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MULVENNA v. SULLIVAN

June 2, 1992

JOHN N. MULVENNA, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 John Mulvenna ("Mulvenna") claims that he was permanently disabled by an acute anterior wall myocardial infarction. *fn1" Secretary of Health and Human Services Louis Sullivan ("Secretary") denied Mulvenna's claim for disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 216(i) and 223. *fn2"

 Mulvenna has appealed that decision and now moves for summary judgment under Fed. R. Civ. P. ("Rule") 56, seeking reversal or remand. Secretary cross-moves for summary judgment. For the reasons stated in this memorandum opinion and order, both motions for final disposition are denied and the case is remanded for reconsideration of Mulvenna's theory that he is disabled by the combination of his heart condition and his special vulnerability to stress.

 Factual and Procedural Background

 While in Florida on New Year's Day 1988, Mulvenna suffered an acute anterior wall myocardial infarction (see n.1) that caused him to be hospitalized for ten days (R. 14). Mulvenna was also diagnosed as having a left ventricular aneurysm, *fn3" atherosclerotic heart disease, *fn4" acute periocarditis, *fn5" mild congestive heart failure, *fn6" and ventricular tachycardia *fn7" (R. 14). Following his hospitalization Mulvenna underwent further testing and began a cardiac rehabilitation program (R. 14-15).

 On May 13, 1988 Mulvenna applied to the Department of Health and Human Services ("HHS") for disability insurance benefits (R. 97-100). His application was denied both initially and on administrative reconsideration (R. 101-09). Mulvenna then sought a hearing (the "Hearing"), which took place on January 3, 1990 before Administrative Law Judge ("ALJ") James Lanter.

 Documentary evidence presented to ALJ Lanter comprised 35 exhibits, principally doctors' reports and test results. Two of the doctors' reports were by Dr. Ronald Schreiber, Mulvenna's treating cardiologist in Chicago (R. 254, 269-70). Three witnesses testified: Mulvenna, Dr. David Abramson, a cardiologist who served as the ALJ's neutral medical advisor, and vocational expert Phillip Katch.

 Mulvenna (through live testimony) and Dr. Schreiber (through written submissions) contended that Mulvenna was an unusually driven, high-strung person, so susceptible to stress that any work at all might trigger a devastating or even fatal renewal of the acute cardiac problems that he experienced in early 1988. Dr. Steven West, who treated Mulvenna during his initial hospitalization in Florida, also submitted a brief letter describing Mulvenna as "totally and completely disabled" by his myocardial infarction and "due to the stress associated with work" (R. 253).

 Mulvenna described himself this way (R. 63):

 But the fact is no matter what my job was, if it was toll taker or a parking lot attendant or what, I would be the best damn toll taker or parking lot attendant in the world and I can't stop from doing that. And I would do everything I could to do that job to the utmost of my capacity. I don't know how [to] work any other way.

 At the same time Mulvenna acknowledged that he maintained a fairly vigorous schedule of exercise (R. 65-66) and routine household chores (R. 64-65). He also admitted to doing a certain amount of driving around the Chicago metropolitan area at non-rush hours without encountering stress symptoms (R. 66-67), though he recalled an instance when he "had a problem" when driving at rush hour (R. 67).

 Dr. Abramson testified that while the myocardial infarction had greatly reduced Mulvenna's cardiac capacity, he did not suffer from angina pectoris (R. 57-58). Dr. Abramson thought that Mulvenna's ability to handle routine exercise and chores undercut his argument about the dangers of work-related stress (R. 74-75). Dr. Abramson therefore opined that Mulvenna was able to lift ten pounds in a work setting (R. 73-75), which corresponds to the definition of "sedentary work" as that term is defined in the regulations (Reg. § 404.1567(a)).

 Katch testified that more than 30,000 low-stress sedentary jobs existed in the region, including positions such as payroll clerk, personnel clerk, bookkeeping clerk and order clerk (R. 82). *fn8" Katch said that Mulvenna's skills were transferable to those jobs (R. 81) and Mulvenna agreed (R. 94), although he continued to maintain that stress disabled him.

 Before the Hearing Mulvenna had asked for a continuance from January to May so that Dr. Schreiber could testify. ALJ Lanter had denied that request. After brief discussion of the same issue at the Hearing, ALJ Lanter reiterated his decision to proceed without live testimony by Dr. Schreiber (R. 32-33).

 On March 12, 1990 ALJ Lanter issued his ruling (R. 11-19) finding that Mulvenna was not entitled to disability benefits. Mulvenna appealed ALJ Lanter's decision to the HHS Appeals Council, which affirmed (R. 2-4). Because Secretary has delegated his review powers to the Council, its decision automatically became Secretary's final decision ( Arbogast v. Bowen, 860 F.2d 1400, 1402 (7th Cir. 1988)). Mulvenna then filed his Complaint in this District Court appealing that decision.

 This Court reviews the decision of the Appeals Council and not that of the ALJ ( Young v. Secretary, 957 F.2d 386, 388 (7th Cir. 1992)). In this case, however, the logic followed by the Appeals Council precisely tracks the logic of ALJ Lanter's decision, so for the most part this opinion will refer directly to the ALJ's ruling rather than to the Council's letter of affirmance (see Arbogast, 860 F.2d at 1402-03).

 Rule 56 Principles

 Rule 56 requires this Court to rule in the moving party's favor if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Any factual issue is deemed "genuine" when the record contains evidence sufficient to persuade a reasonable factfinder to adopt the view of either party ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir. 1991)), and such an issue is deemed "material" when it is outcome-determinative under the applicable substantive law ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir 1991)).

 Rule 56 principles require the movant to establish the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). In evaluating whether a movant has met that burden, the court must draw all "reasonable inferences, not every conceivable inference" in favor of the nonmovant ( De Valk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987)).

 Where as here cross-motions are involved, the court must extend the benefit of the doubt to each party when considering the other's motion--a dual perspective that sometimes compels the denial of both motions. But (just as in most other Social Security cases) that potential problem does not arise here, where Rule 56 merely provides the mechanism for a trial court to decide what is in substance an appeal. Like any other appeal, this one requires the application of law (Social Security statutes and regulations) to facts (the undisputed administrative record). Relevant factual disputes tend not to arise when the cross-motions pose common questions of law that turn on undisputed facts.

 Statutory and Regulatory Framework

 Section 1382c(a)(3)(A) defines disability as:

 inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]

 Young, 957 F.2d at 389 (case citations omitted) explains the five-step inquiry that guides Secretary's evaluation of a disability claim:

 1) Is the claimant presently unemployed; 2) is the claimant's impairment or combination of impairments severe; 3) does the impairment meet or exceed any of the list of specific impairments (the grid) that the Secretary acknowledges to be so severe as to preclude substantial gainful activity; 4) if the impairment has not been listed by the Secretary as conclusively disabling, is the claimant unable to perform his or her former occupation; and 5) if the claimant cannot perform the past occupation, is the claimant unable to perform other work in the national economy in light of his or her age, education and work experience. A negative conclusion at any step (except for step three) precludes a finding of disability. An affirmative answer at steps one, two or four leads to the next step. An affirmative answer at steps three or five results in a finding of disability. 20 C.F.R. § 404.1520 (1991). The claimant bears the burden of proof in steps one through four. If that burden is met, the burden shifts to the Secretary to prove that the claimant cannot perform other work in the economy.

 Step 3 requires Secretary to assess whether the claimant has an impairment specified in the Listing of Impairments (Part 404, Subpt. P, App. 1). Impairments found in the Listing mandate a finding of disability because they are "severe enough to prevent a person from doing any gainful activity" (Reg. § 404.1525(a)). Secretary must predicate such a determination on either of two conclusions: that claimant's impairment corresponds directly to the requirements spelled out in the Listing or that claimant's impairment (or combination of impairments) is "medically equivalent" to a Listing although it does not match up precisely with the regulatory criteria (Reg. § 404.1526(a)). Secretary must resolve the question of medical equivalency vel non on the basis of medical evidence (Reg. § 404.1526(b); Honeysucker v. Bowen, 649 F. Supp. 1155, 1158 (N.D.Ill. 1986)).

 Step 5 requires Secretary to determine the claimant's "residual functional capacity" ("RFC"): whether he or she is physically able to perform "sedentary," "light," "medium," "heavy" or "very heavy" work as those terms are defined by Reg. § 404.1567. Secretary also assesses the claimant's age, education and work experience, known collectively as his or her "vocational factors" (Reg. §§ 404.1563-.1565). Then Secretary slots the RFC and vocational-factor conclusions into the grid (Medical Vocational Guidelines of Part 404, Subpt. P, App. 2). For every permutation of RFC and the various vocational factors, the grid specifies whether or not a claimant will be deemed disabled.

 Standard of Review

 District courts "decide[] disability cases . . . by reviewing the final decision of the Secretary to ensure that it is supported by substantial evidence" ( Young, 957 F.2d at 388). "Substantial evidence" means ( 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)):

 more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

 Young, 957 F.2d at 389 similarly confirms that "substantial evidence may be something less than the greater weight or preponderance of the evidence." As the Court of Appeals has said ( ...


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