Nelson v. Bowen

• Citation: 855 F.2d 503
• Decision Date: 28 November 1988
• Docket Number: No. 87-2840,87-2840
• Parties: Edward NELSON, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 503

855 F.2d 503

22 Soc.Sec.Rep.Ser. 685

Edward NELSON, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 87-2840.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 1988.

Decided Aug. 30, 1988.

As Amended on Denial of Rehearing Nov. 28, 1988.

Robert Grossinger, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiff-appellant.

Donna L. Calbert, Asst. Regional Counsel, Dept. of Health and Human Services, Chicago, Ill., for defendant-appellee.

Before CUDAHY, RIPPLE and MANION, Circuit Judges.

MANION, Circuit Judge.

Edward Nelson appeals from the district court's order granting summary judgment in favor of the Secretary of Health and Human Services in Nelson's suit pursuant to 42 U.S.C. Sec. 405(g) seeking judicial review of the Secretary's denial of Supplemental Security Income disability benefits under 42 U.S.C. Secs. 1381-1383. Nelson argues that the Administrative Law Judge's finding that, despite his physical and mental impairments, he has the residual functional capacity (RFC) to perform a limited range of light work is not supported by substantial evidence, and that the ALJ failed to properly consider his mental impairments in finding him not disabled. Because we find that the Appeals Council erred in determining that certain evidence Nelson submitted to it was not material, we vacate the district court's grant of summary judgment and remand the case to the Secretary.

I.

The evidence presented at the hearing before the ALJ indicates that Nelson suffers from a variety of physical and mental impairments. Since we base our decision to remand the case on the materiality of certain additional evidence Nelson submitted to the Appeals Council, we will not review the evidence presented to the ALJ in any great detail.

Briefly, Nelson was 44 years old at the time of the ALJ's decision. Although the record is somewhat unclear, he had apparently completed at least 10 years of school and had additional vocational training as a barber and cosmetologist. Nelson had worked in the past as a barber/cosmetologist and, most recently, as a stock boy in a food store.

Nelson, who is right-handed, lost (most) of the use of his right arm in 1983 due to complications caused by an intravenous drug injection. Some evidence before the ALJ also indicated that at the time of his application for benefits Nelson suffered from problems with his legs. Dr. Simeon Sevandal, who performed a consultative examination on Nelson, noted "browny induration and edema" ¹ of the right foot and 1/3 of the right leg, indicating probable venostasis (abnormally slow motion of blood in the veins) of the right leg. In addition, Nelson himself testified that his legs swell and he suffers from poor circulation in his legs, and that, as a result, he could only stand for 25 minutes. On the other hand, Dr. Gary Farenbach, who also performed a consultative examination, noted no problems with Nelson's lower extremities. Additionally, two Illinois state agency doctors, without examining Nelson, both completed reports indicating that he could stand or walk for 6 hours each day.

In addition to the evidence of Nelson's physical impairments, there was evidence that Nelson suffered from mental impairments of some consequence. Tests performed by Dr. George M. Gentry, a psychologist, indicated Nelson was borderline mentally retarded, with a full scale IQ of 71. His scores on the Trail Making Test and Hooper Visual Organization Test supported a finding of brain damage. Dr. Gentry concluded that Nelson could carry out only simple, short work cycle, repetitive tasks and that he would have to carry out even these tasks slowly because he would be using his non-dominant (left) hand. Dr. Adams, the medical advisor and a board-certified psychiatrist, stated that, based on his observations of Nelson at the hearing before the ALJ, he found support for Dr. Gentry's results suggesting brain damage. Dr. Adams nevertheless concluded that Nelson's mental impairments would not prevent him from performing unskilled work.

At the hearing before the ALJ there was also testimony that Nelson exhibited a personality disorder, a history of problems in living and emotional adjustment, heroin use over a long period and alcohol consumption. Nelson testified that at the time of the hearing he attended a methadone program and was not using heroin.

In a lengthy decision, the ALJ concluded (at step 5 of the sequential analysis ²) that despite Nelson's impairments, he had the RFC to perform a limited range of light and sedentary work and that there were a significant number of jobs in the economy that he could perform. The ALJ therefore found Nelson not disabled. In reaching this conclusion, the ALJ found Nelson's testimony regarding limitations on his ability to stand and walk incredible. Nelson requested review by the Appeals Council.

Before the Appeals Council Nelson submitted additional evidence, consisting of records of Nelson's admissions to Henrotin Hospital in 1981 and 1982 and a report from Dr. Jack Johns who treated Nelson at the Family Guidance Centers. The Henrotin Hospital records indicate that Nelson was hospitalized from September 5 to September 12, 1981 for treatment of multiple abscesses in both legs, that his condition improved, and that upon his release he was walking well. He was hospitalized again from October 1 to October 8, 1981 for treatment of abscesses in his legs and right arm. From February 19 to February 23, 1982, Nelson was again admitted for treatment of his right arm; at that time no problems concerning his legs were noted. Dr. John's report, dated April 11, 1986, opines, in relevant part, that Nelson could only sit for 1/2 hour, stand 3/4 of an hour, and walk 1/2 hour during a workday. On July 23, 1986, Dr. Johns corrected his previous report by stating that Nelson had no restrictions on sitting, also noting that Nelson suffered from "chronic edema of both lower legs due to vascular insufficiency and damage."

The Appeals Council determined that this evidence provided no basis for changing the ALJ's decision, stating, "The medical records from 1981 and 1982 show that [Nelson was] treated for phlebitis ³ and multiple abscesses of [his] lower legs. This evidence is not material to a finding of disability based on [his] application of April 8, 1985. Dr. Johns opines that Nelson [is] ... limited in lifting no more than 15 pounds and that [he has] ... no trouble sitting." The Appeals Council therefore denied Nelson's request for review and stated that the ALJ's decision "stands as the final decision of the Secretary."

Nelson then sought judicial review in the district court. The court granted summary judgment for the Secretary and denied Nelson's Rule 59(e) motion to alter or amend its judgment. This appeal followed.

Though we normally review the decision of the Appeals Council because it is the final decision of the Secretary, see Bauzo, 803 F.2d at 921, here, as the parties agreed at oral argument, the Appeals Council adopted the ALJ's decision as the final decision of the Secretary, making the additional finding that the new evidence submitted by Nelson was not material. We therefore review the ALJ's decision as well as the additional determination of the Appeals Council regarding the materiality of the new evidence.

II.

For a variety of reasons, this is a troubling case. Nelson obviously suffers from several impairments, both mental and physical, of varying degrees of severity. Some of these impairments, in particular his loss of the use of his right arm, are apparently due to his long history of drug abuse. We are concerned, given the overall tone of the ALJ's opinion, which at several points is derogatory of the claimant's "lifestyle," that this may have colored the ALJ's decision.

This court certainly does not condone excessive use of drugs or alcohol. Yet the regulations explicitly provide that the presence of "a condition diagnosed as addiction to alcohol or drugs ... will not, by itself, be a basis" for finding that an individual is or is not under a disability. "As with any other medical condition," the determination as to disability in such instances shall be "based on symptoms signs, and laboratory findings." 20 C.F.R. Sec. 404.1525(e) (1988) (emphasis added). Thus, it seems clear that other medically determinable disabilities caused by drug addiction or alcoholism can qualify a claimant for benefits. ⁴

Moreover, determinations as to eligibility for Social Security disability benefits are made pursuant to a comprehensive statutory and regulatory scheme which specifies the factors to be considered by the trier of fact. Nowhere in that scheme is the ALJ authorized to take into consideration the cause of a claimant's medically ascertainable disability. Certainly, a claimant suffering from a physical disability would not be precluded from receiving benefits simply because, for example, the disability resulted from an automobile accident when the claimant was not wearing a seatbelt or from a motorcycle accident when the claimant was not wearing a helmet. Stated more generally, neither the ALJ nor the court on review is authorized to pass judgment upon the source of a medically ascertainable disability.

We note, moreover, that, although the Supplemental Security Income provisions differ somewhat, the general Social Security statute and regulations set forth earnings requirements in order for a claimant to qualify for insured status. We therefore cannot agree with the ALJ's apparent hesitancy to grant Nelson benefits because of his admitted history of drug abuse and living as a "street person." An ALJ's role is to determine whether a claimant satisfies the medical and earnings requirements specified by the statute and regulations. Unauthorized consideration of the cause of the medically ascertainable disability is not the province of the ALJ.

III.

That...