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Felshina v. Schweiker

May 13, 1983

RAKHIL FELSHINA, APPELLANT,
v.
RICHARD SCHWEIKER, AS SECRETARY OF HEALTH AND HUMAN SERVICES, APPELLEE.



Where administrative law judge considered disability claimant's complaints individually and as combined and evidence supported findings under Social Security Administration regulations, except that combination of obesity and hypertension were insufficiently considered, judgment of the United States District Court for the Eastern District of New York, Eugene P. Nickerson, Judge, upholding ALJ's determination would be reversed with directions to remand for further findings.

Before: OAKES, KEARSE, and SLOVITER,*fn* Circuit Judges.

Per Curiam:

Rakhil Felshina applied for Supplemental Security Income (SSI) benefits under Subchapter XVI of the Social Security Act, 42 U.S.C. §§ 1381-83 (1976 & Supp. IV 1980) and was denied. Representing herself, Felshina exhausted her administrative remedies Represented by the Community Action for Legal Services, she filed a complaint in the United States District Court for the Eastern District of New York seeking review of the Secretary's decision that Felshina was not disabled as defined by the Social Security Act, 42 U.S.C. § 1382c(a)(3)(A), and accompanying regulations. Judge Eugene Nickerson granted the Secretary's motion for judgment on the pleadings in a memorandum decision and order and dismissed the complaint. We reverse for reasons below set forth.

I. Jurisdiction

This appeal followed vacation of a judgment entered in February 1982 and reentry on August 12, 1982, pursuant to Fed. R. Civ. P. 60(b)(1), (6). Only if the reentry of judgment were proper was this appeal timely. On appeal, the Secretary argues that reentry was improper since made solely to permit appeal and that this court therefore lacks jurisdiction. We disagree. Although the Federal Rules may not be construed to extend the court's jurisdiction, Fed. R. Civ. P. 82, the use of Rule 60(b) to permit filing of an appeal beyond the time limits set out in Fed. R. App. P. 4(a) does not require examination by this court. There is ample case law allowing a Rule 60(b) motion to remedy an excusable failure to take an appeal. See C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2864 at 215 & n.27, Supp. at 40 n.27. This court has accepted what it concluded was an erroneous Rule 60(b) order where the sixty days to appeal under Fed. R. App. P. 4(a) had expired, indicating that review of the court's action may be sought only by taking an appeal from the order vacating the earlier judgment. Mizell v. Attorney General, 586 F.2d 942, 944 n.2 (2d Cir. 1978), cert. denied, 440 U.S. 967, 99 S. Ct. 1519, 59 L. Ed. 2d 783 (1979). But see Rodgers v. Watt, 680 F.2d 1295, 1297 (9th Cir. 1982) (per curiam) (dismissing appeal sua sponte for lack of jurisdiction). The moving party apparently convinced Judge Nickerson that there was "excusable neglect" within the standard adopted by both these cases. Because the Government did not cross appeal on this issue, we will not examine Judge Nickerson's exercise of discretion.

II. Disability

On review, the issues are (1) whether the Administrative Law Judge employed the correct legal standard, and (2) whether there is substantial evidence on the record to support the Secretary's finding of ineligibility for SSI benefits. 42 U.S.C. §§ 405(g), 1383(c)(3).

A person is "disabled" within the meaning of the Act, and eligible for benefits providing income criteria are met, if 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 twelve months. . . ." 42 U.S.C. § 1382c(a)(3)(A). Further,

an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.c.§ 1382c(a)(3)(B). The applicable regulation, 20 C.F.R. § 416.920 (1982) describes the steps in evaluating disability. The Secretary reviews current work activity (there was none in this case),the severity of impairment(s), residual functional capacity, and age/education/work experience. "If we can find that you are disabled or not disabled at any point in the review, we do not review further." "Severe impairment" can be proved in two ways: (1) by determining that the impairment "does not significantly limit your physical or mental abilities to do basic work activities" and (2) by comparing the medical facts to a list in the Appendix. Id. (c), (d). The Administrative Law Judge must consider whether impairments in combination are severe. Id. (c); Kolodnay v. Schweiker, 680 F.2d 878, 880 (2d Cir. 1982).

The record is insufficient to tell us whether it supports the Administrative Law Judge's conclusory finding that Felshina's conditions, particularly her weight and hypertension, did not meet or equal the requirements that would constitute an automatic conclusion of severe disability. 20 C.F.R. Par 404, App. 1 at § 10.10(b). That table requires a finding of both a weight of 242 pounds for a woman of Rakhil Felshina's height of what is said to be in one medical reference 62 inches or 258 pounds if her eight is the 64 inches to which she testified and hypertension with diastolic blood pressure "persistently" in excess of 100mm. Hg. Beth Israel hospital reports dated February 21, 1979 and January 9, 1980 noted her obesity and her weight at 250 and 254 pounds and her blood pressure at 150/100 and 150/90 respectively. Dr. Dann who examined her for the SSA found her blood pressure reading to be 170/110 on March 17, 1980. However, his medical report, though referring to her as "extraordinarily obese," stated inexplicably that she weighted 217 pounds, some 37 pounds less than she had only 6-7 weeks earlier.Yet interestingly the claimant herself, after testifying that she weighed 230, when asked by the ALJ, "Is that what you usually weigh?", replied "This has it has been staying now." [sic] One may infer that her weight had been remaining the same, but if it were the "same" it would be in the 250 pound area not the 230 to which she testified or the 217 found by Dr. Dunn. While the ALJ's report refers to the claimant's obesity in discussing Dr. Dann's report, it does not do so in evaluating the severity of the claimant's impairment. Nor did the ALJ make any attempt to pinpoint her weight or to seek an explanation of the possible discrepancy in Dr. Dann's report. For the taking of further evidence and further findings in this regard we must alone reverse. Kolodnay, supra.

The record does not however contain sufficient medical evidence to support the finding that the other impairments, singly or in combination, were not severe enough significantly to restrict Felshina's capacity to perform basic work-related functions. At the hearing with a Russian language interpreter, Felshina presented complaints of headache, glaucoma, diabetes, gallstones, leg pain, propensity to bruise, noise sensitivity, and impaired functions: lifting, (two pounds), walking (one block, standing (ten to fifteen minutes), sitting (thirty minutes), household tasks (none), sleep (impaired). In Felshina's written application for SSI benefits, she presented complaints of diabetes, hypertension, gall stones, glaucoma, and urinary tract infections, which kept her from working because of frequent severe headache, swollen hands, "a heart condition with frequent attacks," poor vision due to glaucoma, frequent painful kidney infections, and several operations, most recently to remove a neck tumor.She stated: "I feel poorly all of the time and cannot work."

The ALJ did refer to four medical reports that confirmed the existence of (1) severe diabetes, (2) hypertension, (3) recurrent urinary tract infections, (4) glaucoma, and (5) a parotidectomy. These, together with the Social Security physician's report, showed, however, that (1) the diabetes had not affected her lower extremeties, which showed no clubbing or edema, and had not caused any systemic damage; (2) although she was hypertensive, there was no significant underlying cardiac pathology, and the EKG was normal, though with some arrhythmia; (3) although urinary infections recurred, there was no medical evidence of any significant complication; (4) there was no medical evidence of partial or substantial interference with vision due to glaucoma; (5) thhe post-operative recovery from parotidectomy was normal and complete.

The ALJ did examine the medical records for relevant evidence going to the issues of severe headache and leg, hand, and chest pain. There was no evidence of neurological dysfunction, bone abnormalities, or angina. Finally, the ALJ evaluated evidence of use of medication as submitted by Felshina and as stated in the medical reports. There was not substantial evidence to support the ALJ's finding that Felshina chose not to control her diabetes with medication (indeed, the evidence is that she took daily medication), but that error is harmless when substantial independent evidence showed that the diabetes, controlled or uncontrolled, was not an impairing condition. There was substantial evidence that Felshina did not use medication to control hypertension; she wrote that she had most recently refilled a prescription for medication to be taken five times a day three years ago, although we ...


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