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Carter v. Richard S. Schweiker Secretary of Health and Human Services

decided: May 28, 1981.

BETTY CARTER, PLAINTIFF-APPELLANT,
v.
RICHARD S. SCHWEIKER,*FN* SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE .



Appeal from a final judgment of the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, dismissing plaintiff's complaint in this action, brought under 42 U.S.C. §§ 405(g), 1383(c), to review a determination of the Secretary of Health and Human Services denying plaintiff's application for disability insurance benefits. Vacated and remanded to the district court for further proceedings.

Before Oakes and Kearse, Circuit Judges, and Pollack, District Judge.*fn**

Author: Kearse

Plaintiff Betty Carter, appearing pro se, appeals from a judgment of the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, dismissing plaintiff's complaint for review of the denial by the defendant Secretary of Health and Human Services of plaintiff's application for disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-431 (1976). Although we conclude that the district court properly upheld the Secretary's denial of prospective benefits to plaintiff Carter for a seizure condition she now suffers, we believe that both the district court and the Secretary overlooked the possibility that Carter might be entitled to retroactive benefits for alcoholism, a condition she suffered in the past. A recent amendment of § 205(g) of the Social Security Act, Pub.L.No. 96-265, § 307, 94 Stat. 458 (1980) (to be codified at 42 U.S.C. § 405(g)) (hereinafter the "1980 amendment"), restricts the power of the federal courts to remand Social Security cases to the Secretary for evidentiary hearings of the type that would be necessary to determine Carter's entitlement to retroactive benefits. Accordingly, we vacate the judgment below and remand the matter to the district court so that it may determine, in the first instance, whether a further remand to the Secretary is justified under the standards of the 1980 amendment.

I.

Carter's action has reached this Court through the usual multi-layered process of administrative and judicial review. Carter applied for disability benefits on January 11, 1979,*fn1 claiming that she was disabled by reason of alcoholism and a seizure disorder. After her application was denied, both initially and on reconsideration, she sought de novo review of her case before an administrative law judge ("ALJ"). At a hearing duly held on September 17, 1979, at which Carter was not represented by counsel, she and a member of her household testified as to the nature and severity of her seizures, her work history, and her history of alcoholism. In a decision dated February 1, 1980, the ALJ concluded that Carter was not disabled within the meaning of the statute, finding that she suffered a "mild seizure disorder" that did not "significantly limit her ability to perform basic work-related functions." The Appeals Council subsequently declined to grant review of the ALJ's decision. Carter then commenced an action for judicial review of the Secretary's determination in the Eastern District of New York pursuant to 42 U.S.C. §§ 405(g), 1383(c). The district court granted judgment on the pleadings for the Secretary and dismissed Carter's complaint, ruling that the Secretary's determination that Carter's seizures were not disabling was supported by substantial evidence. This appeal followed.

The evidence placed before the ALJ was as follows. Plaintiff Carter is a 44 year-old woman who has completed two years of college. She worked as a travel agent for 15 years, until sometime in 1973; she has not worked since then save for a period of three weeks in 1977, when she was employed to do "home mailing."

From 1974 or 1975 until October 1978, Carter suffered from acute alcoholism. Before her first effort at detoxification, she consumed between a pint and a quart of scotch whisky or vodka each day. In February 1976, she participated in a detoxification program and remained sober for about six months. Thereafter, however, she began to drink again, consuming the same amounts of liquor as before. A second effort at detoxification in March 1977 also failed. In October 1978, however, Carter stopped drinking and entered the Alcoholic Rehabilitation Unit of the South Beach Psychiatric Center for a six-week period of treatment. She has remained sober since then.

In addition to her alcoholism, Carter has suffered from seizures, of unknown origin, since December 1975. These seizures occur at irregular intervals, averaging perhaps ten occurrences in a three-month period. They usually last from three to five minutes, although Carter stated at the hearing that one recent seizure had lasted for 10 to 15 minutes. Carter feels faint for about 30 seconds before a seizure begins. During the seizures, she suffers paralysis of her right leg, feels "a tingling" in her right hand, sees stars, and apparently is quite helpless and disoriented. She does not lose consciousness, bite her tongue, or suffer convulsions. She sometimes remains disoriented for a period of several hours after a seizure. At the time of the hearing, Carter was taking Dilantin and other drugs to control the seizures, without notable success.*fn2

None of the several physicians whose reports were before the ALJ was able to establish a satisfactory diagnosis for the seizures or to associate them with an identifiable physical abnormality. Although the medical reports prepared in conjunction with Carter's February 1976 and March 1977 treatments for alcoholism described the seizures as alcohol-related, they persisted after her successful detoxification in October 1978. Dr. Drucker, a psychiatrist who treated Carter for six weeks in connection with the October 1978 detoxification, described the seizures as "most probably emotional in origin" and "a defense supporting her alcoholic denial system." Dr. Finkel,*fn3 a neurologist who examined Carter for the Secretary in March 1979, diagnosed the seizures as "transient, ischemic attacks" and observed that they were "very bothersome to (Carter) and potentially very dangerous since they may portend an upcoming cerebral infarct." Repeated testing, including electroencephalograms, brain scans, CAT scans, and skull x-rays, revealed no significant neurological abnormalities.

Apart from the seizures, Carter enjoys reasonably good health. Repeated examinations indicated that her alcoholism had not irreparably damaged her gastro-intestinal system. Although Carter suffered hypertension in connection with her alcoholism, her blood pressure returned to normal once she stopped drinking. At the hearing before the ALJ, Carter testified that she is "strong," can perform normal household chores, can "stand up as long as any person can," and can walk half a mile, although her right foot sometimes "drags" and begins to tingle if she walks "for a long time." Carter also stated that she attends church regularly, visits friends occasionally, and performs normal household chores. Because of her seizures, she does not drive, although she has a valid driver's license. She is able to travel unaccompanied in her neighborhood, but never undertakes a longer trip alone.

The overall picture of Mrs. Carter that emerges from the administrative record is thus one of a lucid and reasonably vigorous woman who has now succeeded in combating a particularly insidious condition, alcoholism, but who remains deeply troubled by her unexplained seizures.

Appearing before us pro se in this appeal, Carter argues that there was not substantial evidence to support the ALJ's determination that her seizures are not disabling.*fn4 We conclude that the ALJ's determination respecting Carter's seizures was supported by substantial evidence and must therefore be upheld. We believe, however, that the ALJ inadequately explored Carter's alcoholism as a possible cause of disability, and we therefore remand the case to the district court so that it may determine whether a remand to the Secretary for the taking of additional evidence concerning Carter's alcoholism is permissible under the 1980 amendment.

II.

Under the Social Security Act, a person is disabled when he or she is unable "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." 42 U.S.C. § 423(d)(1)(A). In addition, an individual's physical or mental impairment is not disabling under the Act unless it is "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A). The burden of establishing disability is upon the claimant, 42 U.S.C. § 423(d)(5); Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980), and § 205(g) of the Act, 42 U.S.C. § 405(g), provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence means "such relevant evidence as a reasonable mind might ...


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