Hickman v. Apfel
| Decision Date | 06 August 1999 |
| Docket Number | No. 98-3901,98-3901 |
| Citation | 187 F.3d 683 |
| Parties | (7th Cir. 1999) STEVEN D. HICKMAN, JR., Plaintiff-Appellant, v. KENNETH APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 97-1170-C-M/S--Larry J. McKinney, Judge.
Before Cudahy, Eschbach, and Rovner, Circuit Judges.
Since early childhood, Steven Hickman has suffered from a variety of maladies, including asthma, vascular abnormality, and, most importantly, a rare condition resulting in gigantism (or abnormally large growth) of his right leg and foot. Hickman, who is now nearly 18 years old, sought judicial review of the Commissioner's determination that he was not entitled to supplemental security income ("benefits") under Title XVI of the Social Security Act, 42 U.S.C. sec.sec. 1382, 1382c. The district court affirmed the Commissioner's decision. On appeal, Hickman argues that the Administrative Law Judge erred in concluding that evidence pertaining to his case does not support an award of benefits under the Act. Because the ALJ's decision violated Social Security regulations applicable to child disability cases by relying on non-medical testimony as opposed to medical evidence, we reverse.
Hickman was born three months prematurely in August, 1982. During the first few years of his life, surgeons operated on him several times to correct a cleft of the soft palate and to remove a benign tumor from his chest, as well as soft tissue and an extra toe from his right foot. In 1985, Hickman was diagnosed with Kippel- Trenaunay-Webber syndrome or elephantitis, a condition characterized by vascular inflammation, malformation of the lymphatic system, and hypertrophy of bone and tissue in one or more extremities. Supportive stockings were prescribed for his right foot and abdomen. Hickman first applied for benefits in 1985, and again in 1986, alleging that he had been disabled since birth. Various doctors reported that he had difficulty with balance and gait; apart from that, his extremities functioned normally and his condition was generally good. Each application for benefits was denied, and Hickman did not appeal on either occasion.
In 1990, Hickman again underwent surgery for removal of growths in his abdomen and chest. By then he was also experiencing frequent asthma attacks, which on at least two occasions required hospitalization for several days. He had stopped using the support stockings, which irritated his knee and caused superficial bleeding. Early in 1991, Hickman was operated on for a hernia. A few months later, his right foot again began increasing in size, until his entire right foot and calf were gigantized. In April and May 1992, he was hospitalized with chronic swelling of both legs. Support stockings were again prescribed for the gigantism, and compression ("pump") garments for the swelling. Hickman's condition then improved somewhat, but his ability to walk appears to have remained impaired.
In August 1992, Hickman reapplied for benefits and was subsequently informed that the Social Security Administration (SSA) had reopened his 1985 application in order to reevaluate it under Sullivan v. Zebley, 493 U.S. 521, 541 (1990).1 Ultimately, in 1996, the SSA promulgated new regulations to conform with Zebley. See 20 C.F.R. sec.sec. 416.924 et seq.2 Meanwhile, in 1992 and 1993, Hickman's reopened application was denied both initially and on reconsideration. This time, Hickman requested a de novo hearing before an Administrative Law Judge (ALJ). The hearing was held in April 1994. Hickman's attorney drew the ALJ's attention to 20 C.F.R. sec. 416.924(e), which states that a child is disabled if his impairment meets or is medically equal to an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. One of the listed impairments reads:
101.03 Deficit of musculoskeletal function due to deformity or musculoskeletal disease and one of the following:
A. Walking is markedly reduced in speed or distance despite orthotic or prosthetic devices . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. B, sec. 101.03(A). Hickman's attorney argued that Hickman's condition met or equaled this listing, and that Hickman was thus disabled and entitled to benefits. The ALJ questioned Hickman (then age 12), who testified that he had "tumors" in both legs and that it was hard for him to walk--but that at school he received his best grade, an A, in physical education. Hickman asserted that he played basketball and ran relay races. His mother, however, testified that "he might say he is playing, but the kids are playing around him." Hickman further testified that he walked short distances to take the bus to school and back, and to and from classes in the school. The ALJ, however, determined that Hickman's walking was not "markedly reduced in speed or distance," and terminated the hearing.
Two months later, Dr. Christopher Prevel, Hickman's treating orthopedist, referred Hickman for a comprehensive evaluation to Dr. Richard Lindseth, vice chairman of the Department of Orthopaedic Surgery at the Indiana University School of Medicine and a respected pediatric orthopaedist. Dr. Lindseth conducted electromyographic testing of Hickman's legs, and reported, at the conclusion of a lengthy "gait analysis interpretation," that Hickman's gait was "very slow, energy inefficient and would limit his walking ability and standing ability to a considerable degree." According to Dr. Lindseth, Hickman's speed and the length of his stride and step were reduced to approximately "two-thirds of normal." Dr. Lindseth estimated that Hickman's "maximum walking would be a block or two and that his standing on both legs would be limited to 15 to 20 minutes."
Hickman submitted Dr. Lindseth's report to the ALJ, and a supplemental hearing was held in October, 1994. Diana Klarich, Hickman's gym teacher, testified that if Hickman were tested "in standardized testing, he would flunk," but that she treated him differently from all the other students so as not to "burst the bubble" of his dreams. Hickman, she explained, "does not play basketball"; rather, he "puts himself in positions where the ball can be thrown to him." She worried that Hickman would incur "some major catastrophe with his body" by trying to engage in movements of which he was incapable. Again the ALJ and Hickman's attorney debated whether Hickman's walking was "markedly" reduced in speed. The ALJ stated that he "saw the point" of Dr. Lindseth's report and would consider the question. He indicated that he would have to "meet the equal of a medical expert" to be convinced, and asked the attorney to send him a copy of Dr. Lindseth's resume. He stated that he was "not saying that the doctor that made the report is incapable of reaching a conclusion like that." But when Hickman left the room for the gym teacher's testimony, the ALJ remarked:
A few days later, Hickman's attorney sent Dr. Lindseth's 22-page curriculum vitae to the ALJ. Then, in December 1994, Hickman was examined by Dr. Arthur Lorber, a doctor selected by the SSA. Dr. Lorber reported that Hickman suffered from gigantism of the left foot and of the entire right leg from the hip downward. He stated that Hickman was "currently ambulatory without assistive devices," but that his "prognosis is extremely guarded" and that "over time, he may well become wheelchair-bound." He indicated that Hickman could stand and/or walk for a total of only one hour in an eight-hour day, and that when he was old enough to work he would be restricted to "light, sedentary activities."
In July 1995, the ALJ issued his decision. The ALJ concluded that "the evidence of record" did not show that Hickman's impairments were medically or functionally severe enough to meet or equal any listed impairment. The ALJ noted Dr. Lindseth's opinion, but found that Hickman's own testimony The ALJ then engaged in a lengthy discussion of whether Hickman's impairment would disable an adult, following a complex procedure at the time laid out in (but since eliminated from) the Social Security regulations. In the course of that discussion, the ALJ cited statements of various doctors in Hickman's medical record, and concluded that Hickman had only a "moderate" limitation of motor functioning and that, in the absence of other limitations, he did not have an impairment that would disable an adult. Therefore, the ALJ denied Hickman's application for benefits.
In July 1996, the Appeals Council denied Hickman's request for review, and Hickman then initiated his action in the district court. Hickman argued that the ALJ erred in discounting Dr. Lindseth's testimony and in concluding that his impairment did not meet or equal Listing 101.03. The district court rejected those arguments and affirmed the ALJ's decision. The court indicated that the ALJ "found that Hickman's testimony demonstrated that his walking was not markedly reduced in speed and distance (orthotic or prosthetic devices not being an issue), and that therefore, the limitation from his impairment did not meet or equal the severity required by Listing 101.03A." The court concluded that the ALJ "properly considered both medical and testimonial evidence in assessing the severity of Hickman's impairment."
On appeal, Hickman argues that the ALJ improperly determined that Hickman's impairment...
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Issue topics
...the Commissioner in deciding medical equivalence. APPLICABLE RULINGS Acquiescence Ruling 00-2(7) Issued in response to Hickman v. Apfel , 187 F.3d 683 (7th Cir. 1999) (discussed below), AR 00-2(7) applies only to cases in which the claimant resides in Illinois, Indiana or Wisconsin at the t......
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SSR 96-1p: Application by the Social Security Administration (SSA) of Federal Circuit Court and District Court Decisions
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