Swanson v. Secretary of Health and Human Services

Decision Date18 June 1985
Docket NumberNo. 84-5651,84-5651
Citation763 F.2d 1061
Parties, Unempl.Ins.Rep. CCH 16,152 Annabell SWANSON, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Martin Taller, Rucker & Taller, Anaheim, Cal., for plaintiff-appellant.

Dennis J. Mulshine, Asst. Regional Atty., Health & Human Services, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER, FLETCHER, and FARRIS, Circuit Judges.

FLETCHER, Circuit Judge:

Appellant, Annabell Swanson, filed for disability benefits on April 5, 1979. Following a hearing and initial denial of those benefits and a subsequent remand because of loss of the administrative record, a second hearing was held on December 23, 1981. After the second hearing, during which additional evidence was introduced, the ALJ recommended that Swanson be found to be disabled from August 19, 1980. Swanson challenged the recommended onset date contending that the disability period should commence from October, 1977. The Appeals Council, however, denied her claim. Swanson then sought judicial review claiming that the ALJ's finding of the August 19, 1980 onset date was not supported by substantial evidence on the record. The district court denied Swanson's claim. We affirm.

I. FACTS

Annabel Swanson worked as the manager in a fast food chain until she developed a nerve disorder in October of 1977. She underwent surgery for this problem on January 4, 1978 and, according to her attending physician, the surgery relieved her facial pain at that time. Over the course of the next several years Swanson continued to be plagued with a variety of disorders including left side weakness and nerve disorder, similar to that which caused her initial surgery. Because of these problems Swanson underwent additional surgery and was subjected to several hospitalizations and a large battery of diagnostic tests. Although Swanson complained of severe pain, her consulting physicians were at a loss to explain Swanson's problems in light of negative test results consistently obtained over a period of several years. These negative findings led to the conclusion on the part of some of these doctors that Swanson's complaints were primarily subjective. None of the extensive testing done on Swanson reliably indicated any significant cardiological problem.

Despite the negative findings of various tests and the inconsistencies in various doctors' neurological examinations, Dr. Wyatt, Swanson's treating physician since May, 1979, was of the opinion that Swanson was disabled for the entire period he treated her because of left side weakness, neurological problems and pain. Dr. Hyman, in a July 18, 1980 report, also believed Swanson's complaints of pain and felt that she was incapable of work. Several doctors, however, both before and after the ALJ's chosen onset date of August 19, 1980, were unable to find any significant problem with Swanson.

In an August 19, 1980 examination conducted by Dr. Dickstein, an internist, the appellant exhibited the first signs of a cardiac disorder as distinguished from her previous neurological difficulties. Although Dr. Dickstein noted some neurological problems, more significant was an electrocardiogram that indicated myocardial heart damage and a treadmill test that indicated poor exercise capability. Dr. Dickstein opined that Swanson suffered from multiple ischemic attacks and heart disease and was totally and permanently disabled.

Immediately following Dickstein's examination, Swanson was seen in the Anaheim hospital emergency room for aphasia, left side weakness, and partial paralysis of the left side of her face. An electrocardiogram was inconclusive. The emergency room doctor and the treating physician, Dr. Wyatt, concluded appellant was probably suffering a transient ischemic attack.

Several more examinations were conducted following this last episode with conflicting results. However, on September 8, 1981, Dr. Barbarosh noted a positive treadmill test that indicated ischemia and syndrome X. Dr. Dickstein noted that the positive treadmill test supported his diagnosis of myocardial heart disease. Dr. Barbarosh, after a second examination noted that a December 7, 1981 electrocardiogram was positive for mitral valve prolapse. Also, Dr. Pasnick performed a psychiatric evaluation and felt that, by process of exclusion of other possibilities, appellant was suffering from a psychiatric conversion reaction.

At the administrative hearing, Dr. Torrez, a vocational expert, reviewed the evidence and found that appellant was unable to work as of August 14, 1981 based on Dr. Pasnick's report. Dr. Wyatt testified he witnessed Swanson's left side paralysis on August 19, 1980 and that a recent EKG showed a heart abnormality. Finally, there was testimony that the appellant stated that her second surgery had relieved her of some pain but that it reoccurred within six months, that in May of 1980 she experienced chest pain once or twice a week and that the frequency of the pains had increased since that time.

Based on the medical record and testimony the Administrative Law Judge found appellant to be disabled as of August 19, 1980, the date of Dr. Dickstein's positive clinical finding of heart disorder.

II. DISCUSSION

The appellant has the burden of proving disability within the meaning of the Social Security Act. Kornock v. Harris, 648 F.2d 525, 526 (9th Cir.1980). A disability must be one that results from "anatomical, physiological, or psychological abnormalities which are demonstrated by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. Sec. 423(d)(3). In this case the Secretary found that the appellant failed to show a disability prior to August 19, 1980.

The Secretary's findings are reviewable as to whether they are supported by substantial evidence and as to whether the Secretary used proper legal standards. 42 U.S.C. Sec. 405(g); Blacknall v. Heckler, 721 F.2d 1179, 1180 (9th Cir.1983). Substantial evidence is "more than mere scintilla. It means such relevant evidence as a reasonable mind 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); Johnson v. Harris, 625 F.2d 311, 312 (9th Cir.1980). On review we must consider the record as a whole, not just the evidence...

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