Veino v. Barnhart, Docket No. 01-6202.

Decision Date10 December 2002
Docket NumberDocket No. 01-6202.
Citation312 F.3d 578
PartiesRonald E. VEINO, Sr., Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Arthur P. Anderson, Burlington, VT (Anderson & Buran, Burlington, VT, on the brief), for Plaintiff-Appellant.

Joseph R. Perella, Assistant United States Attorney, Burlington, VT (Peter W. Hall, United States Attorney for the District of Vermont, Paul J. Van De Graaf, Chief, Civil Division, Burlington, VT, Joseph E. Dunn, Assistant Regional Counsel, Boston, MA, on the brief), for Defendant-Appellee.

Before: FEINBERG, KEARSE, and B.D. PARKER, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiff Ronald E. Veino, Sr., who was found by the Social Security Administration ("SSA") to have a disability in 1973 that continued to exist in 1982, entitling him to Social Security Disability Insurance ("SSDI"), appeals from a judgment of the United States District Court for the District of Vermont, Jerome J. Niedermeier, Magistrate Judge, dismissing his complaint alleging that defendant Commissioner of Social Security (the "Commissioner") improperly terminated his benefits in January 1998 without proving that his condition had so improved that he was no longer disabled. The magistrate judge, before whom the parties had consented to proceed for all purposes, granted summary judgment in favor of the Commissioner, ruling that there was substantial evidence to support the Commissioner's findings that Veino's condition had improved, that Veino was now capable of performing a number of jobs in the national economy, and that he was therefore no longer disabled within the meaning of the Social Security Act, 42 U.S.C. §§ 401-432 (1994 & Supp. V 1999) (the "Act"). Veino challenges that ruling on appeal, contending principally that the Commissioner failed to present substantial evidence that his medical condition had improved since 1982 because she failed to produce the medical evidence as to his condition in 1982, when the SSA last found him to be disabled.

For the reasons that follow, we agree, and we vacate and remand for further proceedings.

I. BACKGROUND

Veino first qualified for SSDI benefits in 1973, following his service in the Vietnam War. He suffered from a combination of post traumatic stress disorder, anxiety, and substance abuse disorder. In 1982, the SSA conducted a continuing-disability review and found that he continued to be disabled. He has not engaged in any substantial gainful activity since 1973.

A. The Termination of Veino's Benefits

In 1996, Congress amended the Act to preclude a finding of disability, and an entitlement to benefits, "if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C). In 1997, the SSA commenced another continuing-disability review with respect to Veino. In connection with that review, Veino completed a questionnaire and stated, inter alia, that his condition had not changed, that he did not feel that he was able to work, that he performed no household chores and had no social contacts, that he was being treated for nerves and combat fatigue, and that his doctor had not told him he was able to work.

In a letter dated November 17, 1997, the SSA informed Veino that, "[a]fter reviewing all of the information carefully, we've decided that your health has improved since we last reviewed your case," and that his benefits would therefore cease. (SSA Letter to Veino dated November 17, 1997 ("SSA November 1997 Letter" or "Letter"), at 1.) The Letter stated, in part, as follows:

HOW WE MADE THE DECISION

The following reports were used at the time of our original decision to determine that you were disabled:

Steven Goldstein, Ph.D. report of 6/72

University Associates in Neurology, Inc. records of 9/72

VA records of 12/72 to 5/79

University Associates in Psychiatry, Inc. report of 1/75 to 1/81

Franklin Ryan, Ph.D. report of 10/77

Wm. Floyd, Jr. M.D. report of 11/77

Betty Jo Morwood, M.D. report of 9/82

The medical information showed that you were having emotional problems that made it difficult for you to complete a normal workweek.

We are reviewing your case now because that [sic] it was possible your condition would improve.

We used the following reports to decide if you continue to be disabled under our rules:

VA Hospital records of 2/97 to 4/97

Paul Candido, Ph.D. consultative exam dated 9/97

You said that you are still disabled because that [sic] you have problems with your nerves and you have combat fatigue. The new evidence shows that your condition has improved since you were last evaluated. You are able to remember, understand and carry out normal daily activities. You can do a wide range of non stressful work.

(SSA November 1997 Letter at 1.) The SSA concluded: "You are no longer disabled as of Nov. 30, 1997. You will get checks for that month and the next two months. Your last check will be for January 1998." (Id. at 2.) The Letter informed Veino that he had the right to seek reconsideration of that determination from a disability hearing officer.

B. The Decisions of the DHO and the ALJ

Veino sought reconsideration. The disability hearing officer ("DHO"), in a decision dated April 28, 1998, concluded that Veino was not disabled ("DHO Decision"). The DHO stated that the issues to be determined were whether Veino was disabled and "whether DAA [i.e., drug or alcohol addiction] is a contributing factor material to the finding of disability." (DHO Decision at 1.) The DHO made the following findings:

The hearing officer has reviewed the medical, vocational and other information in the claimant's claims folder pertaining to the issue(s) described above. The hearing officer has also reviewed the testimony and any additional documentary evidence submitted at the disability hearing. After careful consideration of all evidence, the hearing officer makes the following findings:

Claimant was found eligible for continued benefits effective 05/15/73 in the comparison point decision[](CPD) of 10/05/92 [sic] due to an anxiety disorder, paranoid personality and alcoholism of a severity to meet Listing 12.04A7bB. His benefits were ceased effective 11/97. It was determined that his condition had improved since the comparison point decision[] (CPD) of 10/05/82 and that he could perform simple low stress work.

At the CPD, evidence shows the claimant was very tense and suspicious. He was agitated with an enormous amount of intense rage and anger just below the surface. His expressed attitude was paranoid in nature, feeling he was being "ripped off" by the world. He was not psychotic and had no delusions or hallucinations. He complained of "combat fatigue" from his tour in Vietnam.[] He said he shook a lot in that he trembled constantly. He was observed to have hand tremors at rest on clinical psychological exam. He was oriented to time, place and person. Memory and concentration were intact. He was able to repeat five digits forward and three in reverse. He gave up on serial 7's. He was depressed with insomnia, suicidal and homicidal ideation but no plan. He had migraine headaches occasionally, with some lasting 18 days and not helped by pain medication. He was a loner, would not go into a public place by himself and had little contact with the community. He did have a few friends and one would come to his home to visit. He did no shopping and his wife managed their money. He rarely did household chores. His days were spent mainly watching TV. He did leave the home for his doctor appointments and to cash his check. He had a history of abusing alcohol. On 9/17/92 he denied abuse of alcohol to his treating psychiatrist and admitted use of eight cans of beer a day to a consulting psychologist he saw once....

Currently, claimant continues to complain of combat fatigue with the shakes, not associating with people and feeling uncomfortable leaving the home. He says his condition has essentially not changed in the past 20 years. He has not been in therapy or been on medication for five to six years. There are no symptoms or signs of anxiety on psychological exams. No shaking or tremors are observed. Claimant does report symptoms of agitation and insomnia at night. He will wake up in a cold sweat because of nightmares and will pace the floor. He has suicidal thoughts recently but no plan. He has never attempted suicide. There continues to be no thought disorder, delusions or hallucinations. He is alert and oriented to time, place and person. Concentration and memory are intact. He is able to repeat six digits forward and four in reverse. He was unable to do serial 7's on minimal effort. Claimant is alcohol and marijuana dependent. He smokes an ounce of marijuana a month and drinks up to a 12 pack of beer a day.

.... He seldom leaves the house except for appointments. Once in a while friends will come visit him. He does not drive. He has lost his license due to DWI's....

An analysis of the total evidence establishes that when the claimant is not abusing alcohol and drugs, he would be capable of understanding, remembering and carrying out simple job tasks where contact with others would be minimal in a routine work situation on a sustained basis. He would be able to meet all the basic mental demands necessary to do low stress unskilled work. When abusing drugs and alcohol he is unable to attend work and perform the tasks necessary for simple unskilled work on a sustained basis. Thus he would not be able to meet all the basic mental demands for even unskilled work....

(DHO Decision at 3-4.)

The DHO concluded that "there [had] been medical improvement of [Veino's] impairment(s) since the comparison point decision," stating that

[a]t the comparison point decision[] (CPD) claimant had severe anxiety such...

To continue reading

Request your trial
2263 cases
  • Gladden v. Commissioner of Social Sec., 06 Civ. 3671 (AJP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 29, 2008
    ...amended on other grounds, 416 F.3d 101 (2d Cir.2005); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); Draegert v. Barnhart, 311 F.3d 468, 472 (2d The combined effect of all impairments must be of such severity that the person is......
  • Cruz v. Colvin, 12 Civ. 7346 (PAC) (AJP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 2, 2013
    ...amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v. Apfel, 1......
  • Duran v. Colvin
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 22, 2015
    ...2005); Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v. Apfel, 1......
  • McClinton v. Colvin
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 2, 2015
    ...the court, must resolve evidentiary conflicts and appraise the credibility of witnesses, including the claimant. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, ......
  • Request a trial to view additional results
4 books & journal articles
  • Case Index
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume I
    • May 4, 2015
    ..., 363 F.3d 699 (8th Cir. Apr. 8, 2004), 8th-04 Tumminaro v. Astrue , 671 F.3d 629 (7th Cir. Nov. 1, 2011), 7th-11 Veino v. Barnhart , 312 F.3d 578 (2d Cir. Dec. 10, 2002), 2d-02 Warre v. Comm’r of SSA , 439 F.3d 1001 (9th Cir. Feb. 17, 2006), 9th-06 § 201.6. Commissioner’s Burden in Medical......
  • Case index
    • United States
    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. I - 2014 Preliminary Sections
    • August 2, 2014
    ...363 F.3d 699 (8 th Cir. Apr. 8, 2004), 8 th -04 Tumminaro v. Astrue , 671 F.3d 629 (7 th Cir. Nov. 1, 2011), 7 th -11 Veino v. Barnhart , 312 F.3d 578 (2d Cir. Dec. 10, 2002), 2d-02 Warre v. Comm’r of SSA , 439 F.3d 1001 (9 th Cir. Feb. 17, 2006), 9 th -06 § 201.6 Commissioner’s Burden in M......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume II
    • May 4, 2015
    ...1983), § 1702.7 Vega v. Secretary of Health and Human Servs ., 582 F. Supp. 1579, 1581 (D.P.R. 1984), § 1107.7 Veino v. Barnhart , 312 F.3d 578 (2d Cir. Dec. 10, 2002), 2d-02 Velasquez v. Apfel , 28 F. Supp.2d 1285, 1287 (D. Colo. 1998), §§ 202.2, 202.8, 210.3, 210.5, Venette v. Apfel , 14 ......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. II - 2014 Contents
    • August 3, 2014
    ...1983), § 1702.7 Vega v. Secretary of Health and Human Servs ., 582 F. Supp. 1579, 1581 (D.P.R. 1984), § 1107.7 Veino v. Barnhart , 312 F.3d 578 (2d Cir. Dec. 10, 2002), 2d-02 Velasquez v. Apfel , 28 F. Supp.2d 1285, 1287 (D. Colo. 1998), §§ 202.2, 202.8, 210.3, 210.5, Venette v. Apfel , 14 ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT