Halvorsen v. Heckler
| Decision Date | 19 September 1984 |
| Docket Number | No. 83-2894,83-2894 |
| Citation | 743 F.2d 1221 |
| Parties | , Unempl.Ins.Rep. CCH 15,546 Alice HALVORSEN, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles H. Barr, Barr & Shapiro, Menomonee Falls, Wis., for plaintiff-appellant.
Patricia J. Gorence, Asst. U.S. Atty., Milwaukee, Wis., for defendant-appellee.
Before PELL, BAUER, and POSNER, Circuit Judges.
Plaintiff, Alice Halvorsen, appeals from a summary judgment for defendant, the Secretary of Health and Human Services. On appeal, plaintiff contends that there was not substantial evidence in the record to support the administrative law judge's decision to deny her application for disability benefits. Additionally, plaintiff claims that the administrative law judge employed improper legal standards in his evaluation of the evidence. Finally, even if we reject her first two contentions, plaintiff maintains that we should remand the case for further development of the record.
Plaintiff is now a forty-eight year old woman. When she was a young girl, a bicyclist ran into her. The collision rendered her unconscious for several minutes. About one month later, plaintiff suffered an epileptic fit. She has continued to have epilepsy ever since. Nonetheless, plaintiff was able to graduate from high school after which she obtained a number of jobs. Between 1955 and 1963, plaintiff had seven different jobs--one in an office, one in industry, and the other five times as a waitress and/or cook in various restaurants. Only one job lasted longer than five months, and, counting all seven jobs, she worked for only thirty-three months during the entire nine year period. According to her testimony at the administrative hearing, each employer fired her for reasons related to her epilepsy. Either she was too slow to keep up with the work due to her medications, or she would have an accident when her fits occurred while on the job, such as dropping trays full of dishes. She claims that, after 1963, she went eight years without a job and has worked only three times for a total of less than eight months.
In 1979, she applied to defendant for disability benefits under the Social Security Act. 42 U.S.C. Secs. 416(i), 423. In her application, she alleged that the epilepsy had made her disabled as of December 31, 1959. There is no indication in the record as to why she did not allege a disability for her entire adult life, but whatever the reason may have been has no relevance to this appeal. Because of her work history, plaintiff lost her eligibility for disability payments on September 30, 1965. The question, then, is whether plaintiff was disabled within the meaning of the Act on or before September 30, 1965.
The Waukesha, Wisconsin, district office of the Social Security Administration denied plaintiff's initial application for benefits on September 19, 1979, and affirmed the denial on January 31, 1980. Plaintiff's request for reconsideration was denied in February 1980, whereupon plaintiff filed a request for a hearing, which was held on September 23, 1980. Plaintiff was the only witness at the hearing. She testified as to her medical history, the severity and frequency of the different types of seizures that she experienced, and the failure of her various medications completely to control her seizures, despite suffering a number of negative side effects from the drugs. She identified a number of factors, including job stress, that resulted in a temporary increase in the frequencies of the seizures. On the whole, she asserted that the type, severity, and frequency had remained fairly constant from 1955 through the insured period and at least until the time of the hearing. Her mild seizures, lasting only a couple of minutes, would cause her to shake and lose her memory as well as leaving her sluggish after they ended. Severe seizures resulted in the loss of control of her bodily functions, fainting, an inability to speak, and a subsequent severe sluggishness, which caused her to have to rest for about one hour.
Plaintiff submitted a substantial number of medical reports. The first set of reports came from a Dr. Forster, who treated plaintiff in the winter of 1959, about nine months before the onset of the alleged period of disability. In addition to reciting plaintiff's medical history, Forster reported that, in the month following his initial examination of plaintiff, she suffered only four mild seizures, and none in the last two weeks of that month. The only report during the insured period came from Dr. Davis, who examined plaintiff in mid-1961. Davis also recited the history of plaintiff's disease in substantial conformity with plaintiff's testimony and specifically stated that plaintiff had never gone longer than one month without a seizure. Davis noted that medication had never completely controlled the epilepsy. Davis described the results of plaintiff's electroencephalogram as "a grossly abnormal record with abnormally slow activity and atypical petit mal variant dysrhythmia."
Plaintiff also received treatment at an epilepsy center, from March 1966 through the time of the hearing, all of which time postdates the end of the insured period. The initial report of the center again recounted plaintiff's medical history of a continuous pattern of seizures since the time of her accident. The records produced while she was under care at the center reveal the same pattern of seizures as her earlier histories had indicated, although there were several seizure-free periods of up to six months. Finally, plaintiff presented to the administrative law judge a vocational report prepared in 1980 by a man named Baumgart, who stated that plaintiff has "a history of unsuccess[ful] employment" that "does not constitute successful gainful employment." Baumgart noted the inability of medication to control her seizures and the fact that her condition had remained "essentially unchanged since 1954." He concluded: "It is my opinion that based upon this woman's age, work history and medical problems that she is currently and has since 1954 been unable to participate in successful, gainful employment for a period of twelve months or longer."
The administrative law judge ruled that plaintiff was not entitled to disability insurance benefits. He stated that he had considered all testimony and documents submitted to him. The judge noted that plaintiff had held several jobs for longer than three months even though two-to-three months was the frequency of her major seizures. This fact led him to conclude that she
had demonstrated the ability to engage in substantial gainful activity in the past. [I] am impressed with the lack of medical evidence of the claimant's disability prior to June of 1965 .... While there is clear evidence that the claimant has a seizure disorder which is now disabling, and even though Mr. Baumgart, at the claimant's attorney's request, gave the claimant a vocational evaluation and concluded that ... the claimant had been since 1954 unable to participate in substantial gainful employment for a period of 12 months or longer, the record simply does not demonstrate that the claimant's seizure disorder was of a level of severity which would have precluded her from engaging in work she subsequently did on at least five occasions for greater than 3 month periods, since her alleged disability onset date, that is, work as a waitress.
In brief, the administrative law judge concluded that plaintiff was not disabled, based principally upon an asserted lack of medical evidence from before the expiration of the insured period and her "demonstrated ability" to work. The judge made several express findings, including one that plaintiff retained the residual functional capacity to work as a waitress throughout the insured period. The judge made no express finding as to plaintiff's credibility.
The Appeals Council denied plaintiff's request for review. The Council relied, in large part, upon Dr. Forster's 1959 conclusions that plaintiff's electroencephalogram was normal and that her condition has responded well to medication. The Council concluded that there was substantial evidence to support the decision of the administrative law judge.
Plaintiff then appealed the decision to the United States District Court for the Eastern District of Wisconsin. A magistrate recommended that the district court grant defendant's motion for summary judgment. The magistrate noted the lack of medical evidence from the insured period and stated: "The limited medical evidence in the record suggests that the plaintiff's condition was responding to medication." Finally, the magistrate agreed with the Appeals Council that plaintiff had not satisfied her burden to show that she was disabled, within the meaning of the Act, on September 30, 1965. Over plaintiff's objections to the magistrate's recommendation, the district court concluded, in a two-paragraph order: Plaintiff appeals from the district court's ruling.
To establish an entitlement to disability benefits, plaintiff must demonstrate that, as of September 30, 1965, she was disabled within the meaning of section 216(i)(3)(B)(i) of the Social Security Act, 42 U.S.C. Sec. 416(i)(1). That subsection defines "disabled" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months ...." A " 'physical or mental...
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