Wagner v. Secretary of Health and Human Services

• Decision Date: 22 June 1990
• Docket Number: No. 1290,D,1290
• Citation: 906 F.2d 856
• Parties: , Unempl.Ins.Rep. CCH 15544A Janine A. WAGNER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. ocket 90-6023.
• Court: U.S. Court of Appeals — Second Circuit

Page 856

906 F.2d 856

30 Soc.Sec.Rep.Ser. 314, Unempl.Ins.Rep. CCH 15544A

Janine A. WAGNER, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 1290, Docket 90-6023.

United States Court of Appeals Second Circuit.

Argued May 3, 1990.

Decided June 22, 1990.

Esther R. Goldbas, Andrew D. Miller, law student interns, Ithaca, N.Y. (Barry Strom, Cornell Legal Aid, Ithaca, N.Y., of counsel), for plaintiff-appellant.

Judith L. Pearlstein, Asst. Regional Counsel, New York City (Michael J. Astrue, Gen. Counsel, Annette H. Blum, Regional Chief Counsel, U.S. Dept. of Health and Human Services, Frederick J. Scullin, U.S. Atty., N.D.N.Y., Syracuse, N.Y., of counsel), for defendant-appellee.

Before LUMBARD, FEINBERG and WINTER, Circuit Judges.

WINTER, Circuit Judge:

In this action under 42 U.S.C. Sec. 405(g) (1982), plaintiff-appellant Janine Wagner sought to overturn the denial by the Secretary of Health and Human Services ("Secretary") of disability benefits for the period between September 10, 1980 and August 12, 1983. Chief Judge McCurn upheld the Secretary's decision. On appeal Wagner asserts that the Secretary and the district

                court failed to accord the proper weight to the opinion of her own doctor under the "treating physician rule."    We agree.  Wagner's physician has opined that the disabling symptoms he chronicled during the time period in question were caused by the syndrome responsible for her present (post-1983) disability.  The Secretary has offered no evidence to the contrary.  We therefore order that benefits be awarded effective September 10, 1980
                

BACKGROUND

The back-benefit issue arises from a consolidation of separate disability applications filed by Wagner. The first, submitted November 25, 1980, claimed that a variety of impairments, including collagen disease, muscle disease affected by allergies, and arthralgia, prevented her from working. The claimed onset date for these disabling symptoms was September 10, 1980. The Secretary denied this application. Wagner requested a formal hearing, after which the Administrative Law Judge ("ALJ") found that, although Wagner could not return to her job as a parts inspector, she did retain the functional capacity for sedentary work and was therefore not disabled. The Appeals Council denied Wagner's request for review on July 13, 1982. Wagner thereafter filed suit in the Northern District pursuant to 42 U.S.C. Sec. 405(g). Magistrate Smith concluded that the Secretary's finding of an absence of disability was supported by substantial evidence. After the district court adopted the magistrate's recommendation, Wagner appealed.

Meanwhile, Wagner had filed a second application for benefits. This application, submitted on September 22, 1983, stated that, in addition to the symptoms identified in her initial application, she was experiencing, inter alia, severe headaches and weakness on her left side, and had had a stroke in August 1983. Because she was still litigating the Secretary's denial of benefits on her first application, Wagner asserted an onset date of March 26, 1982, corresponding to the day after the announcement of the ALJ's decision following her hearing.

The "stroke" identified in Wagner's second application was technically a "stroke-like episode" which she suffered on August 11, 1983. This trauma required her hospitalization and left her with persistent and severe headaches as well as weakness on the left side of her body. Wagner was examined in late August 1983 by Dr. Ronald Naumann, a neurologist. Dr. Naumann diagnosed her condition as "hemiplegic migraine," a syndrome in which migraine headaches are accompanied or preceded by aphasia, confusion, and muscle weakness on one side of the body. After an initial denial, the Secretary awarded disability insurance benefits to Wagner on her second application, but only for the period commencing August 12, 1983, the day of her hospitalization for treatment of the stroke-like episode.

Disagreeing with this disposition to the extent that it denied disability for the period between March 26, 1982 and August 13, 1983, Wagner continued to pursue her remedies within the Department of Health and Human Services. As her appeal of the second application reached the hearing stage, her original application was remanded by this court and the district court to the Secretary for consideration of the hemiplegic migraine diagnosis with regard to the light it might shed on the 1980-82 period.

The Secretary consolidated consideration of the two applications. Hearing the matter on the existing record at the request of the Secretary, the ALJ issued the decision that is the subject of the instant appeal. We summarize the material aspects of that record. Wagner's primary treating physician from 1972 through the period in question was Dr. Stephen Blatchly, a board-certified family practice physician. In September 1980, a combination of symptoms including severe muscle and joint pain and depression, for which she had been treated by Dr. Blatchly for several years, intensified to such an extent that Wagner could not continue to perform her job as a parts inspector in a typewriter-manufacturing plant, a position she had held since 1974.

Wagner's symptoms eluded easy diagnosis. Dr. Blatchly ran a battery of tests, but was never able to state with confidence exactly what was causing her pain. His early diagnoses included bronchitis, arthritis and "collagen disease," a term describing any one of a number of diseases featuring widespread pathological changes to the connective tissue. Although unable to pinpoint the origins of Wagner's problems, Dr. Blatchly continued to treat her symptoms by prescribing a variety of pain relievers and antidepressants.

Wagner was also examined by a number of other physicians during the period in question. On November 6, 1980, she was seen by Dr. Jerry Hersh, another board-certified family practitioner, in connection with her employer's disability insurance requirements. Dr. Hersh, after speaking over the phone with Dr. Blatchly, noted the latter's then-current diagnoses of bronchitis and collagen disease and, in response to the insurance form's query as to his own personal diagnosis, answered "anxiety & depression" complicated by respiratory symptoms possibly caused by allergies. Dr. Hersh stated that Wagner was disabled primarily on the basis of "underlying problems of anxiety and depression," but specifically acknowledged that she was not in his opinion "malingering," and indicated that his findings suggested a period of disability prior to his examination.

Wagner was also referred to Dr. John Hirshfeld, a board-certified general surgeon, for a consultative examination pursuant to her first application. The exam was conducted on March 17, 1981. His report notes her complaints of constant pain in her legs, back and left arm and her difficulty in walking. His physical examination revealed a normal range of motion in her extremities and no external indicia of disabling disease. Describing the patient as "an enigma," he suggested that her problems were emotional, but conceded that, although he was "inclined to doubt" it, she might be suffering from some undiagnosed disease.

In May and June 1982, Wagner was twice examined at Dr. Blatchly's suggestion by Dr. John Jabbs, an internist and rheumatologist. Dr. Jabbs, a specialist in connective tissue diseases, found no indication of collagen disease or any other serious somatic disorder. He noted that she displayed great discomfort upon examination but pointed out that her pain seemed exaggerated, "in that standard noxious stimuli caused inappropriately great pain reactions." Like Dr. Hirshfeld, he believed that while "[r]emotely she could have some form of neurological disease," her symptoms were more likely "psychogenic or hysteric."

The only psychiatric specialist to examine Wagner was Dr. Jennifer Rich, who saw her in October 1981. Dr. Rich credited Wagner's reports of physical pain on the basis of her appearance in the examination room, and surmised, apparently after reviewing Dr. Blatchly's reports and taking an oral history from the patient, that her "underlying disorder ... appear[ed] to be one of the collagen disorders." In the context of her discussion of Wagner's physical difficulties, Dr. Rich stated that Wagner was "markedly disabled." Her psychiatric diagnosis was adjustment disorder with depressed mood.

The record also includes notes by Dr. Naumann, who made the eventual diagnosis of hemiplegic migraine. They state that, immediately prior to the stroke-like trauma, Wagner "was in her normal state of good health."

Dr. Blatchly, as Wagner's treating physician, consistently took the position before the Secretary that his patient was disabled. In his initial testimony in 1981, he stated that it was "impossible for her to sit for any period of time, [or] ... to stand for long periods of time." Reporting that she had to change positions almost constantly to avoid discomfort, pain medications notwithstanding, Dr. Blatchly asserted unequivocally, "[t]here is no question in my mind having treated her repeatedly ... that Mrs. Wagner is totally and permanently disabled." Although his then-current diagnosis was "arthritis non-specific with associated anxiety depression," he admitted at the hearing that he was not sure what After the stroke-like episode of August 1983, however, Dr. Blatchly became convinced that the hemiplegic migraine that had manifested itself in that trauma had also been the cause of Wagner's symptoms over the preceding three years. He stated his revised conclusions in an October 1984, letter to the ALJ:

her syndrome would "turn out to be," and that he could not yet "give her a good handle for it."

This 36 year old white female, who has been an extremely puzzling problem over the past five years, has finally clarified the cause of her disability and her problems. She has had a long...