Honeysucker v. Bowen, 85 C 5288.

• Decision Date: 02 December 1986
• Docket Number: No. 85 C 5288.,85 C 5288.
• Citation: 649 F. Supp. 1155
• Parties: Geneva HONEYSUCKER, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

649 F. Supp. 1155

Geneva HONEYSUCKER, Plaintiff, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.

No. 85 C 5288.

United States District Court, N.D. Illinois, E.D.

December 2, 1986.

Frederick J. Daley, Chicago, Ill., for plaintiff.

Mary S. Rigdon, Asst. U.S. Atty., Civil Div., U.S. Dept. of Justice, Donna Morros Weinstein, Regional Atty., Dept. of Health and Human Services, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

On April 19, 1983, plaintiff Geneva Honeysucker filed for disability insurance benefits pursuant to Title II, §§ 216(i) and 223 of the Social Security Act (Act), 42 U.S.C. §§ 416(i) and 423. She subsequently filed for supplemental security income (SSI) pursuant to Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Plaintiff's applications were denied initially (R. 123-125, 126-128) and on reconsideration (R. 133-134, 135-137). A hearing was held before an administrative law judge (ALJ) on November 6, 1984. The ALJ denied plaintiff disability benefits (R. 8-9). That decision became the final decision of the Secretary of Health and Human Services when the Appeals Council approved it on May 14, 1985 (R. 3). Plaintiff appeals that decision. This court has jurisdiction over plaintiff's appeal pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g).

The record shows that plaintiff was born on May 11, 1937. She is currently 49 years old, 5'2" tall and weighs 239 pounds (R. 72). Plaintiff has an eighth grade education (R. 58) and worked as a nurse's aide for eleven years (R. 130, 143). Plaintiff was hospitalized August 9-15, 1982, because of vomiting, elevated blood pressure and epigastric pain (R. 156-164). She was diagnosed as suffering from hypertension, obesity, dysmenorrhea and hypokalemia (R. 156-164). Plaintiff was again hospitalized March 6-9, 1983, due to abdominal pain (R. 165-171) and April 19-23, 1984, for hypertension (R. 192-194).

Plaintiff based her application for disability benefits only on high blood pressure and diabetes (R. 106). She alleged that as a result of these impairments she has been unable to work since December 1982 (R. 106). The record also contains medical evidence that she has arthritis in her knees, ankles and spine (R. 185).

DISCUSSION

This court's review of the Secretary's decision is limited to a determination of whether there is substantial evidence in the record as a whole to support the decision. Carver v. Harris, 634 F.2d 363, 364 (7th Cir.1980). Thus this court must review the entire record in determining whether the finding of ineligibility is supported by substantial evidence. 42 U.S.C. § 405(g). Houston v. Secretary of Health, Education and Welfare, 736 F.2d 365, 366 (6th Cir.1984). If the decision is supported by substantial evidence, it is conclusive, 42 U.S.C. § 405(g), unless there has been an error of law. Substantial evidence is 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).

In order for plaintiff to be entitled to the requested benefits she must be found to be "disabled." The Act defines "disability" as the inability to engage in any substantial gainful activity due to physical or mental impairment(s) which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A).

The Social Security Administration has promulgated regulations prescribing a sequential inquiry to be followed in determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)-(f) and 416.920(a)-(f). The Seventh Circuit has described this inquiry as follows:

The first inquiry under the sequence concerns whether a claimant is currently engaged in substantial gainful employment. If it is found that he is, the claim is denied without reference to the other steps in the sequence. If he is not, the second inquiry is whether the claimant has a "severe" impairment. If he does not, the claim is denied. If a severe impairment is present, the third inquiry is whether such impairment meets or equals one of the impairments listed under Appendix I of Subpart P of the Administrative Regulations No. 4. If it does, the claim is approved. If it does not, the fourth inquiry is whether the claimant's impairments prevent him from performing his past relevant work. If he is found to be capable of returning to his past relevant work, the claim is denied. If he is not found to be so capable, the fifth and final inquiry is whether claimant is able to perform other forms of substantial gainful activity, considering his age, education and prior work experience. If he is not, the claim is approved.

Cannon v. Harris, 651 F.2d 513, 517 (7th Cir.1981).

This case presents a controversy regarding steps 3 and 5 of the five-step inquiry. Plaintiff argues that the ALJ erred in failing to find that plaintiff's combined impairments equal a listed impairment under the Act (R. 16-18) and in finding that plaintiff has the residual functional capacity to perform light work (R. 18). Thus plaintiff requests this court to reverse the Secretary's decision denying plaintiff benefits, or in the alternative to remand the case back to the ALJ for rehearing.

1. Step 3 (Listed Impairment)

Because the five-step inquiry is sequential, we first address whether the ALJ's determination that plaintiff does not suffer from a listed impairment is supported by substantial evidence. Under 20 C.F.R. Part 404, Subpart P, Appendix 1, § 10.10, a person is disabled due to obesity if she meets the weight requirements of Table II and also suffers from one of the following:

A. History of pain and limitation of motion in any weight bearing joint or spine (on physical examination) associated with x-ray evidence of arthritis in a weight bearing joint or spine; OR

B. Hypertension with diastolic blood pressure persistently in excess of 100 mm Hg measured with appropriate size cuff; OR

C. History of congestive heart failure manifested by past evidence of vascular congestion such as hepatomegaly, peripheral or pulmonary edema; OR

D. Chronic venous insufficiency with superficial varicosities in a lower extremity with pain on weight bearing and persistent edema; OR

E. Respiratory disease with total forced vital capacity equal to or less than 2.0 L. or a level of hypoxemia at rest equal to or less than the values of the following table:

(Tables omitted)

Table II requires that a woman of plaintiff's height, 5'2", weigh 242 pounds. Plaintiff falls just three pounds short of this requirement. Thus, as defendant argues, plaintiff does not meet a listed impairment under the Act.

a. persistent hypertension

However, the ALJ also found that plaintiff's diastolic blood pressure is not "persistently" above 100 mm. Hg (R. 18). The record shows ten readings of plaintiff's blood pressure. During her hospitalization in August 1982 six readings of plaintiff's blood pressure apparently were taken. The readings were as follows: 180/110, 200/110, 200/120, 160/94, 140/90, 130/90. In March 1983 plaintiff's blood pressure was measured at 140/80. The reading for June 1983 was 206/112, and that for August 1983 was 150/110. The final reading shown in the record was in April of 1984. At this time plaintiff's blood pressure was measured at 180/110. Thus, of plaintiff's last ten readings, six were over 100 mm. Hg, including the last three, and of the other four, three were taken during the 1982 hospitalization.

The ALJ's determination that plaintiff's high blood pressure is not persistent within the meaning of the regulations is erroneous. The term "persistent" is not defined in § 10.10. However, in the ordinary common understanding of the word in English something need not be present every single minute to be persistent. If such a meaning were intended, the word "constant" could have been used to more clearly express such an intent.

We think "persistent" refers to an impairment which stubbornly recurs despite efforts to treat or control it. See Stidman v. Heckler, No. 83 C 9411, slip op. at n. 4 (N.D.Ill.Sept. 10, 1984) Available on WESTLAW, DCTU database; cf. Johnson v. Califano, 572 F.2d 186 (8th Cir.1978) (occasional control of hypertension does not keep it from meeting disability standard). Examination of § 12.03 of Appendix 1, in the listing for mental impairments, supports this approach. A psychotic symptom is "persistent" for purposes of the mental impairments regulation when it is "either continuous or intermittent." See Dennis v. Heckler, 756 F.2d 971, 975 (3d Cir.1985) (periodic remission of psychotic symptoms does not keep claimant from meeting a listed impairment). Plaintiff need not demonstrate blood pressure in excess of 100 mm. Hg on each and every occasion it was measured. Having high blood pressure on six of ten occasions is "persistent." Plaintiff's high blood pressure is "persistent" within the meaning of the regulation.

b. equivalence to a listed impairment

The ALJ also found that her impairment does not equal a listed impairment, and that not even in combination are her impairments medically equivalent to a listing. Both of those findings are troubling in light of an ALJ's responsibilities as set out in case law. First, the ALJ has a responsibility to the reviewing court to convey not just his conclusions but also some idea of how he reached them, so that the court can give his decision a meaningful review. In particular, he must give some minimal articulation of the reasoning by which he reached a conclusion, and share with us the specific findings which support that reasoning. Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir.1984); Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir.1984). That principle applies as much at step 3 as at any other step. Roy v. Secretary, 512 F.Supp. 1245, 1254 (C.D.Ill.1981). See Knipe v. Heckler, 755 F.2d 141, 146 (10th Cir.19...