Harris v. Heckler, 83-3588

• Decision Date: 01 March 1985
• Docket Number: No. 83-3588,83-3588
• Citation: 756 F.2d 431
• Parties: , Unempl.Ins.Rep. CCH 15,883 Freda HARRIS, Executrix for the Estate of Harold Harris, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 431

756 F.2d 431

9 Soc.Sec.Rep.Ser. 33, Unempl.Ins.Rep. CCH 15,883

Freda HARRIS, Executrix for the Estate of Harold Harris, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services,

Defendant-Appellee.

No. 83-3588.

United States Court of Appeals,

Sixth Circuit.

Submitted Oct. 11, 1984.

Decided March 1, 1985.

Daniel L. Manring, Columbus, Ohio, for plaintiff-appellant.

Joseph Kane (Lead), U.S. Atty., Nicholas J. Pantel, Asst. U.S. Atty., Columbus, Ohio, Steven J. Plotkin, Asst. Regional Atty., Dept. of Health & Human Services, Chicago, Ill., for defendant-appellee.

Before EDWARDS ^* and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

WEICK, Senior Circuit Judge.

Plaintiff-appellant Freda Harris, the mother of Harold Harris (Harold) and the executrix of his estate, has appealed to this court from a summary judgment rendered in the United States District Court for the Southern District of Ohio, Eastern Division, affirming the decision of defendant-appellee Secretary of Health and Human Services denying Harold's application for social security disability benefits. This action was commenced by Harold but he died soon after filing the complaint and Freda Harris has been substituted as the party plaintiff. For the reasons hereinafter stated, we reverse and remand for an award of benefits.

I.

At the time that he filed his application for social security disability benefits on June 9, 1980, Harold was 47 years of age. He had completed his education through the ninth grade. For over 27 years, prior to his retirement in 1977, Harold had worked in the mines as a coal miner. His retirement was precipitated by various physical maladies which, he contended, prevented him from engaging in work activities.

A few years before he retired, Harold was involved in an accident which caused him to suffer back pains. In 1977, Harold was examined by Dr. J.J. DelVecchio, who determined that Harold had severe lower back pain, a markedly straightened lumbar spine, arthritis in both knees and anterior lipping of the vertebrae in the lumbar area. Since that initial examination, Harold has returned to Dr. DelVecchio on several occasions. These examinations have shown, according to DelVecchio, that Harold is unable to stand without experiencing lower back pain. Harold was diagnosed as having osteoarthritis of the lumbar spine and in both knees. Dr. DelVecchio also determined that Harold was suffering from paravertebral muscle spasticity in the lower lumbar back area and that he was unable to bend more than 30 degrees without experiencing pain. Harold was found to be overweight and it was recommended that he control his calorie intake. Finally, Dr. DelVecchio reported that Harold had told him that he could not walk or lift objects without suffering back pain and that he could not even push a supermarket shopping cart. These examinations led Dr. DelVecchio to conclude, on March 5, 1979, that Harold was 100 percent permanently disabled.

In May and June of 1977, x-rays were taken of Harold's lumbar spine, chest and knees. The spine x-ray revealed that Harold had a slight straightening of the curve and minimal anterior lippings of the lumbar vertebrae. The chest x-ray indicated that Harold was probably suffering from pneumoconiosis. The knee x-rays failed to show any signs of degenerative arthritis, although they did show that there may have been some hypertrophic lipping. The knee x-rays also indicated that the joints were well maintained and that there was no evidence of loose body formation.

Harold was examined by Dr. Dan Daneshvari in 1977 for his respiratory problems. Dr. Daneshvari initially concluded that Harold had a combined moderate to severe restrictive and mild obstructive impairment. A subsequent examination in 1979 revealed that Harold suffered from pneumoconiosis and an advanced impairment of the gas exchange at the alveocapillary level which had not been in evidence during the 1977 examination. Dr. Daneshvari noted that these respiratory problems reduced Harold's ventilatory function by more than 50 percent. Daneshvari concluded that, because of his worsened respiratory condition, Harold was totally and permanently disabled with regard to coal mining or any comparable job.

Dr. Daneshvari's findings were confirmed by Dr. William M. Chinn. Dr. Chinn determined that Harold had high blood pressure, a simple pneumoconiosis and a moderate degree of pulmonary impairment in the 40-55 percent range. He concluded that Harold was permanently and totally disabled for any occupation requiring even the least amount of physical effort.

Dr. DelVecchio conducted another examination of Harold in 1980. This examination confirmed Dr. Daneshvari's conclusion that Harold's condition was worsening. Harold was only able to bend his back 10 or 20 degrees and he told DelVecchio that his back often locked when he bent over. Harold's left knee was also giving him great pain whenever he walked or twisted it. Dr. DelVecchio determined that there was some lateral bending of Harold's left knee joint and that it was more pronounced than during his previous examinations. On the positive side, DelVecchio noted that Harold's blood pressure had been brought under control through medication. Based on his examination, DelVecchio concluded that Harold was 100 percent disabled as far as any work is concerned and that his condition was deteriorating.

Also, during 1980, Harold was examined by Dr. Bihani Shah. This examination was conducted at the request of the Bureau of Disability Determination. Dr. Shah concluded from his examination that Harold had a case of chronic black lung disease and hypertensive cardiovascular disease, exacerbated by his chronic smoking and obesity. Dr. Shah also found evidence of arthritis in Harold's knee joints and back.

Harold was also examined by Dr. C.N. Patel. Dr. Patel found that Harold could bend about 70 degrees, appeared to have no problem walking and was able to straighten his leg while lying on his back. Patel noted that Harold had some difficulty arising from a squatting position. X-rays of Harold's spine, knees and chest were taken. The spine x-ray was essentially negative and the chest x-ray was normal. The knee x-rays showed that Harold had degenerative osteoarthritis of his knees, especially at his left knee. Dr. Patel also diagnosed Harold as having chronic lumbo-sacral strain with referred pain to the dorsal spine, exogeneous obesity and chronic pulmonary disease.

In June 1980, Harold filed a claim for social security disability benefits. He also applied for and was awarded Black Lung benefits and Workers' Compensation. His claim for disability benefits was initially denied. A hearing was then held before an Administrative Law Judge (ALJ) in November 1981 on his disability application. At the hearing, Harold described his respiratory, back and knee problems. He indicated that he was unable to sleep in a bed because of his back problem and that he had to sleep cuddled up in a chair. He also told the ALJ that he was unable to do many household chores and that he had difficulty walking more than a few hundred feet at a time. Harold explained that he quit his job because he could not get around and because of his respiratory problems. The aforementioned medical evidence was also presented to the ALJ.

The ALJ issued his decision denying Harold's disability claim on December 28, 1981. In his opinion, the ALJ recognized Harold's respiratory, back and knee problems but concluded that they did not meet or equal one of the listed impairments in Appendix 1 of the Social Security Administration's regulations. With regard to Harold's claims of great back pain and shortness of breath, the ALJ found that the medical evidence in the record and Harold's appearance at the hearing did not substantiate these claims and, in fact cast doubt on Harold's credibility as a witness. The ALJ concluded that Harold's residual functional capacity from his exertional impairments limited him to sedentary work and that his non-exertional impairments did not significantly affect his residual functional capacity. Applying Rules 201.19 and 201.20 of Appendix 2, the ALJ ruled that Harold was not disabled. The ALJ's decision became the final decision of the Secretary on April 22, 1982, when the Appeals Council rejected Harold's request for review.

Harold filed an action in U.S. District Court, on May 12, 1982, seeking judicial review of the Secretary's decision. Both parties moved for summary judgment. On July 12, 1983, the court granted the Secretary's motion. In its opinion, the court held that there was substantial evidence to support the ALJ's finding that Harold was not disabled.

In this appeal, appellant-Executrix contends that the ALJ's decision was not supported by substantial evidence because: (1) he improperly based his finding on his lay observation of Harold at the hearing; and (2) he failed to give proper weight to the medical opinion of Harold's treating physician, Dr. DelVecchio, and his other physicians. It does seem somewhat strange that, in view of the allowance of Black Lung and Workers' Compensation benefits to Harold by those other responsible agencies, the Secretary would have the audacity to claim here that Harold was not disabled and could perform sedentary work of some kind and that he was not, therefore, entitled to Social Security benefits.

II.

A determination that an individual is disabled shall be made "only if his physical or mental impairment or 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." 42 U.S.C. Sec. 423(d)(2)(A). This determination is reserved exclusively to the Secretary of Health and Human Services or to an approved state agency. Id. Sec. 421. "The findings of the Secretary...