Jozefowicz v. Heckler

• Decision Date: 13 February 1987
• Docket Number: No. 85-1879,85-1879
• Citation: 811 F.2d 1352
• Parties: Nancy L. JOZEFOWICZ, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1352

811 F.2d 1352

16 Soc.Sec.Rep.Ser. 313

Nancy L. JOZEFOWICZ, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services,

Defendant-Appellee.

No. 85-1879.

United States Court of Appeals, Tenth Circuit.

Feb. 13, 1987.

R. Eric Solem of Pikes Peak Legal Services, Colorado Springs, Colo., for plaintiff-appellant.

James R. Cage, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with him on the brief), Denver, Colo., for defendant-appellee.

Before HOLLOWAY, Chief Judge, and SEYMOUR and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

On March 21, 1983, plaintiff Nancy L. Jozefowicz filed an application with the Department of Health and Human Services ("HHS") for Supplementary Security Income ("SSI") disability benefits, alleging a chronic disability that precluded her ability to perform substantial gainful activity. Her application was denied at all levels of the administrative review process of the Secretary of HHS, including an Administrative Law Judge ("ALJ") decision dated March 27, 1984 and an Appeals Council decision dated June 19, 1984. The U.S. District Court for Colorado affirmed the decision of the Secretary, and claimant appealed. We reverse.

BACKGROUND

Ms. Jozefowicz is a forty-five year old woman with a high school education and limited work experience. She has worked on and off as a cocktail waitress and also worked briefly providing daycare to an elderly woman. In addition, from October, 1981 until May, 1982 she worked in her own home as a telephone verifier, verifying addresses and newspaper subscriptions. According to the record, the claimant worked seven hours a day, five days a week and received twenty-five cents for each "order." She estimated that she averaged $50.00 per week in earnings, which computes to approximately $10.00 per day or $1.43 an hour for a seven-hour day. The telephone job ended when the employer left town.

During the period from September, 1981 to March, 1982, which overlapped the time in which she was working as a telephone verifier, the claimant made a number of outpatient visits to Dr. David A. Thomas complaining of pain and swelling in her right leg. She had been taking a blood-thinning medication since 1979 for chronic phlebitis and had a history of leg problems that included varicose veins and a vein stripping operation in 1972. In April of 1982 she was hospitalized briefly for superficial thrombophlebitis (vein inflammation with the presence of a blood clot). Eleven months later, in March of 1983, she was again hospitalized, this time for right-sided weakness, diagnosed as the residual effect of a mild stroke. During that same month she filed for disability benefits.

On May 5, 1983, the Social Security Administration ("SSA") denied the claimant's initial application for SSI benefits. The medical reports of the treating physician, Dr. David Thomas, and the SSA consulting physician, Dr. John Lanning, did not confirm a severe medical impairment meeting or equalling those listed in the Social Security regulations. Although the claimant was experiencing considerable discomfort from her post-phlebitic syndrome and was restricted in her upright activity, her condition was judged not to significantly interfere with her ability to work. She requested a reconsideration of her denial. A medical report dated June 27, 1983 from a second treating physician, Dr. Peter Giacobbe, was submitted indicating that the claimant had chronic venous insufficiency, past history of pulmonary thrombosis, and mild weakness of her right side. Dr. Giacobbe noted that his patient was doing well and was as stable as could be expected. Consideration of claimant's re-application along with the new medical information also resulted in a denial of benefits.

The claimant requested a hearing before an ALJ and submitted an updated medical report by Dr. Thomas, dated July 27, 1983. The report indicated that the claimant's work ability had been "severely hampered. If the patient sits or stands for any length of time, she develops pain, swelling, and erythema [abnormally reddened skin] in the lower extremities, simulating a deep venous thrombosis.... [T]he patient should not attempt to obtain employment for approximately 12 to 18 months until this condition improves markedly. At that time the patient should be reevaluated...." R. Vol. II at 267-68.

Thereafter, from October of 1983 until January of 1984 the claimant tried to resume work as a cocktail waitress two evenings a week, against the advice of both Dr. Thomas and Dr. Giacobbe. She reported that she encountered considerable pain and discomfort from standing on her feet for more than an hour or so, but that she worked anyway because she needed the money. For six days in November she was hospitalized for internal bleeding, and at that time a venogram was performed that indicated a deep vein thrombosis affecting the circulation of both legs. The claimant reported that she was thinking of quitting the job when she was laid off in January of 1984, shortly before her appeal was heard by the ALJ.

What we have then is a physical condition that deteriorated over the period of time in which the claimant was seeking review of the initial denial of her benefits and which may have been aggravated by her continuing attempt to work. By the time of her hearing before the ALJ, she had a medical diagnosis of deep vein thrombosis, confirmed by objective evidence from the venograms.

I.

Title Sixteen of the Social Security Act was enacted to provide supplementary security income to persons whose work records are insufficient to provide insurance coverage under the Act but whose disabilities, blindness, or advancing age prevent further substantial gainful activity on their part. Disability, for purposes of the Social Security Act, is defined as follows:

(A) An individual shall be considered to be disabled for purposes of this subchapter if he is 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 twelve months....

(B) For the purposes of subparagraph (A), an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For the purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

(C) For the purposes of this paragraph, a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical laboratory diagnostic techniques.

42 U.S.C. Sec. 1382c(a)(3)(A), (B), (C) (1982).

To evaluate a claimant's condition to determine whether a SSI disability exists, a series of questions are asked in turn. See 20 C.F.R. Sec. 416.920 (1986). The wrong answer to any prior question may preclude the necessity of answering any of the later questions. The order is as follows:

(1) Is the claimant presently pursuing work that constitutes substantial gainful activity? If so, he or she is not disabled, even if medically impaired.

(2) If the claimant is not presently doing substantial gainful activity, then does the claimant have a severe impairment--i.e., one that significantly limits one's physical or mental ability to do basic work activities? If not, there is no disability. ¹

(3) If the claimant has a severe impairment, does the impairment meet or equal a listed impairment in 20 C.F.R. Sec. 404, Subpart P, Appendix 1 (1986)? If so, and if it has lasted or can be expected to last for at least twelve months, it constitutes a disability, and there is no need to proceed with further evaluation.

(4) If the severe impairment does not meet or equal a listed impairment, does it, when considered along with claimant's residual functional capacity and the physical and mental demands of the job, prevent the claimant from doing past relevant work? If not, there is no disability, and the evaluation process stops.

(5) If the claimant cannot return to past relevant work because of a severe impairment, the final question is whether the claimant's residual functional capacity, age, education, and work experience allow the performance of other work? If not, there is a disability.

Two challenges to the ALJ's determination under step four of the evaluation process are raised on appeal, a favorable ruling on either of which would be dispositive. Since each raises a separate, substantive issue and since we find that the ruling below was defective on both grounds, we take each argument up in turn.

II.

The first issue raised on appeal is whether there is substantial evidence to support the finding that the claimant's work in her home was past relevant work, and especially whether it was substantial gainful employment. Past relevant work is defined as work that (1) occurred within the past fifteen years (the so-called recency requirement), (2) was of sufficient duration to enable the worker to learn to do the job (the so-called duration requirement), and (3) was substantial gainful employment. 20 C.F.R. Sec. 416.965(a) (1986). The first question we address is whether there was substantial evidence in the record to establish that the claimant's telephone verification work met the recency and duration...