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Nelson v. Bowen

decided: August 30, 1988.

EDWARD NELSON, PLAINTIFF-APPELLANT,
v.
OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 9219--George N. Leighton, Judge.

Cudahy, Ripple, and Manion, Circuit Judges.

Author: Manion

MANION, Circuit Judge.

Edward Nelson appeals from the district court's order granting summary judgment in favor of the Secretary of Health and Human Services in Nelson's suit pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Secretary's denial of Supplemental Security Income disability benefits under 42 U.S.C. §§ 1381-1383. Nelson argues that the Administrative Law Judge's finding that, despite his physical and mental impairments, he has the residual functional capacity (RFC) to perform a limited range of light work is not supported by substantial evidence, and that the ALJ failed to properly consider his mental impairments in finding him not disabled. Because we find that the Appeals Council erred in determining that certain evidence Nelson submitted to it was not material, we vacate the district court's grant of summary judgment and remand the case to the Secretary.

I.

The evidence presented at the hearing before the ALJ indicates that Nelson suffers from a variety of physical and mental impairments. Since we base our decision to remand the case on the materiality of certain additional evidence Nelson submitted to the Appeals Council, we will not review the evidence presented to the ALJ in any great detail.

Briefly, Nelson was 44 years old at the time of the ALJ's decision. Although the record is somewhat unclear, he had apparently completed at least 10 years of school and had additional vocational training as a barber and cosmetologist. Nelson had worked in the past as a barber/cosmetologist and, most recently, as a stock boy in a food store.

Nelson, who is right-handed, lost (most) of the use of his right arm in 1983 due to complications caused by an intravenous drug injection. Some evidence before the ALJ also indicated that at the time of his application for benefits Nelson suffered from problems with his legs. Dr. Simeon Sevandal, who performed a consultative examination on Nelson, noted "browny induration and edema"*fn1 of the right foot and 1/3 of the right leg, indicating probable venostasis (abnormally slow motion of blood in the veins) of the right leg. In addition, Nelson himself testified that his legs swell and he suffers from poor circulation in his legs, and that, as a result, he could only stand for 25 minutes. On the other hand, Dr. Gary Farenbach, who also performed a consultative examination, noted no problems with Nelson's lower extremities. Additionally, two Illinois state agency doctors, without examining Nelson, both completed reports indicating that he could stand or walk for 6 hours each day.

In addition to the evidence of Nelson's physical impairments, there was evidence that Nelson suffered from mental impairments of some consequence. Tests performed by Dr. George M. Gentry, a psychologist, indicated Nelson was borderline mentally retarded, with a full scale IQ of 71. His scores on the Trail Making Test and Hooper Visual Organization Test supported a finding of brain damage. Dr. Gentry concluded that Nelson could carry out only simple, short work cycle, repetitive tasks and that he would have to carry out even these tasks slowly because he would be using his non-dominant (left) hand. Dr. Adams, the medical advisor and a board-certified psychiatrist, stated that, based on his observations of Nelson at the hearing before the ALJ, he found support for Dr. Gentry's results suggesting brain damage. Dr. Adams nevertheless concluded that Nelson's mental impairments would not prevent him from performing unskilled work.

At the hearing before the ALJ there was also testimony that Nelson exhibited a personality disorder, a history of problems in living and emotional adjustment, heroin use over a long period and alcohol consumption. Nelson testified that at the time of the hearing he attended a methadone program and was not using heroin.

In a lengthy decision, the ALJ concluded (at step 5 of the sequential analysis*fn2) that despite Nelson's impairments, he had the RFC to perform a limited range of light and sedentary work and that there were a significant number of jobs in the economy that he could perform. The ALJ therefore found Nelson not disabled. In reaching this conclusion, the ALJ found Nelson's testimony regarding limitations on his ability to stand and walk incredible. Nelson requested review by the Appeals Council.

Before the Appeals Council Nelson submitted additional evidence, consisting of records of Nelson's admissions to Henrotin Hospital in 1981 and 1982 and a report from Dr. Jack Johns who treated Nelson at the Family Guidance Centers. The Henrotin Hospital records indicate that Nelson was hospitalized from September 5 to September 12, 1981 for treatment of multiple abscesses in both legs, that his condition improved, and that upon his release he was walking well. He was hospitalized again from October 1 to October 8, 1981 for treatment of abscesses in his legs and right arm. From February 19 to February 23, 1982, Nelson was again admitted for treatment of his right arm; at that time no problems concerning his legs were noted. Dr. John's report, dated April 11, 1986, opines, in relevant part, that Nelson could only sit for 1/2 hour, stand 3/4 of an hour, and walk 1/2 hour during a workday. On July 23, 1986, Dr. Johns corrected his previous report by stating that Nelson had no restrictions on sitting, also noting that Nelson suffered from "chronic edema of both lower legs due to vascular insufficiency and damage."

The Appeals Council determined that this evidence provided no basis for changing the ALJ's decision, stating, "The medical records from 1981 and 1982 show that [Nelson was] treated for phlebitis*fn3 and multiple abscesses of [his] lower legs. This evidence is not material to a finding of disability based on [his] application of April 8, 1985. Dr. Johns opines that Nelson [is] . . . limited in lifting no more than 15 pounds and that [he has] . . . no trouble sitting." The Appeals Council therefore denied Nelson's request for review and stated that the ALJ's decision "stands as the final decision of the Secretary."

Nelson then sought judicial review in the district court. The court granted summary judgment for the Secretary and denied Nelson's Rule 59(e) motion to alter or ...


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