McCall v. Bowen

• Decision Date: 13 June 1988
• Docket Number: No. 87-7291,87-7291
• Citation: 846 F.2d 1317
• Parties: Mary McCALL, Plaintiff-Appellant, v. Otis R. BOWEN, M.D. Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1317

846 F.2d 1317

21 Soc.Sec.Rep.Ser. 564

Mary McCALL, Plaintiff-Appellant, v. Otis R. BOWEN, M.D. Secretary of Health and Human Services,

Defendant-Appellee.

No. 87-7291.

United States Court of Appeals, Eleventh Circuit.

June 13, 1988.

Lawrence F. Gardella, Legal Services Corp. of Alabama, Inc., Montgomery, Ala., for plaintiff-appellant.

John C. Bell, U.S. Atty., Charles R. Niven, Dvaid L. Allred, Thelma Harmon, Asst. U.S. Attys., Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before RONEY, Chief Judge, JOHNSON, Circuit Judge, and PECK ^*, Senior Circuit Judge.

PER CURIAM:

Mary McCall appeals the district court's affirmance of the Secretary of Health & Human Service's decision denying her claim for Supplemental Security Income (SSI) benefits. Because it appears that the plaintiff's obesity of itself was taken as evidence that she had refused to follow a prescribed course of treatment, and because the Secretary failed to order consultation with a psychiatrist or psychologist in accordance with 42 U.S.C.A. Sec. 421(h), the order of the district court is vacated and the case is remanded to the district court for remand to the Secretary for further proceedings.

In her initial claim for Social Security Disability Benefits, plaintiff Mary McCall alleged disability as a result of arthritis, back and heart problems. Plaintiff testified that she was no longer capable of working as a maid and housekeeping supervisor because of these disabilities. She testified that as a result of problems with her nerves she has experienced pain in her chest and face and has on occasion passed out. These physical impairments she contends were complicated by problems with her nerves and memory.

It is undisputed that in January 1982 McCall injured her back and was hospitalized for pain in her lower back and left leg. The attending physician suggested that she was suffering from degenerative joint disease and obesity. In April 1982, her treating physician indicated that she "may be developing a disc or nerve root problem" and could not "return to her normal type of work." She was again hospitalized in January 1983 and diagnosed as suffering from acute and chronic low back pain with mild degenerative arthritis of the lumbar spine. Her treating physician noted that her low back pain was "certainly aggravated by her weight" and that she was not a surgical candidate for fusion because of her weight. She was advised to lose weight, but had problems doing so. At the time of the administrative hearing, plaintiff was 50 years old, carrying 173 pounds on a five foot two and one-half-inch frame.

Plaintiff's first contention is that the Secretary's decision to deny benefits was implicitly grounded in the presumption that her obesity was within her control and could not be considered a disabling condition. This presumption is based on the ALJ's statement that

[t]he medical evidence shows claimant was diagnosed as having exogenous obesity, however, this obesity is not accompanied by any of the attendant findings usually present when it is considered disabling. This condition is also one which is primarily within the control of the claimant herself.

Plaintiff's allegations of pain were also discredited by the ALJ stating that her "back pain would be significantly improved with a significant weight loss." The implication from these statements is not cured by the ALJ's ultimate conclusion that

[t]he record in this case simply does not indicate an impairment or combination of impairments of such severity as to preclude the claimant from performing light work which would include her past work as a domestic worker.

It remains clear that the finding of no disability was colored by the implication that her obesity was remediable.

The district court explicitly relied on this presumption. In reviewing the denial of disability benefits, the court stated "that if an impairment can reasonably be remedied or controlled by treatment, it cannot serve as a basis for a finding of disability." McCall v. Bowen, Civil Action No. 86-D-404-N (M.D.Ala.1987) (citing Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir.1980) and Stillwell v. Cohen, 411 F.2d 574, 576 (5th Cir.1969)).

The Secretary similarly puts forward an incorrect standard before this Court. The Secretary argues that McCall's back pain cannot serve as a basis for a finding of disability because McCall "has failed to lose the weight which would improve her back pain."

Under the application of the proper standard established by the precedents of this Court, the Secretary may deny SSI disability benefits only when a claimant, without good reason, fails to follow a prescribed course of treatment that could restore her ability to work. 20 C.F.R. Sec. 416.930; see Patterson v. Bowen, 799 F.2d 1455, 1460 (11th Cir.1986) (interpreting 20 C.F.R. Sec. 404.1530 which permits denial of disability benefits for failure to follow prescribed treatment). In the instant case, the Secretary has not made the express findings mandated by 20 C.F.R. Sec. 416.930 prior to denying McCall's application for SSI disability benefits. Admitte...