Burgess v. Heckler

584 F. Supp. 979, 5 Soc. Serv. Rev. 635
CourtDistrict Court, S.D. Ohio
DecidedJanuary 11, 1984
DocketNo. C-1-82-1447
StatusPublished

This text of 584 F. Supp. 979 (Burgess v. Heckler) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burgess v. Heckler, 584 F. Supp. 979, 5 Soc. Serv. Rev. 635 (S.D. Ohio 1984).

Opinion

OPINION AND ORDER

SPIEGEL, District Judge:

Plaintiff brought this action under 42 U.S.C. § 405(g) seeking review of the Secretary’s decision finding that plaintiff is no longer disabled and terminating her disability benefits and her Supplemental Security Income (SSI). Both parties have filed motions for summary judgment (docs. 5 and 6). The motions for summary judgment are hereby overruled because the case is here for general judicial review.

In a termination ease our Court of Appeals has stated without discussion that plaintiff bears the burden of establishing continued disability. Myers v. Richardson, 471 F.2d 1265 (6th Cir.1972). A decade has passed since the MyerS decision, however, and the development of the law during that decade makes it clear that its conclusory statement is merely a starting point. We have adopted the approach used by the Ninth Circuit in Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982). Under that approach, once the Social Security Administration (SSA) determines that a disability has ceased the plaintiff has the burden of establishing otherwise. That burden is a continuing one. However, a prior ruling of disability gives rise to a rebuttable presumption that the disability continues. That presumption shifts the burden of going forward to the Secretary. See also Brown v. Heckler, 713 F.2d 441 (9th Cir. 1983). The Patti analysis is consistent with Hayes v. Secretary of Health, Educa[981]*981tion and Welfare, 656 F.2d 204, 206 (6th Cir.1981). In that case the Court reversed the Secretary’s termination of benefits on the ground that the evidence would not support the Secretary’s conclusion that plaintiff’s benefits should be terminated because her condition had improved. As we read Patti and Hayes, the appropriate test once a prior ruling of disability has been made is to presume that the disability is continuing unless the Secretary comes forward with evidence that plaintiff’s condition has improved to the point that she is no longer disabled. Our job as reviewing Court thus is to determine if there is substantial evidence to support the Secretary’s conclusion that plaintiff’s condition has improved sufficiently so that she is no longer disabled. Mullins v. Secretary of Health and Human Services, 680 F.2d 472 (6th Cir.1982).

Following her application for disability benefits and SSI in November, 1975, the plaintiff was found disabled as a result of chronic obstructive lung disease (tr. 59). Benefits were awarded. The Secretary subsequently held that plaintiff was no longer under a disability as of October, 1981 and benefits were terminated the end of December, 1981 on the grounds that spirometry does not document a functionally restrictive impairment (tr. 64).

Plaintiff is now forty-nine years old and has an eighth grade education. She has some prior work experience as a packer in a candy factory and as a folder in a laundry. The record demonstrates that she has suffered from asthma since 1966 but worked until 1974 at which point her impairment became so severe that she was precluded from doing substantial gainful employment. Plaintiff has submitted a number of medical records and reports from her physician in support of her claim of continuing disability. These will be briefly reviewed.

Dr. Paul Foldes, who is board-certified in internal medicine and a specialist in pulmonary diseases, has been treating plaintiff since January, 1979. In a report dated September 17, 1981 he stated that plaintiff suffers from chronic asthmatic bronchitis, and experiences wheezing attacks every three to four weeks lasting from three or four days to a week with mild wheezing in between the attacks. The cause of the attacks was unknown. Plaintiff was being treated with Brethine, Aminopylline, Vanceril, Ventolin, plus heated mist and postural drainage twice a day. Dr. Foldes noted, however, that her response to this therapy was only fifty percent complete. He also stated that she becomes short of breath with moderate exertion (tr. 101-02).

When Dr. Foldes left the country in 1981, Dr. Renate Schiffer began treating the plaintiff. In a letter dated February 15, 1982, Dr. Schiffer stated that plaintiff suffers from severe pulmonary emphysema and asthmatic bronchitis secondary to alpha 1 antitrypsin deficiency and allergies. Dr. Schiffer noted that plaintiff had most recently been admitted to the hospital as a result of an asthmatic attack January 14, 1982. Medications as of the date of the letter include Theolair, Brethine, Vanceril and Ventolin Inhaler. In addition, plaintiff must use steam and percussion and postural drainage, preferably three times a day, to keep secretions from accumulating. Plaintiff also receives pulmonary rehabilitation treatments at the Good Samaritan Hospital including the IPPB machine and the tilt table. Dr. Schiffer added “any change in temperature, pollution, omission of treatments for any reason, stress and acute infections make her very much susceptible to acute asthmatic attacks,” adding that any employment that failed to take all these factors into account would adversely affect plaintiff’s health (tr. 117).

Dr. Schiffer also completed a Physical Capacities Evaluation dated December 22, 1981 in which she stated that during an eight hour day plaintiff could sit for eight hours, stand for one and walk not at all. In addition, Dr. Schiffer said that plaintiff can occasionally lift or carry up to five pounds but should never lift or carry anything over five pounds. She can use either hand for simple grasping or for pushing or pulling of arm controls or fine manipula[982]*982tion as well either foot for repetitive motions. Plaintiff may occasionally bend, squat, crawl or reach but should never climb. Dr. Schiffer totally restricted plaintiff from activities involving unprotected heights, moving machinery, exposure to marked changes in temperature and humidity, driving automotive equipment and exposure to dust, fumes and gases (tr. 114).

Plaintiff was seen in the fall of 1981 on a consultative basis by Dr. Martin Fritzhand, a urological and general surgeon hired by the SSA (tr. 103-111). His history notes that plaintiffs symptoms have become increasingly severe over the past five or six years and that as of the date of the examination she could not walk more than two or three blocks without associated shortness of breath. He also noted that plaintiff reported she frequently awoke during the night with shortness of breath and has a long history of a chronic cough. Plaintiff told Dr. Fritzhand that she had been hospitalized approximately five years ago, approximately three years ago and approximately two years ago, or in other words in 1976, 1978 and 1979 (tr. 103). His physical examination revealed that plaintiff was slightly short of breath with exertion. His impression was bronchial asthma. Dr.

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Bluebook (online)
584 F. Supp. 979, 5 Soc. Serv. Rev. 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burgess-v-heckler-ohsd-1984.