20 CFR 416.901(b), 416.917(e), and 416.981
DUVALL V. MATHEWS, USDC, D. Maryland, Civ. No. Y 76-157 (1/6/77) (Aff'd. per curiam USCA, Fourth Circuit, 2/11/78)
YOUNG, District Judge:
Plaintiff, George Duvall, filed this action pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g) on January 29, 1976 to obtain judicial review of a final decision of the Secretary of Health, Education and Welfare which denied plaintiff's claim for continuation of disability benefits under the Social Security Act, 42 U.S.C. § 301 et seq.
This case is before the Court on cross-motions by plaintiff and defendant for Summary Judgment based upon the administrative record. Plaintiff moves this court to either reverse the decision of the Secretary and allow plaintiff benefits or, in the alternative, remand to the Secretary for a "fuller and fairer hearing".
Plaintiff, George Webster Duvall, was born on February 14, 1928. He completed ten grades of school. He spent three years on active duty and four years of reserve duty in the Army beginning in 1951 where he claims to have been given no specialized training. His significant work experience consisted of a two year period of work at Sinai Hospital in different capacities including dishwasher, general porter, salad man, and shipping clerk; working at the Hecht Company for one Christmas; for Montgomery Ward; for American Drydocks in their paint department; making glycerine to go into soap at the Lever Brothers Soap Factory on Holabird Avenue; and general labor jobs procured at the Howard Street Manpower Corporation which included a job as a forklift operator in a warehouse. Plaintiff lives alone in a rented room on 912 East Preston Street. On occasion, he also stayed in The Chapel which is a mission on Baltimore Street.
Plaintiff alleges continuous inability to work since immediately prior to December, 1973 when he began receiving aid under the Maryland State program of aid to the disabled which was automatically converted to Supplemental Security Income benefits in January 1974. The alleged reasons for this disability include chronic alcoholism, arteriosclerosis, and anxiety neurosis.
Plaintiff complained of difficulty walking around or moving when "his heart thing" gave him trouble. He feels that his heart beats very weakly and that sometime it almost stops. He also noted occasional pain around the heart. Plaintiff stated that he sleeps well unless the temperature bothers him. He also states that occasionally he does not eat well but that he does have dietary pills to correct that situation. Plaintiff acknowledges his present state of alcoholism but claims that as the result of doctor's orders he has cut down considerably on his drinking. Plaintiff was last hospitalized at Johns Hopkins where he underwent tests for possible rectal cancer. He left the hospital claiming the tests were to painful but stated that he would return later. At one time he entered Providence Hospital for convalescence for what he described as fatigue. He had also been admitted to University Hospital because of his alcoholism; he stated that he was sent to the alcoholic rehabilitation center known as Turk Home. Plaintiff admits to having spent three days in Crownsville Hospital. When asked to recall the names of the physicians that treated him, plaintiff could only recall Dr. Nakazowa (spelled in the transcript as Nokensowa). Plaintiff was advised that medical records from both Dr. Nakazowa and from Dr. Gonzalez regarding plaintiff's condition were in defendant's possession as part of the court record. When questioned as to what medications he was then taking, he replied that he was taking Valium, 5 mg. for his nervous condition, the food supplement, Miodake, and introstat which he said that he was "not supposed to touch" unless he was having one of his "heart flutters". Plaintiff was asked about an alleged medical discharge from the Army which was a "368 discharge". Plaintiff himself explained the nature of the discharge by stating that it was really an undesirable discharge rather than medical, and that it was received as a result of plaintiff's relationship with a girl while in the service, which resulted in the birth of a child, presumably illegitimate. When questioned as to whether he ever got depressed, plaintiff responded, "Yes, I get depressed, just like everybody else", and that he got upset "whenever something upsets [him]" without being more specific.
The evidence shows that plaintiff was discharged from Turk Home (A.R.U. University Hospital) on March 17, 1972. He was given his first examination by Hiroshi Nakazowa, M.D., on March 22, 1972, which revealed that plaintiff had mild chest pains, gas in the epigastrium, and anxiety neuroses; however, the absence of heart arrythmia or murmur was noted. Plaintiff was given nitroglycerin and Volisin. During the period December 22, 1972 to December 27, 1972 plaintiff was examined by A. Fernandez, M.D., after plaintiff had been voluntarily admitted to Crownsville State Hospital as the result of over-ingestion of alcohol. Physical examination noted no gross pathology. The diagnosis was alcohol addiction and the disposition consisted of recommended Alcoholics Anonymous meeting and vocational rehabilitation.
Luis Felipe Gonzalez, M.D., a specialist in both cardiovascular diseases and psychiatry, examined plaintiff on July 15, 1974. He found no clinical evidence of damage associated with chronic alcoholism, that there was no EKG evidence of rhythm disturbance while at rest, myocardial infarction, or myocardial ischemia. He noted that the historical data was presented to him in a clear cut manner which did not suggest the impairment of effective intelligence. He further stated that the affective status appeared within normal limits, and that there was noting to suggest undue anxiety, tension, depression or swing in mood, reality contact was within normal limits, and that there was no delusion, hallucination, confusion, paranoid tendency or bizarreness.
Dr. Gonzalez did make the statement that, "in view of the fact that this man has not worked since 1969 it is doubtful that he will return to active work activities currently", but there was no statement made by the doctor that plaintiff could not or should not work. When asked if the doctors ever told him that he could not work, plaintiff responded that they never told him that. He stated that the question never came up but that he was supposed to return to Johns Hopkins for further examination with respect to the finding of rectal polyps and the possibility of cancer. There is no evidence in the record to indicate that plaintiff has cancer of the rectum.
The testimony of the Director of the Vocational Rehabilitation Program at Springfield Hospital Center in Sykesville, Maryland, who was retained by the Social Security Administration as a Vocational Expert, was introduced into evidence.
The vocational expert, Billy R. Montgomery, testified that by virtue of plaintiff's age, education, past training and experience, and based upon alternative assumptions of fact supported by the evidence, an individual such as the plaintiff could work as a dispatcher or scheduler of work. He could be a dispatcher of vehicles in a car rental pool or a dispatcher of vehicles in a truck transfer operation which are sedentary types of jobs and are available in the national economy.
It must finally be noted that during the hearing, plaintiff's attorney, Mr. Rourke, renewed his request that there be a psychological or psychiatric evaluation of Mr. Duvall, based upon the findings of Dr. Nakazowa, the opinion of Dr. Gonzalez and the testimony of record, before the final decision was made. The Hearing Examiner replied that he would take the request under consideration but the record indicates that he neither granted nor explicitly denied the request.
The question before this court is whether or not there is substantial evidence to support the Secretary's denial of benefits after October 31, 1975. If there is such substantial evidence, then the Court must affirm the Secretary's finding. The fact that the record as a whole might support an inconsistent conclusion is immaterial. The court must uphold the Secretary's decision if supported by substantial evidence, even though the court may disagree with that decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence has been defined by the Court of Appeals for the Fourth Circuit as follows:
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (emphasis added).
In determining whether there is substantial evidence to support the final decision of the Secretary in Social Security disability benefits cases, four interrelated types of proof are to be considered: (1) objective medical facts, (2) expert medical opinions, (3) subjective evidence of pain and disability, and (4) claimant's present age, educational background and work history. Arrington v. Celebrezze, 252 F.Supp. 65 (M.D. N.C. 1965).
The term "disability" as it applies here is defined in Section 223(d)(1) of the Social Security Act (42 U.S.C. Section 423(d)) to mean:
Section 223(d)(3) of the Act (42 U.S.C. Section 423(d)(3) provides:
Section 223(d)(5) of the Act (42 U.S.C. Section 423(d)(5) provides:
In the instant case, examinations by Luis Felipe Gonzalez, M.D. specialist in cardiovascular diseases and psychiatry, on July 15, 1974, and by Hiroshi Nakazowa, M.D., on March 22, 1972, reveal that there is an absence of detectable heart disturbance in plaintiff. Dr. Gonzalez finds no clinical evidence of damage associated with chronic alcoholism. The anxiety neurosis found by Dr. Nakazowa which appears to be associated with plaintiff's alcoholic state was not found by Dr. Gonzalez to be so extreme as to unduly affect plaintiff's moods or ability to think.
There is no indication by any of the examining doctors that plaintiff could not or should not work. There is only an observation by Dr. Gonzalez that because of the nature of plaintiff's recent period of unemployment, he will not likely seek to return to active work.
There is no question that plaintiff is a chronic alcoholic, that he experiences pain to some degree and anxiety, most recently associated with tests to determine whether or not he has rectal cancer. The Administrative Law Judge found that plaintiff's alcoholism alone is not sufficient to prevent him from carrying on substantial gainful activity; his doctors and the vocational expert do not indicate otherwise. It was held in Roberts v. Gardner, 396 F.2d 501 (4th Cir. 1968), that the claim that a Social Security claimant was a chronic alcoholic did not warrant overturning trial court's finding that plaintiff was able to work in the relevant period. In this case, the vocational expert, Billy R. Montgomery, considering the plaintiff's age, his educational background, past experience, and his physical ailments, testified that the plaintiff could engage in such sedentary employment as dispatcher or work scheduler, jobs which were available in the national economy.
From the foregoing, it is clear to this court that the medical reports and vocational expert testimony constitute substantial evidence for the Secretary's conclusion that the plaintiff can engage in substantial gainful work which exists in substantial numbers in the national economy.
[The court also considered, and rejected, the plaintiff's contention that there was "good cause" to remand the case for further hearing and the inclusion of additional evidence. Since this issue is irrelevent to the principle issues of the case, discussion has been omitted. -- ED.]
Plaintiff finally contends that the Administrative Law Judge and the Appeals Council, whose decision became the final decision of the Secretary, applied incorrect standards of law to the case by requiring that "end organ" damage be shown before an alcoholic will be granted disability benefits. Plaintiff relies upon Lewis v. Weinberger, 402 F.Supp. 632 (D. Md. 1975) to support this contention. That case involved the denial of benefits to an alcoholic claimant, who had already been adjudged to be incapable of substantial gainful employment on the basis that no end organ damage related to his alcoholism was shown. This case is readily distinguishable from Lewis in that from all of the medical records presently available, and the evaluation of a vocational expert, it has been determined that plaintiff's alcoholism does not prevent him from carrying on substantial gainful employment. Absence of end organ damage is merely one part of the medical record but it clearly was not the sole test relied upon by the Administrative Law Judge.
Accordingly, it is this 6th day of January, 1977, by the United States District Court for the District of Maryland, ORDERED:
George Duvall appeals from an order of the district court sustaining the Secretary's determination that Duvall was not entitled to continuing disability payments under the Supplemental Security Income Program, 42 U.S.C. §§ 1381 et seq., because he was not disabled as a result of chronic alcoholism. We affirm.
As we read the opinion of the administrative law judge, which became the decision of the Secretary, Duvall was held not to be disabled on the alternative grounds that (a) under the regulations there was no evidence that Duvall had suffered end- organ damage as a result of alcoholism, and (b) there was no evidence to support the finding that Duvall was not capable of engaging in substantial gainful activity as a result of his alcoholism irrespective of the lack of evidence of end-organ damage. The administrative law judge was in error in assigning the first reason for discontinuing disability benefits, because prior to his decision the regulations had been amended to eliminate the need for a showing of end-organ damage as a condition for establishing disability by reason of alcoholism. See 40 Fed. Reg. pp. 30262, et seq. (July 18, 1975); Martin v. Secretary of HEW, 492 F.2d 905 (4 Cir. 1974). We agree, however, that there was substantial evidence to support the finding that Duvall had failed to show that he was incapable of engaging in substantial gainful activity because of alcoholism, irrespective of the lack of evidence of end-organ damage. It follows that the judgment of the district court affirming the Secretary's decision must be sustained.
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