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Sears v. Bowen

*fn*: January 22, 1988.


Appeal from the United States District Court for the Eastern District of Wisconsin, No. 86 C 293 -- Rohert L. Bittner, Magistrate.

Before Wood JR., COFFEY, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge. David Sears appeals the district court's order upholding the final determination of the Secretary of Health and Human Services that he is not disabled and denying a remand to the Secretary to consider additional evidence. We reverse the district court's order in part and remand this case to the Secretary.



This is a difficult case. A review of its procedural background is necessary. David Sears suffers from glaucoma. He applied for benefits claiming to have been disabled as a result of the glaucoma and its effects. After Sears' application was denied on two separate occasions at the administrative level, he requested and received a hearing before an Administrative Law Judge in September 1984. He was represented at the hearing by a lay advocate. At the close of the hearing, the ALJ agreed with the advocate's request to keep the record open in order that an additional report from a Dr. Ridley might be considered when filed.

Dr. Ridley's report was never filed. Another extension of time was granted, and the ALJ subsequently wrote to another lay advocate assigned to Sears' case (a different advocate from the same organization) reminding him that the extension of time had expired and giving him an additional ten days to file the evidence. A copy of the letter was sent to Sears, but Sears' vision is so poor that he is unable to read even ordinary type.

In April 1985, the ALJ denied benefits finding that Sears' glaucoma was a severe impairment, but that he was able to do light work if he was not exposed to bright light and was also free of undue stress. The ALJ also found Sears was able to perform his past relevant work as a teacher's aide.

Sears sought review before the Appeals Council. He filed a form statement with the Appeals Council requesting that they attempt to obtain additional medical (psychiatric) evidence from a Dr. Ulrich, who had begun treating him for "nerves" (biweekly since October 1984 and weekly since February 1985) after the hearing before the ALJ. The statement also informed the Appeals Council that Dr. Ulrich had prescribed an unspecified medicine which Sears ingested two times per day. The Appeals Council sent Sears a letter informing him that he bore the burden of submitting additional reports. A copy of that letter was forwarded to his advocate, but no report from Dr. Ulrich was ever submitted. On September 20, 1985, the Appeals Council denied review, concluding that the ALJ had neither abused his discretion nor committed an error of law and that the ALJ's conclusions were supported by substantial evidence. A report from Dr. Baliff, an opthamologist, on the status of Sears' glaucoma that was apparently to have been submitted to the ALJ*fn1 was then submitted to the Appeals Council. The Council ruled that the information contained in the report had previously been considered and affirmed its prior decision.

At this time Sears obtained counsel rather than a lay advocate; his attorney requested an extension of time from the Appeals Council to appeal its decision to the district court. The request was attached to an affidavit from Sears stating that he had been represented by three different advocates from the same office during the course of the proceedings; he did not understand the difference between an appeal to the Appeals Council and one to a federal court or the timing requirements for appeals, but believed that the advocates were handling his appeal; he thought that he had been granted an extension of time to appeal based both on new evidence to be submitted following additional eye surgery and own unspecified evidence which had been previously submitted; and, because of his visual impairment, he explained that he relied on others (his advocates) to read and interpret the notices he received from the Secretary. When the Appeals Council granted the request for the extension of time to appeal, Sears filed suit in the district court. The court granted summary judgment to the Secretary and further denied Sears' request for a remand to consider the contents of Dr. Ulrich's report. This appeal followed.


Dr. Ulrich filed a psychiatric report dated July 2, 1986, some ten months after the Appeals Council decision of September 20, 1985 which denied review. The report reveals that in addition to glaucoma, Sears suffers from a myriad of serious and chronic psychiatric problems which cast significant doubt on his ability to work. In the report, Dr. Ulrich details Sears' mental impairments and concludes that Sears is unable to work and is totally disabled as a result of the "severity of his current symptoms and the profundity of their origins." Dr. Ulrich's clinical findings state that Sears suffers from a "severe dysthymic disorder," including low self-esteem, intense emotional conflict, poor concentration, obsessional thought patterns, and marked anxiety combined with "persecutory ideation" and reclusive behavior.

Dr. Ulrich's report also reviews Sears' familial, medical, and placement history, the majority of which had not been presented to the ALJ. In addition to Dr. Ulrich's opinion that Sears is disabled due to the severity of his current symptoms, the report also contains a wealth of case history information about Sears. For example, it states that Sears lived in a children's home from ages 3-6, experienced physical and sexual abuse from relatives, was misdiagnosed as "mentally deficient," and was improperly institutionalized from ages 13-22, during which time he was frequently beaten and kept in isolation for long periods of time. Dr. Ulrich also reports that Sears has a "dull-normal" I.Q. of about 79 and that his reading and math skills are at the third grade level.*fn2 The report also reflects that Sears was the victim of a near-fatal mugging/stabbing in 1977. Sears' prognosis is listed as "guarded" due to his severe symptoms, the chronic nature and severity of his psychiatric problems, and the very nature of his developmental deprivations. The report indicates that Sears' impairment has lasted or is expected to last twelve months. This information was neither presented to the ALJ nor to the Appeals Council. It is this report which Sears seeks to have the Secretary consider.


On appeal Sears argues that the district court erred in failing to remand the case to the Secretary for consideration of Dr. Ulrich's psychiatric report. Sears also contends that the Secretary's conclusion that his glaucoma is not disabling is not supported in the record with substantial evidence and that the Secretary denied him a fair hearing.


Sears argues that the ALJ's conclusion that he is not disabled on the basis of his glaucoma is not supported by substantial evidence. 42 U.S.C. § 405(g). 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) [quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)] quoted in Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir. 1986), taking into account "whatever in the record fairly detracts from its weight." Id.

In his attack on the substantiality of the evidence, Sears raises two claims. Initially, he argues that the ALJ's conclusion that his vision is correctable to within "normal limits" is not supported in the record with substantial evidence. There is no dispute that Sears does not meet the regulatory definition of blindness (vision in the better eye correctable to no better than 20/200, 20 C.F.R., Subpart P, Appendix 1, § 2.02). The record supports Sears' belief that he is statutorily blind in his right eye. All but one*fn3 of the medical reports agree his vision in that eye cannot be corrected to better than 20/200. However, the record also supports the Secretary's conclusion that Sears' vision in his left eye is correctable to better than 20/200. All but one of the medical reports show that the vision in Sears' left eye may be corrected to about 20/20. The exception is the report of Dr. Baliff, which shows that Sears' left eye may be correctable only to about 20/80, described as "moderately myopic."*fn4 Dr. Baliff did not conclude that Sears was disabled but acknowledged that Sears had a "significant impairment," which is consistent with the Secretary's finding that Sears' impairment was severe. No doctor has suggested that Sears is disabled as a result of his poor vision (even combined with his headaches brought on by bright light and/or stress). Sears' visual impairments are long-standing and he wore prescription eyeglasses at the hearing before the ALJ; in spite of this handicap, he has worked in the past. We conclude that there is substantial evidence in the record to support the conclusion that Sears' visual impairment, which is correctable to some degree, when considered in isolation from his other problems, fails to render him disabled within the meaning of the applicable regulations. See 20 C.F.R. § 2.02; 20 C.F.R. § 404.1581 ("statutory blindness" is "central visual acuity of 20/200 or less in the better eye with the use of a correcting lens"). See also 20 C.F.R. § 416.985 (visual impairments which do not meet definition of statutory blindness are evaluated as any other impairment); Social Security Ruling 85-15 (PPS-119: Capability To Do Other Work -- The Medical-Vocational Rules As A Framework For Evaluating Solely Nonexertional Impairments) (stating visual impairments are nonexertional and "as long as [a claimant] retains sufficient visual acuity to be able to handle and work with rather large objects (and has the visual fields to avoid ordinary hazards in the workplace), there would be a substantial number of jobs remaining across all exertional levels.").

Second, Sears challenges the Secretary's conclusion that the headaches he experiences as a result of his glaucoma can be controlled with medication. Much of Sears' arguments on appeal on this point deal with what Sears characterizes as a finding that he has refused treatment for his headaches. We do not agree with Sears' interpretation of the ALJ's decision; the ALJ merely states that one medical report reflects that Sears has had some history of noncompliance. Nothing in the decision suggests that the ALJ was invoking the regulations under which a claimant who suffers from a severe impairment may be found not disabled because he refuses to undergo treatment. See 20 C.F.R. 404.1530, 416.930. To the contrary, the ALJ found that Sears suffered from a severe impairment as a result of his glaucomatic condition, but retained the capacity to do a range of light work if he was not exposed to excessive light or undue stress (possible causes of his headaches). Sears does not refute the ALJ's finding that he does not suffer from disabling pain and his daily activities support these conclusions. We are mindful of Sears' testimony that ...

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