Sullivan v. Weinberger, 73-3131.

• Citation: 493 F.2d 855
• Decision Date: 06 May 1974
• Docket Number: No. 73-3131.,73-3131.
• Parties: Lucinda J. SULLIVAN, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 855 (1974)

Lucinda J. SULLIVAN, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 73-3131.

United States Court of Appeals, Fifth Circuit.

May 6, 1974.

COPYRIGHT MATERIAL OMITTED

Kenneth G. Levin, Decatur, Ga., for plaintiff-appellant.

John W. Stokes, Jr., U. S. Atty., Julian Longley, Jr., Asst. U. S. Atty., Atlanta, Ga., Eloise E. Davies, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., for defendant-appellee.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

WISDOM, Circuit Judge:

Lucinda J. Sullivan, the plaintiff-appellant, brought this action to obtain judicial review of a final decision by the Secretary of Health, Education and Welfare denying her claim for disabled widows' benefits under section 202(e) of the Social Security Act, as amended, 42 U.S.C. § 402(e). She argues that the Secretary unlawfully and unconstitutionally denied her benefits on the basis of commentary by a consultant psychiatrist who did not personally examine her. She also contends that the Secretary's regulations, which provide for disability payments only to those widows who have impairments that are listed specifically in an appendix to the regulations or that are medically equivalent to listed impairments, are invalid. The district court granted summary judgment in favor of the Secretary and dismissed the complaint. We affirm.

I.

To qualify for benefits as a disabled widow under the Social Security Act, the claimant must establish that she is at least 50 years of age, that she is the widow of a wage earner who died fully insured, and that she has physical or mental impairments which, under regulations promulgated by the Secretary, are deemed to be of such severity as to preclude her from engaging in any gainful activity. 42 U.S.C. §§ 402(e) & 423(d)(2)(B); Barnes v. Richardson, E.D.Tenn.1970, 322 F.Supp. 699; Henry v. Richardson, E.D.Tenn.1970, 320 F. Supp. 296. Her impairments must be manifest within a specified period; the eligibility period relevant to this case is seven years from the month of the insured wage earner's death. See 42 U.S.C. § 402(e)(5).

Lucinda Sullivan's husband died fully insured under the Social Security Act on August 11, 1963. Her period in which to establish eligibility for widows' disability payments ran to August 31, 1970. On January 2, 1970, she filed for widows' benefits, describing her disability as "arthritis" and alleging that she became unable to work in March 1968, at the age of 57. Her claim was denied. Adding that she suffered blackout spells and an inability to grip and hold properly, she filed for reconsideration. When her claim was again denied, she requested a hearing before a Social Security Hearing Examiner. A hearing was held on March 9, 1971, at which Sullivan, represented by counsel, appeared and testified. In addition to the ailments already mentioned, she complained of kidney trouble, back pains, and overall weakness. No other witnesses testified, but written medical reports detailing Sullivan's medical history from November 1967 to October 1970 were received in evidence. These reports showed numerous examinations following complaints of chest pains, arthritis, and kidney problems. No remarkable clinical findings were reported through 1969, and an electrocardiogram was construed as within normal limits. In February 1970, at the request of the Georgia Disability Unit, Dr. Wilmer, an internist, performed a consultative examination. He reported that Sullivan's blood pressure was slightly elevated and that she had mild arthritis. He described her as appearing in good health, although she was somewhat obese. Her heart showed some irregularity; Dr. Wilmer noted her electrocardiogram could be construed as normal or as consistent with myocardial ischemia (heart disease). He suggested she avoid strenuous exertion. He concluded that she had no arthritic or musculoskeletal impairment which would prevent 2B (moderate) activities. Dr. Smith, a psychiatrist and neurologist, performed a consultative examination at the request of the Georgia Division of Vocational Rehabilitation on May 19, 1970. His neurological findings showed that Sullivan was essentially normal, that there were no signs of organic disease of the nervous system. On October 23, 1970, Dr. Harper examined the plaintiff for the Georgia State Department of Family and Children services. Dr. Harper diagnosed arthritis, inadequately treated; arterial hypertension; and an irritable urinary bladder. He noted that her condition could be improved with treatment. After reviewing these reports the hearing examiner found that Sullivan did not qualify for widows' disability payments, and he denied her claim.

Subsequent to the decision of the hearing examiner, and more than eight months after August 31, 1970, the date Sullivan's eligibility expired under the Act, her attorney arranged for her to be examined by Dr. Edward Leader, a board-certified specialist in psychiatry and neurology. Dr. Leader made the following finding:

"On psychiatric examination Mrs. Sullivan is pleasant and cooperative. She attributes all of her troubles to physical ailments. Depression and anxiety are denied. No evidence of psychosis is present.

Mrs. Sullivan seems to be the kind of person who has given up on being a productive person and has unconsciously labelled herself as a person too sick to work. As such she can best be diagnosed as having a conversion neurosis mental preoccupation with physical ailments and complaints resulting from emotional factors¹ which is quite fixed. There is no chance that she would be able to work in the future. Neither is there at this advanced age any chance that she would be amenable to treatment. She is therefore, from a psychiatric point of view, functionally disabled." (Emphasis original.)

Sullivan submitted Dr. Leader's report to the Social Security Administration Appeals Council and requested review of the hearing examiner's decision. The Appeals Council forwarded the medical evidence to Dr. Forest K. Harris, an internist, and Dr. Randolph Frank, a psychiatrist, for their comments. Each doctor concluded that Sullivan had no impairments which either singly or in combination equalled the severity of the impairments deemed by the Secretary in his regulations "to preclude an individual from engaging in any gainful activity". 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1504-404.1506. After receiving the reports of Drs. Frank and Harris, Sullivan's attorney submitted a followup report by Dr. Leader:

"A conversion neurosis with multiple somatic complaints almost always takes years to develop. She has been complaining about health problems at least since 1968, and I suspect that her conversion neurosis preceded even that date. That is the typical pattern for this disease. The patient appears calm and placid, but all of their sic anxieties are converted to psychologically imposed physical symptoms." (Emphasis original.)

On consideration of all the evidence, the Appeals Council determined that Sullivan was not disabled within the meaning of the Act on or before August 31, 1970. Accordingly, in a decision representing the final decision of the Secretary, on January 26, 1972, the Appeals Council denied her claim for disability payments. The district court upheld the Appeals Council's determination.

II.

Sullivan first contends that the Secretary may not consider the report of a medical consultant — in this case Dr. Frank — who has not personally examined the claimant.² Second, she implies that without Dr. Frank's comments there is no substantial evidence to uphold the Secretary's decision. We disagree on both counts.

Congress has delegated to the Secretary the responsibility for determining whether an impairment is so severe as to preclude the claimant from engaging in gainful activity. 42 U.S.C. § 423(d)(2)(B). Under this grant of authority the Secretary has compiled a "Listing of Impairments" that automatically signals disability. See 20 C.F. R. §§ 404.1501 et seq., appendix to Subpart P. If the claimant cannot demonstrate the presence of a "listed" impairment, she can nevertheless qualify for benefits if she can show, to the satisfaction of the Secretary, that her impairments are "medically the equivalent of a listed impairment". 20 C.F.R. § 404.-1504.

The Secretary has established by regulation the requirements for determining medical equivalence:

"Any decision made . . . as to whether an individual\'s impairment or impairments are medically the equivalent of an impairment listed in the appendix to the Subpart P, shall be based on medical evidence demonstrated by medically acceptable clinical and laboratory diagnostic techniques, including a medical judgment furnished by one or more physicians designated by the Secretary, relative to the question of medical equivalence".

20 C.F.R. § 404.1505(b) (emphasis supplied). The Secretary argues that the italicized portion of the quoted regulation is not to be read to require the designated physician's opinion as to medical equivalence to be demonstrated by "medically acceptable clinical and laboratory diagnostic techniques". Rather, the Secretary maintains, it is only the final decision of the Secretary which must be so demonstrated. We cannot say otherwise. Congress delegated to the Secretary the responsibility for prescribing regulations concerning the determination of what showing is sufficient to prove that the claimant's alleged impairment is a disability under the Act. See 42 U.S.C. §§ 223(d)(2)(B) & (d)(5).³ This is an area where administrative expertise should be accorded great weight. Certainly the Secretary is the best judge of the meaning and suitability of his regulations, and we are not aware of any application of this regulation inconsistent with the interpretation he now presents before this Court. Moreover, the Supreme Court has expressly approved use of an independent medical...