Maher v. Secretary of Health & Human Services

• Decision Date: 19 March 1990
• Docket Number: No. 89-1295.,89-1295.
• Citation: 898 F.2d 1106
• Parties: Paul MAHER, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

898 F.2d 1106

Paul MAHER, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee.

No. 89-1295.

United States Court of Appeals, Sixth Circuit.

November 30, 1989.

Motion to Publish Granted March 19, 1990 and Opinion Issued for Publication April 10, 1990.

Richard M. Amsbaugh, Quinn, Borella & Stockton, Detroit, Mich., for plaintiff-appellant.

Donna Morros Weinstein, Chief Counsel, John L. Martin, Dept. of Health and Human Services, Office of the General Counsel, Region V, Chicago, Ill., Francis L. Zebot, Asst. U.S. Atty., Detroit, Mich., for defendant-appellee.

Before MARTIN and NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Claimant Paul Maher appeals from a district court order affirming the Secretary's final decision that he was not disabled and, therefore, not entitled to child's insurance benefits (CIB) or supplemental security income (SSI). For the following reasons, we affirm the judgment of the district court.

I.

On April 30, 1986, claimant Maher filed his application for SSI benefits which was considered constructively filed on February 12, 1986. 20 C.F.R. §§ 416.390, 416.395. On June 9, 1986, Maher filed an application for CIB benefits. The Secretary denied claimant's applications both initially and upon reconsideration. Claimant then requested a hearing before an administrative law judge (ALJ), which was held on July 16, 1987. On December 11, 1987, the ALJ found that Maher had a medical impairment due to atrophy of the lower extremities, but that the impairment did not meet or equal a listed impairment. Because the ALJ found that claimant had the residual functional capacity to perform a full range of sedentary employment and fell within the medical-vocational guidelines (grids), claimant was not disabled and was not entitled to SSI benefits. The ALJ found that claimant failed to meet the twelve-month durational requirement for CIB benefits. The Appeals Council denied claimant's request for review and the ALJ's decision thus became the final decision of the Secretary.

Claimant appealed to the district court pursuant to 42 U.S.C. § 405(g). The district court referred the case to a United States Magistrate. On September 26, 1988, the magistrate recommended that the Secretary's denial of CIB and SSI benefits be affirmed.

On November 7, 1988, the district court rejected the magistrate's recommendation. The district court affirmed the Secretary's denial of SSI benefits, but concluded that there was not substantial evidence in the record to support the Secretary's denial of CIB benefits and awarded claimant a closed period of disability for child's insurance benefits. The Secretary moved for reconsideration or, at a minimum, for clarification as to the period of disability. Upon reconsideration,¹ the district court found that claimant's school records showed that claimant had not been disabled for any continuous twelve-month period from 1981 through 1986 and claimant was thus not eligible for child's insurance benefits. On January 31, 1989, the district court, accordingly, vacated its prior decision, adopted the magistrate's recommendation, and stated that there was substantial evidence to support the Secretary's denial of SSI and CIB benefits. Claimant timely filed this appeal.

II.

This court has jurisdiction on appeal to review the Secretary's final decision pursuant to 42 U.S.C. § 405(g) which specifies that the Secretary's factual findings are conclusive if supported by substantial evidence. "`Substantial evidence' means `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In determining whether the Secretary's factual findings are supported by substantial evidence, we must examine the evidence in the record "taken as a whole." Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), and "`must take into account whatever in the record fairly detracts from its weight.'" Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). If it is supported by substantial evidence, the Secretary's determination must stand regardless of whether the reviewing court would resolve the issues of fact in dispute differently. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983) (per curiam).

III.

In order to qualify for receipt of child's insurance benefits based on the income of a parent wage earner, the child must (1) file an application for child's benefits, (2) at the time of filing, be unmarried and (3) be under age 18, be 18 years or older and have a disability that began before age 22 years old,² or be 18 years or older and qualify for benefits as a full time student. 20 C.F.R. § 404.350. The regulations governing child's insurance benefits are set forth at 20 C.F.R. Pt. 404, Subpt. D, and incorporate the regulations at 20 C.F.R. Pt. 404, Subpt. P for purposes of determining disability. 20 C.F.R. § 404.302. Additionally, in order to qualify for child's insurance benefits claimant must have a medically determinable physical or mental impairment that can be expected to result in death, or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A).

Claimant argues that the ALJ improperly rejected medical evidence of a continuing disability that began before age 22 and met the twelve-month durational requirement. Claimant argues that he suffers from Charcot-Marie Tooth atrophy, a progressive neuropathic syndrome characterized by foot and leg deformities, weakness and atrophy. The disease was diagnosed as early as 1977 when plaintiff was twelve years old. Between February 1981 and July 1985 claimant underwent a series of six corrective surgeries related to the disease: (1) a triple arthrodesis of the right ankle in February 1981; (2) arthrodesis of the left ankle in November 1981; (3) osteotomy of the right tibia in February 1983; (4) a left tibial osteotomy in November 1983; (5) a lengthening of his Achilles tendon in October of 1984; and (6) a procedure for recurrent dislocation of the patella in November 1985. Claimant contends that the medical evidence indicates that the severity of the underlying disease coupled with the long recuperative periods associated with these surgeries rendered him disabled from February 1981 through July 1986.

The Secretary argues that substantial evidence establishes that claimant was never continuously disabled for twelve consecutive months during the February 1981 through July 1986 time frame. Although claimant underwent six surgical procedures in five years, his period of convalescence was never more than several months for each surgical procedure. Moreover, two of the procedures were elective and the scheduling of these procedures was based on factors other than medical necessity.

We find that there is substantial evidence to support the Secretary's finding that Maher did not meet the twelve-month durational requirement for CIB benefits. Although there is substantial evidence that claimant was suffering from Charcot-Marie Tooth disease, a progressive disease is not per se disabling. Geiger v. Secretary of Health and Human Servs., No. 85-3951, Slip Op. at ___ (6th Cir. November 7, 1986 810 F.2d 200 (table). Dr. Iqbal, a consultative physician, who examined claimant in June 1986, found that the progression in the muscle atrophy was slow and remained the same for long periods of time. Dr. Iqbal noted that claimant was able to walk without any corrective device. Dr. Iqbal found that claimant would have difficulty walking or running, but that his transfer activities from sitting to standing to lying down were normal and well coordinated and his hand functions were normal. The medical records of the treating physician, Dr. Marcus, indicate that although Maher submitted to six surgical procedures in five years, he recovered from each procedure to the extent that he was capable of weight bearing on both legs within six months of each procedure. Moreover, Maher testified at the hearing before the ALJ that he usually needed two to three months to recover from surgery.

Claimant argues that to view the operations as six independent procedures overlooks the pain and gait problems which he experienced during the intervals when he was out of a cast. However, evidence from Maher's school records from the years 1981 to 1984 indicate that during that time period he was not prevented from attending school for a period of more than five months at the longest. During 1985, claimant completed a vocational cooking course at his high school. The sixth operation performed in 1985 was described by Dr. Marcus, the treating physician, as an elective procedure. Dr. Marcus almost exclusively prescribed only mild medications³ for Maher and limited him only from strenuous sports activities at school. Mild medications taken by a claimant do not bear out allegations of severe disabling pain, Kimbrough v. Secretary of Health and Human Servs., 801 F.2d 794, 797 (6th Cir. 1986), and a lack of physical restrictions constitutes substantial evidence for a finding of non-disability. Nunn v. Bowen, 828 F.2d 1140, 1145 (6th Cir.1987).

Claimant argues that the court in Pagan v. Bowen, 862 F.2d 340 (D.C.Cir.1988), held that symptom-free periods are not necessarily indicative of non-disability. However, that court limited its holding to cases dealing with schizophrenia and based its conclusion on the uncertainty of a mental disease. Id. at 349-50. When dealing with physical symptoms, courts have held that if the underlying impairment is insufficient to...