Nieto v. Heckler

• Citation: 750 F.2d 59
• Decision Date: 12 December 1984
• Docket Number: No. 84-1356,84-1356
• Parties: , Unempl.Ins.Rep. CCH 15,673 Maria B. NIETO, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 59

750 F.2d 59

8 Soc.Sec.Rep.Ser. 119, Unempl.Ins.Rep. CCH 15,673

Maria B. NIETO, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Department of Health and Human Services, Defendant-Appellee.

No. 84-1356.

United States Court of Appeals, Tenth Circuit.

Dec. 12, 1984.

James C. Ellis, Albuquerque, N.M., for plaintiff-appellant.

Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., William L. Lutz, U.S. Atty., Ronald F. Ross, Asst. U.S. Atty., D. N.M., Walter E. McCabe, Atty., Dept. of Health and Human Services, Baltimore, Md., for defendant-appellee.

Before McKAY, LOGAN and SEYMOUR, Circuit Judges.

McKAY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a), Tenth Circuit R. 10(e). The cause is therefore submitted without oral argument.

The issue in this case is whether the decision of the Secretary of Health and Human Services that the plaintiff is not disabled is supported by substantial evidence.

Plaintiff filed claims for disability benefits in 1979 and 1980 alleging that she was unable to work due to arthritis. Her claims were denied. At plaintiff's request, a hearing was held before an administrative law judge who determined, on the basis of the evidence presented and his observations of the plaintiff, that she was disabled. The administrative law judge held further hearings after the Appeals Council remanded the case because of an error of law, and again determined that plaintiff was entitled to disability benefits commencing November 11, 1977. The Appeals Council rejected the recommended decision. Although the council found that plaintiff suffers from arthritis, hypertension and obesity, it found these conditions not to be disabling. The district court affirmed.

The Secretary's decision must be affirmed if it is supported by substantial evidence. Cagle v. Califano, 638 F.2d 219 (10th Cir.1981). Substantial evidence is "more than a mere scintilla. It is such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). In determining whether the evidence in support of the Secretary's decision is substantial, we must take into account whatever in the record fairly detracts from its weight. Universal Camera v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951).

The Social Security Act defines disability as "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted ... for a continuous period of not less than 12 months." 42 U.S.C. Secs. 416(i)(1), 423(d)(1)(A) (1983). The evidence clearly demonstrates, and the Appeals Council does not deny, that plaintiff suffers from arthritis of the spine and knee and from hypertension, both aggravated by her weight. The disagreement is over the degree to which she is disabled by these conditions.

Plaintiff's primary complaint is one of disabling pain due to her arthritis. The Appeals Council, stating that pain is not disabling unless "clinical and laboratory data" establish findings that may reasonably account for the pain, rejected plaintiff's allegations. Record, vol. 2, at 11. The Council found that "the limited findings regarding [plaintiff's] arthritic condition ... fail to substantiate her allegations of totally disabling pain." Id. In reaching its conclusion, the Council focused exclusively on the objective results of diagnostic tests, including the degree to which plaintiff could bend and flex and the degree of thinning of joint space as demonstrated by the X-rays. In ignoring the subjective element of pain, even if unsubstantiated by objective medical evidence, the Council abused its discretion. Celebreeze v. Warren, 339 F.2d 833 (10th Cir.1964). Subjective pain must be evaluated with due consideration for credibility, motivation, and medical evidence. Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984).

In the present case, the allegations of pain are supported by medical evidence. Arthritis is known to be a painful disorder. Plaintiff's treating physician and one of the defendant's consulting physicians concluded that plaintiff is totally disabled by arthritic pain. ^* Dr. Rosenbaum, who has treated the plaintiff since 1976, reported that she suffers from loss of lumbo-sacral flexion, marked restriction in...