Hansley v. Bowen
| Decision Date | 23 January 1989 |
| Docket Number | No. 87-118-CIV-7.,87-118-CIV-7. |
| Citation | 708 F. Supp. 724 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Frederick HANSLEY, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant. |
James B. Gillespie, Jr., Wilmington, N.C., for plaintiff.
Plaintiff, Arlene Hansley, collector of the estate of Frederick Hansley (hereinafter "claimant"), brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Secretary of Health and Human Services denying claimant a period of disability and disability insurance benefits under Sections 216(i) and 223(a) of the Act, id. §§ 416(i), 423(a). The action is before the court on plaintiff's and defendant's cross-motions for judgment on the pleadings. F.R.Civ.P. 12(c).
On September 15, 1983, claimant filed an application for disability benefits alleging July 24, 1983 as the onset date, the date on which he suffered a myocardial infarction. The application was denied by an administrative law judge (ALJ) on July 20, 1984. Following a request for review, the Appeals Council remanded the case on February 8, 1985 because of errors committed by the ALJ. Claimant was again denied benefits by an ALJ on June 5, 1985. On January 31, 1986, the Appeals Council remanded the case pursuant to the district court order in Hyatt v. Heckler, 807 F.2d 376 (4th Cir.1986). This remand resulted in another denial of benefits by an ALJ on May 29, 1986. Claimant requested review of that decision and submitted additional evidence to the Appeals Council. On October 23, 1987, the Appeals Council found claimant totally disabled based on the additional evidence but only as of February 4, 1987. Claimant then filed the instant action alleging the actual onset date of disability was July 24, 1983 rather than February 4, 1987.1
In support of her motion for judgment on the pleadings, plaintiff alleges claimant's peripheral vascular disease, coronary artery disease, ischemic heart disease and back conditions were proven severe enough to render him disabled within the requirements of the Social Security Act. Plaintiff also contends the Secretary erred in concluding claimant could perform a full range of sedentary activity by failing to properly analyze his subjective complaints, by failing to evaluate the full extent of his limitations, by failing to consider his impairments in combination, and by failing to abide by the vocational medical guidelines of the Secretary.
The scope of judicial review of the Secretary's decision is limited to determining whether there is substantial evidence to support the findings and conclusion that plaintiff was not entitled to disability benefits for the period in question. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); 42 U.S.C. § 405(g). "Substantial evidence" is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966) (citations omitted). Substantial evidence Id. The court's role is not one of resolving conflicts in the evidence. Instead it must weigh conflicting evidence only insofar as is necessary to determine that the evidence in support of that decision is substantial in relation to the evidence as a whole. Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964); Tyler v. Weinberger, 409 F.Supp. 776 (E.D.Va.1976).
A person is disabled and eligible to receive social security benefits when that person 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 12 months...." 42 U.S.C. § 423(d)(1)(A). The impairment must be of such severity that the person "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. § 423(d)(2)(A). See also 20 C.F.R. § 404.1520 (); id. Part 404, Subpart P, Appendix 1 (listing of disabling impairments).
The various hearings established that at the time of his heart attack in July 1983, claimant was forty-one years old and had a tenth grade education. He had worked as a longshoreman for twenty years and had injured his back on October 1, 1974, resulting in his being out of work off and on for several years. However, by 1982, claimant had returned to fulltime work so that he was earning $27,000 annually and he continued to work until his heart attack on July 24, 1983.
Plaintiff first argues the Secretary erred as to the date when claimant's peripheral artery disease reached a level of impairment entitling him to benefits. On February 4, 1987, claimant underwent a treadmill exercise test to evaluate his peripheral artery disease. The results of this test were presented to the Appeals Council which determined that claimant met Listing 4.13(B)(2) of Part 404, Subpart P, Appendix 1, as of February 4, 1987. Listing 4.13(B) requires:
Claimant met Listing 4.13(B)(2) with ratios of .31 and .50 in his right and left leg respectively. R.p. 425. These measurements were not done following any of claimant's previous treadmill tests which were performed to determine whether claimant met the listings under Section 4.04(A) relating to ischemic heart disease. However, Dr. Martin Conley, claimant's cardiac physician, indicated that clinically claimant had demonstrated severe bilateral claudication during the first treadmill test on September 11, 1983 due to the fact the test had to be discontinued because of claudication in claimant's lower legs. R.p. 435-36. Indeed, the lower extremity claudication was noted by Dr. Conley as the more significant of claimant's ailments based upon his examination in September 1983. R.p. 345. Nevertheless, the Appeals Council found the impairment only dated from the February 1987 test date and relied on the findings of Dr. Andre Tse which were based on a single examination of claimant on March 14, 1985.
Dr. Tse performed a static Doppler study pursuant to 4.13(B)(1) which showed a resting ankle/brachial systolic blood pressure ratio of 0.94 in the right leg and 0.83 in the left leg. Listing 4.13(B)(1) requires a ratio of less than 0.50 in order to find disability. Based on these results, Dr. Tse concluded claimant suffered mild intermittent claudication affecting his legs with the left leg the more severe. Dr. Tse also had claimant perform a treadmill test. However, the test was stopped after six minutes because of claudication in claimant's left leg, the same reason the test was halted by Dr. Conley in September 1983. Measurements were not taken after exercise as required for a listing level impairment under 4.13(B)(2). The only occasion these measurements were performed was in February 1987 when claimant met the impairment levels. Significantly, the February 1987 pre-exercise measurements performed by Dr. Conley were not at a ratio which would meet the listing in 4.13(B)(1) either, indicating that claimant met a listing level impairment only after exercise. There were no measurements in the record indicating whether claimant met Listing 4.13(B)(2) before February 1987. However, Dr. Conley noted the results of the February 1987 test were consistent with the findings of the September 1983 test which had been performed shortly after claimant's heart attack and indicated bilateral claudication. R.p. 436.
When a listing level impairment is established, the date of onset may reasonably be established by clinical evidence and testimony from a treating physician and the actual test date is not conclusive in establishing the onset of disability. Necessary v. Bowen, 671 F.Supp. 1086 (E.D.N.C. 1987). The opinion of an examining physician as to the date of onset of disability is appropriate, even if given in retrospect. Wooldridge v. Bowen, 816 F.2d 157 (4th Cir.1987).
The opinion of a medical advisor who does not examine a claimant can constitute support for a decision denying benefits when the denial is also supported by other medical evidence of record. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir.1986). However, the only post-exercise measurements performed pursuant to Listing 4.13(B)(2) were done on February 4, 1987. Claimant's treating physician stated that the same problem that claimant experienced in February 1987 was present in September 1983 and although formal arterial measurements were not done then, clinically, claimant demonstrated severe bilateral claudication. Dr. Paul Ventry, a physician retained by the Secretary, concluded plaintiff met Listing 4.13(B)(2) as of February 4, 1987 but made no specific finding regarding claimant's meeting the listing before that date. Nevertheless, the Appeals Council concluded that the peripheral artery disease was of a progressive nature, apparently relying on Dr. Tse's examination in March 1985 and on a report of April 1, 1986, from Dr. Conley which revealed no jugular venous distention or ankle edema. The report also found claimant's peripheral pulses present...
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