20 CFR 404.152
The claimant filed an application for a period of disability and disability insurance benefits alleging inability to work at age 39 because of cancer. The medical evidence of record as of December 1965 established that for 20 years the claimant had a diabetic condition that had not constituted a serious vocational handicap, and that his cancer had responded satisfactorily to treatment without recurrence or progression. In November 1966, a report form the claimant's physician rated the claimant "totally disabled" and suggested that the claimant's condition had deteriorated, but neither diagnoses nor objective findings were offered in support of such conclusion. To determine whether there had been a recurrence of the claimant's cancer or whether his diabetic condition had worsened, the claimant was requested several times to submit to a consultative medical examination, and he and his attorney were advised of the importance of the requested examination in reaching a proper decision and as to the effect of refusal without good cause to submit to the examination. The claimant refused to undergo the examination, and gave no reasons for such refusal. Held, since the claimant made now showing of good cause for his refusal to submit to the consultative medical examination, it is determined under the authority of section 404.1527 of Social Security Administration Regulations No. 4 (20 CFR 404.1527) that the claimant is not under a disability, and accordingly, he is not entitled to a period of disability or to disability insurance benefits.
This case is before the Appeals Council on the claimant's request for review of the hearing examiner's decision dated May 21, 1966. The claimant, an aircraft electrician and parts fabricator, filed his application for the establishment of a period of disability and disability insurance benefits on March 29, 1965, alleging that he became unable to work on December 23, 1959, at age 39, because of cancer. The claimant was born on December 5, 1920, and completed two years of college. Following the denial of his claim initially and upon reconsideration by the Bureau of Disability Insurance, the claimant filed a request for a hearing before a hearing examiner of the Bureau of Hearings and Appeals and subsequently appeared and gave testimony at the hearing held on April 21, 1966, at which he was represented by counsel. The hearing examiner held that the claimant was not entitled to a period of disability or the disability insurance benefits under applicable provisions of the Social Security Act.
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STATEMENT OF THE LAW AND ISSUES
Section 216(i) of the Social Security Act sets out the requirements for the establishment of a period of disability and section 223 for the payment of disability insurance benefits. As herein pertinent, both sections prior to the enactment of the Social Security Amendments of 1965 on July 30, 1965, defined "disability" as an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.
In pertinent part, sections 216(i) and 223 of the Act, as amended, now define "disability" as an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
When a claimant's entitlement is dependent on the amended definition of "disability," disability insurance benefits are not payable for any months prior to September 1965 [section 303(f)(1) of Public Law 89-97]. Entitlement to a period of disability may not be established under an application if the period would have ended more than 12 months before the date such application was filed [section 216(i)(2)(E) of the Act as amended in 1965].
The Amendments of 1965 eliminated the provisions of the Act which limited the prospective life of disability applications. The Act now provides that if a claimant meets all the requirements for entitlement at any time before the Secretary issues a final decision on an application, such application shall be deemed to have been filed in the first month in which all requirements were met.
The general issues before the Appeals Council are whether the claimant is entitled to a period of disability and to disability insurance benefits under sections 216(i) and 223, respectively, of the Social Security Act as amended. The specific issues are whether the claimant was under a "disability" as defined in the Act either prior to or after the Social Security Amendments of 1965, and if so, when such disability commenced and the duration thereof; and whether the special earnings requirements of the Act are met for the purpose of entitlement.
The claimant's earnings record shows that the special earnings requirements of the Act were met from a time prior to December 23, 1959, when the claimant allegedly became unable to work, and that these requirements continue to be met through December 31, 1964. Therefore, in order to be entitled to a period of disability or to disability insurance benefits, it is necessary for the claimant to establish that he was under a "disability" from a time on or prior to December 31, 1964.
SUMMARY OF THE MEDICAL EVIDENCE
The medical evidence before the hearing examiner consisted of reports from Dr. [A], a general practitioner and the claimant's attending physician; a report from Dr. [B], a specialist in otolaryngology; reports from the University of [X] Hospital; reports from [Dr. C], a radiologist of the [Y] Medical Group; and the results of an examination conducted on December 10, 1965, conducted by Dr.[D] a Board-certified specialist in the field of internal medicine.,/p>
Dr. [A] reported that the claimant was first treated for a "sore throat" in October 1964 at which time some tonsillar exudate was noted. Subsequently, the claimant was referred to Dr. [B] who submitted a report dated March 30, 1965, indicating the claimant's impairments were diagnosed as epidermoid carcinoma of the left tonsil and diabetes mellitus. Dr. [B] indicated the claimant's height was 5 feet 6 inches and he weighed 135 pounds. The claimant was referred to the [University of X] Medical Center for treatment in February 1965.
A discharge summary from the University of [X] Hospital showed that the claimant was admitted on February 22, 1965, with a history of left-sided sore throat for approximately 8 months. The claimant's chief complaints were severe pain in this area and inability to eat. He also reported that he had been a diabetic for 20 years and had been taking 35 units of insulin for years with no sequelae. The claimant was placed on a sliding-scale regimen of insulin and a biopsy of February 23, 1965, disclosed epidermoid carcinoma of the left tonsil. The claimant was then followed on conservative therapy and arrangements were made for him to receive X-ray treatment at the [Y] Medical Group. He was discharged from the hospital on February 27, 1965, with diagnoses of diabetes mellitus; epidermoid carcinoma of the left tonsil; and left lower lobe pneumonitis.
Dr. [C] of the [Y] Medical Group submitted a medical report dated July 2, 1965, which showed that the claimant underwent 24 cobalt 60 radiation treatments to his left tonsillary area between March 1 and April 2, 1965. Dr. [C] reported that the claimant tolerated the treatment well with the usual radiation reaction and that a satisfactory result appeared to have been obtained. The claimant was next seen on May 2 and June 1, 1965, at which time no evidence of recurrence was seen but there was indication of scarring in the area of the previous tumor. Dr. [C] also stated that no biopsy had been obtained at that time and he did not know if the tumor had been completely eradicated on a histological basis. Dr. [C] concluded his report with the following opinion:
The prognosis is good that [the claimant] has been cured of his cancer. This of course requires a minimum of 2 years followup, however, an ENT evaluation of the patient would determine his ability to proceed in satisfactory work.
Dr. [E], an assistant resident in head and neck surgery at the University of [X] Hospital reported that, when seen on June 18, 1965, the claimant was feeling quite well, had no soreness of the throat and there were no neck masses. Biopsies of the left lateral pharyngeal wall disclosed "chronic inflammation and fibrosis consistent with the radiation effect." The claimant was scheduled to be seen in approximately one month.
Dr. [F], an assistant resident in head and neck surgery at the University of [X] Hospital, reported that the claimant was seen on July 26, 1965, complaining of intermittent bleeding from the mouth over the past month with associated dizziness, but no vomiting. Examination of the neck revealed it to be whitish but clean and free of tumor. Examination of the neck revealed no adenopathy (disease of the glands). The claimant's vital signs were stable and he weighed 125 pounds. Dr. [F] was of the impression that the claimant might be bleeding from recurrent tumor or from chronic inflammation and felt that it might be necessary to follow the claimant closely. He suggested a possible direct laryngoscopy in the near future.
A report from Dr. [G], Medical Director of the [Y] Medical Group, revealed that the claimant was last seen on August 24, 1965; that he complained of pain in the throat; that there was no sign of residual malignancy in the throat or cervical lymph nodes; and that there were no specific restrictions on the claimant's activities.
Under the auspices of the [Z] Department of Rehabilitation, arrangements were made with a specialist in internal medicine to obtain a thorough history of the claimant's symptomatology and to conduct an examination to adequately assess the claimant's current diabetic status and to determine whether or not there had been any recurrence of the neoplastic disease process. The symptomatology related by the claimant prior to such examination, which was conducted on December 10, 1965, by Dr.[D] involved pains in the posterior cervical region of the neck and conspicuous dizziness since radiation therapy. The claimant stated that, at the time of the institution of X-ray therapy, he weighed 115 pounds and that he had gained weight to a current level of 127 pounds. Dr. [D] noted that the claimant was pale, poorly nourished and developed and appeared older than his stated age of 45. Examination of the eyes showed normal extraocular movements; the visual fields appeared to be normal and examination of the fundi disclosed a few scattered exudates and rare microaneurysm. Examination of the pharynx reveled considerable retraction of the soft palate on the right and the tonsils were not seen. The neck was supple and no lymph nodes were felt. Examination of the heart, abdomen and chest was not remarkable. The extremities were noted to be poorly muscled and developed; however, no deformity was noted and no edema (swelling) was present. Neurological examination was normal. Dr. [D] discussed the results of his examination as follows:
A urine specimen today was yellow in color and clear. The reaction was acid. The specific gravity was 1.014. No protein was present, but there was a 4+ test for sugar. The sediment contained no formed elements. Blood was drawn for CBC, sugar, and BUN. The resting electrocardiogram is thought to be normal. He has been referred to a local laboratory for X-ray examination of the chest.
It is not known whether the patient has adequate control of his diabetes at this time on the basis of a single examination. He has none of the severe late complications of his disease even though the diagnosis has been present for 25 years. He appears rather pale, and he is poorly nourished, and appears older than his stated age. Follow-up examinations of his epidermoid carcinoma of the tonsil are being made and presumably it is felt that his prognosis is fairly good.
In conjunction with his request for review of the hearing examiner's adverse decision, the claimant submitted a report from Dr. [A] which showed that the claimant was examined on November 7, 1966, and found to have a fasting blood sugar value of 300 milligrams percent. Dr. [A] further stated:
The condition of his throat, which proved to be a carcinoma, makes it impossible for him to swallow any solid foods.
He is getting progressively weaker and is unable to dress himself. He cannot walk without help and has periodic dizzy spells, and according to his wife he falls frequently.
His condition cannot be expected to improve and he could be rated now as totally disabled.
EVALUATION OF THE MEDICAL EVIDENCE
As heretofore stated, the issue presented to the Appeals Council for resolution is whether the claimant has established, by the evidence of record, the existence of an impairment or combination of impairments of sufficient severity to prevent him from engaging in any substantial gainful activity, within the meaning of the Act prior and subsequent to the Social Security Amendments of 1965, beginning at any time on or prior to December 31, 1964.
On the basis of the evidence before him, the hearing examiner found, in essence, that the claimant responded satisfactorily to treatment for neoplastic disease without significant residual dysfunction and that his longstanding diabetic condition had not resulted in serious complications. On the basis of the record as it is now constituted, the Appeal Council concurs with and finds no basis for modification of the hearing examiner's decision.
The evidence of record discloses the existence of two unrelated impairments which merit serious consideration in an evaluation of the claimant's ability to engage in substantial gainful activity.
In evaluating impairments involving the endocrine system, the Appeals Council is guided by section 404.1518(b) of Social Security Administration Regulations No. 4 [20 CFR 404.1518(b)] which provides:
Diabetes mellitus usually responds to management by diet, insulin, or hypoglycemic agents. With the passage of time the condition may result in damage to the vascular system throughout the body. Most commonly affected sites are the lower extremities, the eyes, kidneys, or the nervous and cardiovascular system. In determining the degree of functional impairment, consideration is given to the treatment used and the residual manifestations in terms of specific organs and body systems.
The medical evidence before the hearing examiner revealed that the claimant has a 20 year history of diabetes mellitus requiring administration of insulin therapy. At the hearing, the claimant testified that this condition has never been under a satisfactory state of control because he has been unable to adhere to a diabetic diet because of the cost involved. However, the Appeals Council notes that this condition has obviously not interfered with the performance of substantial gainful activity in the past. Of greater significance is the fact that the evidence before the hearing examiner failed to disclose any significant worsening of this condition. If the diabetic process were not adequately controlled for any substantial period, it is expected that manifestations of systemic damage such as retinopathy (non-inflammatory disease of the retina), nephropathy (disease of the kidneys), neuropathy (degenerative nerve disease), or angiopathy (disease of the vessels) would be evident. No such manifestations of end-organ involvement were reported by any of the physicians of record, including the claimant's treating sources. In view of the foregoing considerations, the Appeals Council believes and so finds that the evidence before the hearing examiner conclusively established that the claimant's diabetic condition has not and would not pose a serious vocational handicap. Furthermore, since it appears that this condition would improve if the claimant followed medical opinion, it fails to satisfy another test of "disability" imposed by the Act. Adherence to a diabetic diet would not require more than "reasonable effort" on the claimant's part and would in no way endanger his health.
In assessing neoplastic (malignant) impairments, consideration is given to the location of the lesion, operability, recurrence or progression [section 404.1519(c)(3) of the Social Security Administration Regulations No. 4]. The evidence before the hearing examiner clearly established that the claimant's neoplastic impairment, diagnosed as carcinoma of the left tonsil, responded satisfactorily to cobalt therapy to the extent that by June 18, 1965, the claimant was "feeling quite well, had no soreness of the throat, and there were no neck masses." As late as August 1965 there were no signs of residual malignancy in the throat or cervical lymph nodes and there were no specific restrictions on the claimant's activity. Nevertheless, by November 1966, the claimant's attending physician rated him "totally disabled" and his report suggested possible deterioration in the claimant's condition.
At this point, it is proper to note section 404.1526 of Social Security Administration Regulations No. 4 (20 CFR 404.1526) which provides:
The function of deciding whether or not an individual is under a disability is the responsibility of the Secretary. A statement by a physician that an individual is, or is not, "disabled," "permanently disabled," "totally disabled," "totally and permanently disabled," "unable to work," or a statement of similar import, being a conclusion upon the ultimate issue to be decided by the Secretary, shall not be determinative of the question of whether or not an individual is under a disability. The weight to be given such physician's statement depends on the extent to which it is supported by specific and complete clinical findings and is consistent with other evidence as to the severity and probably duration of the individual's impairment or impairments.
Although Dr. [A's] report suggested possible deterioration of the claimant's condition, neither diagnoses nor objective findings were offered in support of a conclusion that the claimant was "totally disabled." Accordingly, the Appeals Council granted the claimant's request for review of the hearing examiner's decision and requested the [Z] Department of Rehabilitation to arrange for the claimant to be examined by a Board-certified specialist in the field of internal medicine as well as any special studies, if necessary, to determine whether or not manifestations of a serious diabetic condition now existed; the etiology of the claimant's alleged dizzy spells; whether or not there had been any recurrence of the neoplastic process; and to determine the claimant's functional capacity for substantial gainful activity. The Appeals Council requested the Department of Rehabilitation on December 23, 1966, to arrange for such an examination. On February 7, 1967, the Department of Rehabilitation notified the Appeals Council that the claimant had not cooperated insofar as arrangements for the requested examination were concerned. A field representative of the Social Security District Office in [W] attempted to personally contact the claimant on February 1, 1967, but was refused admission by the claimant's wife. On February 23, 1967, the Appeals Council recontacted the [Z] Department of Rehabilitation and suggested that the claimant's representative, Mr. [H] be contacted and advised of the importance of the requested examination in reaching a proper decision. On March 30, 1967, Mr. [H] reported "I am advised that [the claimant] declines to take further medical examinations at this time."
Section 404.1527 of the Social Security Administration Regulations No. 4 (20 CFR 404.1527) states as follows:
Consultative examinations—Upon reasonable notice of the time and place thereof, any individual alleged to be under a disability shall present himself for and submit to physical or mental examinations or tests, at the expense of the Administration, by a physician or other professional or technical source designated by the Administration or the State agency authorized to make determinations as to disability. If such individual fails or refuses to present himself for any examination or tests, such failure or refusal, unless the Secretary determines that there is good cause therefore, shall be a basis for determining that such individual is not under a disability. Religious or personal scruples against medical examination or test shall not excuse an individual from presenting himself for a medical examination or test. (Underscoring supplied)
Thus, under this section, if a claimant refuses to present himself for an examination, such refusal, in the absence of a showing of good cause, as determined by the Administration, shall be a basis for determining that the claimant is not under a "disability." After the Appeals Council learned that the claimant had not cooperated in submitting to the requested examination, the Appeals Council requested that the claimant's representative be advised of the refusal and be made aware of the importance of such examinations. In short, the Appeals Council made every effort to explain the purpose of the requested examination to the claimant and his attorney; they have been given good cause for the claimant's refusal to submit to the recommended examination, the claimant, pursuant to section 404.1527 of the Social Security Administration Regulations, cannot be found to be under a "disability" within the meaning of the Social Security Act:
FINDINGS OF THE APPEALS COUNCIL
The Appeals Council, after carefully considering the entire record, makes the following findings:
The claimant last met the special earnings requirements of the Act on December 31, 1964.
The claimant was born on December 5, 1920, completed 2 years of college and was principally employed as an aircraft electrician and parts fabricator.
The evidence of record shows the claimant has diabetes mellitus which has been present for approximately 20 years and has not resulted in systematic pathology.
The evidence of record fails to establish that this diabetic condition would pose a serious vocational handicap.
The evidence of record shows that the claimant's neoplastic impairment has responded satisfactorily to treatment without recurrence or progression.
Despite repeated requests to the claimant and his attorney, the claimant has persisted in his refusal to undergo a physical examination which the Appeals Council had determined it required in order to obtain a report of the claimant's medical status and thus, fully document the medical record in this case.
Under section 404.1527 of the Social Security Administration Regulations No. 4, the claimant's refusal to submit to the additional examination, without good cause, constitutes a basis for finding him not under a "disability."
There was no "good cause" for the claimant's refusal to submit to the special examination requested by the Appeals Council, and therefore, the claimant was not under a disability which began on or prior to December 31, 1964, as defined under the provisions of the Social Security Act prior and subsequent to the Social Security Amendments of 1965.
It is the decision of the Appeals Council that the claimant, based on his application filed on March 29, 1965, is not entitled to a period of disability or to disability insurance benefits under the provisions of sections 216(i) and 223, respectively, of the Social Security Act, in effect prior to the Social Security Amendments of 1965 or as amended thereby. The hearing examiner's decision, as herein supplemented, is affirmed.
Section 404.1502(g) of Social Security Administration Regulations No. 4 [20 CFR 404.1502(g)states:
An individual will be deemed not under a disability if, with reasonable effort and safety to himself, the impairment can be diminished to the extent that the individual will not be prevented by the impairment from engaging in any substantial gainful activity.
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