Gage v. Schweiker

561 F. Supp. 419, 1983 U.S. Dist. LEXIS 17627, 2 Soc. Serv. Rev. 590
CourtDistrict Court, N.D. Illinois
DecidedApril 18, 1983
DocketNo. 82 C 6592
StatusPublished

This text of 561 F. Supp. 419 (Gage v. Schweiker) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gage v. Schweiker, 561 F. Supp. 419, 1983 U.S. Dist. LEXIS 17627, 2 Soc. Serv. Rev. 590 (N.D. Ill. 1983).

Opinion

MEMORANDUM ORDER

BUA, District Judge.

The instant action was instituted by plaintiff pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of the Department of Health and Human Services (the Secretary) denying plaintiff’s application for the establishment of a period of disability. This Court had previously remanded the instant action to the Secretary for further proceedings. Before the Court are the parties’ cross-motions for summary judgment. The issue before the Court is whether the final decision of the Secretary is supported by substantial evidence. The Court concludes that it is.

Plaintiff, Evelyn Gage, filed her application for a period of disability and disability benefits on September 27, 1979, alleging that she became unable to work on December 21, 1978 due to a heart condition. The application was denied both initially and upon reconsideration. On June 23, 1980, an Administrative Law Judge (ALJ) considered the case de novo. Mrs. Gage was not represented by counsel at the hearing. On September 4, 1980, the ALJ determined that the plaintiff was not entitled to benefits. In reaching this decision, the ALJ noted that the plaintiff last met the special earnings requirements of the Act on September 30, 1978 and that she did not suffer from “severe symptoms” on or prior to that date. In addition, he concluded that within 12 months of the onset of a disabling condition, the plaintiff had sufficiently recovered from her coronary bypass surgery and was capable of performing her previous sedentary bookkeeping work.

The ruling of the AU became the final decision of the Secretary when it was approved by the Appeals Council on December 2, 1980. Mrs. Gage then filed suit in this Court seeking reversal of the Secretary’s decision. Both parties moved for summary judgment and on August 13, 1981, this Court ordered that the case be remanded to the ALJ for further proceedings. Gage v. Schweiker, No. 81 C 578 (N.D.Ill. August 13, 1981). On December 7, 1981, the ALJ conducted a supplemental hearing. On February 16,1982, the ALJ determined that the plaintiff was not entitled to benefits.

Plaintiff was a 51-year-old high school graduate when she applied for benefits. In 1977, she terminated her employment as a retail clerk in order to care for her ill husband. The plaintiff had previously been employed as a bank teller and a bookkeeper. She has not worked since 1977.

In the initial hearing before the ALJ, the plaintiff testified that on December 21, 1978, she began to experience severe chest pains which prompted her to seek medical advice. She was then hospitalized and diagnosed as suffering from acute myocardial infarction. On March 13, 1979, she underwent double coronary bypass surgery. Although there have been no post-operative complications, plaintiff testified that she has experienced shortness of breath and pain in her knees.

Included in the medical evidence is a letter from Robert F. Yario, M.D., the treating physician who performed plaintiff’s coronary bypass surgery. Dr. Yario stated that examination of her heart revealed a longstanding coronary and vascular disease. In addition he noted that it would be highly improbable that Mrs. Gage would have been able to work over the past one and a half years prior to her surgery because of severe coronary and vascular disease.

A report from Dr. Tahmooressi, the plaintiff’s cardiologist, is also included in the medical evidence. Dr. Tahmooressi stated that the plaintiff had no post-operative complications or congestive heart failure with the exception of her complaints of shortness of breath and atypical pains. He’ [421]*421was uncertain whether the plaintiff could perform sedentary work.

In the supplemental hearing before the ALJ, the plaintiff testified that in March, 1978 she had episodes of chest pain and was examined by Dr. Philip Warsaw. The doctor also performed an electrocardiogram (EKG) and took X rays of plaintiff’s chest. After examining the plaintiff and reviewing the results of the EKG, Dr. Warsaw’s only diagnosis was a spastic bowel condition. Plaintiff testified that Dr. Warsaw did not diagnose a heart condition at that time. Plaintiff testified that thereafter she continued to suffer episodes of chest pain and that in July, 1978 she went to see Dr. Robert Yario. Plaintiff testified that she took her EKG with her and that Dr. Yario asked her to go into the hospital for tests. Plaintiff testified that she was fearful of going to the hospital and refused to do so. Dr. Yario did not make any diagnosis but told her to “take it easy.” (Tr. 231). Plaintiff testified that she currently has some breathing difficulties.

In addition, the plaintiff submitted pulmonary function studies performed in November, 1981. The studies were interpreted as being consistent with moderate to severe obstructive airways disease. Also included in the medical evidence is a 24-hour EKG monitoring done during November, 1981. The monitoring showed occasional, predominantly unifocal, premature ventricular beats and a slightly depressed ST segment1, but was otherwise unremarkable.

The pulmonary function studies and the 24-hour EKG monitoring were done under the direction of plaintiff’s cardiologist, Dr. Tahmooressi. Plaintiff’s counsel requested a continuance so that Dr. Tahmooressi could testify as to his interpretation of the tests. The ALJ denied counsel’s request. However, the record was left open for two weeks so that plaintiff’s counsel could furnish additional medical reports interpreting the pulmonary function studies and the 24-hour EKG monitoring. Plaintiff’s counsel failed to submit any such reports.

Based upon a review of the entire record, the ALJ once again rejected plaintiff’s claim, concluding that she did not suffer from “severe symptoms” on or prior to September 30,1978. In addition, he noted that within 12 months of the onset of the disabling condition, the plaintiff had sufficiently recovered from her cardiac surgery and was capable of performing her former sedentary bookkeeping work.

In order to prevail before the Secretary, plaintiff must establish that she was under a disability on or prior to September 30,1978, and that she remained disabled for the following year. The issue before the Court is whether the final decision of the Secretary is supported by substantial evidence. “Substantial evidence” is defined as “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). A district court may not make its own appraisal of the evidence. Johnson v. Weinberger, 525 F.2d 403, 406-7 (7th Cir.1975). The reviewing court shall not “weigh the evidence or ... substitute its judgment for that of the administrative law judge,” O’Banner v. Secretary of H.E.W., 587 F.2d 321, 323 (6th Cir.1978); Flowers v. Harris, 616 F.2d 776

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561 F. Supp. 419, 1983 U.S. Dist. LEXIS 17627, 2 Soc. Serv. Rev. 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gage-v-schweiker-ilnd-1983.