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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. § 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 percent

Vital Capacity 103 percent

Thus, the 1980 pulmonary function study cited by the reviewing physician provides no support for the Secretary's contention that plaintiff's condition had improved.*fn4

There are additional difficulties with the ALJ's reliance on the report that plaintiff's breathing capacity was not significantly restricted. First, the report is of uncertain origin and is initialed by a reviewing physician identified only a "J.R.".*fn5 Second, there is no evidence that "J.R." ever examined plaintiff. In contrast, one of plaintiff's treating physicians, Dr. Sorg, concluded that the 1980 pulmonary function tests "indicate severe restrictive changes with obstructive changes and severe diffusion defect."*fn6 Dr. Sorgfurther reported that he expected no significant improvement in plaintiff's condition. Another physician, Dr. Fouts, who treated plaintiff in June 1981, determined that plaintiff suffered from "chronic air flow obstruction -- moderately severe clinically" and wrote in August 1981 that "Mr. Switzer had been more symptomatic and unable to continue a normal life style." The determinations by both treating physicians that plaintiff continued to suffer from severe obstructive and diffusion defects were supported by specific laboratory and clinical findings. See 20 C.F.R. § 404.1526. Indeed, the reviewing physician and Dr. Sorg based their conclusions on the same test measurements, which were unchallenged and indicated a deteriorating condition when compared with the earlier tests.*fn7 The ALJ made no finding discounting either Dr. Sorg's or Dr. Fout's credibility. Whitney v. Schweiker, 695 F.2d 784, 780 (7th Cir. 1982). We conclude that the reviewing physician's report that plaintiff's breathing was not significantly restricted does not provide substantial evidence of improvement in the fact of contrary reports by two treating physicians that plaintiff's condition had remained severe. See Carver v. Harris, 634 F.2d 363, 364 (7th Cir. 1980); Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir. 1977).

In support of her position that plaintiff no longer had a severe impairment, the Secretary cites a report by Dr. Sorg, not mentioned by the ALJ, that indicates that plaintiff could lift up to 20 pounds maximum. However, the Secretary totally ignores the very next line of the doctor's report, which states that plaintiff could not left even 5 pounds frequently (defined as up to 10 times in an eight-hour day) and could do extended walking or standing for zero hours. This report is uncontradicted and the Secretary's attempt to use only the portions favorable to her position, while ignoring other parts, is improper. Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir. 1984); Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir. 1984).

We conclude that the Secretary has not met her burden of showing by substantial evidence on the record as a whole that plaintiff's condition had improved since he was granted benefits. We therefore reverse the judgment of the district court and direct the Secretary to reinstate plaintiff's benefits that were wrongfully terminated. See Cassiday v. Schweiker, 663 F.2d 745, 750 (7th Cir. 1981); 42 U.S.C. § 405(g). See also Iida v. Heckler, 705 F.2d 363, 365 (9th Cir. 1983). We further remand plaintiff's application for benefits under the supplemental security income program to the Secretary to determine whether, in light of this opinion, plaintiff satisfies the other statutory requirements for those benefits.

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