Kemp v. Bowen

• Decision Date: 24 April 1987
• Docket Number: No. 86-1353,86-1353
• Citation: 816 F.2d 1469
• Parties: , Unempl.Ins.Rep. CCH 17,354 Audette KEMP, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1469

816 F.2d 1469

17 Soc.Sec.Rep.Ser. 497, Unempl.Ins.Rep. CCH 17,354

Audette KEMP, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services Defendant-Appellee.

No. 86-1353.

United States Court of Appeals Tenth Circuit.

April 24, 1987.

Eric G. Melders and Jack Gray, Oklahoma City, Okl., for plaintiff-appellant.

Marguerite Lokey, Asst. Regional Counsel, Dallas, Tex. (Edwin L. Meese, U.S. Atty. Gen., Washington, D.C., William S. Price, U.S. Atty. W.D. Okl., Gayla Fuller, Chief Counsel, Region VI, and Patrick A. Hudson, Principal Regional Counsel, Social Sec. Disability Litigation Branch, and Joseph B. Liken, Asst. Regional Counsel, Office of the General Counsel, U.S. Dept. of Health and Human Services, Dallas, Tex., were on the brief), for defendant-appellee.

Before LOGAN and SEYMOUR, Circuit Judges, and BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

Plaintiff Audette Kemp sought disability and widow's benefits, claiming that she became disabled in December, 1973. Her application was denied, and she filed this action for review of the final administrative decision of the Secretary. After both parties filed a Consent, the case was transferred to the United States Magistrate for decision. The Magistrate found that the Secretary's ruling was supported by substantial evidence, and the denial of benefits was affirmed. This appeal follows. Because we find that the Secretary's decision was not supported by the requisite evidence, we reverse.

Plaintiff's efforts to establish her disability have a lengthy history, dating back to April, 1974, when she first filed for disability benefits, claiming a disability due to vein insufficiency in her legs since December On June 3, 1983, following a "Notice of Periodic Review," plaintiff's disability payments were terminated upon a finding that her phlebitis was no longer disabling, and that she became able to do substantial work in June, 1983. ¹

14, 1973. She was first found not to be disabled, but on reconsideration, she was granted a period of disability commencing December 14, 1973 upon a diagnosis of phlebitis.

Plaintiff requested a de novo hearing before an Administrative Law Judge, and a hearing was held on September 29, 1983, at which time plaintiff appeared and testified, represented by counsel. On October 31, 1983, the Administrative Law Judge (ALJ) found that plaintiff's disability had ceased, and on January 26, 1984, the Appeals Council found there was no basis for granting review. Plaintiff did not seek judicial review of this decision.

On January 18, 1984, plaintiff's husband died, and on January 24, 1984, she filed application for widow's disability benefits. After the Appeals Council denied review of her disability claim, plaintiff filed a new application for disability insurance benefits on her own account on January 31, 1984, alleging a disability due to phlebitis since December 14, 1973.

Both of these applications were denied, initially, and upon reconsideration. Plaintiff then requested a de novo hearing on each application, and a hearing was held on October 17, 1984. Again, plaintiff was represented by counsel and testified in her own behalf, and in addition, her personal physician, Dr. H. Jack Brown, appeared and testified concerning her disability. The Administrative Law Judge again determined that plaintiff was not entitled to disability insurance benefits or to widow's disability insurance benefits, because she was able to perform her past clerical work. Thereafter, the Appeals Council determined that there was no basis for granting plaintiff's request for review, and this action for judicial review was then filed.

BACKGROUND

Plaintiff, age 55 at time of the hearing in 1984, has a high school education and one year of commercial courses at a junior college. Her relevant work experience has been as a bookkeeper for a cotton gin, and 10 years working as a billing clerk with the water department of the city of Clinton, Oklahoma. This work included sitting and posting, billing, carrying ledger books, and considerable walking about in waiting on customers. Plaintiff has not been engaged in any substantial gainful activity since December 14, 1973, the onset date for payment of her prior disability benefits, and the alleged onset date of her present application for disability payments.

Since December, 1973, plaintiff has experienced an ongoing series of health problems which began with a "rather severe varicose veins" problem and phlebitis. Dr. Brown, plaintiff's treating physician for over fourteen years prepared several medical reports dating back as early as July, 1973, reflecting vein stripping done in December, of 1968, as well as follow-up ligation and stripping of veins done in August, 1973. In a report dated in 1974, Dr. Brown stated:

"This is to certify that Mrs. Audette Kemp has severe venous insufficiency of her left leg which has required major surgery with only partial relief.

Standing for any period of time produces severe pain in her legs, in spite of the use of elastic stockings. There is no further treatment available for this problem and the patient was advised along in 1973 that she would no longer be able to continue to work for the city of Clinton Water Department because of continued pain.

I would aniticipate that this disability would be permanent and possibly progressive."

In another report dated June, 1974, Dr. Brown recommended Mrs. Kemp avoid all occupations requiring standing or sitting for any long period of time.

In 1979 plaintiff again underwent surgery involving right leg vein stripping, and medical reports then reflected that she suffered from recurrent bouts of thrombophlebitis to both lower extremities. In a medical report dated September 28, 1983, Dr. Brown again recommended that his patient:

"... avoid any occupation that requires sitting or standing for any long period of time. She is to lie flat on her back with her legs elevated for 30 minutes out of every 2 hour period. She is to wear elastic stockings continuously while she is up. She cannot engage in any occupation requiring sitting or standing with the legs in a dependant position. For the above stated reasons, this lady is totally disabled from the standpoint of a gainful employment." (Emphasis supplied).

In addition to this evidence, Dr. Brown personally appeared and testified on plaintiff's behalf at the hearing held before the ALJ on October 17, 1984. Because of the decisive nature of this physician's testimony, we quote somewhat at length: (Tr. pp. 61-64)

"... basically (plaintiff) started out with rather severe varicose veins that I first began treating her for, which we went through a series of operations to correct that. And, although I felt that her veins looked pretty good we never seemed to be able to get her legs to stop bothering her. Also along the way she's had esophagealitis hernia that required surgery and hemorrhoids and perhaps one or two other minor conditions.

"I might say, that at the time of her (first) hearing and my last report regarding that hearing, I was not aware of the patient's true diagnosis.... In January of this year she came back into the office complaining of progressive weakness, pain and cramps in her legs, continuing to get worse. I really just could not explain this at all, on the basis of her venous disease in her legs.... I referred her to a young internist in the building in which I was practicing, who suggested that we should do a muscle biopsy. I did a muscle biopsy on ... March the 22nd and this was sent to University Hospital to Special Chemistry Lab there and a report came back that she had no mycolphosphorolaes (phonetics) in her muscles, which is the enzyme that has to do with muscle contractions in sustained activity. And that this was compatible with a condition called McArdle's Syndrome.

"... (McCardle's Disease) it's in a class of diseases called Gylcogen Storage diseases, which has to do with a failure of chemical reactions within the tissues. And in her condition this absence of this enzyme in her muscle means that she has rather profound muscle weakness and--her stamina--her ability to maintain sustained activity is greatly limited. This is an extremely rare disease. I must admit that I had never heard of it until I got this report back and went to text books and did some reading ... The--to pin down the diagnosis the patient is put on a treadmill for as long as they can tolerate it, which was done by Dr. Carl Rubenstein, who makes the statement 'her functional capacity is indeed significantly impaired compared with normal sedentary women, because of--although her heart rate went up considerably indicating that she was making a considerable effort to stay on the treadmill, she was unable to do so. For--you know--if she remained on it 3 minutes and 54 seconds which is quite markibly curtailed. ² Now a normal person, in any sort of exercise situation will have a rise in their blood lactate, which is a by-product of muscle metabolism. In a person with McArdle Syndrome, because this muscle activity ... I mean the chemical activity is not going on in the muscle as it should, they don't have this rise (in) serum ... indeed in Mrs. Kemp, she had a very low lactate level before exercise and the blood drawn immediately after this exercise, there was no rise at all in her blood lactate. We felt like that this along with the histochemical studies from the University absolutely pinned down this diagnosis of McArdle's Disease. From everything that I can find out about it, it is chronic, progressive illness that has no known cure or treatment....

"... There's no medicine or operation that can be done.... And on the basis of this, it's my medical opinion that--that this lady is significantly disabled--permanently and should become progressively more disabled as time goes on....

"... I have noted over the last several years a considerable change in...