Rivera v. Sullivan, 424

• Decision Date: 15 January 1991
• Docket Number: D,No. 424,424
• Citation: 923 F.2d 964
• Parties: , Unempl.Ins.Rep. CCH 15857A Isabel RIVERA, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee. ocket 90-6042.
• Court: U.S. Court of Appeals — Second Circuit

Page 964

923 F.2d 964

32 Soc.Sec.Rep.Ser. 211, Unempl.Ins.Rep. CCH 15857A

Isabel RIVERA, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.

No. 424, Docket 90-6042.

United States Court of Appeals Second Circuit.

Argued Oct. 30, 1990.

Decided Jan. 15, 1991.

Nancy Morawetz, Nancy Hebeisen and Anne Lee, Legal Interns, New York City (Anne Buckborough and Lisa Ferrari, Legal Interns, Washington Square Legal Services, New York City, on the brief), for plaintiff-appellant.

Sapna V. Raj, Asst. U.S. Atty., New York City (Otto J. Obermaier, U.S. Atty. and Edward T. Ferguson, III, Asst. U.S. Atty., New York City, on the brief), for defendant-appellee.

Before NEWMAN and PRATT, Circuit Judges, and LASKER, District Judge. ^*

LASKER, District Judge.

Plaintiff-appellant Isabel Rivera's appeal challenges the determination of the Secretary of Health and Human Services (the "Secretary" of "HHS") that Rivera was not disabled on or before June 30, 1978. That date is when she last was insured under Title II of the Social Security Act ("the Act"), which provides disability benefits only for those insured under the Act. 42 U.S.C. Secs. 423(a)(1)(A) and 423(c)(1) (1982). The Secretary's finding therefore resulted in a denial of Title II disability benefits for Rivera. The District Court upheld that finding on appeal as supported by substantial evidence. Rivera v. Sullivan, 727 F.Supp. 137 (S.D.N.Y.1989) (granting Secretary's motion for judgment on the pleadings).

Because we find the Secretary's decision is not supported by substantial evidence, we reverse and remand solely for the determination of benefits.

BACKGROUND

Isabel Rivera was born in 1929 in Puerto Rico, where she received a fifth grade education before moving to New York. She neither speaks nor reads English.

Alleging arthritic and other disabilities, Rivera in 1983 applied for and was denied Title II disability insurance benefits. Rivera requested a hearing before an Administrative Law Judge ("ALJ"), which was held January 14, 1985. At the hearing, she testified that she had worked at a variety of jobs beginning in 1954, that she last worked packing appliances from 1970 to 1974, and that her job packing appliances required her to stand for eight hours per day and lift boxes weighing twenty five pounds or more. She said she left her job in 1974 because of her "back problem." At a later hearing she explained that she requested that she be discharged from her job because she suffered pain and the lifting became "too heavy" for her.

Rivera was treated by two physicians, a Dr. Dumlao ¹ (from May 1977 to August 1978) and a Dr. Zavalla-Macapagal (since March 1983). Dr. Dumlao did not testify at Rivera's administrative hearings, but her records were admitted and referred to by Dr. Zavalla-Macapagal; Dr. Zavalla-Macapagal in her Declaration stated that Rivera was now disabled, that her impairments had remained essentially the same from March 1983 to February 1987, and that "it is most probable" that Rivera's medical condition was "approximately the same" in 1977 as in 1983. The doctor expressed her opinion that Rivera had been unable to work "since at least May, 1977." ²

The ALJ, considering only this evidence, found that Rivera was not disabled within the Social Security Act's definition. Rivera appealed to the Appeals Council of HHS and subsequently to the District Court, which remanded for further administrative proceedings. At a subsequent ALJ hearing on March 6, 1987, Rivera testified that "lately" she had been unable to do housework or cook. This second ALJ on April 15, 1987 found Rivera to have been disabled as of December 1974. Thereafter, HHS' Appeals Council withheld final decision and remanded for further factfinding. In October 1987 Rivera received yet another hearing at which new evidence including a current medical report was received. The ALJ who presided over the October hearing found Rivera disabled as of but not before January 28, 1983, and the Appeals Council and Secretary adopted the ALJ's findings. The Appeals Council stated, "Based upon the findings and conservative treatment by Dr. Dunlao, the Appeals Council concludes that while the claimant was seen for a number of conditions in 1977 and 1978, including osteoarthritis and a history of bronchial asthma,.... the The District Court affirmed the Secretary's finding as supported by substantial evidence. Rivera, 727 F.Supp. 137 (S.D.N.Y.1989).

claimant was not precluded from the performance of ... past relevant work prior to her date last insured of June 30, 1978."

The District Court ruled that a retrospective opinion of a currently treating physician " 'must be evaluated in terms of whether it is predicated upon a medically accepted clinical diagnostic technique and whether considered in light of the entire record, it establishes the existence of a physical impairment' during the alleged period of disability." Id. at 140 (quoting Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981)). The District Court found that Dr. Dumlao's notes express no opinion concerning Rivera's possible disability, lack detailed findings and merely appear to recite Rivera's complaints and Dr. Dumlao's treatments. Rivera, 727 F.Supp. at 141. The court therefore found that Dr. Zavalla-Macapagal's opinion based on those notes should be given limited weight. Id. at 142.

The District Court also cited evidence that at her 1985 hearing, Rivera testified she could walk four to five blocks and do some cleaning and laundry; in her 1987 hearing she stated she could walk three to four blocks and that lately she had not been able to do housework. Id. at 141. Moreover, Rivera had begun using a cane roughly in 1986. Id. The District Court concluded that despite Dr. Zavalla-Macapagal's opinion, this evidence that Rivera's condition was degenerative supported the Secretary's conclusion that Rivera had become disabled after 1978. Id. at 141-42.

DISCUSSION

Court review of the Secretary's findings is limited to assessing whether substantial evidence in the record supports those findings. See Havas v. Bowen, 804 F.2d 783, 785 (2d Cir.1986); Wagner v. Secretary of HHS, 906 F.2d 856, 860 (2d Cir.1990). Substantial evidence is "more than a mere scintilla;" it is "such relevant evidence as a reasonable person 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); Wagner, 906 F.2d at 860; Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983).

Because the District Court's determination was governed by the substantial evidence standard, and because we must apply the same standard of review, "our focus is not so much on the district court's ruling as it is on the administrative ruling." Wagner, 906 F.2d at 860; see Valente v. Secretary of HHS, 733 F.2d 1037, 1041 (2d Cir.1984).

To be eligible for disability benefits under Title II of the Act, a claimant must have been insured within the meaning of 42 U.S.C. Sec. 423(c) at the onset date of his or her disability, and must establish an "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. Sec. 423(d)(1)(A). The claimant is entitled to benefits

only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. Sec. 423(d)(2)(A).

A claimant "bears the initial burden of showing that his impairment prevents him from returning to his prior type of employment," but once the claimant has made such a showing "the burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform...." Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). The record here provides no consideration of whether Mrs. Rivera was capable of performing "alternative substantial gainful work" as of 1978; the Appeals Council simply found that Rivera did not meet her initial burden since her impairments "did not preclude the performance of the claimant's past relevant work for the period prior to January 28, 1983."

Rivera argues that her case is indistinguishable from prior cases in which this Court has reversed the Secretary's determinations of no disability at a prior date where a retrospective diagnosis by a current treating physician is the sole available medical testimony concerning the relevant period, and where that physician's opinion is that the claimant was disabled at the earlier date. ³ Indeed, claimants have won reversal of adverse decisions by the Secretary even where their condition is degenerative, making retrospective evaluation of their ability to work somewhat speculative, and even where some non-physician testimony or evidence suggests a possible ability to work at the relevant time. See, e.g., Wagner, 906 F.2d at 861.

As noted above, the District Court did consider Dr. Zavalla-Macapagal's opinion to determine whether " 'in light of the entire record, it establishes the existence of a physical impairment' during the alleged period of disability." Rivera, 727 F.Supp. at 140 (quoting Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981)). ⁴ Since the District Court's opinion, however, this Court in Wagner has elaborated on the weight to be given retrospective diagnoses by physicians. Wagner reversed the Secretary's finding of no disability when...