Kinsella v. Schweiker, 82-3064

• Decision Date: 03 June 1983
• Docket Number: No. 82-3064,82-3064
• Citation: 708 F.2d 1058
• Parties: Margaret R. KINSELLA, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1058

708 F.2d 1058

2 Soc.Sec.Rep.Ser. 152

Margaret R. KINSELLA, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human

Services, Defendant-Appellee.

No. 82-3064.

United States Court of Appeals, Sixth Circuit.

Argued March 9, 1983.

Decided June 3, 1983.

John P. McGinnis (argued), Bedford Heights, Ohio, for plaintiff-appellant.

Carolyn Watts Allen, Asst. U.S. Atty., Cleveland, Ohio, Daniel Mulvanny (argued), Chicago, Ill., for defendant-appellee.

Before EDWARDS, Chief Circuit Judge, KRUPANSKY, Circuit Judge, and SWYGERT, ^* Senior Circuit Judge.

PER CURIAM.

This is another of the many cases involving disability based upon back problems and arthritis; this in a now 57-year old female. She had previously worked as a sales clerk and department manager and when the store closed, she began collecting unemployment benefits. She contends in this application that she became disabled prior to the date of the closing of the store--but she certified to the Ohio's Bureau of Worker's compensation that she was available for work for a period of 13 weeks thereafter.

None of the judges on the panel had any doubt that she had some genuine problems. The question, of course, which was resolved against her by the Administrative Law Judge, the Appeals Council and the District Court was whether or not these problems were disabling to the point of preventing her from doing substantial work.

Appellant presented evidence from at least five doctors who considered her disabled. On the other hand, the government relies upon reports by three doctors and a distinctly adverse opinion of the Administrative Law Judge in its contention that there is substantial evidence to support the Secretary's adverse holding. We quote hereafter the dispositive paragraph of the ALJ's opinion:

The evidence shows that the claimant has degenerative disc disease and arthritis. She had right renal calculus and a bladder neck contracture in 1978 but this no longer causes her any problems. She is capable of doing numerous tasks around the house despite the fact that she complains of being unable to remain in one position more than approximately 12 minutes. Although she claims that she was unable to work in 1977, she filed for unemployment in 1978 exhibiting the fact that she felt that she was capable of working at that time. Her complaints of severe pain, as has been previously indicated, are not credible. It appears that she retains the residual functional capacity to lift up to 20 pounds, with frequent lifting or carrying of objects weighing up to 10 pounds, as well as a significant capacity to sit (she sat throughout the hearing which lasted 1 1/2 hours without any apparent discomfort), stand and walk. Therefore, she has the residual functional capacity to return to her position as a sales clerk. She must, therefore, be determined not to be disabled within the meaning of the Act, as amended.

Our review of the medical evidence in this case demonstrates that the case has been decided upon substantially conflicting medical opinions. The majority of our panel would not have resolved this conflict as did the ALJ, if we were empowered to find the facts in this case. Our question, however, is whether or not there is substantial evidence to support the adverse decision reached by the Secretary and we find it impossible on this record to say there is no such evidence.

The judgment of the District Court affirming the Secretary is hereby affirmed.

SWYGERT, Senior Circuit Judge, dissenting.

I respectfully dissent. After a thorough review of the transcript and medical reports, I can only conclude that the Secretary improperly disregarded nearly all of the medical evidence, took Kinsella's statements about her daily activities out of context, made findings concerning the drugs prescribed for Kinsella which are not supported by the record, and ignored her testimony concerning the pain she suffered during the hearing.

There is no question, and the Secretary concedes, that Kinsella suffers from arthritis and degenerative disc disease. The only issue here is whether the pain caused by these diseases is so substantial that Kinsella does not retain the requisite residual functional capacity.

The Secretary found that Kinsella retains a significant capability to sit, stand, walk, lift twenty pounds in weight, and frequently carry ten pound objects. The only medical evidence to support this finding are the reports of two non-examining physicians. These reports stand in sharp contrast to the medical evidence offered by every physician who examined Kinsella. Dr. Tramer, the Secretary's own consulting physician, concluded that "[a]n ongoing status of a high degree of functional limitation is to be anticipated. Walking, sitting, bending, squatting, carrying of any significant degree are not within the capabilities of Mrs. Kinsella." Dr. Collins, who examined Kinsella one time, concluded that Kinsella should partake in mild daily exercises and that she avoid any heavy lifting or strenuous exertion. He observed that his examination suggested no neurologic defect but that Kinsella's pain was probably secondary to diffuse osteoarthritis. ¹ These examining physicians agreed with the conclusions of every treating physician. Dr. Irwin found that Kinsella remained in pain after surgery on her back. Dr. Pazirandeh instructed Kinsella not to bend, stand, or sit for prolonged periods. Dr. Nemunaitis observed that Kinsella's ability to rise from a squatting position was limited by pain and that she could not work because of the degenerated disc. ² Because the evidence of examining and treating physicians is entitled to substantially greater weight than the evidence of non-examining physicians, Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978); Miracle v. Celebrezze, 351 F.2d 361, 373 (6th Cir.1965); see also Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir.1977); Martin v. Secretary HEW, 492 F.2d 905, 908 (4th Cir.1974); Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir.1974), the Secretary's finding is based upon an improper weighing of the medical evidence.

The Secretary based his determination upon the claimant's testimony as to her daily activities, finding that "Kinsella is capable of doing numerous tasks around the house despite the fact that she complains of being unable to remain in one position more than approximately twelve minutes." The relevant testimony is as follows:

Q. [by Administrative Law Judge] You can't use your hands for--

A. [by Kinsella] Well, I can use them, but with difficulty. And, in the morning, I find dressing difficult. That's why I have to allow myself maybe 2, 3 hours to sort of get the kinks out.

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Q. Can you feed and dress yourself?

A. Yes.

Q. Can you do your housework?

A. Well, my daughter helps me. I don't really do much in housework.

Q. Do you wash dishes?

A. Yes.

Q. Make the beds?

A. Yes.

Q. Do you dust?

A. Yes.

Q. Mop floors?

A. Yes.

Q. Cook?

A. Well, yes. What we eat is so little.

Q. What do you mean by that?

A. I wouldn't, I don't cook a meal anymore. We don't cook. I don't make like potatoes because there's too much involvement to peel it. And, if I have something it would be like frozen potatoes, or I would put a roast in, and then the family would, as they go along, slice it. It--

Q. Do you shop for groceries?

A. No.

Q. Who does?

A. My husband and my daughter.

Q. Give me a typical day from the time you get up in the morning until the time you retire. What time do you get up and what do you do after that?

A. Well, I get up about 5:00 because by then I need a pain pill, and I have a bowl of cereal, and I take a pain pill. And then, I lie down on the couch for about a 1/2 hour, and then I, I generally then go down in the basement, and my daughter is up by then, and we go downstairs, and I throw in a load of wash, and while that load is being washed, I take a shower and my daughter helps me 'cause I have trouble with my back. And then, when that wash is dry, she puts in the--I put it in the dryer and then I go upstairs and I watch Dave Patterson for a little while on the couch, sitting down. And then, if I'm going to have dinner, you know, whatever, whatever I'm going to have, like if I'm going to have a beef roast, I'll put that in the oven then, or my patties--I'll make what I'm going to have in the morning. And then, I'll make the beds maybe about 1:00 o'clock. And, in the meantime, I'm sitting down all the, off and on. And, I hate to say it, but that's about my life.

Q. All right. What do you do in the afternoons?

A. Well, maybe I'll go out in the yard and just kind of walk around and look at my son's garden a little bit, and come in. Maybe by then the roast will be ready. I'll take it out and--

Q. What time do you have supper?

A. Well, we eat about 3:00.

Q. Your husband, too?

A. They work nights. My husband works nights now. He, he went on a night shift.

Q. How about the children? When do they work?

A. My son, my 20-year-old son works the night shift too for, with the government. And, my daughter goes to work about 12:30, and she comes home about 9:00. So, when she comes home, whatever is left--like meat and potatoes, she--they really, they kind of do for themselves.

Q. Okay. What time do you retire? Well, what do you do after supper?

A. I usually lay down on the couch and fall asleep. And then I get up and I pack or I sort of get together what my husband and my son are going to have for their lunch, at least put out what they're going to have. They pack their lunches, but I get out the fruit and things. And maybe I'll get a call on the phone or something.

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Q. [by Kinsella's attorney] Okay. Other than--regarding your home life, other than such domestic chores as you--okay. With regard to domestic chores, what, what chores do you, did you formerly do that you cannot do now?

A. [by Kinsella] I did everything. I did the painting; I did the windows; I...