Feldman.

Another consultative psychiatric examination was performed by Dr. William Skinner. The ALJ heard testimony from a vocational expert, who testified that a person with Greenspan's background and impairments of moderate depression and severe allergies would be capable of doing light work.

The ALJ again denied benefits. An appeal was taken, and more extensive medical testing was done, this time diagnosing mitral valve prolapse and chronic fatigue syndrome. This time, however, the Appeals Council denied Greenspan's requests for review and reopening, and the Secretary's decision became final. Greenspan sought review in the district court, which approved of the report and recommendation of the magistrate judge and, over Greenspan's objections, dismissed the suit.

II.

We review the Secretary's decision only to determine whether it is supported by substantial evidence on the record as a whole and whether the Secretary applied the proper legal standard. 42 U.S.C. Secs. 405(g), 1383(c)(3); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir.1989). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In applying the substantial evidence standard, we scrutinize the record to determine whether such evidence is present. Haywood, 888 F.2d at 1466. We may not reweigh the evidence, try the issues de novo, or substitute our judgment for that of the Secretary. Id.

The law and regulations governing the determination of disability are the same for both disability insurance benefits and SSI. Id. at 1467. Disability under the Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to ... last for a continuous period of not less than twelve months...." 42 U.S.C. Sec. 423(d)(1)(A). Under this provision, a "physical or mental impairment" is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. Sec. 423(d)(3). Furthermore, an individual is "under a disability, only if his impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." Id. Sec. 423(d)(2)(A).

In determining whether a claimant is disabled, the Secretary utilizes a five-step sequential evaluation:

(1) An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of medical findings.

(2) An individual who does not have a "severe impairment" will not be found to be disabled.

(3) An individual who meets or equals a listed impairment in Appendix 1 of the regulations will be considered disabled...

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