Potter v. Secretary of Health & Human Services
| Decision Date | 04 May 1990 |
| Docket Number | No. 89-2113,89-2113 |
| Parties | , Unempl.Ins.Rep. CCH 15532A Kathleen A. POTTER, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Gary J. Martone, Albuquerque, N.M., forplaintiff-appellant.
William L. Lutz, U.S. Atty., Ronald F. Ross, Asst. U.S. Atty., Gayla Fuller, Chief Counsel, Region VI, John M. Gough, Principal Regional Counsel, Social Sec. Disability Litigation Branch, Joseph B. Liken, Asst. Regional Counsel, Office of the Gen. Counsel, U.S. Dept. of H.H.S., Dallas, Tex., for defendant-appellee.
Before LOGAN, JONES, * and SEYMOUR, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Claimant-appellant Kathleen A. Potter appeals from an order of the district court affirming the Secretary of Health & Human Service's decision denying her application for disability benefits under Title II of the Social Security Act. 1 We affirm.
Potter submitted an application for benefits on May 20, 1985, alleging she had been disabled since October 15, 1980, as a result of symptoms associated with multiple sclerosis (MS). Based on her work history, she has met the earnings requirements of the Act 2 only through December 31, 1981. Therefore, in order to receive benefits, she must show she was disabled prior to that date.
Potter's application was denied at all levels of the administrative process. She requested and received a hearing before an Administrative Law Judge who ruled she was not disabled prior to the expiration of her insured status under 42 U.S.C. Sec. 423(d)(1)(A) (1962), and who subsequently denied her application for benefits. This denial was adopted as the final decision of the Secretary and was upheld by the district court. On appeal, Potter asserts that the Secretary's decision (1) was not supported by substantial evidence, and (2) is invalid because the A.L.J. applied incorrect legal standards to her claim. We disagree.
The claimant is currently thirty-eight years old and has a high school diploma in addition to two years of college and one year of medical assistant training. Her relevant job history includes working as a lab technician, bookkeeper, and bakery clerk. She has not been employed since 1977, when she left her bookkeeping/lab technician job to care for her two children full time. Although Potter asserts that symptoms of MS rendered her disabled in 1980, the disease was not officially diagnosed until 1985.
At the administrative hearing, Potter testified that in October of 1980 she began to experience painful numbness and tingling in her hands and feet. She also had trouble sleeping and had difficulty dressing herself. She testified that she had to give up needlepoint and was dropping things and occasionally falling. At the request of her physician Dr. Palazola, she was examined by Dr. Bettinger, a neurologist, in May 1981. The doctor reported:
On exam today, aside from the very slender build, the only positive finding was some definite and sustained fine nystagmus of both eyes, on gaze in all directions, but particularly on horizontal gaze. I think this clearly is associated with a subjective feeling of impaired balance....
That she has a neurological dysfunction, possibly of a demyelinating type, is quite definite.
Rec., vol. II, at 134 (emphasis added). Dr. Palazola, who conducted extensive testing, later described Potter's problems as "intermittent episodes of numbness and tingling in her fingers and feet." Id. at 112. These two reports constitute the only clinical findings submitted in the record for the period from October 1980 through December 1981.
In 1983, Potter underwent a hysterectomy. At that time, doctors found her strength was equal in both extremities. Apart from the pain necessitating the surgery, no other problems were noted in the preoperative report. Potter asserts that the symptoms she experienced in 1980-81 stem from the later-diagnosed MS and therefore qualify her as a disabled person.
Substantial evidence is defined as "sufficient relevant evidence in the record that a reasonable person might deem adequate to support the ultimate conclusion." Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988). In reviewing the Secretary's findings, we consider the entire record. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988). Potter asserts that three physicians' retrospective diagnoses of MS constitute substantial evidence of disability. In support, she relies on the reports of Drs. Rosenberg, Palazola, and Kunkel. Each of these physicians related the symptoms experienced in 1980-81 to MS.
Following Potter's application for benefits, Dr. Palazola submitted a supplemental report at the request of counsel stating, "[i]t is certainly conceivable from reviewing Mrs. Kathleen Potter's medical records, that some of her symptoms could, indeed, have been consistent with multiple sclerosis as far back as 1980." Rec., vol. II, at 139. Likewise, Dr. Rosenberg, who saw Potter once in November 1985, concluded, "[i]t was my impression that she had multiple sclerosis which probably began at age 30." Id. at 141. Finally, Dr. Kunkel, Potter's current treating physician, identified the numbness and tingling from 1980-81 as relating to the later diagnosis of MS. Id. at 135. While there is no doubt Potter is disabled today, these comments, without more, do not support a finding that she was continuously disabled for twelve months in 1980-81.
None of these reports identify a disability as of 1981. Rather, they retrospectively diagnose the disease. It is true that a treating physician may provide a retrospective diagnosis of a claimant's condition. Millner v. Schweiker, 725 F.2d 243, 246 (4th Cir.1984); Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981). However, the relevant analysis is whether the claimant was actually disabled prior to the expiration of her insured status. Cf. Swanson v. Secretary of Health & Human Servs., 763 F.2d 1061, 1065 (...
To continue reading
Request your trial
-
Flaten v. Secretary of Health & Human Services
...adopted the relation-back theory. Nor has the Tenth Circuit adopted the Cassel holding. See, e.g., Potter v. Secretary of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir.1990) (finding that a retrospective diagnosis must establish actual disability prior to expiration of insured sta......
-
Derrig v. Chater
...entitlement to benefits. See Hinchey v. Shalala, 29 F.3d 428, 431 (8th Cir. 1994) (citing Potter v. Secretary of Health and Human Servs., 905 F.2d 1346, 1348-49 (10th Cir.1990) (per curiam)); Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir.1990) (finding a claimant must establish her disabi......
-
Buchan v. Astrue, CIVIL ACTION No. 10-4081-JWL
...to receive DIB pursuant to Title II of the Act, Plaintiff must show she was disabled before her DLI. Potter v. Sec'y of Health & Human Servs., 905 F.2d 1346, 1347 (10th Cir. 1990) (citing 20 C.F.R. § 404.130). While a claimant may be entitled to supplemental security income (SSI) payments u......
-
Montanio v. Colvin
...1.) 8. To receive benefits, Mr. Montanio must show he was disabled prior to his date of last insured. See Potter v. Sec'y of Health & Human Servs., 905 F.2d 1346, 1347 (10th Cir. 1990). 9. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which is general......