Kellough v. HecklerKellough v. Heckler
Iris Kellough appeals a grant of summary judgment upholding the Secretary‘s denial of hеr claim for disability insurance benefits. Specifically, she challenges the Appeals Council‘s, hence the Secretary‘s, decision reversing that of an ALJ, that her cardiac condition did not meet the listed impairment criteria and that she was capable of performing her past relevant work, hence was not disabled. We conclude that the Secretary‘s determination that her condition did not meet the listed impairment criteria was supported by substantial evidence, but that the further determinatiоn that she could perform her past relevant work was not so supported. Accordingly, we vacate the district court judgment and remand to that court to remand for further agency proceedings.
I
Kellough was admitted to the University of Maryland Hospital in December 1975 complaining of shortness of breath on exertion. An X-ray examination revealed an enlargement of the heart due to mitral stenosis, a stricture of the mitral valve. Cardiac catheterization indicated an occlusion of the right extеrnal iliac and femoral arteries. Kellough underwent open-heart surgery in January 1976 to enlarge the mitral opening and underwent emergency surgery to remove a blood clot from her leg. She was discharged with a diagnosis of rheumatic heart disease, which affects the heart valves, and iliac and femoral embolus.
Kellough had a second cardiac catheterization in March 1980 that indicated a worsening of her rheumatic heart disease. In April 1980 doctors at the University of Maryland hospital replaced her mitral valve with an artificial valve and repaired the tricuspid valve. Evidence introduced at the hearing before the ALJ revealed that the tricuspid repair was unsuccessful, resulting in a severe leak in the valve.
Kellough‘s treating physician, Dr. Magram, in a report dated October 15, 1982, stated that Kellough suffers congestive heart failure and has an enlarged heart with poor contractility. A test of the left ventricle made on March 25, 1982, produced a ventricular ejection fraction of 20%, indicating a very weak heart muscle.
Kellough filed an application for disability benefits in March 1982 and alleged that she had been disabled since December 1975. All parties agree that Kellough last met the special earnings requirement of the Act on December 31, 1977, so that she would not be eligible for benefits if she became disabled after that date. After a hearing in November 1982, the ALJ rendered a decision that Kellough‘s cardiac condition met the “listed impairment” criteria of
Kellough sought review of the Appeals Council‘s decision in the United States District Court for the District of Maryland pursuant to
This appeal followed.
II
Kellough contends at the outset that judicial review of the Secretary‘s final decision should be limited to determining whether, as a matter of law, the Appeals Council observed the constraints upon its review powers which she argues are imposed by
In Parris v. Heckler, 733 F.2d 324 (4th Cir.1984), we rejected the position urged here by Kellough. We held instead that judicial review of a final decision of the Secretary which is at odds in its factual findings with that of an ALJ focuses upon the Secretary‘s decision rather than the ALJ‘s. Id. at 326. If the Secretary‘s dispositive factual findings are supported by substantial evidence, they must be affirmed, even in cases where contrary findings of an ALJ might also be so supported. Id.2
This critical holding in Parris was rested upon the general principle, as announced in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), that ordinarily3 governs judicial review of final agency decisions reached on appeal or review of an initial decision (now typically that of an ALJ) where the final agency decision rejects factual findings upon which the initial decision was based. As explained in Universal Camera, judicial review under the general “substantial evidence” standard of the Administrative Procedure Act,
On the direct authority of Parris, we therefore reject Kellough‘s contention that we should review the district court judgment by assessing whether the ALJ‘s favorable decision was supported by substantial evidence.5 We apply instead the Parris standard--whether the Secretary‘s unfavorable decision was so supported; and to that we now turn.
III
A
We first hold that substantial evidence supрorts the Secretary‘s conclusion that Kellough‘s impairment did not meet or equal the Listings of Impairment on December 31, 1977. The ALJ had relied heavily on Dr. Magram‘s October 1982 report to find that Kellough‘s cardiac impairment met or equalled the listing. The critical evidence contained in that report was the result of the heart scanning test on March 25, 1982, which revealed a left ventricular ejection factor of 20%. The Listings provide that cardiac impairment meets the disability level of severity when a ventricular ejection factor is less than 30%. The ALJ also found that Kellough suffered from serious heart disease--mitral valve insufficiency--as of December 1975.
What the record fails to show, however, is that the mitral valve insufficiency caused a less than 30% ejection factor as of December 1977. The medical evidence establishes that Kellough‘s basic impairment, rheumatic heart disease, is a degenerative ailment. The medical records are devoid of any tests in the period from the surgery in 1976 until December 1977 that show an ejection factor of less than 20%. The lack of such medical evidence taken in conjunction with the degenerative nature of the disease leads to the inference properly reached by the Appeals Council--the weakness of the heart muscle did not meet the severity requirement of the Listings in December 1977.
There is no question that Kellough suffered a serious heart impairment in December 1977. To be disabled under the Listings, however, the claimant must present evidence that the impairment meеts or is medically equivalent to an impairment listed. Kellough failed to carry this burden, and we affirm the Secretary‘s decision that she was not disabled by an impairment meeting the Listings of Impairment in 1977.
B
Having rejected the ALJ‘s determination of disability based upon the “listed impairment” criteria, the Appeals Council went further and determined that neither had Kellough established that her concededly severe impairments nevertheless prevented her from performing her past relevant work at the critical time. Becausе, under the sequential evaluation process, see Hall v. Harris, 658 F.2d 260 (4th Cir.1981);
The Appeals Council‘s determination that Kellough had not established her inability to engage in past relevant work therefore addressed and decided an issue not considered by the ALJ. When the ALJ found disability under the listed impairment criteria, there was of course no nеed to proceed to that potential alternative basis.
It may be appropriate in some cases for the Appeals Council to find nondisability on grounds not considered by an ALJ who had found disability on a basis also rejected. A claimant is of course entitled, and can be held, to present all the favorable evidence available to establish disability under any of the ways provided by the Secretary. See
Here, however, we do not think the record contains substantial evidence supporting the Appeals Council‘s finding that Kellough could perform her past relevant work. Essentially, the Appeals Council found that Kellough‘s own testimony indicated that at the critical time she could do “light work,” and that her “past relevant work“--secretary, substitute teacher, self-employed ceramics worker--fell by definition into the “light” category. This finding was rather cursorily based upon an attending physician‘s notes which from time to time during 1976 and 1977 indicated that Kellough “felt well,” was “free of cardiac symptoms,” had “no dyspnea,” and “was performing floor exercises including situps“; on Social Security Ruling 82-51 indiсating that heart valve surgery does not ordinarily compromise the capacity to do light work; and on the Appeals Council‘s essential rejection of Kellough‘s subjective assessments of physical limitations.
Considered on the record as a whole, we do not believe the Secretary‘s finding, rested essentially on these physician‘s notes, the Social Security Ruling, and the rejection of Kellough‘s subjective apprehensions of physical limitation is supported by substantial evidence.
The meaning of thе physician‘s notes is most ambiguous and the record contains no explanatory testimony from the physician. “Feels well” and “normal activity” must be read in context; the claimant has established that she suffered a severe cardiac impairment in 1975. A note entered in November 1975, just one month before she was hospitalized for open heart surgery, also stated that she “feels well.” Kellough testified without contradiction that her “normal activity” following her surgery was very limited. She stopped working, did no household chores, and could do very little lifting or prolonged standing. The notes themselves make no mention of the range of activity that Kellough could perform, nor do they establish that Kellough‘s rheumatic heart disease, a degenerative ailment, had been “cured” by surgery.
The Secretary‘s discounting of claimant‘s subjective complaints of pain and exertional limitation was rested on the ground that the medical evidence failed to establish a disabling impairment or a need for “potent and protracted pain mеdication.” But the medical evidence overwhelmingly establishes that Kellough suffered from rheumatic heart disease in 1975 and that her condition had degenerated by 1982 to a point where her heart muscle was extremely weak. It therefore appears that the Appeals Council discounted the claimant‘s testimony on the basis of a lack of need for “protracted” pain medication, the generalized statement of Social Security Ruling 82-51 and the references in the physician‘s notes to her “normal activity” and “feeling well.”
The first basis ignores the fact that claimant‘s major complaint was not pain but inability to perform routine tasks because of extreme fatigue and shortness of breath. Both complaints are symptomatic of mitral valve insufficiency, as Dr. Magram‘s report points out. The medical evidence indicates that Kellough suffered from mitral valve insufficiency in 1975, in 1980, and in 1982.
The reliance on Social Security Ruling 82-51 is equally insubstantial. The ruling clearly contemplates that individual cases may vary from the gеneralized statement. The ruling itself notes that congestive heart failure in conjunction with ischemic heart disease could compromise the ability to perform light work. The record is silent concerning Kellough‘s having congestive heart failure in 1977, but Dr. Magram‘s report states that she suffered such failure in 1980.
Finally, the isolated references in the physician‘s notes to “feeling well” and “normal activity” are not a substantial basis for rejecting as incredible the claimant‘s subjective complaints of exertional limitation. The claimant produced medical evidence of an impairment that could be expected to produce such symptoms, a requisite showing when disability is sought to be predicated in part on pain and exertional limitation. See Parris, 733 F.2d at 327; Social Security Disability Benefits Reform Act of 1984,
We therefore cannot let stand the Appeals Council‘s finding, on an issue not considered by the ALJ, that Kellough could at the critical time perform her past relevant work. The question then arises of the proper disposition of the appeal with this dispositive finding rejected.
IV
All things considered, we believe the case should be remanded for further agency proceedings in light of our holdings on the two critical findings by the Appeals Council. Our decision affirms the Secretary‘s final decision that Kellough‘s impairment did not meet the listed criteria, so thаt disability was not properly found on that basis. It further establishes, however, that Kellough has not properly been found not disabled on the basis that she could at the critical time perform her past relevant work.
The appropriate disposition therefore is to remand for agency reconsideration of her claim. This should start at the point in the sequential evaluation process where it has been conclusively established that Kellough‘s impairments do not meet the listed criteria, but with the issue opеn as to whether she might be able to establish disability under the alternatives remaining under the sequential evaluation process. See
The judgment of the district court is therefore vacated and the case is remanded to the district court with instructions to remand to the Secretary for further proceedings in accordance with this opinion.
VACATED AND REMANDED.
Notes
Sec. 404.970 Cases the Appeals Council will review.
(a) The Appeals Council will review a case if--
(1) There appears to be an abuse of discretion by the administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or
(4) There is a broad policy or procedural issue that may affect the general public interest.
(b) If new and material evidence is submitted with the request for review, the Appeals Council shall evaluate the entire record. It will then review the case if it finds that the administrative law judge‘s action, findings, or conclusion is contrary to the weight of the evidence currently in the record.
This was the critical holding on the point at issue in Parris. While the Parris panel also suggested in dicta that the sua sponte review provisions of
We observe that the circuits that have directly addressed this point are split. Compare Taylor v. Heckler, 765 F.2d 872 (9th Cir.1985) (
We can leave for another day the specific implications of our recognition in Parris that
Different statutory and regulatory regimes governing particular agency adjudications may of course dictate a different standard of judicial review in cases where there are conflicting factual findings in initial and final agency decisions. An apt example, because of the close relation to social security disability claims, is the special statutory and regulatory regime governing judicial and internal agency review of claims under the Black Lung Benefits Act,
Under this regime the adjudicative function of the Department of Labor‘s BRB is critically different from that of the Social Security Administration‘s Appeals Council. As one court has put it, under the LHWCA statutory and regulatory regime, the BRB‘s function “is more akin to that of a District Court.” Alford v. American Bridge Division, United States Steel Corp., 642 F.2d 807, modified in part 655 F.2d 86, modified 668 F.2d 791 (5th Cir.1981). For this reason, it is generally held in this circuit and elsewhere that judicial review by courts of appeals of BRB decisions rendered in review of ALJ initial decisions applies the same standard of review, including substantial evidence as to factfindings, as does the BRB, thereby according deference in cases of conflicting findings to those of the ALJ rather than those of the BRB. See Zbosnik v. Badger Coal Co., 759 F.2d 1187, 1189-90 (4th Cir.1985) (black lung claim); see also Newport News Shipbuilding & Dry Dock v. Director, 681 F.2d 938, 941 (4th Cir.1982) (LHWCA claim); Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234 (3d Cir.1979).
Universal Camera dealt directly with the standard of judicial review of orders of the National Labor Relations Board, but the Court expressly held that the factfinding review standard prescribed by the National Labor Relations Act, now
While in technical terms we need go no further than simply to apply Parris as binding circuit authority on the issue, we take the opportunity to reaffirm and briefly to elaborate on the rationale for that decision
We do so by emphasizing the practical difficulties that would attend application of the standard of review for which claimant here contends and that was rejected in Parris. The most direct effect of that standard would be to require reviewing courts to accord deference to any ALJ factfindings at odds with those of the Appeals Council made on review or appeal. This would necessarily subvert the аuthority of the central administrative reviewing authority validly exercising the Secretary‘s statutory power and responsibility finally to adjudicate these claims at the administrative level.
It is no answer to suggest that the Secretary has self-inflicted this wound upon the agency by the deliberate act of promulgating
When the Appeals Council decides to review a case, it is required by regulation to give notice to all parties of the “reasons for the review and the issues to be considered.”