Ransom v. Heckler

• Decision Date: 26 September 1983
• Docket Number: No. 83-1287,83-1287
• Citation: 715 F.2d 989
• Parties: Smith V. RANSOM, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant- Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 989

715 F.2d 989

2 Soc.Sec.Rep.Ser. 483

Smith V. RANSOM, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant- Appellee.

No. 83-1287

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Sept. 26, 1983.

John G. Heike, Dallas, Tex., for plaintiff-appellant.

Martha Joe Stroud, Asst. U.S. Atty., W. Emmitt Roberts, Atty., Health and Human Services, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.

PER CURIAM:

Appellant, Smith V. Ransom, brings this appeal under 42 U.S.C. § 405(g) to review the Secretary's decision to terminate his disability benefits. The issue on appeal is whether the district court erred in granting the Secretary's motion for summary judgment, thereby affirming the Administrative Law Judge's finding that Ransom was no longer disabled and therefore, no longer entitled to disability insurance benefits. We hold that the ALJ's findings are supported by substantial evidence; thus, the district court did not err in granting summary judgment. We affirm.

Substantive Law

Except in cases in which a finding has been made that an individual's disability is permanent, the Secretary is directed to review, at least once every three years, any case where an individual has been determined to be under a disability. 42 U.S.C. § 421(h). The scope of such a review is to determine whether the individual remains disabled. "Disability" is defined as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months ...." 42 U.S.C. § 423(d)(1)(A). The Secretary must undertake a specific sequential process in order to render a finding regarding disability. 20 C.F.R. § 404.1520. First, if a claimant is presently involved in substantial gainful activity, the inquiry ceases and the claimant is declared not disabled. 20 C.F.R. § 404.1520(b). If the claimant's disability is determined to be non-severe, he is not considered disabled. 20 C.F.R. § 404.1520(c). If an individual's impairment meets the durational requirement of at least twelve months, 42 U.S.C. § 423(d)(1)(A), and is listed in appendix 1 of the regulations, 20 C.F.R. § 404, app. 1, or is determined to be the medical equivalent of a listed impairment, the claimant is considered disabled per se, without additional inquiry. 20 C.F.R. § 404.1520(d). If such a determination cannot be made, the Secretary must then evaluate the claimant's residual functional capacity. ¹ The Secretary must evaluate the physical and mental demands of the claimant's past relevant work and if the claimant can meet these demands, there must be a finding of no disability. 20 C.F.R. § 404.1520(e). If, however, the claimant cannot perform past relevant work, then it must be determined whether the claimant is capable of performing other kinds of substantial gainful activity. ² If so, there is no disability; if not, the claimant is considered disabled. 20 C.F.R. § 404.1520(f).

Facts

Appellant filed an application for Social Security benefits on February 4, 1976, and for Supplemental Security Income on June 20, 1976, claiming he was disabled due to a herniated nucleus pulposus at L4-5 and radiculitis of the L5 nerve root on the right. Appellant was awarded a period of disability beginning June 14, 1975 and received his disability insurance benefit checks for the next five years.

On April 6, 1981, the Secretary notified appellant that current information would be required in order to determine if his condition was still disabling. At the request of the Secretary, appellant was examined by Dr. Ernest Brownlee, a psychiatrist under contract with the Department of Health and Human Services to perform such examinations. ³ Dr. Brownlee submitted a medical report in which he diagnosed appellant as having a dysthymiac disorder, a schizoid personality disorder, some histrionic features, and a large hernia. He stated that appellant's histrionic features probably indicate his desire to accentuate his dependency on disability payments.

Appellant's evidence was then reviewed by Dr. David Blacklock, a state agency medical consultant. Dr. Blacklock determined that, based on this evidence, appellant was capable in a normal eight-hour workday of sitting, standing and walking for eight hours, lifting and carrying ten pounds frequently and twenty pounds occasionally, using his hands, fingers and feet for repetitive motions and occasionally bending, kneeling, crawling, crouching, climbing and balancing. It was his opinion that appellant's schizoid personality with histrionic features was not vocationally relevant. It was also his opinion that the severity of appellant's condition does not meet or equal that of any impairment described by the Listing of Impairments.

Appellant was informed on June 15, 1981 that the Secretary had determined that his disability had ceased as of May 1981, and that his benefits would terminate as of July 1981. A de novo hearing before an administrative law judge was requested. The hearing was noticed on August 5, 1981 and held on November 24, 1981 before Administrative Law Judge Saul Brandes. Appellant was the sole witness at the hearing. At the close of the continuance hearing, the ALJ requested that appellant's representative submit additional evidence in the form of an update from his physician and a report from Dr. R.M. Flasdick, an internist, who had examined appellant the prior September.

On November 30, 1981, Dr. Flasdick submitted his medical report. According to Dr. Flasdick, the September examination revealed tenderness of the paraspinous muscles and abdominal tenderness. He then referred appellant to Dr. A.P. Larson, an orthopedist, who diagnosed appellant as having myostitis of the cervical spine, right arm, lumbar spine and buttocks, which were treated with physical therapy and injections of Hydeltrasol. Dr. Flasdick wrote that appellant did not have any significant medical disease and that most of his symptoms were orthopedic and/or psychosomatic in nature.

Appellant's representative submitted an interrogatory to Dr. Brownlee asking whether, in his opinion, appellant's impairments equalled the level of severity of the Listings of Impairments. Dr. Brownlee completed and returned this interrogatory on December 17, 1981, replying that the appellant's condition equalled the listings of section 1.05(C)(1) and (2). ⁴ However, Dr. Brownlee qualified this opinion by stating that he was unsure whether appellant's symptoms were outright malingering or whether true hysterical conversion was present.

The ALJ issued his formal opinion on February 8, 1982, finding that appellant's disability had ceased at the close of May 1981. Appellant thereafter sought review of the recommended decision before the Appeals Council. After considering all the evidence of record, the ALJ's reasoning and evaluation, the applicable law and regulations, and appellant's arguments in support of his claim, the Appeals Council denied the request for review, at which time the ALJ's decision became the final determination of the Secretary.

Appellant then filed a complaint against the Secretary of Health and Human Resources in the United States District Court for the Northern District of Texas. After the filing of cross motions for summary judgment, the district court granted the Secretary's motion, concluding that the Secretary's decision was supported by substantial evidence. It is from this judgment that Ransom appeals.

Standard of Review

In reviewing termination decisions of the Secretary, we are limited to determining whether the Secretary's finding of improvement to the point of no disability is supported by substantial evidence. Accord Olson v. Schweiker, 663 F.2d 593, 595 (5th Cir.1981). We may not reweigh the evidence or substitute our judgment for that of the Secretary. Johnson v. Harris, 612 F.2d 993, 997 (5th Cir.1980). We are not excused, however, from our responsibility to scrutinize the record in its entirety to determine whether substantial evidence does indeed support the Secretary's findings. Smith v. Schweiker, 646 F.2d 1075, 1076-77 (5th Cir.1981).

As in initial disability determination cases, the burden of proof is on the claimant to show the existence of disability. Crosby v. Schweiker, 650 F.2d 777 (5th Cir.1981). Once this is established, the burden shifts to the Secretary to show that there is other substantial gainful employment that the claimant is capable of performing. Millet v. Schweiker, 662 F.2d 1199, 1201 (5th Cir.1981).

Arguments on Appeal

Appellant raises three issues on appeal: (1) whether the decision of the Secretary lacks support of substantial evidence due to exclusive reliance upon a medical review physician; (2) whether substantial evidence of medical improvement is present; and (3) whether the ALJ violated established law in drawing medical expert conclusions.

Appellant first complains of that part of the ALJ's decision which determines, contrary to Dr. Brownlee's view, that appellant's impairments are not medically equivalent to the listed impairments. In his decision, the ALJ wrote:

Under sections 404.1526 and 416.926, a claimant may be found to be disabled per se if his impairments are medically equivalent to a listed impairment of Appendix 1. Dr. Brownlee answered an interrogatory indicating that in his opinion the sum total of the claimant's impairments equal the level of severity of the listed impairments. However, the undersigned accepts the opinion of Dr. Blacklock, a State Agency physician, that the claimant's impairments are not medically equivalent to the listed impairments.

Appellant argues that the opinion of a non-examining and non-testifying...