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CAMPBELL v. CHATER

July 11, 1996

PRUDENCE CAMPBELL, SSN: 347-52-1380, Plaintiff,
v.
SHIRLEY CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: SHADUR

 Prudence Campbell ("Campbell") appeals the final decision of Commissioner of Social Security Shirley Chater ("Commissioner") denying Campbell's application for disability insurance benefits pursuant to Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 416(i) and 423. *fn1" As is usual in these cases, Campbell and Commissioner have filed cross-motions for summary judgment under Fed. R. Civ. P. ("Rule") 56, with Campbell alternatively requesting a remand for a new hearing. For the reasons set out in this memorandum opinion and order, both summary judgment motions are denied but Campbell's request for a remand is granted.

 Background

 Campbell, who was born in 1939, has most recently worked as a punch press operator. She had held that job for 12 years before she stopped working in 1984 because she was "off and on sick" (R. 62, 83). It is undisputed that Campbell's insured status expired on December 31, 1989 because of her limited earnings history, and so the dispositive question in this case is whether Campbell was disabled on or before that date.

 Campbell filed an application for disability benefits on April 23, 1992, asserting that she had become disabled on December 11, 1984 (R. 97). Campbell listed a number of impairments in that respect (R. 101): diabetes, a third degree burn on her right hand, asthma, a bad heart, high blood pressure and the lingering effects of a nervous breakdown that she suffered in 1982. Campbell's application was denied both initially (R. 125-26) and on reconsideration (R. 136).

 Campbell next sought a hearing, which took place before Administrative Law Judge ("ALJ") Irving Stillerman on August 4, 1993. Campbell testified at the hearing, as did her husband. She was not represented by counsel because her attorney had withdrawn before the hearing due to a dispute over fees (R. 52-53). On November 3, 1993 ALJ Stillerman issued a decision denying disability benefits. *fn2"

 
The claimant appeared at the hearing without a representative. The Administrative Law Judge inquired as to why she did not have a representative. However, the Administrative Law Judge did not secure her acknowledgement of the right to representation, and affirmation of her decision to proceed without a representative, as required by HALLEX I-2-652.

 ALJ Stillerman held another hearing on December 13, 1994, this time with Campbell represented by counsel. ALJ Stillerman incorporated the testimony and evidence from the first hearing into the second hearing (R. 80). In addition to testimony from Campbell and her husband, the ALJ also had this medical evidence before him:

 
1. medical records tracking Campbell's health from 1981 to the time of the hearing (R. 151-265);
 
2. a November 1992 letter from Dr. Ronald Feingold, Campbell's long-time doctor, who opined that Campbell had been disabled since December 1989 (R. 206); and
 
3. the opinion of consulting physician Dr. Julian Freeman, who examined Campbell's medical record and concluded that her symptoms were consistent with slowly evolving cardiomyopathy (R. 249-51).

 On April 23, 1995 the ALJ issued a written decision, again denying Campbell's benefits claim (R. 15-22). ALJ Stillerman first rejected her contention that she was disabled before December 31, 1989 because of lingering residuals from a 1981 nervous breakdown, uterine bleeding, asthma or diabetes. *fn3" Next the ALJ turned to the onset date of Campbell's present condition, which he termed a "significant heart impairment" (R. 19). ALJ Stillerman found no objective medical evidence to support Campbell's claim of disability since 1984, and he also rejected Campbell's own testimony that she was disabled as not credible because of (1) the relative infrequency of her medical treatment and (2) her lack of complaints about a heart problem when she did seek treatment (R. 20). As for Dr. Feingold's opinion, the ALJ rejected it as not credible because it was "completely unsupported by the objective medical evidence" (R. 21) in that Dr. Feingold had not memorialized any concerns about Campbell's heart before 1989. ALJ Stillerman also rejected Dr. Freeman's opinion because "it is based in part on claimant's own statement of syncopal episodes" (R. 21), which he had earlier found lacked credibility.

 Once again Campbell filed a request for review, contending that the ALJ's decision was not supported by the record and reiterating her earlier complaint that the ALJ had failed to comply with SSR 83-20. This time the Appeals Council denied Campbell's request for review (R.3-4), making the ALJ's decision Commissioner's final decision (Section 405(g); Reg. § 404.981). Campbell then exercised her right under Section 405(g) and filed an appeal to this Court.

 Campbell essentially advances two claims here. First she argues that the ALJ should have followed SSR 83-20 by calling on the services of an independent medical advisor to determine the onset date for her claimed disability. In addition she contends that the ALJ made an independent (and hence improper) medical determination by rejecting the opinions of Drs. Feingold and Freeman and substituting his own take on the objective medical evidence. *fn4"

 SSR 83-205

 Campbell's first argument requires this Court to consider what appears to be an issue of first impression in this Circuit: what type of affirmative finding of disability by the ALJ is necessary to trigger SSR 83-20's procedures for finding the onset date of disability. Because the disability that Campbell claims on appeal--a heart problem that progressed slowly until the point of disability--is of nontraumatic origin, and because the ALJ noted during the hearing that he would find Campbell currently disabled if that were at issue (R. 75-76), Campbell asserts that SSR 83-20 should have been brought into play and that the ALJ therefore erred by not calling for the assistance of a medical advisor in choosing a disability onset date.

 In response Commissioner initially took the position (Mem. 14) that "S.S.R. 83-20 comes into play after the Commissioner finds that a ...


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