Harris v. Heckler

WELLFORD, Circuit Judge,

dissenting.

The majority’s opinion ignores the statute’s express wording that this court must affirm the findings of the Secretary as to any fact that is supported by substantial evidence. 42 U.S.C. § 405(g) (1976). Since there is considerable support in the record for the Secretary’s determination of no disability, I must respectfully dissent.

Plaintiff in this action filed his first application for disability benefits on November 7, 1977. After a hearing, an Administrative Law Judge (AU) denied plaintiff’s claim. The Appeals Council refused plaintiff’s request for review, which a federal district court affirmed on August 14, 1980, and from which there was no appeal. On June 9, 1980, plaintiff filed a second application for disability insurance and for Supplemental Security Income. The Secretary denied these applications initially and on reconsideration, and subsequent to these denials, plaintiff had a hearing before an AU, who also denied his claim. The Appeals Council’s ratification after plaintiff’s request for review was affirmed by the district court. In his appeal, plaintiff *437claimed that the ALJ abused his discretion by basing his decision upon an “over-reliance” on observations made during the hearing, rather than on evidence produced at the hearing. Apart from any credibility determination, however, there was more than sufficient evidence in the record to affirm the Secretary’s denial of benefits.

“[T]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive____” 42 U.S.C. § 405(g) (1976); see also Houston v. Secretary of Health and Human Services, 736 F.2d 365, 366 (6th Cir.1984) (“When supported by substantial evidence, the findings of fact of the Secretary are conclusive, and a decision denying benefits cannot be overturned.”); Haynes v. Secretary of Health and Human Services, 734 F.2d 284 (6th Cir.1984). The Supreme Court has stated that substantial evidence is “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), citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); see also Houston v. Secretary of Health and Human Services, 736 F.2d 365, 366 (6th Cir.1984); Kirk v. Secretary of Health and Human Services, 667 F.2d 524 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). This court must review the record in its entirety to determine if the Secretary’s finding of no disability is supported by substantial evidence. 736 F.2d at 366; Allen v. Califano, 613 F.2d 139 (6th Cir.1980).

The majority rests its decision to reverse the Secretary’s determination on the judgment of plaintiff’s treating physician', Dr. DelVecchio, that plaintiff was 100% disabled, and other medical proof indicating limitation of motion and pain due to a continuing back problem, restricted lung capacity, and evidence of an arthritic knee condition.1 A review of the entire record, however, shows a considerable amount of medical evidence that conflicts with his treating physician’s opinion.

The opinion of a treating physician is entitled to greater weight than that of a doctor who has seen the claimant only once. Stamper v. Harris, 650 F.2d 108, 111 (6th Cir.1981); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). The treating physician’s opinion, however, is not binding on the Secretary, especially when other evidence brings into question its basis and reliability. See 20 C.F.R. § 404.-1527; see also Mongeur v. Heckler, 722 F.2d 1033 (2d Cir.1983); Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir.1973); accord Laffoon v. Califano, 558 F.2d 253, 255-56 (5th Cir.1977).

Although Dr. DelVecchio opined that plaintiff was 100% disabled, his diagnosis was inconsistent and conflicting. On June 7, 1977, during a post-hernia operation examination, DelVecchio noted that plaintiff had “minimal arthritis ... in both knees.” He further noted that “physical therapy ... helped his back considerably ... and [he] was sent home without any medication.” At that time, DelVecchio recommended that plaintiff go on a diet and “get some exercise, either bicycle [sic] or jogging.” On June 27,1977, DelVecchio noted that patient came in for an examination with his back in “a thirty degree flexion position.” Yet in a letter to the Bureau of *438Disability Determination DelVecchio noted that plaintiff “came in all bent over at a 60 degree angle with severe lower back pain requiring physical therapy.” He further stated that plaintiff “had a markedly straightened lumbar spine,” even though x-rays made by and analyzed by Dr. Stupar at DelVecchio’s request had shown “slight straightening of the curve.” DelVecchio further stated in this letter that “[tjhere was some traumatic osteoarthritis in both knees and anterior lipping of vertebrae in the lumbar area,” despite the fact that Dr. Stupar’s x-rays showed “very minimal anterior lippings of the lumbar vertebrae,” and Dr. Butler’s objective tests, again made at DelVecchio’s request, indicated that “both knees show little if any degenerative arthritis ... [¡Joints are well maintained.” 2 The record indicates that Del-Vecchio performed no additional objective tests and presumably, therefore, relied on Dr. Butler’s and Dr. Stupar’s findings in reaching his conclusions. DelVecchio’s credibility is not strengthened by his letter written some time after March 5, 1979, which lists various observations “based on findings of 3-13-78.” These “observations” are verbatim those contained in his November 21, 1977 letter. The record, further, is replete with medical testimony of various doctors that contradicts DelVec-chio’s conclusion of 100% disability.

On December 19, 1977, Dr. Mills noted that plaintiff could do “[bjasically sedentary work.” Dr. Daneshvari, a few days later, opined that plaintiff “may be able to engage in a job requiring only mild exertion with no exposure to air pollution.” On March 30, 1978, Dr. Larrick observed “the objective demonstration of disability is minimal to low____ [plaintiff] is not totally disabled and his partial disability is in my opinion operating in the area of 15% to 20%.” On July 31, 1980, Dr. Shah claimed that plaintiff “has the residual functional capacity to do his usual past work as he performed it____ [djisability is not established.”

The record also indicates that plaintiff’s problems, in large measure, were due to his refusal to follow medical advice for improving his condition. Plaintiff, for example, was extremely obese, yet he failed to lose weight as directed by nearly every doctor that saw him. In May 1977, Dr. DelVec-chio instructed plaintiff to go on a 1000 calorie diet. In February 1978, Dr. Patel noted his failure at attempts to make plaintiff lose weight. In March 1978, Dr. Lar-rick noted he was 5'8" in height yet weighed 235 pounds. He recommended drastic weight loss and a graduated exercise program. In May 1980, Dr. Chinn noted plaintiff was very obese, but failed to lose weight. And in July 1980, Dr. Kinner-ry noted that plaintiff weighed 290 pounds. Further, although plaintiff showed some lung impairment, and in fact was receiving black lung benefits, a number of doctors attributed his pulmonary problems to his smoking habit. There is evidence that he had smoked one to two packs a day for twenty-five years. Finally, in August 1980, *439Dr. Shah noted plaintiffs failure to take his blood pressure and diuretic medication for the previous six to eight months.3

In addition to the copious medical evidence supporting the Secretary’s decision, the AU’s own observations support a finding of no disability. Certainly an AU should not substitute his own observations for professional medical opinion of record. See, e.g., Lewis v. Califano, 616 F.2d 73, 76-77 (3d Cir.1980). Nor should he use an arbitrary “sit and squirm” index, which might place an undue emphasis upon claimant’s ability to communicate the severity of his condition through non-verbal means. See Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir.1981).

The AU, however, should not ignore his own observations concerning the demeanor and actions of a disability claimant. “Since credibility, especially with alleged pain, is crucial to resolution of the claim, the AU’s opportunity to observe the demeanor ‘is invaluable, and should not be discarded lightly.’ ” Kirk v. Secretary, 667 F.2d 524, 538 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983), quoting Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir.1978); see also Houston v. Secretary, 736 F.2d 365, 367 (6th Cir.1984). This is especially true in situations when conflicting medical evidence exists concerning the severity of the claim of pain by Harris. See Gist v. Secretary, 736 F.2d 352, 358 (6th Cir.1984).

Here there were indications of record that plaintiff attempted to make his problems appear worse by making poor efforts during his physicians’ examinations. In February 1978, Dr. Krumholz recommended repeat lung tests because “the patient effort is quite poor.” And in April 1980, Dr. Chinn complained of plaintiff’s “[p]oor effort — testing interrupted constantly by coughing.”

The evidence in this case clearly is substantial to support the Secretary; we are not to conduct a de novo review of the evidence. See Schlabach v. Secretary, 469 F.Supp. 304 (N.D.Ind.1978). It is not the role of this court to reweigh the evidence nor substitute its judgment for that of the Secretary; rather this court’s sole duty is to determine if substantial evidence in the record supports the Secretary’s decision. Rodriguez v. Schweiker, 640 F.2d 682 (5th Cir.1981).

Plaintiff, moreover, had applied for disability benefits less than three years prior to the present application in controversy. Just as this Court requires the Secretary to prove a substantial improvement in condition prior to terminating benefits, Haynes v. Secretary, 734 F.2d 284, 288 (6th Cir. 1984), I would require a claimant to show a substantial worsening of his condition before allowing benefits to a claimant who previously had unsuccessfully applied for benefits, and a final decision rendered which indicated no disability under the Act.

“After a final determination of disability,” one court cogently noted, “if a termination of benefits were effected without a showing either of improvement or newly discovered evidence, such a termination would of necessity be based on whim or caprice or would constitute an impermissible relitigation of facts and determinations already finally decided.” Shaw v. Schweiker, 536 F.Supp. 79, 83 (E.D.Pa. 1982), cited approvingly by Simpson v. Schweiker, 691 F.2d 966, 969 n. 2 (11th Cir.1982). This argument is appealing in situations, such as the instant case, in which benefits have been recently denied *440and a reapplication has been made. In fact, since the burden rests with the claimant to prove the existence of disability, see Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir.1981), he should have the additional burden of proving a deterioration or worsening of his condition. No such proof was adduced here.

The majority’s decision here is a precedent to encourage Social Security claimants, once finally rejected after full hearing, to file additional claims in hope of achieving a different result from another tribunal. For all these reasons, I would affirm the decision reached in this case by the Secretary and the court below.

. Strangely, the majority characterizes as "audacious” the Secretary's finding of no disability "in view of the allowance of Black Lung and Workers’ Compensation benefits to [claimant] by those other responsible agencies.” The Secretary, however, correctly applied the law. As stated in 20 C.F.R. § 404.1504:

A decision by any non-governmental agency or any other governmental agency about whether you are disabled ... is based on its rules and is not our decision about whether you are disabled____ We must make a disability ... determination based on social security law. Therefore, a determination made by another agency that you are disabled ... is not binding on us.

Given the different goals addressed by the Black Lung and Workers’ Compensation programs from those of the social security disability program, it is quite reasonable and not "audacious” for the Secretary to deny disability benefits even if other agencies are willing under their own rules to grant benefits. Therefore, it is irrelevant that claimant received Black Lung and Workers’ Compensation benefits, even though the majority viewed this as highly relevant.

. The majority misconstrues the record when it claims "It is not surprising that different physicians could come to slightly [sic!] different conclusions about a patient’s condition based on their separate tests." Merely because DelVec-chio opined that claimant had a “markedly straightened" spine and had "traumatic osteoarthritis,” would not be troubling if, as the majority erroneously assumes, DelVecchio performed separate tests. DelVecchio, as is absolutely clear in the record, however, referred claimant to Dr. Stupar and Dr. Butler to perform objective tests, which DelVecchio either was unable or unequipped to perform. Thus DelVecchio characterized claimant as having a "markedly straightened spine" based upon Dr. Stupar’s objective finding that claimant had "slight straightening of the curve." DelVecchio, likewise, characterized claimant as having "traumatic osteoarthritis” based upon Dr. Butler’s objective finding that "both [of claimant’s] knees show little if any degenerative arthritis ... joints are well maintained.”

The words "marked” and “slight” are not synonymous. See supra Majority opinion at note 1. "Marked" is defined as “having a distinctive or strongly pronounced character: Noticeable,” Webster’s Third International Dictionary 1383, definition 2 (1981); "slight” is defined as "deficient in weight, solidity, gravity, importance, or other esteemed quality: Trivial, Paltry, Superficial." Id. at 2142, definition 2c.

The doctors refer to the physical appearance of the spine without making reference to the pain resulting from the condition. Thus, the majority’s attempt to reconcile the two doctors’ statements is unavailing.

. The majority claims that the dissent "is incorrect in characterizing the physicians’ recommendations as a prescribed course of treatment,” and claims "they should more properly be viewed as a suggested course of treatment since there is no evidence that [claimant] was ever ordered ... to stop smoking and to lose weight." It is more reasonable to view a doctor’s statement "if you do 'X' you will not get well” as a prescribing a course of treatment” not to do “X.” Distinguishing a "suggested course of treatment” from a “prescribed course of treatment" extols form over substance in this instance.

Unlike the situation in Young v. Califano, 633 F.2d 469 (6th Cir.1980), cited by the majority, claimant here was offered no “alternative procedures” which would help his condition. The other cases cited by the majority are equally inapposite.