Mersel v. Heckler, 82 Civ. 6694 (RLC).

• Decision Date: 05 January 1984
• Docket Number: No. 82 Civ. 6694 (RLC).,82 Civ. 6694 (RLC).
• Citation: 577 F. Supp. 1400
• Parties: Rosalind MERSEL, Plaintiff, v. Margaret M. HECKLER, individually and in her representative capacity as Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

577 F. Supp. 1400

Rosalind MERSEL, Plaintiff, v. Margaret M. HECKLER, individually and in her representative capacity as Secretary of Health and Human Services, Defendant.

No. 82 Civ. 6694 (RLC).

United States District Court, S.D. New York.

January 5, 1984.

Gerald Schwartz, New York City, for plaintiff; Seymour W. Levy, New York City, of counsel.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Paula A. Sweeney, Asst. U.S. Atty., New York City, Regional Atty., Region II, Asst. Regional Atty., Dept. of Health and Human Services, of counsel.

OPINION

ROBERT L. CARTER, District Judge.

The issue in this case is whether the decision of the Secretary of Health and Human Services to terminate Rosalind Mersel's disability insurance benefits was proper. Mersel commenced the action pursuant to section 205(g) of the Social Security Act, as amended, ("the Act"), 42 U.S.C. § 405(g), to review the Secretary's final determination, which terminated her benefits as of December, 1980. The Secretary has moved for judgment on the pleadings pursuant to F.R.Civ.P. 12(c), and plaintiff has cross-moved for summary judgment pursuant to F.R.Civ.P. 56.¹ Because the Secretary has not come forward with substantial evidence showing a change in plaintiff's condition since the original determination of disability that would allow plaintiff to resume gainful employment, the Secretary's decision terminating Mersel's benefits is reversed.

I

Plaintiff, now 44 years of age, suffers both mental and physical impairments. In May, 1979, she had been awarded disability insurance on the basis of her psychological difficulties alone, which were described by diagnoses of depressive neurosis, hysterical personality disorder, ... and residual schizophrenia. (Tr. 22). They are now characterized as "generalized, overwhelming anxiety and back pain," (Tr. 60), and "chronic depressive neurosis, ... with acute ascerbations and chronic anxiety...." (Tr. 89). Her physical problems — constituting mainly pain in her neck and back — have been diagnosed recently as cervical spondylosis and degenerative disc disease of the entire spine. (Tr. 67, 69, 100).

She last worked in 1977 as a receptionist/administrative secretary for an advertisement firm. According to plaintiff's testimony, she left the job because she found it increasingly difficult to report to work due to depression and anxiety. (Tr. 7, 22). She says she cannot work now, regardless of whether the job is less stressful than her former work, because of the distress she feels even in carrying out daily living functions, which often prevents her from going out, and sometimes causes a "hysterical reaction" entailing dizziness, nausea, and "the shakes." (Tr. 7).

There are five reports from physicians who have treated plaintiff and three from State agency physicians, some of which are accompanied by clinical data. In a report dated November, 1980, Dr. Richard Reich, a psychiatrist who had treated Mersel for the previous year on a weekly basis, stated that her prognosis was guarded, due to the long-term nature of her condition and her failure to show improvement. (Tr. 60). In January, 1981, he catalogued the deterioration of her condition and concluded that she would not be able to work for the foreseeable future. (Tr. 65).

Dr. George Samios, a psychiatrist and neurologist, who had treated Mersel on a weekly basis since June 6, 1981, reported that she had periods of depression where she was unable to leave her apartment for weeks. As of October, 1981, he noted Mersel's condition was somewhat improved in that she could leave her apartment, but she continued to have problems with insomnia and she looked depressed and related in a depressed manner. (Tr. 89). On March 12, 1982, he reported that Mersel was very anxious, and that her "emotional difficulties and related symptoms render her unable to cope with the stress and responsibility of employment." (Tr. 96).

The State agency's review physician, Dr. M. Osinoff, basing his report on a telephone contact with Reich, found that plaintiff did not meet the Act's Listing of Impairments, 20 C.F.R. Part 404, subpart P, Appendix 1, and could carry out simple instructions, as well as respond appropriately in low stress situations. (Tr. 63).

Mersel was treated at the Mount Sinai Medical Center in February, 1981 by Dr. Mitchell Levine, who stated that she was disabled and required admission to the hospital for a further myelogram and possible surgery. (Tr. 66). The cervical myelogram showed evidence of degenerative spondylosis and degenerative subluxation. (Tr. 67). In March, 1982, Levine wrote that the question of disability resulting from spondylitic disease of the cervical spine was subjective, but that Mersel's pain was consistent with her radiographic findings. (Tr. 98-99). His diagnosis was confirmed by Dr. Milton Lowenthal at the Institute for the Crippled and Disabled ("ICD") Rehabilitation and Research Center, who noted in March, 1981 that her pattern of pain had remained unchanged since his contact with her a year before, and increased commensurate with her level of activity. (Tr. 78-79).

The most recent report came from Dr. Raymond Coll, who saw Mersel in February, 1982. At that time, she had full range of motion in her neck and shoulders, but complained of neck pain and severe dizziness. Coll concluded that Mersel was suffering from chronic cervical joint disease with nerve root compression, a chronic problem. He predicted that any future physical activity relating to her arms and shoulders would precipitate recurrence of her present symptoms, which he found to be disabling. (Tr. 100-01).

The State agency physician, Dr. L.H. Elstein, did not examine Mersel. Basing his report of February, 1981 on those of doctors Levine and Reich, he determined that her problems were not severe enough to prevent her from doing non-stressful sedentary work. (Tr. 52). A second Social Security review in October, 1981 by Dr. M. Gershenson, resulted in similar findings based on reports from Dr. Samios, the ICD Center, and Mount Sinai. (Tr. 55).

The Administrative Law Judge ("ALJ") recited most of this available evidence in her decision. She concluded, however, that the case turned on the strength of plaintiff's own allegations of constant and disabling anxiety, depression and pain. Finding these not credible, the ALJ determined that Mersel could perform a wide range of work-related functions and, therefore, did not have a severe impairment. As of December, 1980, and through the date of her decision, the ALJ held that Mersel was not under a disability as defined by the Act.² In August, 1982, the Appeals Council affirmed this determination with the modification that plaintiff's disability had ceased as of January, 1981, the date on which plaintiff was notified of the administrative determination. This modified decision became the final decision of the Secretary.

II

The standard of judicial review of the Secretary's determination is whether the decision is supported by substantial evidence. 42 U.S.C. § 405(g).³ Judicial review is fairly straightforward in cases involving the Secretary's initial denial of disability claims. Regulations promulgated by the Secretary set forth a five-step sequence to be utilized in evaluating such claims. 20 C.F.R. §§ 404.1520, 416.920 (1983). These specify the findings necessary to a determination of disability and the Second Circuit has set forth the burden of proof at the various stages.⁴ The reviewing court may follow the sequential approach set forth to insure that there is substantial evidence backing the Secretary's decision at each point. See Barry v. Schweiker, 675 F.2d 464, 466-67 (2d Cir. 1982).

A review of the Secretary's decision in termination hearings is not so well delineated in this Circuit. Neither the proof that must be adduced to challenge successfully the termination decision, nor the allocation of presumptions and burdens between the claimant and the Secretary have been set out. See Wheeler v. Heckler, 724 F.2d 262 (2d Cir.1983).⁵ The Secretary urges the Court to place the burden of proof on claimant to demonstrate that her disability continued past the time of cessation found by the Secretary, requiring the Secretary to show only that the claimant is now able to engage in substantial gainful activity, regardless of whether actual improvement in claimant's condition can be demonstrated. Plaintiff neglects to address this issue, and the statutory language sheds no guiding light on the matter. Nevertheless, the Court rejects the Secretary's position.

The standard proposed by the Secretary takes no account of the prior determination of claimant's disability. The Secretary's approach would afford an independent, second review of claimant's disability claim—an opportunity to analyze claimant's condition as if she or he had applied anew for disability benefits. Continuing disability investigations ("CDI") and the termination procedures that may result from them were not, however, intended to subject claimants to perpetual de novo reviews. Rather, CDIs were implemented to insure that benefits do not continue to be paid to those who have medically or otherwise recovered from their disability.

A demonstration that a claimant has improved has been and remains the central issue in termination proceedings. Until 1980, it was assumed that most disability awards involved chronic, static, or progressive impairments subject to little or no medical improvement. Consequently, CDIs were only undertaken in cases of certain enumerated disabilities, where improvement was deemed possible. S.Rep. No. 408, 96th Cong., 2d Sess. 60-61, reprinted in 1980 U.S.Code Cong. & Ad.News, 1338-39. Because of the relatively small number of reviews of these awards, critics argued that continued payments of benefits were made to many persons who had medically or otherwise recovered from their disability. Congress responded to...