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Switzer v. Heckler

*fn*: August 24, 1984.


Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. F82-154. -- Gene B. Lee, Magistrate.

Author: Flaum

Before CUMMINGS, Chief Judge, CUDAHY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge. Plaintiff Duane Switzer appeals from the district court's affirmance of a decision by the Social Security Administration to terminate his social security disability benefits. We reverse.

Plaintiff suffers from lung abscesses and bronchitis and has been diagnosed as having chronic obstructive pulmonary disease. He applied for disability insurance benefits on May 28, 1974, and was awarded benefits as of December 1973.The Social Security Administration terminated plaintiff's benefits effective November 1975 as a result of a continuing disability investigation. In December 1977, however, on review of that action, an Administrative Law Judge ("ALJ") found that plaintiff's disability had been continuous from 1973 and ordered that his benefits be reinstated. Later, the Social Security Administration investigated plaintiff's disability and terminated his benefits, effective April 1980. Plaintiff requested reconsideration and also applied for supplemental security income benefits. A formal hearing was held before another ALJ, who affirmed the termination in a written opinion dated October 6, 1981. This second ALJ found that plaintiff's condition had improved, that plaintiff no longer had a severe impairment, and that plaintiff could return to his former job as a furniture salesman (although he would occasionally be required to aid in lifting up to 300 pounds). The ALJ's decision became the final decision of the Secretary when the Appeals Council denied review. Plaintiff then brought this action for judicial review.

This case involves termination of benefits and is therefore governed by the standards set out in Cassiday v. Schweiker, 663 F.2d 745 (7th Cir. 1981).In Cassiday, we held that "once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant's condition is not as serious as was at first supposed," 663 F.2d at 747 (quoting Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir. 1975). The Secretary's brief essentially treats this appeal as a review of a denial of an initial application for benefits and makes no reference to Cassiday, although plaintiff argues that the case is controlling.*fn1 The Secretary does, however, conclude with the contention that "substantial evidence [supports the finding that] plaintiff's condition has improved to the point where he is able to resume his past relevant work."*fn2 We must, of course, uphold a decision of the Secretary that is supported by substantial evidence in the record as a whole, unless there has been an error of law. 42 U.S.C. ยง 405(g). Substantial evidence is "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). However, in this case we find that we are unable to affirm the decision of the Secretary even under this lenient standard of judicial review.

In concluding that plaintiff's condition had improved, the ALJ who terminated plaintiff's benefits relied primarily on a reviewing physician's report, dated May 28, 1980, that states, "Current spirometric studies show that the claimant is not significantly restricted his breathing capacity." The only clinical data cited in support of this conclusion is a pulmonary function study conducted on April 18, 1980. This study produced the following results shown as percentages of predicted normal values:*fn3

FEV 51 percent

FEV3 77 percent

MVV 86 percent

Vital Capacity 84 percent

An increase in these percentages over time would indicate an improvement in plaintiff's condition. But the percentages obtained in the 1980 tests had in fact decreased compared to the percentages obtained in tests relied on by the 1977 ALJ, who found that plaintiff's disability had remained continuous since his initial application for benefits. The results of those earlier tests are shown below, as they were in the record, as percentages of the volumes predicted for a healthy person:

FEV1 61 percent

FEV3 83 percent

MVV 103 ...

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