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WACHTER v. SHALALA

June 30, 1994

PEGGY WACHTER, Plaintiff,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: JOHN T. CURTIN

 Ms. Wachter's claim was initially denied in its entirety. Administrative Law Judge ("ALJ") Margaret J. Quinn affirmed the denial in a decision issued on August 8, 1989. On June 18, 1990, the Appeals Council remanded for reconsideration in the light of Kier v. Sullivan, 888 F.2d 244 (2d Cir. 1989). On May 6, 1991, the ALJ issued a decision finding that Ms. Wachter had not been disabled within the meaning of the Act prior to August 1, 1990, but that she had been under a disability under the Act as amended by Pub. L. 101-508 (1990), since August 1, 1990, entitling her to benefits commencing January 1, 1991. The Appeals Council affirmed.

 Both parties have moved for judgment on the pleadings. Ms. Wachter argues that Kier requires that she be awarded benefits back to the date of her original application, March 25, 1987, or, in the alternative, from April 28, 1989, after which she claims that there is no evidence in the record to support a determination that she was able to perform any gainful activity. The Secretary maintains that, to the contrary, her decision properly applied Kier, and was supported by substantial evidence.

 BACKGROUND

 A. Medical Evidence

 There is no real dispute over the medical evidence in this case. Peggy Wachter suffers from severe congenital heart disease (corrected by surgery in 1948 and 1980), medication-controlled essential hypertension, pulmonary hypertension limiting exercise tolerance, subjective complaints of arm and hand pain treated with anti-inflammatory medications beginning in June 1990, and subjective complaints of anxiety noted by her treating physician for which she has received no treatment. A.R. 30, 33. *fn1" The ALJ found Ms. Wachter's subjective complaints to be credible, and supported by the medical record. A.R. 33.

 Ms. Wachter's physician for many years has been Dr. Charles Furr, a cardiologist. In 1980, Dr. Furr performed surgery on Ms. Wachter, for correction of tetralogy of Fallot. In a report apparently written some time in 1987, he stated that she was doing well clinically, although she did have dyspnea, fatigue, cyanosis, hypertension, occasional chest pain and rare palpitations. A.R. 108. There was no congestive heart failure or arrhythmia. Id. Dr. Furr treated her with medication. A.R. 109.

 Dr. Devendra Gill treated Ms. Wachter occasionally between October 1, 1985 and January 8, 1988. A.R. 105-106, 124-125. He noted a history of hypertension, but that Ms. Wachter made no specific complaints, although she was "feeling weak." A.R. 105. He prescribed medication. A.R. 106, 124.

 Dr. Edward Davis treated Ms. Wachter between August 10, 1988, and October 12, 1988. A.R. 126-127. In his report of October 27, 1988, he noted blood pressure in the range 150/96 to 160/100, and shortness of breath and ankle edema in hot weather, but no chest pain or palpitations.

 On February 1, 1989, Dr. Furr updated his report to the ALJ. A.R. 129. He said that when he had seen Ms. Wachter on March 23, 1987, she had complained of mild shortness of breath in the shower but at no other time. She had told him that she could do her household chores, climb stairs, and lay flat in bed without shortness of breath. She had denied palpitations or chest pain. There was no evidence of congestive heart failure. She was continued on her regular medications. When Dr. Furr saw her in June 1988, she did not complain of cardiac symptoms other than mild shortness of breath and an occasional palpitation. She had occasional swelling of her ankles, and was complaining of stiffness and discomfort in her hands. She was continued on medication for control of high blood pressure. Dr. Furr stated that she was doing fairly well, but that she might be disabled for a job requiring more than moderate physical activity. He went on to say that "she could probably perform sedentary or very light physical exertion without too much trouble." He noted that she might have difficulty because of chronic anxiety, but stated that as a cardiologist, he did not consider himself qualified to render an opinion in that regard.

 Dr. Furr saw Ms. Wachter again on April 28, 1989. A.R. 130-131. At that time, she told him that her exercise tolerance had deteriorated since December. She did not have chest pain or palpitations. However, climbing more than one flight of stairs, attempting to do household chores, and walking more than a short distance caused her to be dyspneic and fatigued. He found that she had significant limitation in exercise tolerance because of shortness of breath and fatigue, which were related to her underlying heart disease. He directed that an exercise test be given on that day, and that she be continued on her current medication. The exercise test confirmed "very poor exercise tolerance" in a "very low level stress test." A.R. 155-59. The testing physician, Dr. Underhill, noted that Ms. Wachter was "obviously in considerable distress" during the test, "becoming short of breath and reporting severe light-headedness." A.R. 155. He stated that she "looked quite pale," even though her heart rate had only risen slightly. He also noted that the EKG was "markedly abnormal at rest." Id.

 When Dr. Furr saw Ms. Wachter on October 3, 1989, she had less shortness of breath than on her last visit. A.R. 175. Dr. Furr commented that she was "able to do approximately what she wants." Id. She had intermittent ankle edema. Palpitations were minimal. She denied chest pains. She had a Grade 2 diastolic murmur, and questionable gallop. Medication was continued.

 Dr. Furr again examined Ms. Wachter on June 12, 1990. A.R. 175. At that time, she reported more shortness of breath and more edema, chest pain, and arthritic pains in her arms and shoulders. In addition to referring to Ms. Wachter's symptoms of heart disease, Dr. Furr diagnosed degenerative arthritis, for which he prescribed Ansaid, an anti-inflammatory. A.R. 30, 175.

 Dr. Davis reexamined Ms. Wachter on December 12, 1990. A.R. 179-184. He diagnosed tetralogy of Fallot, high blood pressure and depression. A.R. 179, 182. In his view, Ms. Wachter could lift ten pounds and walk and stand occasionally. A.R. 183. She could sit but could not climb, balance, or crawl. She could occasionally ...


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