Hesla v. Colvin, CIV. 12-4033

• Decision Date: 28 March 2013
• Docket Number: CIV. 12-4033
• Parties: CAROL E. HESLA, Plaintiff, v. CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of South Dakota

CAROL E. HESLA, Plaintiff, v. CAROLYN COLVIN¹, Acting Commissioner of Social Security, Defendant.

CIV. 12-4033

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

Dated: March 28, 2013

MEMORANDUM OPINIONAND ORDER

Plaintiff, Carol E. Hesla ("Hesla") seeks judicial review of the Commissioner's final decision denying her a period of disability commencing on June 15, 1951, and payment of disability insurance and medical benefits under Title II of the Social Security Act.² Hesla has filed a Complaint and has requested the Court to enter an order instructing the Commissioner to award benefits. The matter is fully briefed and ripe for a decision.

JURISDICTION

This appeal of the Commissioner's final decision denying benefits is properly before the District Court pursuant to 42 U.S.C. § 405(g).

ADMINISTRATIVE PROCEEDINGS

Hesla protectively filed an application for Child's Insurance Benefits (CIB) under Title II of the Social Security Act, 42 U.S.C, § 402(d), on January 27, 2009. AR 131-137, 141. The Commissioner denied her claim initially on May 8, 2009 (AR 61) and on reconsideration on July 2, 2009 (AR 70-71). Hesla requested and received a hearing before an Administrative Law Judge ("ALJ"). AR 74-75. The hearing was held on October 21, 2010 before the Honorable John D. Sullivan. AR 27-57. On November 15, 2010, the ALJ issued a written decision affirming the previous denials. AR 13-19. On January 4, 2011, Hesla requested review by the Appeals Council. AR 9. On January 11, 2012, the Appeals Council issued its decision which disagreed with the ALJ on one issue, but nevertheless affirmed his determination that Hesla is not entitled to Child's Disability benefits under Title II of the Act. AR 1-7. Hesla timely appealed to the District Court.

STATUTORY REQUIREMENTS

Hesla applies for Child's Insurance Benefits (CIB) under 42 U.S.C. § 402(d)(l)(B)(I). Pursuant to that statute, an adult child may collect disability benefits based upon the earnings record of an individual who is entitled to old age or disability insurance benefits. In general, a claimant over the age of 18 is entitled to CIB on the earnings record o f an insured person if the claimant (1) applies for CIB; (2) is the child of the insured person; (3) was dependent on the insured person; (4) is not married; and (5) is under a disability as defined by the Act which began before she became twenty-two years of age. See, id.; 20 C.F.R. 404.350. The definition of "disability" for purposes of CIB benefits is the same as for adult disability benefits and is found at 42 U.S.C. § 423(d)(1)(A):

(d) "Disability" defined

(1) the term "disability" means-

(A) inability 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 continuos period of not less than 12 months...

To be entitled to CIB, Hesla must make two showings: that she was disabled on or before her twenty-second birthday, and that she was continuously disabled from that date until the date of her application. Miller v. Shalala, 859 F.Supp. 297, 300 (S.D. Ohio 1994). 'This 'continuos disability' interpretation of the statute appears to be a long-standing policy of the Secretary, and it has been accepted as an appropriate interpretation by numerous courts of appeal." Id. The Eighth Circuit is among the Courts that have adopted the "continuos disability" interpretation. Anderson v. Heckler, 726 F.2d 455 (8th Cir. 1984).³

FACTS

1. Biographical Information

Carol Ranney Hesla ("Hesla") was bora in 1951 and is currently sixty-one years old. She is the youngest of three children. Her father is a retired physician and her mother died in 1979 when Hesla was twenty-eight years old. Carol has two older brothers : David, (eight years older than Hesla) is a retired physician who lives in Texas. Robert (ten years older than Hesla) is a pharmacist who lives in Nebraska. Hesla graduated from Yankton High school in 1969. She ranked 135 out of 214 in her class, earning mostly Bs and Cs with an occasional A and D. She briefly attended Cottey College in Nevada, Missouri, Augustana College in Sioux Falls, South Dakota, and the New England Conservatory of Music Boston Massachusetts. She obtained a Bachelor's Degree in Music from Yankton College in Yankton, South Dakota in December, 1973.⁴ She later (in 1977-78) returned to Yankton College to earn a teaching certificate. She briefly attended the University of South Dakota in an attempt to obtain a dental hygiene certification, but dropped out of that program. She has held various part-time jobs but has never earned enough to amount to substantial gainful employment. She married Greg Hesla in March, 1986. They were divorced in March, 1992. Together they had a daughter who was born in July, 1988.

2. Medical Information

Because Hesla must prove she was disabled on or before the date of her twenty-second birthday (June, 1973) the most crucial time period in this case is between the date of Hesla's birth (June 1951) through June, 1973. The medical records for that period of time, however, are sparse and irrelevant to her claim. They consist solely of Hesla's childhood vaccination records, a surgical record for the removal of her appendix at age eleven, and other typical juvenile medical records depicting ailments such as cold and flu symptoms.

Hesla bases her claim on the retrospective diagnosis provided by her physician and the lay testimony provided by family and friends. "Retrospective medical diagnoses constitute relevant evidence of pre-expiration disability. . , Where the impairment onset date is critical, however, retrospective medical opinions alone will usually not suffice unless the claimed disability date is corroborated, as by subjective evidence from lay observers like family members." Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995) (citation omitted). Also,

in a case involving a degenerative disease . . .where a claimant does not have contemporaneous objective medical evidence of the onset of the disease, the ALJ must consider all of the evidence on the record as a whole, including the lay evidence and the retrospective conclusions and the diagnosis of her doctor.. .If the treating doctor's retrospective diagnosis is based on medically accepted clinical diagnostic technique, then it must be considered in light of the entire record to determine whether it establishes the existence of a physical impairment prior to the expiration of the claimant's insured status. A treating physician's opinion is generally entitled to substantial weight; however such an opinion is not conclusive in determining disability status, and the opinion must be supported by medically acceptable or diagnostic data.

Grebnick v. Chater, 121 F.3d 1193, 1199 (8th Cir. 1997) (citations omitted).

The retrospective medical opinion, along with the lay testimony and the "record as a whole" are reviewed to determine whether Hesla became disabled before her twenty-second birthday and was continuously disabled until the date of her application for CIB. Grebnick, Id,; Anderson v. Heckler, 726 F.2d 455 (8th Cir. 1984).

A. Hesla's 1984 Mental Health Treatment

The first record of Hesla's treatment for mental health issues appears in October, 1984, when Hesla was thirty-three years old. At that time, Hesla was hospitalized at McKennan Hospital for "depression." AR 4386.⁵ The records indicate Hesla had been "under the care" of psychiatrist Dr. Arbes but do not indicate the length of his treatment. Dr. Arbes's treatment notes are not in the administrative record. It is unknown whether Hesla continued to treat with Dr. Arbes following the 1984 hospitalization.

B. Post-1984 Medical and Mental Health Treatment

Hesla visited her family doctor at the Yankton Medical Clinic in September, 1985, for a throat infection. AR 4531. He noted that at that time her panic disorder was "controlled by medication" (Nardil).⁶ Hesla was seen at Sacred Heart Hospital in Yankton in October, 1985 for urinary retention. AR 4800-4801. She was then taking Nardil. The physician noted "she has had anxiety and depression in the last two years since her mother died. She is seeing psychologist for anxiety. The last time she saw one was in August 1985." AR4800. Similarly in September, 1985 her physician noted that Nardil "prevents PANIC doesn't cause urine retention, allows CR to function and cope with life." AR 4821.

The next medical records of significance are related to Hesla's pregnancy and delivery by Caesarean section in July, 1988. AR 4853-4856. Hesla continued to receive care at the Yankton Medical Clinic after her child was born. She complained of various problems such a sore throat (AR 4505), leg pain (AR 4506) and back pain (AR 4509). There is little or no record, however that Hesla complained of anxiety or depression between 1985 and 1991, when she was again hospitalized.

C. 1991 Charter Hospital Inpatient Hospitalizations

Hesla was an inpatient at Charter Hospital in May and December, 1991. Although she toldthe physician that she was "unable to remember any day in her life" without fears (AR 1694) she also indicated "some of her problems were manageable" before December, 1990 when the problems in her marriage became overwhelming. AR 1694. Hesla separated from her husband after her May, 1991 Charter inpatient hospitalization. Her divorce was final in March, 1992, shortly after her second Charter inpatient hospitalization ended in January, 1992. Dr. David Bean treated Hesla during the second Charter inpatient hospitalization. In a psychiatric evaluation dated December 2, 1991, Dr. Bean noted Hesla had "always felt shy and timid and fearful of interpersonal relationships, both within the family and in the school setting. She had difficulty in school, although she did obtain a Bachelor's degree in music and has a teaching certificate. Psychological testing at last hospitalization...