Stark v. Weinberger

• Decision Date: 31 May 1974
• Docket Number: No. 73-1993.,73-1993.
• Parties: Bernice F. STARK, Plaintiff-Appellant, v. Caspar W. WEINBERGER (Successor to Elliot Richardson), Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

497 F.2d 1092 (1974)

Bernice F. STARK, Plaintiff-Appellant, v. Caspar W. WEINBERGER (Successor to Elliot Richardson), Defendant-Appellee.

No. 73-1993.

United States Court of Appeals, Seventh Circuit.

Argued February 15, 1974.

Decided May 31, 1974.

COPYRIGHT MATERIAL OMITTED

Richard M. Kates, Chicago, Ill., for plaintiff-appellant.

Kathryn H. Baldwin and Stanton R. Koppel, Attys., Civil Div., Appellate Section, Dept. of Justice, Washington, D. C., James R. Thompson, U. S. Atty., Chicago, Ill., for defendant-appellee.

Before PELL, STEVENS and SPRECHER, Circuit Judges.

STEVENS, Circuit Judge.

Plaintiff has been afflicted with scleroderma,¹ a progressive, incurable disease, since the late 1930's. She claims the right to receive disability benefits since 1971, the year in which she first applied for relief under the Social Security Act.² It is perfectly clear that she was then — and indeed for many years had been — disabled within the meaning of the Act. However, because of the special earnings requirement of the statute,³ the Secretary determined that she must establish a period of disability commencing no later than December 31, 1950. Plaintiff's failure to apply more promptly (which is attributed to lack of knowledge of her rights) thus not only limited the amount of her claim but also created unusually difficult problems of proof. The administrative law judge found in her favor, but the Appeals Council reversed.⁴ Our review of the entire record convinces us that the original determination of disability should be reinstated.

The Secretary has advanced two primary bases to support the decision of the Appeals Council. First is that plaintiff failed to satisfy her burden of proving a disability. Second is that the decision rests upon certain items of evidence which we should accept as substantial. Before evaluating the bases for the Secretary's action, we shall briefly describe the uncontradicted evidence supporting plaintiff's claim. This evidence includes plaintiff's testimony, which the administrative law judge credited; medical records; affidavits of plaintiff, some of her former co-workers and a doctor; a letter from her treating physician; and medical treatises describing scleroderma and Raynaud's phenomenon.

I.

Except for the dispute over the date when plaintiff's affliction became disabling, the facts are essentially uncontroverted.

Plaintiff was born in 1914. She now resides in Cicero, Illinois, with her husband, whom she married in 1935. Plaintiff did not complete her first year of high school and, except for an unfinished typing course, had no vocational training. She has had three jobs: as an assembly line riveter for Chicago Flexible Shaft Co. from 1937 to 1946; as a material cutter for Sears Roebuck in 1952 and 1953; and on an assembly line for Western Electric from 1955 to 1958.⁵

Shortly after starting at Chicago Flexible Shaft, plaintiff's fingers began to trouble her.⁶ They became ulcerous, increasingly stiff and difficult to manipulate, especially in cold weather. She sought medical advice, but the doctors were unable to diagnose her affliction. Plaintiff's fellow employees assisted her at work, but ultimately the company informed her that she would have to leave because she was physically unable to do her job.⁷

While unemployed between 1946 and 1952, plaintiff did some light housework. But her fingers were irritated by tasks such as dishwashing, and occasionally her condition would "flare up." When plaintiff started to work at Sears, she believed her condition had improved; however, she could work neither continuously nor effectively. She had difficulty grasping scissors and "worked at a much slower pace than the other girls." Her illness caused her to leave Sears in 1953.

Plaintiff's doctors continued to treat her, but still were unable to determine the cause of her difficulties. Her discomfort increased. When she was upset or exposed to the cold, her feet and hands became numb and pallid. She also developed painful swelling of her fingertips and tightness of the skin on her upper arms and chest. Nevertheless, in 1955 she went to work for Western Electric. Plaintiff's first assignment was on the assembly line tightening screws. However, she was unable to use a screwdriver effectively and was soon transferred. Her next assignment required that she dip her hands, covered by cellophane, into an acetone solution. As a result, plaintiff's fingers were greatly irritated and her condition deteriorated.⁸ In March of 1957 she entered the University of Illinois Research and Educational Hospital, where her condition was diagnosed as Raynaud's phenomenon.⁹

Plaintiff remained in the employ of Western Electric until January 10, 1958. She was finally discharged because she could not perform the required work satisfactorily. While at Western Electric she had a high absence rate, was in great pain when she worked and received a good deal of assistance from her co-workers. The administrative law judge concluded that "her attempts to work resulted from severe economic need."

In 1960 plaintiff reentered the Research and Educational Hospital. Her condition was diagnosed as scleroderma accompanied by Raynaud's phenomenon. Between 1960 and 1971 plaintiff was admitted to the hospital on five separate occasions. She complained of progressive hardening and tenseness of the skin on various parts of her body, difficulty in swallowing, increasing inability to move her fingers and wrist, ankle edema, weight loss, and an asymptomatic mass in her left breast. On some occasions plaintiff would state that certain of these symptoms gave her less trouble than in the past. Nevertheless, her general condition became progressively worse.

In 1971 plaintiff was examined and found to be asthenic, diaphoretic and cyanotic. One plus pitting edema was noted in the extremeties, and her hands evidenced demonstrable tapering and mild atrophy. Tests further revealed an infarction and occlusion of arteries. The final diagnosis was arteriosclerotic heart disease, scleroderma in remission and recurrent thromboembolism. Since scleroderma is progressive, fatal and without cure, it is doubtful that plaintiff's condition will ever improve. She has undergone some surgery and, for the most part, is now confined to bed.

II.

The Secretary's initial contention is that plaintiff failed to prove, as required by 42 U.S.C. § 423(d) (1) (A), that she: (A) suffered from a medically determinable physical impairment; and (B) by reason of this impairment was unable to engage in any substantial gainful activity. According to the Secretary, we therefore must affirm the decision of the Appeals Council. See Kirkland v. Weinberger, 480 F.2d 46, 49 (5th Cir. 1973).

A.

42 U.S.C. § 423(d) (3) provides that a "physical or mental impairment" is

an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

The purpose of this section is to make clear that statements by a claimant or mere conclusions of others as to the nature and extent of an impairment are insufficient. There must be acceptable medical evidence that such an impairment existed. S.Rep.No. 744, 90th Cong., 1st Sess. (1967), reprinted in 1967 U.S.Code Cong. & Admin.News. pp. 2834, 2882-2883; 20 C.F.R. §§ 404.1501(c) & 404.1523 (1973). The Secretary argues that there is no medical evidence establishing plaintiff's suffering from scleroderma prior to 1951; therefore, plaintiff failed to prove a "physical impairment."

Plaintiff was unable to produce the medical records of the three doctors who treated her during the late 1940's and early 1950's. She explained that her records had been destroyed in a flood, that two of the doctors had long since been deceased and that the third doctor could not be located. The administrative law judge himself made an unsuccessful effort to find the records of these doctors. Plaintiff, however, did submit the medical reports of the University of Illinois doctors who treated her after 1957. A 1957 report contains a diagnosis of Raynaud's phenomenon; a 1960 report, scleroderma. She also submitted an affidavit of Dr. Adolph Rostenberg, Jr., who followed plaintiff's condition "for many years." Based upon his contact with plaintiff and the affidavits prepared by plaintiff's co-workers at Flexible Shaft, Dr. Rostenberg concluded: "It appears to me that Mrs. Stark's scleroderma was present in and from the late 1930's."

The Secretary offered no medical opinion contradicting Dr. Rostenberg's. Compare Williams v. Finch, 440 F.2d 613, 615-616 (5th Cir. 1971). Furthermore, the medical authorities cited by plaintiff and the administrative law judge are consistent with this opinion. They establish that the onset of scleroderma is insidious and its progression slow; while its cutaneous manifestations may, on occasion, regress, the disease nevertheless follows its fatal course. Raynaud's phenomenon, pain, ulcerations and increasing tightness of the skin are all associated with the disease in its initial, as well as subsequent, stages. Finally, the University of Illinois reports contained in the record are also consistent with this opinion.¹⁰

A medical opinion does not become unacceptable, for purposes of § 423(d) (3), simply because it is based upon a claimant's symptomology, Bittel v. Richardson, 441 F.2d 1193 (3d Cir. 1971), or upon medical records and lay testimony. See Kyle v. Cohen, 449 F.2d 489 (4th Cir. 1971). It is also clear that a diagnosis of a claimant's condition may properly be made even several years after the actual onset of the impairment. Berven v. Gardner, 414 F.2d 857, 861 (8th Cir. 1969); Murphy v. Gardner, 379 F.2d 1, 7 (8th Cir. 1967). We thus conclude that Dr. Rostenberg's affidavit is predicated upon a "medically acceptable clinical diagnostic technique" and that, when considered in light of the entire record, it...