SSR 80-5c: SECTION 1614(a)(3) (42 U.S.C. 1382c(a)(3)) SUPPLEMENTAL SECURITY INCOME -- DISABILITY -- ALCOHOLISM

20 CFR 416.901(b), 416.917(e), and 416.981

SSR 80-5c

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".

STATEMENT OF FACTS

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.

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

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.

her 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.

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.

ucation, 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.

CONCLUSIONS OF LAW

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).

usion 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.

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.]

ntiff 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:

PER CURIAM:

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.

ited States

District Court for the District of Maryland, ORDERED:

PER CURIAM:

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.

AFFIRMED.