lay opinion of claimant's brother does not overcome defects in medical evidence especially because he was an interested party
How later courts described this case
- lay opinion of claimant's brother does not overcome defects in medical evidence especially because he was an interested party
Written by the judges who cited it.
The opinion
PELL, Circuit Judge,
dissenting.
Fortunately, the penchant of recent years for maintaining records, aided and abetted even more recently by computer processes, means for most persons seeking to assert a claim of the type involved here that they will not suffer what appears to me to be the denial of a legitimate claim as has been visited upon Sarah Lieberman. Unfortunately for her, she spent the first twenty years of the crucial first twenty-two in Poland. There is no dispute that the medical treatment she received in Poland for the mental condition, which condition in the words of a third person who knew her in Poland as well as here “has not changed significantly since,” is not supported by existing records made at the time. It is also unfortunate for this 69 year old woman, disabled from accepting gainful employment that, because of the nature of this litigation, the opinion of this three judge panel will bring her to the end of the road insofar as establishing a claim is concerned. I respectfully dissent.
It takes no close reading of the opinions of the two administrative law judges to discern that the motivating force for their decisions was that there was no “medical evidence” in the record from the pertinent period of her life. Putting to the side the first opinion and looking at the one here under review in the record of which there was evidence from a neurologist and a psychiatrist, the ALJ opinion nevertheless, although for the most part reading like a brief for the claimant, finally squarely rests on “the absence of any medical evidence relating directly to that time.” (Emphasis added.) Yet the two medical doctors did provide “medical evidence” as to “that time,” one opining that her “condition began more than 40 years previously,” and the other that he “would strongly indicate that it [the disability] existed since early life,” and “. . . indeed Miss Lieberman was not able to work early in life or at the present time because of her emotional disability.”
The law of this circuit as to the necessity of medical evidence actually generated during the period prior to the pertinent date, which the ALJ’s opinions seem to require, *993 was made clear in Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974), in which I dissented, but in which the majority speaking through then Judge Stevens clearly established that records of diagnosis did not have to have been made prior to the pertinent qualification date. In Stark , the claimant’s own records had been destroyed by a flood, two of her doctors had long since been deceased and the third could not be located. Yet according to Stark , a medical opinion does not become unacceptable simply because it is based upon a claimant’s symptomology, or lay testimony and it “is also clear that a diagnosis of a claimant’s condition may properly be made even several years after the actual onset of the impairment.” Id. at 1097 .
That was what occurred here and although the record before the ALJ did not really contradict that “medical evidence,” the ALJ while finding it had “significant weight,” apparently could not surmount his misconception of the law that it must but did not relate “directly to that time.” I fail to see how it could have related much more directly.
The majority opinion attempts to distinguish Stark on the basis that in that case a physical ailment was involved as opposed to mental disability in the present.case. Note 9 of the majority opinion seems to suggest that for most psychiatric disorders knowledge has really not developed to any secure basis. It may be true that “many skilled physicians,” accustomed to somatic illness cannot carry over that knowledge to an understanding of psychologic medicine but the “medical evidence” here was not from a skilled general physician, it was from a person skilled in the knowledge of mental disabilities. I am assuming that the majority opinion does not relegate either the treatment or the diagnosis of mental disorders to some sort of witchcraft, yet Note 9 leaves one in doubt.
There is, as a matter of fact, one very real distinction between Stark and the present case. In Stark the evidence reflected that the claimant had earned more than $10,000 from one employer subsequent to the pertinent date for disability. In the present case, the only employment during her lifetime occurred for only a very short time and on a part-time basis during the barrel-scraping days of World War II. Yet the Stark court had no difficulty in finding that the disability existed prior to the occurrence of the substantial earning from employment.
The majority opinion states the law correctly to the effect that we are not free to overturn the decision below even though we might have reached an opposite conclusion on a de novo consideration. Yet in subsequent portions of the opinion by its resort to medical textbooks there does appear to be a de novo examination of the evidence to demonstrate that Sarah Lieberman was not really disabled prior to 1931. What we have before us for review, however, is a decision that she was not entitled to establish her claim because of “the absence of any medical evidence relating directly” to the period prior to 1931. The ALJ conceded that there was “no question that the claimant is presently disabled” but obviously felt the medical evidence, although of “significant weight,” failed in sufficiency because it was a diagnosis made some years “after actual onset of the impairment.” Stark, supra. The decision below, resting upon an incorrect legal basis, should be reversed.