McDonald v. Bowen, 85-2097

• Decision Date: 29 August 1986
• Docket Number: No. 85-2097,85-2097
• Citation: 800 F.2d 153
• Parties: Ida McDONALD, Plaintiff-Appellant, v. Otis BOWEN, Secretary of the Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 153

800 F.2d 153

15 Soc.Sec.Rep.Ser. 27

Ida McDONALD, Plaintiff-Appellant, v. Otis BOWEN, Secretary of the Department of Health and Human

Services, Defendant-Appellee.

No. 85-2097.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 28, 1986.

Decided Aug. 29, 1986.

Steven J. Heller, Chicago, Ill., for plaintiff-appellant.

Joan L. Lowes, Chicago, Ill., for defendant-appellee.

Before CUDAHY, COFFEY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

Plaintiff Ida McDonald appeals from an order of the district court affirming the reversal by the Secretary of Health and Human Services (the "Secretary") of the Administrative Law Judge's (the "ALJ's") grant of disability benefits to plaintiff. The district court's decision is vacated and the case is remanded to the Appeals Council.

Plaintiff, a 52-year-old woman with an eleventh grade education, worked, since 1962, as a feeder inserting paper into a machine that binds magazines and catalogs. In 1980, plaintiff began to require hospitalization for back problems. In June 1980, she entered South Shore Hospital complaining of pain in the lumbar and cervical regions and in her right hip. Physical examination revealed impairment of motion of the lumbar spine and painful rotation of the right hip. Plaintiff's condition improved after six days and she was discharged with a diagnosis of polyneuritis, cystitis and sprained lumbosacral spine.

On February 7, 1981, plaintiff was admitted to Jackson Park Hospital complaining of intermittent lower back pain, which was exacerbated by motion and relieved with rest. She was discharged with a diagnosis of acute lumbosacral sprain, polyneuritis and tension headaches. She was hospitalized again six months later complaining of headaches, dizzy spells and a loss of balance. She was diagnosed as suffering from transient positional vestipulopathy, functional dysphagia, irritable colon syndrome, climaterium, osteoarthritis of the cervical spine and cardiomegaly. On March 8, 1982, plaintiff entered Illinois Central Hospital suffering from low back and right leg pain. She was discharged eight days later with a diagnosis of lumbar disc pathology and right sciatica.

Plaintiff stopped working on October 25, 1982 because she was unable to bend as required by her job as a feeder. She reentered Illinois Central Hospital one week later on November 1, 1982 complaining that the heavy lifting at work resulted in low back pain. Her physician noted that the lower back pain radiated to her right thigh and had occurred sporadically for the last one and one-half years. Plaintiff was discharged with a diagnosis of prolapsed nucleus pulposus at the L4-5 vertebrae level, a herniated lumbar disc and right sciatica, and was instructed to rest her back and avoid heavy lifting. Three months later, in January 1983, McDonald entered Rush Presbyterian St. Luke's Hospital complaining of a history of a slipped disc, weakness in her back and right leg and numbness in her right thigh. A myelogram revealed a ventral defect at L4-5 consistent with a herniated nucleus pulposus. A discogram, however, showed a normal disc at L4-5. Surgical injection of medication in the disc spaces at L4-5 and L5-S1 provided some relief from the pain.

Plaintiff's personal physician's report of a March 5, 1983 examination stated that plaintiff continued to suffer from lumbar disc pathology, right sciatica and a herniated disc at L4-5. He further noted that plaintiff's daily activities were restricted by persistent pain. McDonald applied for disability benefits on February 28, 1983.

At a hearing on her application before an ALJ on December 15, 1983, plaintiff testified that she was "in quite a bit of pain," that she took medication to relieve the back pain and that she felt as if her right leg wanted to give out. Raising her hands over her head also caused pain. She had worn a corset since the January 1983 hospitalization.

Plaintiff returned to her job as a feeder on May 16, 1983, apparently because she needed the income. She worked three weeks but then was unable to work for another six weeks due to back pain. She returned to work but soon was disabled again for approximately two weeks due to back pain. At the time of the December 1983 hearing, plaintiff was back at the bindery working as a feeder earning $9.29 per hour.

The ALJ first considered, under the five step sequential evaluation process, ¹ whether plaintiff was working and engaging in substantial gainful activity. The ALJ found that "[e]ven though the claimant is presently working and has engaged in some work activity on a scale modified from her usual past work ... such work has not been substantial gainful work activity pursuant to Regulation Section 404.1572 ² and is considered part of the nine month trial work period which Regulation Section 404.1592 ³ allows." The ALJ then considered the medical evidence under steps 2 and 3 of the sequential evaluation process and found that McDonald was suffering from a severe impairment listed in Appendix 1, Subpart P, Regulation No. 4. The ALJ concluded that plaintiff had been disabled within the meaning of the Social Security Act since October 25, 1982. Further, plaintiff was entitled to a trial work period of at least nine months from May 16, 1983, the date she first returned to work. ⁴

On its own motion, the Appeals Council reviewed the ALJ's decision and found that the ALJ erroneously concluded under step 1 that plaintiff had not engaged in substantial gainful activity for a continuous period of twelve months. Although the Appeals Council noted that the claimant had a severe back impairment commencing October 25, 1982, it found that the impairment had not precluded her from engaging in substantial gainful activity for twelve continuous months as required for a finding of disability. The Council further found that plaintiff had been engaging in substantial gainful activity since September, 1983, when she had returned to work full-time. ⁵ In reversing the ALJ's decision, the Appeals Council did not consider whether plaintiff was entitled to a trial work period.

Plaintiff sought review in the district court. The district court granted the Secretary's motion for summary judgment, holding that the Secretary's decision that plaintiff was engaging in substantial gainful activity as of September 1983 was supported by substantial evidence. The court reasoned that "a finding of substantial gainful employment precludes a finding of disability whether a person is involved in a trial work period or not."

To receive benefits under the Social Security Act (the "Act") an individual must be found disabled. 42 U.S.C. Sec. 423(a)(1)(D). The Social Security Act defines "disability" as the inability to engage in any substantial gainful activity due to physical or mental impairments which have lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. Secs. 423(d) & 1382c; 20 C.F.R. Sec. 404.1505. As noted, the Secretary has established a five-step regulatory scheme to determine whether an individual is disabled under the Act. 20 C.F.R. Sec. 404.1520(b)(f)(1). At the first step, an individual will be deemed "not disabled" if the claimant is working and the work constitutes substantial gainful activity. Id. at 404.1520(b).

Despite her return to work on May 16, 1983, plaintiff claims that she was disabled as defined in the Act. According to plaintiff, she was entitled to a trial work period and, therefore, her return to work should not have been considered by the Secretary in determining eligibility for disability benefits. The Secretary argues that plaintiff is not entitled to a trial work period because she did not demonstrate an inability to engage in substantial gainful activity for twelve continuous months. According to the Secretary, an individual's impairment and an inability to engage in substantial gainful activity must coexist for twelve continuous months. A finding that plaintiff engaged in substantial gainful activity within the twelve-month period terminates the sequential evaluation process and precludes an award of benefits.

A trial work period enables an individual to test his or her ability to return to work. 20 C.F.R. Sec. 404.1592(a). Under the Act, any services rendered by an individual during a trial work period "shall be deemed not to have been rendered by such individual in determining whether his disability has ceased in a month during such period." 42 U.S.C. Sec. 422(c)(2). In other words, a period of trial work enables an applicant to return to the work environment without affecting her entitlement to disability benefits. A period of trial work "shall begin with the month in which [the claimant] becomes entitled to disability insurance benefits." Id. Sec. 422(c)(3). An insured person under the age of sixty-five is entitled to disability benefits if that person has filed an application for benefits and has been under a disability as defined in the Act for a period of five consecutive calendar months. Id. Secs. 423(a)(1), (c)(2). As noted, the Act defines disability as an impairment "which has lasted or can be expected to last for a continuous period of not less than twelve months." Id. Sec. 423(d)(1) (emphasis added). Thus, under the Act's definition of disability, one need not actually be impaired for twelve months to be entitled to benefits. An applicant may be entitled to benefits if he or she suffers from an impairment which is expected to last for a minimum of twelve consecutive months. Whether an individual is actually disabled for twelve months as originally anticipated is not controlling with respect to the determination of disability. The Act requires only a prediction that the disability will continue for at least twelve consecutive months after the onset of the disability. The requirement is therefore forward-looking and is not to be nullified by hindsight. Sierakowski v. Weinberger, 504 F.2d 831,...