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Allen v. Weinberger

decided: April 15, 1977.

ROBERT K. ALLEN, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Eastern District of Illinois. No. 74-30-B - Henry S. Wise, Judge.

Castle, Senior Circuit Judge, and Tone and Wood, Circuit Judges.

Author: Castle

CASTLE, Senior Circuit Judge.

The district court upheld a decision of the Secretary of Health, Education and Welfare that plaintiff was not entitled to disability insurance benefits under the Social Security Act, 42 U.S.C. § 423. Plaintiff appeals, asserting that the Secretary's decision was unsupported by substantial evidence in two respects: first, in his determination that plaintiff had failed to establish an incapacity for employment for at least 12 months; and second, in his determination that plaintiff's disability had ceased. We reverse in part and affirm in part.

Plaintiff filed an application for disability insurance benefits on December 3, 1971. After the application was denied by the Bureau of Disability Insurance of the Social Security Administration, an Administrative Law Judge (ALJ) considered plaintiff's claim de novo and on February 23, 1973, found that plaintiff was not entitled to disability benefits. The Appeals Council, after taking additional evidence, reached the same conclusion and affirmed the ALJ's decision on February 20, 1974. This decision became the final decision of the Secretary.

The Secretary's decision must be upheld on judicial review if it is supported by substantial evidence based on the record as a whole, 42 U.S.C. § 405(g); Moon v. Celebrezze, 340 F.2d 926 (7th Cir. 1965). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971).

I.

Plaintiff first takes issue with the Secretary's finding that he had failed to establish an incapacity for substantial gainful activity which had lasted for a continuous period of at least 12 months.*fn1 A 12-month incapacity is one criterion for the establishment of a "disability" within the meaning of section 423.*fn2 42 U.S.C. § 423(d)(1)(A).

The Appeals Council recognized that plaintiff sustained an incapacitating back injury on May 19, 1971, which necessitated back surgery on September 22, 1971. In making its determination that plaintiff's incapacity lasted less than a year, the Council relied primarily on a report by Dr. Jim Swink, a specialist in orthopedic surgery who examined plaintiff on January 27, 1972. As a result of his interview with the plaintiff, Dr. Swink reported:

He feels he has had a fair to moderate relief of pain since his surgery but he continues to have back, hip and leg pain almost every day and states he is unable to do much bending or lifting and long periods of sitting make him more symptomatic.

Dr. Swink's physical examination revealed that plaintiff wore a brace with which he was able to walk with a slight limp on the left foot. The motion of plaintiff's spine appeared to be fairly normal, but there was moderate generalized atrophy of his left leg and slight generalized weakness of all its musculature. Straight leg raising was painful on the left at about 85 degrees. X-rays of the spine showed evidence of the surgery and a "few drops of radioopaque material in the neural canal" but no other apparent abnormalities. On the basis of his interview and physical examination, Dr. Swink stated:

It is my opinion that this patient presently is unable to stand or walk for long periods of time and I doubt if he could lift 10 to 25 pounds without aggravation of his existing symptoms of back and leg pain. He possibly would be able to do light work that did not involve being on his feet for long periods of time or significant bending and lifting.

The Appeals Council treated this statement as evidence that plaintiff was able to perform light work at the time of the examination.

Our review of the record disclosed the following other evidence related to the severity of plaintiff's impairment in the first year after his injury. Dr. Carlos Acosta, a general practitioner who performed the surgery on plaintiff's back, reported on January 11, 1972, that he had twice examined plaintiff since surgery and that plaintiff's response had been poor. Dr. Acosta stated, "I consider this patient totally and permanently disabled." On April 4, 1972, Dr. Acosta reported in a letter to plaintiff's attorney that he had examined plaintiff on two more ...


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