Sisco v. U.S. Dept. of Health and Human Services

• Decision Date: 30 November 1993
• Docket Number: No. 93-6040,93-6040
• Citation: 10 F.3d 739
• Parties: , Unempl.Ins.Rep. CCH (P) 17654A Linda L. SISCO, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Louis W. Sullivan, M.D., Secretary, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 739

10 F.3d 739

43 Soc.Sec.Rep.Ser. 12, Unempl.Ins.Rep. CCH (P) 17654A

Linda L. SISCO, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Louis W. Sullivan, M.D., Secretary, Defendant-Appellee.

No. 93-6040.

United States Court of Appeals Tenth Circuit.

Nov. 30, 1993.

Jim Merz, Oklahoma City, OK, for plaintiff-appellant.

Joe L. Heaton, U.S. Atty., M. Kent Anderson, Asst. U.S. Atty., W.D. Okl., Donald A. Gonya, Chief Counsel, Randolph W. Gaines, Deputy Chief Counsel for Social Sec., A. George Lowe, Deputy Chief Counsel for Disability Litigation, and Charlotte M. Connery-Aujla, Atty., Office of Gen. Counsel, Social Sec. Div., Dept. of Health and Human Services, Baltimore, MD, for defendant-appellee.

Before McKAY, Chief Judge, SETH and BARRETT, Circuit Judges.

McKAY, Chief Judge.

The parties have agreed that this case may be submitted for decision on the briefs. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.2. The case is therefore ordered submitted without oral argument.

I.

This is an appeal from a federal district court's ruling affirming an Administrative Law Judge's (ALJ) denial of Social Security benefits. Plaintiff is a 45-year-old mother whose health began to deteriorate in 1983 when she acquired a lymph gland infection. The infection lasted for several months. Although she suffered from symptoms suggestive of mononucleosis, her doctors were unable to diagnose the source of the infection. Despite her illness, she was able to finish her master's degree in educational counseling and psychology and in October of 1983 began work as a psychological assistant for the Oklahoma Department of Corrections. In the early months of her new job Plaintiff began experiencing extreme fatigue and severe headaches to the point where she was unable to perform her work satisfactorily. These symptoms led to the termination of her employment in January of 1984.

Plaintiff then worked in temporary jobs as a data entry operator until she enrolled at Oral Roberts University in January of 1985 for a master's degree in divinity. Soon after attempting to return to school, however, Plaintiff was forced to drop out because her physical condition had continued to deteriorate. She was suffering from severe muscle pains over her entire body, excessive fatigue, headaches, and stomach nausea. She has been unable to return to full-time employment since she left Oral Roberts in February of 1985.

During the period when her condition was worsening, Plaintiff sought medical help for her ailments. Between April of 1985 and May of 1989, she was examined by more than fifteen doctors of various specialties. None were able to diagnose a physical problem or disease that could adequately explain the severity of her symptoms. After being unable to find a physical cause, a few doctors, including one Social Security consultant, suggested personality disorders or hypochondriasis as the root of Plaintiff's problems.

In October of 1989, Plaintiff was evaluated by a team of doctors at the Mayo Clinic in Rochester, Minnesota. After performing a series of tests and reviewing Plaintiff's medical history, the reporting doctor at Mayo diagnosed tension myalgia and chronic fatigue syndrome. (Appellant's App. at 141.) Chronic fatigue syndrome is a disease that did not become widely known in the medical community until 1988 when the first diagnostic article concerning it was published. It was also in 1988 that the Centers for Disease Control in Atlanta accepted chronic fatigue syndrome as a disease. See Reed v. Secretary of Health and Human Services, 804 F.Supp. 914 (E.D.Mich.1992). It is believed to be caused by an as yet unidentifiable virus, (Appellant's App. at 150.), or a "chronic [i]mmunologically mediated inflammatory process of the central nervous system." Lawrence M. Tierney, Jr., M.D., et al., Current Medical Diagnosis and Treatment 19 (1993).

In July of 1990, Dr. Becker, Plaintiff's treating physician, reviewed plaintiff's medical history and the report from the Mayo Clinic. In response to interrogatories posed by Plaintiff's attorney, Dr. Becker stated that the Plaintiff met both the major and minor criteria for the disease as established by the National Centers for Disease Control. He also stated that the chronic fatigue syndrome rendered Plaintiff totally disabled, unable to sustain activity--or even sit upright in a chair--for more than fifteen to twenty minutes without having to lie down to resolve fatigue.

Plaintiff filed her initial application for Title II disability benefits on September 5, 1986. After denial on initial and reconsideration determinations, Plaintiff requested a hearing before an Administrative Law Judge (ALJ), which was held on August 7, 1987. The ALJ denied Plaintiff's claim for disability insurance benefits on April 22, 1988, and that decision was affirmed by the Appeals Council on October 13, 1988. Plaintiff filed a second application for disability insurance benefits and supplemental security income on March 18, 1989. After again being denied benefits at both the initial and reconsideration stages, Plaintiff was granted a second hearing on March 14, 1990. On August 7, 1990, the ALJ once again denied disability insurance benefits to the Plaintiff, a decision ultimately affirmed by the Appeals Council and the federal district court.

Plaintiff requests that we review the ALJ's decision of August 7, 1990, stemming from the hearing held on March 14, 1990. In addressing Plaintiff's claim, the ALJ employed the five-step sequential evaluation process set forth in 20 C.F.R. Sec. 404.1520(b)-(f). At the first step, the ALJ found that Plaintiff was not working or engaging in substantial gainful activity. At step two, he found that Plaintiff suffered from a severe impairment. At the third step, the ALJ found that Plaintiff's impairment did not meet or equal a listed impairment. The ALJ then decided the case against Plaintiff at the fourth step. The fourth step requires the ALJ to determine whether the severe impairment prohibits the claimant from performing her past relevant work. He found that it did not, stating that, "the evidence, here, supports a conclusion that the claimant is able to return to her past relevant work as a general office clerk, which was light work. She would also be able to work as a data entry clerk, which was sedentary and semi-skilled work." (Appellant's Supp.App. at 13.) Plaintiff contends that the ALJ's decision on the fourth step was not supported by substantial evidence.

II.

The role of this court under 42 U.S.C. Sec. 405(g) is to determine whether there is substantial evidence in the record to support the decision of the Secretary, and not to reweigh the evidence or try the issues de novo. See Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.1986). If supported by substantial evidence, the Secretary's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 401, 91 S.Ct. at 1427.

In holding that Plaintiff was capable of working as an office clerk or data entry operator, the ALJ claimed to rely on Plaintiff's testimony as to her lifestyle and physical capabilities. He recapitulated Plaintiff's testimony in his opinion, writing, "In the morning, she would get up, get dressed, take a shower, wash her hair, have breakfast, [and] do a few household chores...." (Appellant's Supp.App. at 9-10.) However, the record reveals that, when questioned at the hearing about her routine in the morning, Plaintiff's actual response was:

[U]sually I lay there [until] I have enough energy to get out of bed and then I always, I always try to at least get up and get dressed and try to take a shower and sometimes it may take me [thirty minutes] to an hour but I, I always try to do that because then I always feel better about my day and then I go back and lay down for 30 minutes to an hour. If I wash my hair it's more like an hour [that I have to lie down] but if I don't wash my hair I can get by with about 30 minutes or so and then I try to get cereal or something for breakfast and if I'm having a bad day I might have to go right back to bed and if I'm having a good day, three or four times a month, then I can try to do maybe a household chore.

(Appellant's App. at 246) (emphasis added). Plaintiff testified that she takes showers instead of baths because when she has tried to take baths in the past she has been unable to climb out of the bathtub. (Id.)

The ALJ represented that Plaintiff routinely cleans the house, washes the dishes, and dusts her furniture without hindrance from her disability. (Appellant's Supp.App. at 9-10.) As to her ability to dust the furniture and clean the dishes, Plaintiff actually stated:

Well I get the dishes done about every--I, like I never get them all done at once except maybe every other week so usually I just do what has to be done to keep from really being dirty and I dust about every month or month and a half but I [split] the dusting over three days so I try to do what I can one day and the next three or four days if I feel good I dust another part of the house and [then] maybe the dining room and then maybe my bedroom later.

(Appellant's App. at 246-247.)

Without further elaboration, the ALJ noted that Plaintiff entertains herself during the day by watching television and reading. (Appellant's Supp.App. at 10.) Plaintiff's actual testimony was that she usually ends up watching TV on a little set in her bedroom "because I just cannot sometimes even sit up to watch TV in the living room." (Appellant's App. at 247.) As to reading books, Plaintiff testified:

I can't sit here and read but maybe a few minutes. I have to lay down to read ... and rest the book on my chest or, or read a real light book...