Winans v. Bowen, 86-3771

• Citation: 853 F.2d 643
• Decision Date: 04 August 1988
• Docket Number: No. 86-3771,86-3771
• Parties: Wayne WINANS, Plaintiff/Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 643

853 F.2d 643

22 Soc.Sec.Rep.Ser. 558

Wayne WINANS, Plaintiff/Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services,

Defendant/Appellee.

No. 86-3771.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1987.

Decided July 7, 1987.

As Amended Aug. 4, 1988.

Donald B. Fishman, Medford, Or., for plaintiff-appellant.

Richard H. Wetmore, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before ANDERSON, ^* TANG and NOONAN, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Wayne Winans appeals the denial of disability insurance benefits contending there is not substantial evidence to support the finding of no disability. We agree and reverse.

FACTS

On August 19, 1983, Winans applied for disability insurance benefits under Title II of the Social Security Act ("the Act"). His application alleged disability since June 18, 1982 due to narcolepsy. Narcolepsy is a rare syndrome of "recurrent attacks of sleep, sudden loss of muscle tone (cataplexy), hypnagogic hallucinations and sleep paralysis." The Merck Manual of Diagnosis and Therapy 1412 (13th ed. 1977). Cataplexy, from which Winans also suffers, is "a condition in which there are abrupt attacks of muscular weakness and hypotonia triggered by an emotional stimulus such as mirth, anger, fear, or surprise. It is often associated with narcolepsy." Dorland's Illustrated Medical Dictionary 228 (26th ed. 1985).

Winans' application was denied initially and upon reconsideration. Winans requested a hearing before an Administrative Law Judge ("ALJ"). On March 11, 1985, the ALJ found that Winans was not disabled. The ALJ concluded from medical records and testimony that Winans "does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." Excerpt of Record ("ER") p. 8. This became the final decision of the Secretary when the Appeals Council declined to review the ALJ's decision.

Having exhausted his administrative remedies, Winans brought suit in federal district court to obtain judicial review of the Secretary's final decision. The district court affirmed the Secretary's decision that Winans was not entitled to disability benefits under the Act. This appeal followed.

STANDARD OF REVIEW

"The role of a court in reviewing the Secretary's decision is a limited one." Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1985). This court will set aside a denial of benefits only if "the Secretary's findings are based upon legal error or are not supported by substantial evidence in the record as a whole." Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985) (citation and emphasis omitted); see Allen, 749 F.2d at 579 (citation omitted).

Substantial evidence 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) (citation omitted). This court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Secretary's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.1985). However, we "may not reweigh the evidence, substitute

                [our] own judgment for the Secretary's, or give vent to feelings of compassion."   Bowman v. Heckler, 706 F.2d 564, 566 (5th Cir.1983).  At the same time, this court must do more than merely rubberstamp the ALJ's decision.   Garfield v. Schweiker, 732 F.2d 605, 609-610 (7th Cir.1984)
                

EVIDENTIARY RECORD

At the time of his administrative hearing, Winans was 56 years old, with a high school education and technical training as an electrician. Winans testified that at the time of the hearing, he had at least three attacks daily which caused an abnormal and almost irresistible urge to sleep. Winans usually has a two to three minute warning before an attack and he can either lie down or try to fight it off. If he tries to fight it off, he eventually falls asleep anyway; and when fighting it, Winans has both alterations of awareness and loss of consciousness. Additionally, he is very susceptible to cataplexy attack in which there is a brief loss of muscle control of his head and upper body. Winans also testified that he suffers from related disorders: sleep paralysis, hypnagogic hallucinations, depression and tachycardia.

Winans testified that the narcoleptic symptoms began in 1955. Winans was first diagnosed as having narcolepsy in 1961 when he was evaluated by the Navy Regional Medical Center in San Diego. He began using Dexadrine, a stimulant, but due to an irregular heartbeat (tachycardia) and other developments, he is unable to take Dexadrine in a quantity sufficient to suppress the narcolepsy. The narcolepsy progressed to the point where, according to Winans, he was unable to work for over two years beginning in 1975.

In 1977, Winans underwent evaluation at the Stanford Sleep Disorders Clinic. ¹ Merrill M. Mitler, Ph.D., Administrative Director at the Clinic, reported on October 13, 1977, that Winans had a history of excessive daytime sleepiness, cataplexy, sleep paralysis, and hypnagogic hallucinations. The Nocturnal Polysomnogram and a Multiple Sleep Latency test confirmed the diagnosis of narcolepsy without qualification. These tests relied on an occipital electro-encephalogram (EEG), an electro-oculogram (EOG), an electro-myogram (EMG) and an electro-cardiogram (ECG). With the support of the Veterans Administration ("VA"), Winans was able to return to work after rehabilitation in 1978.

Winans began to experience increasing problems in 1981. Cylert was added to his medication, but was reduced because it caused his face and ears to flush. Clinic notes covering treatment from 1981 through August, 1983 indicate continuing medicine adjustment. In July, 1982, Winans' pulse rate increased to 120 beats per minute. In an attempt to decrease his heart rate, Winans was given Dexadrine and Cylert. Several months later, his heart rate was reduced to 100 beats per minute. During this period Winans was sent to the VA hospital in Portland. The VA rated him 100% disabled, but not permanently so. In December, 1982, he was doing better--his blood pressure was 130/88 in the supine position and his pulse was 88.

In January, 1983, Winans noted some chest tightness. Persistent tachycardia was noted in February, 1983. In June, 1983, his tachycardia had improved with a gradual decrease in Cylert, and Winans continued treatment with Altvan, Inderal and Dexadrine. He had ankle swelling and bruising due to a cataplexy attack. His blood pressure elevated to 170/100 and he was prescribed the sedative Valium. An August, 1983 chart note indicated intermittent tachycardia although it was better with decreased Cylert. His narcolepsy was no worse since the decrease in Cylert and he was "actually doing well now." He was "sleeping a lot--bad days only up 5 hours/days."

Dr. John A. Melson has been Winans' treating physician since 1973. In a January 5, 1984 report, he indicated that Winans was having between four and five narcoleptic Winans last worked in 1982. He quit working on the recommendation of Dr. Melson. Winans testified that he was injured on the job in April, 1981, left a lot of work undone because of sleeping at work, and was worried about a cataplexy attack while working above ground level.

                attacks per day which were mixtures of both cataplexy and/or sleep attacks.  Dr. Melson noted that according to Winans' wife, he had been sleeping more than he was awake.  Dr. Melson related Winans' difficulty with medication and tachycardia and observed that Winans, "like many patients, is unable to take Dexadrine in a dosage required to suppress narcoleptic symptoms.  In his case, this has never been very effective in blocking cataplexy anyway."    In July, 1984, Dr. Melson concluded that the frequent occurrence of both narcoleptic attacks and cataplexy made Winans unable to engage in substantial gainful activity.  Winans is extremely limited in his ability to drive, falls asleep watching television, has given up most activities and spends an inordinate amount of time in bed
                

On May 7, 1985, Dr. Melson reported that, in his medical opinion, Winans has a "degree of disability almost identical to that which would be engendered if his attacks were epileptic in origin rather than narcoleptic."

The Secretary's "examining" physicians, Drs. Ford and Reubens, agreed that Winans had narcolepsy, but were of the opinion that Winans' impairment did not meet or equal any listed impairment. It is significant to note that these "examining" physicians did not in fact personally examine Winans, but merely reviewed the documentary evidence of his affliction.

THE ALJ'S OPINION

Despite this uncontradicted evidence of the nature and degree of Winans' condition, the ALJ found him not disabled. From the analysis and findings of the ALJ, it is apparent that the basis of his ruling is that Winans' narcolepsy did not meet or equal in severity the requirements of the "Listing of Impairments." The ALJ held that "the medical evidence establishes that the claimant has severe narcolepsy, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." ER p. 8.

DISCUSSION

The Act provides that certain individuals who are "under a disability" shall receive disability benefits. 42 U.S.C. Sec. 423(a)(1)(D). ² The Act defines disability as...