Martin v. Heckler
| Decision Date | 17 December 1984 |
| Docket Number | No. 84-3360,84-3360 |
| Citation | 748 F.2d 1027 |
| Parties | , 8 Soc.Sec.Rep.Ser. 21, Unempl.Ins.Rep. CCH 15,708 Lawrence E. MARTIN, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant- Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bryan Pedeaux, Richard B. Stricks, New Orleans, La., for plaintiff-appellant.
John P. Volz, U.S. Atty., Nancy A. Nungesser, Asst. U.S. Atty., New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before RUBIN, RANDALL, and TATE, Circuit Judges.
Lawrence Martin appeals an order of the district court upholding the decision of the Secretary of Health and Human Services to deny him disability insurance benefits. He urges, first, that no substantial evidence supports the Secretary's finding that his breathing impairment--chronic pulmonary obstructive disease, chronic bronchitis, and episodic asthma--is not "severe." (The non-severity finding by itself disqualified Martin from receiving disability benefits.) Martin also urges that the evidence before the Secretary required her to find that his impairment fits a per se disability category. We agree with Martin and reverse.
Martin is now fifty-five years of age and practically illiterate. From 1958 until the mid-1960's, he worked as a deckhand on tugboats in the New Orleans area. He then became a tugboat pilot and worked at that job until January 1980.
In February 1980, Martin reported to a United States Public Health Service Hospital complaining of shortness of breath. Shortly thereafter, Public Health Service physicians recommended Martin "permanently not fit for duty." As a result, the United States Coast Guard required Martin to surrender his pilot's license.
Martin applied for disability benefits on March 13, 1981. A disability examiner determined that Martin had chronic obstructive pulmonary disease which caused "breathing complaints and occasional attacks." He nevertheless determined that Martin was not disabled because his condition was not "severe for purposes of this program." Upon a requested reconsideration, another disability examiner affirmed the finding of non-severity.
On November 5, 1981, Martin received a hearing before an administrative law judge. The administrative law judge accepted into evidence medical records establishing Martin's extensive history of medical treatment between February 1980 and the date of the hearing.
There were at least nine instances of outpatient treatment at the United States Public Health Service Hospital (USPHSH). (February 21, 1980; April 2, 1980; May 30, 1980; July 16, 1980; March 4, 1981; May 28, 1981; June 18, 1981; July 1, 1981, and July 6, 1981.) The records of the treatments confirm diagnoses of chronic obstructive pulmonary disease, asthma and chronic bronchitis. They show that Martin "wheezes," "gets short of breath with minimal exertion," and has "scattered rhonchi," a "history of several attacks of bronchial asthma," "expiratory wheezes," and a continuing need to take seven or more medications.
The records also established four instances of emergency room treatment. (October 30, 1980; October 31, 1980; December 12, 1980; and unknown date). On one of these occasions, Martin was taken to the emergency room by ambulance. The records of these emergency room visits describe Martin as short of breath, wheezing, coughing "greenish-yellow sputum," and having "diffuse rhonchi." In the emergency room, Martin was treated with intravenous injections and inhalation therapy.
The records further established five instances of hospitalization, for twenty-three, three, fourteen, six, and six days respectively. (March 3, 1980; June 3, 1980; October 31, 1980; December 16, 1980; and June 5, 1981.) On certain hospitalizations, Martin was treated by intravenous injection for multiple attacks. On two occasions during hospitalization, Martin's attacks became so severe he was placed in an intensive care unit.
The hospitalization records show that Martin complained "of shortness of breath over the previous 5 to 6 weeks with progression to the point he could not take care of himself." One report describes Martin as "in obvious respiratory distress lying on a stretcher having audible wheezing." Martin produced "dark green and thick" sputum. Physicians prescribed aminophylline, prednisone, catapres, hydrochlorothiazide, potassium chloride, ampicillin, vanceril inhaler, steroids, and other medication. They variously diagnosed Martin as suffering from chronic bronchitis, chronic respiratory failure, chronic obstructive pulmonary disease, asthma (acute bronchospastic episode), and bronchospastic episodes. One record shows Martin's prognosis as "poor."
Finally, there were records of clinical testing. Hospital tests, administered after his recovery from attacks, show approximately normal lung function. Martin also underwent breath capacity testing by non-treating physicians on April 21, 1980, August 19, 1980, and July 16, 1981. The first testing showed breathing capacity as low as 51% of expected capacity, "findings compatible with chronic obstructive pulmonary disease." The second testing showed breathing capacity as high as 78% of expected capacity, "consistent with obstructive ventilitory impairment." The third testing showed breathing capacity as high as 85% of expected capacity; the report of this test diagnosed Martin as having a history of bronchitis and chronic obstructive pulmonary disease but noted the test results were "compatible with normal spirometry."
In his testimony before the administrative law judge, Martin stated: "I just stay around the house and sit around and watch a little television and when an attack comes on me I have to lay flat down on the bed." Martin testified that he cannot carry a bag of groceries or help his wife with house work, and that smoke, perfume, deodorant, and automobile exhaust aggravate his condition. Martin testified that, during an attack, he cannot get out of bed to walk across the room or go to the bathroom and that he had these attacks two or three times a week.
The administrative law judge accepted the affidavit of Martin's wife, which stated: The administrative law judge also accepted a proffer that Martin's neighbor would, if he testified, corroborate Martin and his wife.
The administrative law judge found that Martin had a "history of bronchitis and chronic obstructive pulmonary disease." Based solely on the results of tests measuring Martin's breathing capacity, however, the administrative law judge found that these impairments were not "severe." The Appeals Council adopted the administrative law judge's decision, stating only that there was substantial evidence that Martin's impairment was not "severe."
In the action Martin filed below, a magistrate concluded that Martin had the capacity to do sedentary work, had engaged in skilled or semi-skilled employment, and possessed so-called "transferable" skills. Applying vocational guidelines used by the Secretary, the magistrate concluded there was substantial evidence to support a finding of no disability. The district court adopted the decision of the magistrate and entered final judgment against Martin.
As part of the Social Security Act, Congress provided for the payment of disability insurance benefits to insured workers who become disabled. 42 U.S.C. Sec. 423. Disability is defined, in all cases other than blindness, to mean the "inability 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 12 months." 42 U.S.C. Sec. 423(d)(1)(A). Further, "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." 42 U.S.C. Sec. 423(d)(2)(A). (Emphasis added.)
Pursuant to these statutory provisions, the Secretary has promulgated regulations that establish a five-step disability-determining process. 20 C.F.R. Sec. 404.1520 (1984). First, a claimant who at the time of his disability claim is engaged in substantial gainful employment is not disabled. 20 C.F.R. Sec. 404.1520(b) (1984). Second, the claimant is automatically denied benefits if the asserted impairment is not severe, without consideration of his residual functional capacity, age, education or work experience. 20 C.F.R. Sec. 404.1520(c) (1984). Third, if the asserted impairment is severe, the claimant is per se disabled if his impairment meets or equals an impairment described in 20 C.F.R., Subpart P, Appendix 1 (1984). 20 C.F.R. Sec. 404.1520(d) (1984). Fourth, a claimant with a severe impairment that is not per se disabling is denied benefits if he is capable of doing past relevant work. 20 C.F.R. Sec. 404.1520(e) (1984). Fifth, a claimant who cannot return to past relevant work is denied benefits if he can engage in work available in the national economy. 20 C.F.R. Sec. 404.1520(f) (1984).
The Secretary eliminated Martin at step 2. The district court eliminated Martin at step 5. Martin claims that step 3's per se disability provisions should have been applied. In considering these respective contentions, we are guided by the substantial evidence standard of review. Taylor v. Heckler, 742...
To continue reading
Request your trial
-
Loza v. Apfel, 98-50892
...work experience.'" Stone, 752 F.2d at 1101 (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984) and citing Martin v. Heckler, 748 F.2d 1027, 1032 (5th Cir. 1984); Davis v. Heckler, 748 F.2d 293, 296 (5th Cir In Stone this court explained that a literal application of the regulation......
-
Sumler v. Bowen
...1985) ($12,056.25 EAJA fees awarded by the Court of Appeals after its outright reversal of the Secretary's decision in Martin v. Heckler, 748 F.2d 1027 (5th Cir. 1984));24 and Fulton v. Heckler, 784 F.2d 348 (10th Cir.1986) (remanding an application for EAJA fees to the district court for t......
-
Acosta v. Astrue
...(internal brackets omitted) (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir.1984) ( per curiam ), and citing Martin v. Heckler, 748 F.2d 1027, 1032 (5th Cir.1984), and Davis v. Heckler, 748 F.2d 293, 296 (5th Cir.1984) ( per curiam )). For ease of discussion, hereinafter, we will ref......
-
Tate ex rel. Tate v. Commissioner of Social Sec.
...impairment satisfies the diagnostic description for the listed impairment in order to be found disabled thereunder.") Martin v. Heckler, 748 F.2d 1027, 1035 (5th Cir.1984); accord 20 C.F.R. § 416.924(d). Whether an impairment or combination of impairments is equivalent to a listing is a med......