Bennie WISEMAN, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee

905 F.2d 1153, 1990 U.S. App. LEXIS 9407, 1990 WL 78014
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 12, 1990
Docket89-2788
StatusPublished
Cited by7 cases

This text of 905 F.2d 1153 (Bennie WISEMAN, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennie WISEMAN, Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Appellee, 905 F.2d 1153, 1990 U.S. App. LEXIS 9407, 1990 WL 78014 (8th Cir. 1990).

Opinion

FLOYD R. GIBSON, Senior Circuit Judge.

Bennie Wiseman appeals from the district court’s 1 decision which affirmed the Secretary's decision denying his applications for disability insurance benefits and supplemental security income under Titles II and XYI of the Social Security Act. He argues on appeal that the Secretary’s decision is not supported by substantial evidence on the record as a whole. We disagree and thus affirm the district court’s decision.

I. BACKGROUND

Wiseman first filed applications for disability benefits and supplemental security income in October 1983. The Secretary twice denied benefits, and after each denial the district court remanded the case to the Secretary for further proceedings. The instant appeal follows Wiseman’s third hearing before an Administrative Law Judge (“AU”), after which the AU again denied his claim for benefits. The Appeals Council adopted the findings and conclusions reached by the AU, and the district court affirmed the Secretary’s decision.

Wiseman is 40 years old and has a fifth grade education. He has past relevant work experience as a truck driver, mechanic, carpenter, and forklift operator. He is currently working as a heavy equipment operator and truck driver. He alleges that he was disabled from July 18, 1983, to July 25, 1984, due to a hand injury and back problems. It is undisputed that he met the insured status requirements throughout that period.

The evidence reveals that on July 18, 1983, Wiseman accidentally punctured his left index finger with a paint gun. Soon thereafter he developed cellulitis and lym-phangitis in his left arm. Dr. Lee Milford, a hand specialist, determined that Wise- *1155 man’s injured finger had become gangrenous and performed an amputation on July 25, 1983.

Dr. Milford reported in October 1983 that Wiseman was able to return to work as far as his hand was concerned. However, at that time Wiseman had new symptoms that impaired his ability to work. He had suffered a fall in September 1983 and was suffering from low back pain which was radiating to his right leg. He was diagnosed as having a herniated lumbar disc. He underwent a surgical laminectomy with disc excision on December 30, 1983. His postoperative progress was uncomplicated.

The first hearing before an AU in this matter was held on May 17, 1984. At that hearing Wiseman testified that after his back surgery his physician released him to return to work on April 20, 1984. He testified that he tried to return to his former job at that time but his former employer did not have a position available for him. He admitted that for the two weeks prior to the hearing he had been working part-time for 2-4 hours per day doing concrete finishing and roofing, but testified that it was difficult because he was still experiencing back pain. Administrative Transcript, Part I at 34-35, 46-47.

The second hearing was held on April 9, 1986. There, Wiseman testified that he returned to full-time work as a truck driver on June 15, 1984. Administrative Transcript, Part II at 198-200. Then, at the third hearing, which was held on June 22, 1987, Wiseman testified that at the prior hearing he had incorrectly estimated the date of his return to work and that the actual date was July 25, 1984. Wiseman testified at the third hearing that he performed no work from the time of his finger injury until July 25, 1984. He produced documentary evidence from his employer verifying July 25, 1984, as the date of his return to work after his back surgery. Administrative Transcript, Part III at 250, 255-56.

The AU (from the third hearing) discredited Wiseman’s claim that he could not perform his past relevant work until July 25, 1984, and instead held that he had the capacity to perform his past relevant work as a truck driver as of April 20, 1984, the date on which his physician declared him able to return to work with some restrictions. Thus, the AU held that Wiseman failed to show that he had a physical or mental impairment that lasted for at least 12 months as required by the Social Security Act. See 42 U.S.C. § 423(d)(1)(A) (1982). That is, his finger injury impaired him from July 18, 1983, through October 5, 1983, and his back injury impaired him from September 16, 1983, through April 20, 1984. Based on these dates, the AU concluded that Wiseman failed to meet the 12-month durational requirement regardless of whether his impairments were treated singularly or in combination.

The AU went on to hold, however, that even assuming that Wiseman was disabled by his back pain until July 25, 1984, a denial of benefits was still in order because under the Social Security Regulations unrelated impairments cannot be combined to meet the 12-month durational requirement. Citing 20 C.F.R. §§ 404.1522 and 416.922, the AU stated: “If a claimant develops a severe impairment and then develops another unrelated severe impairment but neither one is expected to last for 12 months, he cannot be found disabled even though the two impairments in combination last for 12 months.” Opinion of AU, Addendum to Appellant’s Brief at 7-8.

On judicial review, the district court found that substantial evidence on the record as a whole supported the Secretary’s conclusion that Wiseman had the capacity to perform his past relevant work beginning on April 20, 1984. The district court went on to conclude that even if it accepted Wiseman’s claim that he could not perform substantial gainful activity until July 25, 1984, a finding of not disabled was still proper because the Social Security Regulations specifically disallow “stacking” of unrelated impairments to meet the 12-month durational requirement.

II. DISCUSSION

Our review of the Secretary’s factual findings is limited. We must accept *1156 those findings unless they are not supported by substantial evidence on the record as a whole. This standard of review requires us to do more than only conduct a “search for the existence of substantial evidence supporting [the Secretary’s] decision.” Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989). We must also “take into account evidence in the record which fairly detracts from [the Secretary’s] decision.” Id. (citation omitted)

The AU found that Wiseman could perform his past relevant work beginning on April 20, 1984. Wiseman disputes that finding and argues that he was disabled until July 25, 1984. Resolution of this dispute is critical because in order to qualify for benefits Wiseman bears the burden of proving that he was unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that lasted for at least twelve months. See 42 U.S.C. § 423(d)(1)(A) (1982); Nettles v.

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905 F.2d 1153, 1990 U.S. App. LEXIS 9407, 1990 WL 78014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennie-wiseman-appellant-v-louis-w-sullivan-md-secretary-of-health-ca8-1990.