Rush v. Secretary of Health and Human Services, 83-2695
| Decision Date | 27 June 1984 |
| Docket Number | No. 83-2695,83-2695 |
| Citation | 738 F.2d 909 |
| Parties | , Unempl.Ins.Rep. CCH 15,405 Freddie R. RUSH, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., W. Asa Hutchinson, U.S. Atty., Fort Smith, Ark., Frank V. Smith, III, Regional Atty., Mary K. Biester, Asst. Regional Atty., U.S. Dept. of Health and Human Services, Dallas, Tex., for appellee.
The Niblock Law Firm by Walter R. Niblock, Fayetteville, Ark., for appellant.
Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.
This case presents the question whether, in order to terminate disability benefits, the Secretary must produce new evidence showing that the claimant's condition has improved or is not so disabling as previously supposed or that there is some other legitimate reason to re-evaluate the claimant's right to receive benefits. We answer in the affirmative.
Freddie R. Rush is 32 years old and has a twelfth-grade education. Before he became disabled in February 1975, he worked as a service-station attendant and in a poultry plant.
Rush's medical problems began in early 1975, when he underwent a bilateral vagotomy (an operation on the vagus nerve, which serves the stomach) and pyloroplasty (plastic surgery of the pylorus, which is the lower orifice of the stomach, leading into the duodenum), to correct a duodenal ulcer. He continued to have severe stomach pain, diarrhea, cramping, and nausea, and was hospitalized several times following the ulcer surgery. In April 1976 an exploratory laparotomy was performed, but Rush's doctors were still unable to determine the exact cause of his symptoms.
Rush initially filed for disability benefits in October 1975, and the Secretary determined a period of disability from February 1975 through June 1976. On review at the end of that period, the Secretary initially determined that Rush was no longer disabled but, on June 15, 1977, Administrative Law Judge David T. Hubbard disagreed and held that Rush remained entitled to benefits. The ALJ relied on evaluations by Dr. Martin, Rush's treating gastroenterologist, who indicated that Rush's symptoms had continued and were due to surgical complications:
I feel that his pain is primarily of muscular nature and probably is related to his abdominal incision, perhaps due to scarring or an entrapped neuroma [a swelling growing on a nerve]. His other complaints I think are due to post-vagotomy diarrhea and to gastric atony [a relaxation and consequent weakness of the muscles of the stomach] and hiatal hernia with reflux, perhaps due to his vagotomy.... I think that he should be considered disabled for gainful employment because of the magnitude and severity of his symptoms.
Tr. 132. The ALJ also relied on the reports of two consulting psychiatrists which indicated that it was unlikely that Rush was malingering, Tr. 134, that he suffered from anxiety and depression resulting from his physical problems, and that, if he could overcome his psychological problems, he "would be an excellent candidate for vocational rehabilitation." Tr. 137.
In March 1981 the Secretary began another review of Rush's condition, and a hearing was held before a second ALJ, Judge Jerry Thomasson. In addition to the evidence considered by Judge Hubbard in 1977, Judge Thomasson examined recent reports by Dr. Martin and by a Dr. Holder, a consulting family practitioner.
Dr. Martin reported that Rush was last evaluated in January 1980
and at that time had evidence of inflammation and stenosis [narrowing] of his previous pyloroplasty with friability [susceptibility to crumbling] on the gastric side of the anastomosis.... I think that Rush continues to have bonified [sic] problems that related [sic] in part to hypersecretion and in part to partial outlet obstruction and in part to severe abdominal weakness and pain as [a] result of previous surgery.
Tr. 159. Dr. Martin also believed that Rush's pain and other symptoms were aggravated by stress: "I think that much of Freddie's problem is due to his appreciation of pain and response to it as much as the underlying cause of the pain." Tr. 163. Dr. Martin thought that Rush "might benefit from intensive physical therapy and psychotherapy and biofeedback to help him deal with [his] pain," but that the pain currently rendered Rush "disabled for any kind of physical activity." Tr. 164. Dr. Holder, the Secretary's consulting physician, agreed in substance with Dr. Martin's assessment. Dr. Holder recommended that "the opinion of another gastroenterologist regarding further surgery on [Rush's] pyloric channel outlet obstruction" be obtained, because he believed that "something could be done to help this man return to a normal and productive life." Tr. 161.
These reports clearly demonstrate that Rush's condition was substantially the same as it was in 1977 when Judge Hubbard determined that he was still disabled. Nevertheless, Judge Thomasson held:
There is no question the claimant has problems as a result of the multiple surgical procedures which he has had and continued problems with the outlet obstruction. Notwithstanding this, he has been able to maintain his usual weight and is not malnourished.
In view of this, it is felt the claimant can perform his past relevant work and ... must be found "not disabled."
Rush requested review by the Appeals Council and submitted, as additional evidence, a psychological and vocational evaluation by Douglas A. Stevens, a clinical psychologist. Dr. Stevens reported that Tr. 170. This impression was confirmed by Rush's Minnesota Multiphasic Personality Inventory profile, which indicated "a very severe psychophysiological neurosis, gastrointestional [sic] type." Ibid. Dr. Stevens doubted whether Rush could return at once to competitive employment, but suggested that he "become involved in a rehabilitative program, that would probably make use of a sheltered workshop situation, and gradually rebuild his tolerances [sic] in a protective environment, where he could receive counseling for his emotional impairments." Tr. 171. Dr. Stevens also recommended that, to encourage Rush to attempt rehabilitation, "some contingent relationship involving benefits [be] developed where he could be assured of support for only a limited time, contingent upon his entering a vigorous rehabilitative program." Ibid.
The Appeals Council denied Rush's request for review, thereby making Judge Thomasson's decision the final decision of the Secretary. The District Court held that this determination was supported by substantial evidence. We reverse.
Rush urges us to apply the so-called medical-improvement standard, enforced by a burden-shifting presumption, to his case. Specifically, he argues that he should be entitled to a presumption of disability and that to overcome the presumption the Secretary should be required to present some evidence that his condition has improved or that his condition, when evaluated in the light of current evidence, is not so serious as first believed. The Secretary responds that she need only measure the claimant's current medical status against the relevant standards for determining disability in the first instance. Although she does not say so explicitly, we understand the Secretary's position to be that she is free to terminate benefits even if the current evidence about the claimant's condition is substantially identical to the evidence considered in the prior disability determination.
We implicitly rejected the Secretary's position in Smith v. Schweiker, 728 F.2d 1158 (8th Cir.1984). That case involved a claimant who had previously worked as a meat packer in a refrigerated room. The Secretary determined that the claimant was disabled because of arthritis and awarded benefits. Among the evidence considered at the time that this determination was made was a medical opinion that the claimant " 'should not be exposed to damp or extremely cold environments.' " Id. at 1160 (quoting Tr. at 114). Subsequently, the Secretary sought to terminate benefits on the ground that the claimant's condition had improved, and the ALJ agreed. We reversed and remanded, holding that the claimant had clearly established that she could not return to her former job as a meat packer, because the current evidence showed that the claimant still had arthritis and should not be exposed to cold. Thus, the ALJ erred in not placing the burden on the Secretary to show the existence of other jobs in the economy that the claimant could perform. In the course of our discussion we said, id. at 1162,
This circuit has recognized that in a disability benefits termination proceeding, as in an initial benefits proceeding, the burden of persuasion is on the claimant to show that he or she has a disability and is entitled to benefits. Weber v. Harris, 640 F.2d 176 (8th Cir.1981). In Weber, this Court acknowledged that the Secretary need not show improvement in order to terminate benefits, but could show that the condition was less serious than was at first supposed. Thus, the earlier determination does not bar further proceedings by the Secretary. A claimant is not guaranteed the right to continuing disability benefits without producing evidence that the disabling condition continues. The Court also indicated, however, that "[i]t would be wrong for the Secretary to terminate an earlier finding of disability on no basis other than his reappraisal of the earlier evidence." Weber, supra, 640 F.2d at 178-79 ().
In Smith, however, we were not presented with...
To continue reading
Request your trial
-
Turner v. Heckler, L 83-107.
...forward with evidence that the claimant's condition has improved since the initial disability determination); Rush v. Secretary of Health and Human Services, 738 F.2d 909 (1984), the Eighth Circuit adopted a medical improvement standard, stating therein that "We recognize that we are enunci......
-
Irvin v. Heckler, 84 Civ. 343(RJW).
...point that he or she is no longer disabled, or that the initial finding of disability was erroneous." Id. See also Rush v. Secretary of HHS, 738 F.2d 909 (8th Cir.1984); Parente v. Heckler, 735 F.2d 743 (2d Cir.1984); Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983); Simpson v. Schweiker, 6......
-
Guglietti v. Secretary of Health and Human Services
...medical condition had improved (or that the original disability determination had been erroneous). See, e.g., Rush v. Secretary of HHS, 738 F.2d 909, 915-16 (8th Cir.1984); DeLeon v. Secretary of HHS, 734 F.2d 930, 936-37 (2d Cir.1984); Turner v. Heckler, 592 F.Supp. 599, 606 (N.D.Ind.1984)......
-
Lambert v. Saul
...circuits around this time adopted a presumption of continuing disability in some form or another. See Rush v. Sec'y of Health & Human Servs. , 738 F.2d 909, 914–15 (8th Cir. 1984) ; Dotson v. Schweiker , 719 F.2d 80, 82 (4th Cir. 1983) ; Kuzmin v. Schweiker , 714 F.2d 1233, 1237 (3d Cir. 19......