Havas v. Bowen

• Decision Date: 31 October 1986
• Docket Number: D,No. 1523,1523
• Citation: 804 F.2d 783
• Parties: , Unempl.Ins.Rep. CCH 17,143 Dan HAVAS, Plaintiff-Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Defendant-Appellee. ocket 86-6090.
• Court: U.S. Court of Appeals — Second Circuit

Page 783

804 F.2d 783

15 Soc.Sec.Rep.Ser. 325, Unempl.Ins.Rep. CCH 17,143

Dan HAVAS, Plaintiff-Appellant, v. Otis BOWEN, Secretary of Health and Human Services Defendant-Appellee.

No. 1523, Docket 86-6090.

United States Court of Appeals Second Circuit.

Argued July 18, 1986.

Decided Oct. 31, 1986.

Ira Mendleson, III, Albany, N.Y. (Buckley & Mendleson, Albany, N.Y., of counsel), for plaintiff-appellant.

Cornelia Dude, Asst. Regional Counsel, U.S. Dept. of Health and Human Services, (Ronald E. Robertson, Gen. Counsel, Barbara Lewis Spivak, Deputy Chief Counsel, Dept. of Health and Human Services, Frederick J. Scullin, Jr., U.S. Atty., for N.D.N.Y., of counsel), for defendant-appellee.

Before WINTER and MAHONEY, Circuit Judges, and ZAMPANO, ^* Senior District Judge.

WINTER, Circuit Judge:

Once again we address an appeal from a denial of Social Security disability benefits by the Secretary of Health and Human Services on a factual record that implicates the so-called "treating physician" rule. Notwithstanding assurances that the Secretary adheres to this rule as his national policy, see Stieberger v. Bowen, 801 F.2d 29, 36 (2d Cir.1986), Schisler v. Heckler, 787 F.2d 76, 83 (2d Cir.1986), the record in the instant case discloses no awareness of that rule among the relevant Social Security Administration adjudicators. We therefore reverse and remand.

Dan Havas injured his back on January 17, 1983, while operating a snow blower in the course of his employment as supervisor of a work crew for the New York State Department of Environmental Conservation. He was then 57 years old. Havas sought treatment for back pain from Dr. Edwin G. Mulbury, his general physician, who referred him to Dr. Brian O'M. Quinn, an orthopedist. Dr. Quinn determined that Havas was suffering from acute "L4-5 disc disease on the left side" as well as from chronic "degenerative disc and joint disease in the low back." At a subsequent visit, Dr. Quinn found that Havas' pain had been reduced significantly after a month of bed rest. The orthopedist noted that Havas could attempt to return to work but cautioned that "[i]t remains to be seen whether he can manage this on a regular basis." Havas was then referred back to Dr. Mulbury for follow-up care.

Havas resumed work in August 1983. He was no longer required to do any lifting or other heavy labor. He was, however, required to spend much of his workday making deliveries in a state pick-up truck. He retired in June 1984, claiming that his back pain had been exacerbated by the extensive driving now demanded by his job. He thereupon sought Social Security disability benefits under Title II of the Social Security Act, 42 U.S.C. Secs. 401-433 (1982 & Supp. III 1985).

The Administrative Law Judge ("ALJ") denied Havas' application for disability benefits on the ground that, while "[t]he medical evidence establishes that [Havas] has degenerative arthritis of the lumbosacral spine," this impairment "does not prevent him from performing his past relevant work as a supervisor of a State park crew." Decision of ALJ at 4. The Appeals Council denied review, and Havas appealed to the United States District Court for the Northern District of New York pursuant to 42 U.S.C. Sec. 405(g) (1982). On April 3, 1986, Judge McCurn adopted a magistrate's recommended ruling affirming the Secretary's decision and dismissing Havas' complaint.

The record contains reports by Dr. Mulbury and Dr. Quinn. The most significant of these reports for present purposes is the "Workmen's Compensation Board Progress Report" submitted by Dr. Mulbury on or about May 12, 1984, approximately one month after Havas' retirement. The report concluded that Havas would "[n]ever" be able to resume his regular work.

The record also includes reports from two consulting physicians, Dr. Janina Foltyn and Dr. Joseph J. Fay, both of whom agreed with Dr. Quinn's diagnosis of degenerative disease of the lumbosacral spine. The consulting physicians, who noted In addition, the record contains statements by Havas at his hearing before the ALJ complaining of "constant[ ], continuous" pain in his lower back that became more intense whenever he was required to sit, stand, or drive for a prolonged period. Havas had given similar descriptions of his pain to the two consulting physicians. There is nothing in the doctors' reports to suggest that they did not fully credit Havas' allegations of pain.

that Havas had already retired at the time of their examinations, expressed no opinion as to whether Havas would ever be able to return to his former employment. However, Dr. Fay did opine that Havas had sustained "a mild to moderate partial permanent disability."

DISCUSSION

A claimant is entitled to Social Security disability benefits if 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. Sec. 423(d)(1)(A) (1982). Briefly stated, the administrative inquiry first determines whether a claimant is able to perform his or her regular employment. If the claimant can, the inquiry is at an end, and benefits are denied. If the claimant cannot perform his or her regular employment, a determination of whether the claimant can perform other gainful work is made. See 20 C.F.R. Secs. 404.1520, 416.920 (1986). Because the ALJ determined that Havas could continue in his former employment, the second determination was never made.

A determination by the Secretary that an individual is not disabled is conclusive if supported by substantial evidence. 42 U.S.C. Sec. 405(g) (1982); Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). "Substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In reviewing district court decisions in disability cases, we undertake our own plenary review of the administrative record to determine whether substantial evidence supports the Secretary's denial of benefits. See Valente v. Secretary of HHS, 733 F.2d 1037, 1041 (2d Cir.1984). Accordingly, "our focus is not so much on the district court's ruling as it is on the administrative ruling." Id.

Some time ago, we adopted the so-called "treating physician" rule whereby the medical opinion of the doctor who treated the claimant is given greater weight relative to other medical evidence before the Secretary. According to this rule,

a treating physician's opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment, is: (i) binding on the fact-finder unless contradicted by substantial evidence; and (ii) entitled to some extra weight because the treating physician is usually more familiar with a claimant's medical condition than are other physicians, although resolution of genuine conflicts between the opinion of the treating physician, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder.

Schisler v. Heckler, 787 F.2d at 81 (citing Bluvband, 730 F.2d at 892-93; Aponte v. Secretary of HHS, 728 F.2d 588, 591 (2d Cir.1984); Mongeur v. Heckler, 722 F.2d 1033, 1039 n. 2 (2d Cir.1983); Gold v. Secretary of HEW, 463 F.2d 38, 42 (2d Cir.1972)).

The merits of the treating physician rule are not at issue in the present case. This panel is bound by our prior decisions. While the Secretary understandably might disagree with the rule, he has made no attempt to take the issue to the Supreme Court. He also denies that he is following a policy of nonacquiescence, Stieberger 801 F.2d at 36, and vigorously professes to follow the rule in adjudicating all disability claims. See Schisler, 787 F.2d at 83.

Notwithstanding this seemingly broad area of agreement, the ALJ's decision made no express, implied, or even oblique reference to the treating physician rule. That he discounted Dr. Mulbury's opinion (while misstating Dr. Quinn's) is evidenced only by his conclusion that Havas could return to work, not by any discussion of the weight of Dr. Mulbury's opinion vis-a-vis other evidence in the record. The Appeals Council summarily denied review.

We have reviewed the record and conclude that there is no substantial evidence to refute Dr. Mulbury's conclusion that Havas cannot return to his job. Had the treating physician rule been applied, therefore, the Secretary would have been bound by that opinion.

Dr....