Ivy v. Sullivan

• Decision Date: 25 April 1990
• Docket Number: No. 89-4794,89-4794
• Citation: 898 F.2d 1045
• Parties: , Unempl.Ins.Rep. CCH 15374A Mae D. IVY, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health & Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1045

898 F.2d 1045

29 Soc.Sec.Rep.Ser. 154, Unempl.Ins.Rep. CCH 15374A

Mae D. IVY, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health & Human Services, Defendant-Appellee.

No. 89-4794

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 25, 1990.

Stella Terrell, Cent. Mississippi Legal Services, Jackson, Miss., for plaintiff-appellant.

Steven D. Exum, Woodlawn, Md., George Phillips, U.S. Atty., Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

POLITZ, Circuit Judge:

Mae D. Ivy appeals the rejection of her claim for disability insurance benefits under the Social Security Act, maintaining that since June 15, 1977 she has been unable to work because of her medical condition. For the reasons assigned we reverse and render, holding that Ivy is entitled to the social security benefits sought.

Background

This matter has been pending for five years. On April 16, 1985 Ivy applied for disability benefits, basing her claim for disability status on diabetes, hypertension, arthritis, and a spastic colon. Benefits were administratively denied and Ivy requested a hearing before an Administrative Law Judge (ALJ) who ruled that Ivy was not disabled. The Appeals Council disagreed, concluding that Ivy met the disability requirements listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, Sec. 10.10 B. Benefits were not awarded, however, because Ivy had failed to establish the onset of the disabling condition before September 30, 1977, the last day upon which she met the special earnings requirement of the statute. Ivy responded by asking for reconsideration because her treating physician, Dr. J. Daniel Mitchell, had not provided relevant evidence. Recognizing that evidence from the treating physician might establish Ivy's entitlement to benefits, the Appeals Council vacated the ALJ's decision and remanded for further proceedings.

After conducting a hearing on remand, which included the taking of the testimony of Dr. Mitchell, the ALJ again ruled that the evidence did not establish that Ivy was disabled on or before September 30, 1977. The ALJ particularly decried the fact that the evidence did not contain "precise blood pressure readings [and] a record of the claimant's height and weight during the time of elevation of blood pressure."

Other than precise readings of blood pressure, height, and weight on and before the critical date, the record abounds with uncontroverted evidence, lay and expert, concerning Ivy's condition, both before and after September 30, 1977. The evidence is sufficient to compel the conclusion that Ivy is entitled to social security disability payments.

Ivy is 59 years old, stands 5'1" and weighs 269 pounds. She is a high school graduate with a relevant work history of being a bookkeeper, the self-employed operator of a secretarial service, and a flea-market proprietor. She suffers from diabetes, high blood pressure, arthritis, and a spastic colon. The hypertension results in headaches, dizziness, nausea, and blackouts. Ivy experiences shortness of breath and must use a walking stick to ambulate. She has poor use of her arms and legs and has lost her grip. She can no longer operate business machines. She occasionally joins her husband at a local flea market booth. Otherwise she spends her time at home in bed, reading some, and listening to music.

The medical evidence clearly demonstrates that Ivy has a long, consistent history of serious obesity with progressively severe hypertension. In 1968 she was hospitalized for a hysterectomy. Hospital records reflect her weight as 184 pounds and blood pressure readings of 174 systolic over 76 diastolic. In 1972 she was seen by Dr. Mitchell who noted her obesity and recorded blood pressure readings of 142/86. During a hospitalization stay in 1974 her weight was recorded at 268 pounds and her diastolic readings consistently exceeded 100.

Ivy could not produce Dr. Mitchell's office records for the years 1973 through 1978. Dr. Mitchell explained that those records had been destroyed in the course of numerous burglaries of his office, but he testified that during those years he treated Ivy for hypertension and was aware of her obesity. The record before us contains the reports of other treating physicians, as well as hospital records before September 30, 1977 and thereafter. Dr. W.J. Patterson treated Ivy in 1979 and recorded blood pressure readings of 160/118. During a 1979 hospital stay for fainting spells Dr. Mitchell described Ivy as a well-developed, obese female with diabetes, hypertension, marked obesity, having gained much weight over the preceding 10 years. Weight was recorded as 257 pounds and blood pressure readings were 176/112.

In 1980 Dr. Patterson again examined Ivy, charting her weight at 277 pounds and her blood pressure at 130/100. The record of a 1982 hospitalization for rectal bleeding reflects a weight of 269 pounds. Throughout 1985 Ivy was treated by Dr. Edward R. North who noted a weight gain from March to September of 13 pounds, from 261 to 274. During this period Ivy's blood pressure was recorded as dangerously high, 200/120. In an April 1989 letter Dr. Patterson summarized Ivy's condition as that of a markedly obese female who could not be gainfully employed because of severe obesity, serious hypertension, and diabetes mellitus. Ivy's weight was noted as 270 pounds and her blood pressure was recorded as 200/100. Her medications included Normodyne, Inderide, Cardizen, and NPH insulin.

These medical records are corroborated by lay testimony. Ivy testified that her weight had been near 269 pounds for the past 10 years, that her blood pressure first became problematic in 1962, and that she had been treated continuously for hypertension for 25 years. Ivy's husband testified about his wife's long battle with obesity and hypertension. He attested to his wife's high blood pressure for several years, recalling that it had become a matter of substantial concern in 1973 or 1974 and had worsened since. He added that her weight had varied some but stayed very near 270 pounds since 1974.

Dr. Mitchell was called to testify about the gap in his medical records from 1973 to 1978. He explained that the records were destroyed in the various burglaries, and testified that he had sustained some loss of memory because of his own health problems. He could not testify to precise readings on any given date without the aid of the contemporaneously-made notations, but he was specific in his recollection of Ivy's condition during that period. He stated that Ivy's weight was about the same then as now, in the neighborhood of 267 pounds, and that her blood pressure levels were always outside of desirable readings. Dr. Mitchell recalled that Ivy's diastolic readings persistently exceeded 100 during the five-year period, 1975 through 1979.

Despite this undisputed evidence the ALJ rejected Ivy's disability claim for lack of precise height, weight, and blood pressure readings in the months and years leading up to September 1977. The Appeals Council declined to review, and the findings of the ALJ became the position of the Secretary. Ivy petitioned for judicial review and the matter was referred to a magistrate who recommended rejection of Ivy's claim. The district court accepted the magistrate's recommendations; Ivy timely appealed.

Analysis

Ivy maintains that she is entitled to disability benefits because she established her disabling medical impairment as best she could under the circumstances. The Secretary contends that the ALJ's decision is supported by substantial evidence because absent contemporaneous documentation or the accurate recollection of the...