Charles R. GROSS, Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Appellee
785 F.2d 1163
4th Cir.
1986
Check Treatment

*1 H63 agree accordingly affirm argues judgment also that the dis the Koubek the district court. qualify to Mr. White as of trict court’s refusal error, expert, an was reversible er not Turning against to Koubek’s cross-claim although points out Mr. ror. Koubek that Tnemec, again agree- find in we ourselves concerning testify was allowed to White with the district court. consider ment We an in steps the that architect should follow claims of meritless Koubek’s for breach repainting preparing specifications for implied merchantability of warranties indication, by prof building, there was no negligence particular purpose, fitness for a otherwise, testimony fer or Mr. the of testing in manufacture the precluded giving. White misrepresentations in instruc- paint, preparation applica- tions for surface however, testimony Clearly, the that Mr. paint. tion permitted give White not to whether, opinion, in would Stover have V. of recommended different method sur- In summary, we find that the district preparation if followed face Stover had the court abused refusing its discretion in to steps Appen- Mr. outlined White. Joint qualify Dr. Marusin and Mr. asWhite ex- Marusin, dix with Dr. at 156. As can- pert Accordingly, witnesses. judgment the say qualify the not that refusal Mr. the district court as to Koubek is re- expert error in White as an was harmless versed, and the case is remanded for a new light finding of the district court’s trial accordance with opinion. did plaintiff “the not show that if Stover judgment of the district court as to Tnemec says performed steps the which it is affirmed. performed, cause of should have been PART, AFFIRMED IN REVERSED IN paint-peeling would discover- have been AND PART REMANDED. prepa- ed and a different method of surface have been ration would recommended.” at Appendix

Joint 59. The district court allowing

abused its discretion not Mr. witness, testify expert capa-

White to as an rendering opinion an on ble of ultimate GROSS, Charles R. Appellant, issues in the case.9 v.

IV. Margaret HECKLER, Secretary of district Services, Health we turn Human Finally, Appellee. concerning plaintiff’s rulings court’s Tnemec, against claim manufacturer No. 84-1807. against paint, and Koubek’s cross-claim United States Court Appeals, trial, Heights’ Friendship Tnemec. At sole Fourth Circuit. against paint claim manufacturer was Argued April 1, 1985. warranty implied of fit breach of purpose. The particular ness for a district Decided Feb. concluding court found for Tnemec after Rehearing Rehearing En Banc any par knowledge that Tnemec had no 13, 1986. May purpose Friendship ticular for which Heights prior paint intended to use the Willoughby. repainting of The We ing appellee “noteworthy” judge trier of

9. The considers it in whether the fact is a judge jury. Although the trier of fact this case was a instead a district who is function- jury. Appellees We do Brief at 12. not ing accept is as the trier of fact not bound to justifying a find this to be a factor different witness, expert testimony of an result than speaks one we have reached. Rule 702 refusing abuse his hear such discretion assisting of fact. It in terms the trier testimony. depend- application makes no distinction in its *2 Charleston, McLaughlin, A.

James Fairmont, W.Va., (Susan McLaughlin, K. L.P.A., Co., W.Va., Colum- & Neff Barkan brief), bus, Ohio, appellant. for on Dennis, III, (Beverly Fitzgerald Deborah Reg. Hyman, David L. Asst. Reg. Atty., Pa., William A. Koli- Atty., Philadelphia, Steinfeld, bash, Asst. Atty., Betsy C. U.S. W.Va., brief), Wheeling, Atty., U.S. appellee. HALL, WILKINSON and SNEE-

Before DEN, Judges. Circuit PER CURIAM: appeals an order of Gross Charles affirming court the decision of the district Secretary Health and Human Servic- insurance, disability, disability deny es to supplemental security income benefits. (AU) The administrative law disabled; found that Gross was he not dis- peals Council found that precedent the clear of this abled. Because requires circuit that the court defer to AU, Council, rather than the because the Coun- evidence, supported by cil are substantial affirm the decision of the district court. initially decided that Gross was AU disability benefits. The entitled to reviewed the decision of the AU Council supported by that it was not and concluded evidence. The substantial AU, case to the so that then remanded the psychiatric the AU could obtain a examina- testing, appellant tion hearing. conduct a hearing, After the examinations again concluded that Gross was dis- AU again re- abled. the decision of the AU on its own viewed considering After the entire motion. record, Council decided that severe, impairments were not therefore not disabled. H65 court, appealed supported then to the district Council is substantial finding determined that which evidence. supported by substan- qualify disability benefits, order to evidence, accordingly granted tial sum- applicant “impairment must have an mary judgment Secretary. impairments combination of signifi- *3 cantly physical limits appeal presents ability

This mental recurrent [his] to do basic work question: Appeals when the AU and the activities.” 20 C.F.R. 416.920(c). disagree disability on the award Basic work Council of activities are de- § benefits, aptitudes to whom do the courts fined as the “abilities and owe defer neces- sary jobs.” ence? The answer is well-established. to do most 20 C.F.R. 416.- § rulings 921(b). example, Two recent make it clear that the might For work activities walking, courts owe deference to the of the standing, sitting, include lifting, Heckler, Council. Parris v. Appeals pushing, 733 pulling, reaching; and as well as (4th Cir.1984); Kellough v. Heck F.2d 324 capacities seeing, hearing and speaking; ler, (4th Cir.1986). F.2d 1147 785 understanding, out, and carrying and re- membering simple instructions. 20 C.F.R. Parris, said, the court “The statutori- 416.921(b). § ly-mandated deference runs favor of the Council, Secretary Appeals not the The claimant has the burden proving AU and the Council reach disability his to the satisfaction of the Sec- differing conclusions from those of the retary. The claimant must demonstrate AU, supported uphold by which we must if medically physi- that he has a determinable substantial evidence.” 733 F.2d at 326. impairment, cal or mental and that Kellough thought- reaffirmed impairment him engage renders unable to why fully set forth the reasons deference is gainful Blal- employment. substantial At due Council. 785-1151 n. Richardson, ock v. (4th 483 F.2d 5. The Council is entitled to this deference (citations Cir.1972) omitted). whether its review of the AU decision was methodically The Council de novo or on the record. The matter of record, including considered the entire discussed; deference has been much doctors, reports notes and of numerous it, decline to revisit and' we review the testimony. Gross’ own We believe that judgment of the district court on the au- support there is substantial evidence to Kellough. of Parris thority finding that im ruling have examined the We severe, pairments were not that he was standard, Parris peals under the capable gainful employment, and that he and have found that substantial evidence disability therefore not entitled to ben ruling supports the Council. efits. regulations state “action, During hearing AU, Council will review a case his before the arthritis, findings or conclusions of the administra- Gross said that he suffered from vision, ulcers, nerves, supported by poor spells, sub- tive law are not blackout ample stantial evidence.” 20 C.F.R. 404.- and a heart condition. There was 970(a)(3). explicitly arthritis, reason to conclude that Gross’ poor respond of the AU to concluded that the decision vision and ulcers would all attention, supported was not basic award benefits medical were therefore impair- disabling. not substantial evidence Glasses would correct vision, question ment. Since there is no that the Gross’ which was tested at 20/25 in employed right eye, the correct stan- Appeals Council and 20/50 the left. Dr. Jo review, question reported plaintiff per of whether the Ledwell could dard supported by requiring decision of the AU was sub- form tasks fine visual discrimina responded is not before us. The tion. His arthritis stantial evidence conserva treatment, only pains decision of the tive and his stomach were issue is whether the symptom Several of the doctors who exam relieved antacids. If a can be might suggested ined Gross that he have a reasonably controlled medication or disorder, psychological specifically, conver treatment, disabling. it is not v. Purdham disorder, hypochondriasis, or sion alcohol Celebrezze, 349 F.2d Cir. However, ism. disorder is Therefore, 1965); 20 404.1530. C.F.R. § necessarily disabling. There be a not must did not err in eliminat- showing of related functional loss. Sitar problems, ing visual arthritis and ulcers as Schweiker, (1st 20-21 v. 671 F.2d Cir. disability. evidence 1982). alcoholism, As to Gross told one pain, complained Gross also chest psychologist had not had a drink in the atypical of which Dr. Neil Johnson said was past another that he did not six months and pectoris. qualify angina In order drink at home because mother would benefits, disability one must have an im- 404.1525(e) permit it. 20 C.F.R. §§ *4 anatomical, pairment “that from results 416.925(e) state that addiction alcohol is physiological, or abnormali- determining itself wheth not a basis by medically ties which are demonstrable disabled, and the er one is Council acceptable laboratory diagnos- clinical support evidence to its con had substantial 423(d)(3), techniques.” tic U.S.C. §§ involuntary clusion that did habits 1382c(a)(3)(A). (5)(A). also 42 U.S.C. See “preclude not claimant from sustained noted, there were As the Council work.” findings, no specific no clinical neuro- Thus, ailments none of Gross’ automati- logical, sensory, or reflex abnormalities cally disability entitle him to benefits. explain pain, which would Gross’ chest Moreover, daily pattern of Gross’ activ- blackouts, anxiety. Foster v. Heck- Cf suggests ity that he was not disabled Cir.1986). (4th ler, 780 F.2d 1125 cook, working. and did wash Gross could possible experi- certainly dishes, It is that Gross generally take care of a house. However, pain. Ap- living arrangements, while the enced some In his statement of utterly disregard he as a caretaker in peals Council not Gross said that acted exchange apartment for the use of the complaints pain, pain disabling per is not grocery shop- which he Gross went entirely lived. Secretary may ignore “The se. personal ping and took care of his own pain evidence of which the AU has found every morning needs. He walked town credible, Weinberger, 501 F.2d Combs v. poolroom up and cleaned the local for about nonetheless, Cir.1974); sub- hour, doing paid for so. After an and was allegations cannot jective alone be determi- cleaning up, Gross would drink or socialize where there is at least some evi- native patrons pool hall until with the be- dence, here, as dark, Ap- home. The fore when went gave to the matter. Pain is not attention peals daily felt that “the claimant’s se, disabling per subjective evidence of style are indicative of a life rather activities objective pain precedence cannot take over impair- any imposed by than restriction lack thereof.” medical evidence or ment.” Parris, 733 F.2d at 327. We believe that the decision decision, In its Council dis- peals supported by substantial Council was complaints pain. The cussed Gross’ Accordingly, we affirm the deci- evidence. could have decided that Gross’ well court. sion of the district objective medical pain, in the absence of AFFIRMED. evidence, disabling. It noted Dr. was not plaintiff conclusion that demon- Ledwell’s HALL, Judge, dissenting: K.K. Circuit hypersensitivi- strated an “over concern majority, com- I conclude that the dysfunction minor and numerous Unlike the ty to decision to review this adequate physical patholo- plaints without portion of conflicts at least one case gy.” . me, this Court’s decision in To he cannot afford eyeglasses. Parris. medication or majority in this case and the Court Kel- told Claimant the AU that he had had a relies, lough, upon majority stroke,” which the com- “light speech. which affects his pletely misinterpret the standard of review AU, describing speech impediment Court must follow when “severe,” difficulty understanding as an ALJ for lack Council reverses hearing. at the being Gross Gross denied Accordingly, I dis- of substantial evidence. an alcoholic but admitted that he drinks “a sent. good glasses bit of wine” and about three day. of beer a He stated that he drinks I. whiskey day,” “once a week or once a case, proper

To in this reach a decision it depending upon how he feels. in some detail the is essential to recount presented medical evidence lengthy history background factual AU documented that in 1978 claimant had majority which the appeal, much of hospitalized degenerative been for severe ignore. chooses to x-rays arthritis. Cervical taken at 17, 1937, was born on December degenerative time revealed spurring and forty-four years old at the time of encroachment spine of the cervical hearing. He has a sev- administrative Following limitation of motion. enth-grade and until 1979 education worked treatment, discharged Gross was as “much twenty years for fifteen to as a truck driv- improved.” In report, phy- another 1978 er, sometimes as much as fifteen hours a *5 sician, noting strong that Gross had a odor days Claiming day, six a week. that since drunk, him of ethanol about and acted con- 1979, February, he had suffered from black paranoid person- cluded that claimant has a arthritis, ulcers, “nerves,” spells, poor out ality. condition, vision, and a heart Gross filed his March, 1981, In claimant was referred applications disability insurance and (“SSA”) Security the Social Administration 23, February SSI benefits on 1981. These Johnson, M.D., specialist to A. Neil in a applications initially upon were denied and gastroenterology. medicine internal reconsideration. report Dr. Johnson’s concluded that Gross Following request hearing, for a significant suffered from a restriction of hearing concluded that a was un- ALJ spine, motion of the lumbar mild dextrosco- necessary and awarded claimant benefits liosis, osteophyte and mild diffuse forma- on of the exhibits contained in his the basis tion. Dr. Johnson also noted Gross’ “stut- Appeals' file. The Council reviewed this tering speech,” for which he recommended award and remanded the claim to the AU speech pathologist. im- a Dr. Johnson’s in for resolution of conflicts the evidence i.e., pressions history syncope, were: concerning and to obtain further evidence temporary (etiology loss of consciousness problem. claimant’s alcohol The AU was unknown); pains, atypical chest which were specifically instructed to obtain a consulta- angina; pain. and chronic lumbar psychiatric psycho- tive examination with Mills, M.D., Hoy surgeon Lawrence a logical testing and a residual functional general practitioner, reported in capacity evaluation. He was also directed March, 1981, signs that Gross all the hearing. to conduct a chronic ethanolism. Dr. Mills stated that hearing, At the administrative which desired to he did not believe claimant be 21, 1982, ap- place April took on Gross cured, arid further that did not think peared pro se and testified that he has Gross was disabled. eyesight, spells, poor black-out heart dis- Ledwell, ease, Ph.D., February, and ulcers. He stated that he also Jo “nerves,” loss, psychologist, clinical evaluated Gross on memory suffers from ar- back, thritis, Dr. found pain in his lower left behalf of the SSA. Ledwell no shoulder, Gross, damage According signs organic brain and chest. “[n]o disturbances, Multiphasic Personality neurological im- the Minnesota In-

psychomotor prob- (“MMPI”), pairments, physical ventory or other health be conducted.2 The problem.” except for a mild visual diagnosed lems ... a conversion disor- psychiatrist “mildly it difficult” to under- der, found She a term used connote the transforma- speech speech stand claimant’s until his physical tion of emotions into manifesta- learned. Dr. Ledwell’s tests pattern was tions, opined that claimant was dis- I.Q. had a verbal showed that Gross psychological impairment. due to his abled range placed him in the dull-normal again The AU once found that Gross intelligence, memory quotient of and a disabled and awarded benefits on the 79. Dr. Ledwell stated that Gross denied testimony and the medical basis of Gross’ past using any alcohol six months. evidence of claimant’s alcoholism and com- psychologist opined that claimant’s impairments. bination of On its own mo- intact when he was not un- judgment was tion, notified claimant beverages, influence of alcoholic der the of its intention to reverse the AU’s deci- insight quite and that his limited. Dr. for lack of substantial evidence of a sion “old- Ledwell concluded that Gross was an impairment. subsequently somatizer,” “hy- fashioned who manifests and, response retained counsel dysfunction minor and nu- per-sensitivity to invitation to submit addi- adequate physi- complaints merous without decision, prior tional evidence final diagnostic impression pathology.” cal Her submitted an evaluation another clinical hypochondriasis. Fremouw, psychologist, Ph.D. William J. psychiatrist, Gross was also referred to According report, to Dr. Fremouw’s dat- M.D., Withersty, for a consultative David J. 21, 1982, ed October Gross admitted to a During meeting with examination. history dependence of chronic alcohol be- 1, 1982, Withersty April Dr. claimant ginning when he was when Gross noted a distinct odor of alcohol whiskey every day. pint of Gross further frequent- spoke reported that claimant reported to Dr. Fremouw that he had had throughout ly inappropriately smiled psychiatric hospitalizations since 1979 four Withersty Dr. observed that interview. *6 eight-day hospitalization in 1982 and one history family positive psy- was for Gross’ for alcohol-related treatment. Gross told disorders and noted that claimant chiatric psychologist history he had a of that previous psychiatric-re- acknowledged four multiple and admit- arrests intoxication According Dr. hospitalizations. lated currently on ted to beer and wine Withersty, in a moderate Gross was limited reported daily basis. Dr. Fremouw a a ability perform a to severe manner his odor of alcohol on claimant’s noticeable functions, including variety of under- during the and that breath interview stated instructions, standing responding appropri- frequently repeat he had to have Gross co-workers, and ately supervision, work in order to understand him. himself simple, complex, pressures, performing and intelligence testing re- Dr. Fremouw’s Withersty repetitive, and varied tasks. Dr. quotient memory of a verbal vealed suggested claimant’s alcohol abuse be I.Q. consideration, I.Q. performance of and a despite of given serious Gross’ I.Q. 75, placing of Gross in the denials, full-scale physiological that further eval- testing.3 intellectual testing, including level of psychological uation and borderline "beyond test that Gross scored nor- a conversion of showed 1. Somatization is defined as bodily symp- mal limits.” experiences or into mental states Dictionary, Dorland's Illustrated Medical toms. these results Dr. Fremouw concluded that 3. Edition, (1974). 25th at 1438 Dr. Ledwell's find- were not inconsistent with employed. ings because of the difference in tests Withersty apparently aware that Dr. the 1981 Wechsler Adult Dr. Fremouw utilized Intelligence administered one version Dr. Ledwell had (“WAIS”) Scale instead February, of 1982. The results MMPI test Ledwell, employed by Dr. which Dr. Fre- WAIS Noting problems, pain Dr. Fre- his would not claimant’s vision interfere with basic activities, orally the MMPI and speech mouw administered work and that prob- his that the concluded results were consistent lem did not hinder communication. previous MMPI scores with obtained problem, As for claimant’s alcohol Fremouw, According Dr. Ledwell. to Dr. Appeals Council concluded that at most it responses to the MMPI “were con- involuntary was mild and not pre- so as to experiencing sistent someone who is work, given clude sustained the lack of high degree psychological of distress and any specific findings. treatment clinical requesting help” who is and reveal “the According Council’s assess- presence anxiety depression psychological reports ment of the of Dr. long standing physical complaints.” Fremouw, Dr. Ledwell and Gross retained Dr. Fremouw noted that Gross could un- ability perform work-related tasks. simple carry instructions derstand Withersty’s Dr. conclusion that claimant and, ordinary supervision them out under disabled discounted as not consist- sober, could relate well to co-workers while psychological findings. ent with the It was concluded, Dr. supervisors. Fremouw opinion that claim- however, “ability quali- that Gross’ to meet daily ant’s limited activities “are indicative ty production norms on a standard and lifestyle any rather than restriction impaired by sustained basis is both dai- impairment.” imposed by an dependence, problems, ly alcohol his vision depression, symptoms and his character- II. fatigue forgetfulness. ized This this Court considered the pro- these difficulties would combination Secretary’s regulations, visions of competitive very work dif- make sustained specify the conditions under which Dr. ficult for Mr. Gross to maintain.” Fre- Council is authorized to review diagnosis dependence mouw’s was alcohol decisions of an AU. Pursuant to 20 and continuous conversion disorder. He C.F.R. 404.970: prognosis improve- concluded that (a) Council will review a treatment, poor, even with be- ment was case if— insight into his cause Gross’ lack (1) appears There to be an abuse of problems and his lack of mo- discretion the administrative law drinking. tivation to alter his judge; considering the entire record in the After (2) law; There is an error of case, including post-hearing psychologi- (3) action, findings or conclusions Fremouw, report Dr. cal of the administrative law are not AU, concluding that Council reversed the *7 evidence; supported by substantial or impairment. no Claim- Gross has (4) policy procedur- is There a broad ant’s arthritis was dismissed as not disabl- general pub- al issue that affect the ing, because “there is no medical evidence lic interest. any complaints shows further (b) hospi- If material treatment to his neck” since 1978 new and evidence is talization, review, request and because recent lumbar x- submitted with the showing degenerative the shall the rays, mild arthritis evaluate motion, unaccompa- and limitation of were entire record. It will then review the neurological, case if finds that the by any nied associated senso- it administrative action, judge’s findings, The or conclu- ry, or reflex abnormalities. law weight contrary visual sion is of the Council further found that Gross’ by glasses, currently in the record. impairment could be corrected evidence as obsolete and which tested edition. mouw described points higher WAIS five to than the 1981 six

1170 require provi- We do not that the examiner’s Parris interpreted Court these given weight findings be more than in mean that “the sions to light judicial experi- reason and in the have unbridled discretion to over- does not they ence deserve. The “substantial evi- decision which it dis- turn ALJ’s any is not modified in may only of these dence” standard agrees, but do so one and its way when the Board examiner grounds four in 20 C.F.R. [enumerated recognize 404.970(a) disagree. only We intend present.” F.2d at 325. is 733 § ] supporting that evidence a conclusion Parris decision in that the If our impar- may be less substantial when an not have discretion Council does unbridled tial, experienced have examiner who has ob- anything, means then this Court must served the witnesses and lived with the right to review the decision for the ALJ’s has drawn conclusions different whether case substantial evidence determine the from the Board’s than when he has properly the followed reached the same conclusion. Secretary’s regulations. Any other review find- ings the examiner are to be con- totally interpretation insulates the along consistency sidered with the from Council’s decision to review case probability testimony. inherent meaningless judicial scrutiny and renders the Parris by Court the conclusion reached 496, added). Id. at (emphasis 71 at 469 S.Ct. point.4 on this Stores, NLRB, 448 Inc. v. Winn-Dixie Cf 8, (4th (“The Cir.1971) F.2d 12 Board can Moreover, approach entirely con- this is Examiner, overrule the Trial even on find- responsibility to sistent with the Court’s fact, ings the Examiner’s decision is but For administrative decisions. review other v. part of the record which must be con- Corp. in Universal Camera example, determining the NLRB, sidered when whether sub- 95 L.Ed. 340 U.S. S.Ct. (1951), on the record as a the stantial evidence whole which involved reversal Board.”) supports the of the Sim- hearing examiner’s decision the Nation- case, Board, lung re- Supreme ilarly, in a black this Court al Labor Relations the reviewing cently concluded that the Benefits Review Court made clear that a court setting the Board when it overturned an ALJ’s aside erred barred benefits, when, decision to award where there Board’s final decision after review- record, record, in the con- court substantial evidence ing all the evidence the whole, sup- support original sidered as a could not find substantial evidence Badger Compa- v. decision. Zbosnik Coal holding, Board’s reversal. In so port the (4th Cir.1985).5 ny, 759 F.2d 1187 Supreme observed as follows: Court unsup- improper accept Kellough of review.” 733 F.2d Court's standard I cannot added). Perhaps impossi- (emphasis ported at it is conclusion that Parris' restriction reviewing powers Secretary's 20 C.F.R. reached Par- under ble to reconcile the conclusion accept concerning was mere dicta. Nor do I ris Council’s limited re- 404.970 § portion gloss placed upon powers subsequent of Parris the case’s conclu- view Court, Kellough judicial which now concludes that “[a]t sion that deference is owed to the most, so, however, point implies that this peals the Parris dicta on If that is then the Council. through Council decision proper way the basis for an where to resolve the matter is en demonstrably sponte is outside by rewriting portion on sua review of Par- banc review—not grounds specified scope 404.- labeling ris and it as dicta. review, 970(a) might regulation.” violate Court, Kellough, Cir.1986), Kellough at Heckler, Kellough 5. Unlike v. 785 F.2d 1147 *8 3, meaningful 1149-50, distinction be- n. I see no at n. 2. regulations Secretary's secur- tween in social the simply, say Kel- Quite does not what Parris regulations ity review cases and the which limit say. lough in Parris have it The Court would by deci- the Benefits Review Board of an ALJ’s Appeals specifically Council has found that the lung 20 C.F.R. in a black case. sion decision, Cf. but power an ALJ’s limited to review 404.970(a), interpreted Parris to which we in § the “[o]n in that case that then went on to state only Appeals for abuse of Council review allow discretion, us, cannot con- record basis the before law, evi- error of lack of substantial Appeals follow Council failed to clude that the issues, dence, policy procedural or or broad regulations applied an Secretary’s own the

1171 Moreover, only light I can conclude that in even Dr. Ledwell conceded that by Secretary’s regulations, interpreted as insight claimant’s was limited and that his in this Court this same standard of judgment only was intact when not under applies review when we are confronted Furthermore, the influence of alcohol. Dr. conflicting opinions of an AU and the description Ledwell’s of Gross as a somatiz- security Council in a social case. er is not inconsistent with Dr. Withersty’s case, clearly In this as the record demon- diagnosis of a conversion disorder. The magistrate specifically the strates and as Fremouw, report of Dr. by submitted noted, undoubtedly there was “substantial claimant Council after it evidence from which it could be found that case, announced its decision to review the plaintiff’s impairments one or more of the provides further evidence of Gross’ disabili- ” Thus, ‘severe.’ is the ty due to a conversion disorder and alcohol- authority lacked to overturn the AU on only ism and confirms that the AU’s deci- Here, grounds. these Gross had been sion was correct.6 by twice found disabled Further- AU. more, Secretary’s psychia- consultative III. dis- trist had concluded that claimant was psychological impairment, his abled due to presented Under circumstances replete is documenta- record case, this I would find that the Secretary’s alcoholism, long standing as tion of Gross’ reversal of the AU’s decision for lack of physical im- well as other and mental agency’s substantial evidence violated the pairments. af- The fact that Gross cannot regulations. own Consequently, review I impairments ford medical treatment for his magis- would reverse the decision of the preclude finding disability. does not Council, affirming trate Schweiker, Gordon v. See 725 F.2d would the case remand for an award of (4th Cir.1984). 237 benefits to Gross. Nor does claimant’s denial alcoholism, preclude finding

problem

because such denials from a true alcoholic typical of the inherent-

are disease and are Califano, See Swaim v.

ly unreliable. 599 (4th Cir.1979); Adams v. 1312

F.2d

Weinberger, 548 F.2d Cir.

1977). evaluation, Dr. Ledwell’s relied, heavily virtually drawing

ignores Gross’ alcoholism hypochondriac.

conclusion that Gross was a 802.301, governing C.F.R. the Benefits Re- conduct a de novo review of the evidence. Un- § scope 404.970(b), review: view Board’s der C.F.R. if new and material review, request empow- evidence is submitted with a is The Benefits Review Board engage proceeding ered to de novo Council will evaluate the entire brought terms, unrestricted review of a case before By provision only record. its own is Board is authorized to review the it. The triggered requests where a claimant review findings law on of fact and conclusions of not, here, Council and as where appealed from which the decision or order merely provided cumulative evidence is to clari- based. Such of fact and conclu- fy explain already evidence contained only they are sions of law be set aside entirely clear record. It is not whether the Board, not, judgment supported in the Appeals Council conducted its review of these evidence in the record con- substantial proceedings under a substantial evidence stan- with law. sidered as a whole or in accordance dard or under the broader de novo standard. I Thus, Zbosnik decision I believe that the Court's would find that under either standard of review case. relevant to our determination in this is the result in this case is the same and that view, my Fremouw’s the submission of Dr. ALJ’s decision should not have been disturbed. report Council to did not authorize the