Lizotte v. Secretary of Health and Human Services, 80-1752

• Decision Date: 30 June 1981
• Docket Number: No. 80-1752,80-1752
• Citation: 654 F.2d 127
• Parties: Edmond P. LIZOTTE, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 127

654 F.2d 127

Edmond P. LIZOTTE, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 80-1752.

United States Court of Appeals, First Circuit.

Submitted March 5, 1981.

Decided June 30, 1981.

Allan A. Toubman, Presque Island, Me., on brief for plaintiff, appellant.

Donna McCarthy, Asst. Regional Atty., Dept. of Health and Human Services, Washington, D.C., on brief, for defendant, appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Appellant seeks review of the judgment of the district court affirming a decision of the Secretary of Health and Human Services which terminated his social security disability benefits. On appeal he contends that the district court applied an erroneous standard of review and that the Secretary's findings, to the effect that his mental condition was not totally disabling and that he was capable of engaging in substantial gainful activity, are not supported by substantial evidence in the administrative record.

Appellant was originally awarded social security supplemental security income and disability insurance benefits on July 11, 1975 on the basis that he was suffering from a "depression, severe, with anxiety." ¹ On February 28, 1977 he received notification that his benefits award was being reexamined for current evidence of disability. He was asked to complete a questionnaire which accompanied the notice. Upon review of this form and the medical report of a psychiatrist who had been designated to examine appellant the Secretary decided on May 10, 1977 to terminate benefits as of April, 1977.

It is first argued that the district court applied an erroneous standard of review to the Secretary's decision. This contention is premised on the district court's choice of words to articulate in part why it was upholding the termination. It stated: "The conclusion of the Appeals Council and the judge constitute a 'judgment call' which this Court should not disturb if it is the product of a reasoned approach and constitutes a reasoned conclusion." ² Although this is not a verbatim reiteration of more common descriptions of substantial evidence review we do not think the district court's formulation of the standard it applied deviated so far off the mark so as to constitute error. The court examined the record, considered the different medical evidence and clearly stated it was looking for substantial evidence. Moreover, appellant ascribes too much authority to the district court's function by arguing that substantial evidence review "(r)equires a thorough analysis of the competing factual claims, and a resolution of these competing factual claims," and by stressing that the district court did not "attempt to assign more weight to one doctor's opinion over another's based on length of consultation, experience with the client, and ability to communicate with the client." (emphasis ours). Neither the district court nor this Court sit to make de novo determinations. As we recently stated:

In reviewing the record for substantial evidence, we are to keep in mind that "issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the Secretary." The Secretary may (and, under his regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for him, not for the doctors or for the courts. We must uphold the Secretary's findings in this case if a reasonable mind, reviewing the record as a whole, could accept it as adequate to support his conclusion.

Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir. 1981). (citations omitted). The district court's analysis was in conformity with this standard.

We address the much closer question of whether the Secretary's decision was supported by substantial evidence. The medical evidence of record contains the reports of three psychiatrists and a psychological therapist specifically addressing appellant's psychological-mental problems. Appellant was originally found disabled on the basis of Dr. Marshall E. Smith's reports of February 18, 1975 and January 27, 1976. Dr. Smith treated appellant from July, 1975 to January 23, 1976. In his first report Dr. Smith found appellant's depression to be "extremely severe" with fair response to medication. In his second report he found appellant "still extremely upset, periodically depressed, frustrated, feels that he is unable to work and in general has been having difficulty functioning." He further stated that appellant had made only "minimal improvement."

It was the Secretary's determination that these psychological problems ceased to be disabling as of May 1977. This decision was based on Dr. Edward C. Thompson's report of March 30, 1977. In this report he found appellant to be "an anxious 35 year old married male disabled because of injuries received some years ago in an auto accident. Patient is a tense, nervous man whose personality is contributing to his not improving. He is not seen as totally and permanently psychiatrically disabled although he may be disabled for physical reasons. Disability for psychiatric illness not recommended."

These were the only reports available to the Secretary when the May 10, 1977 decision to terminate benefits was made. Upon these the Secretary determined that the "medical evidence shows impairment is no longer of sufficient severity to prevent SGA (substantial gainful activity)." ³ This was also the only medical evidence on appellant's psychiatric condition available to the Administrative Law Judge (ALJ) who ruled on the administrative appeal. The ALJ held that although appellant still continued to suffer from anxiety neurosis it was not of such a level as to preclude him from light sedentary activity.

After the ALJ had rendered his decision, and while review was pending before the Appeals Council, appellant submitted two further reports. In the first of these Dr. Irwin M. Pasternak, March 27, 1978, described appellant as a "markedly apathetic, depressed withdrawn 36 year old man who appeared to be slightly older than his stated age." His diagnostic impression was "Depressive Neurosis, Severe ... 3. Borderline Mental Retardation." In his recommendation Dr. Pasternak stated: "At the present time I believe this man is disabled and with the extent of his depression employment would be impossible ... prognosis for improvement is limited and rehabilitation potential appears to be poor." Finally, addressing this same point ⁴ is the April 4, 1978 statement of Lloyd R. Frech, a psychological therapist, which found appellant "oriented in the four spheres and cooperative with moderately depressed affect, moderate to severe anxiety, dull normal intellectual capacity and no signs of organicity or psychosis." It was Mr. Frech's impression that appellant was "reacting to an anxiety reaction, moderate to severe along with moderate depression and general inadequacies which will undoubtedly affect his ability to function in a work setting at the present."

Appellant's position is that on this record Dr. Thompson's report cannot stand as the sole basis for concluding that the disabling condition had improved. He argues that this report is conclusory in that it is not as thorough as the other reports, and that it is marred by Dr. Thompson's difficulty in communicating with the...