Greenspan v. Shalala ( 1994 )


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  •                    United States Court of Appeals,
    Fifth Circuit.
    No. 93-5131.
    Patricia GREENSPAN, Plaintiff-Appellant,
    v.
    Donna E. SHALALA, Secretary, Department of Health and Human
    Services, Defendant-Appellee.
    Nov. 21, 1994.
    Appeal from the United States District Court for the Eastern
    District of Texas.
    Before SMITH and EMILIO M. GARZA, Circuit Judges, and BERRIGAN,
    District Judge.*
    JERRY E. SMITH, Circuit Judge:
    Patricia Greenspan ("Greenspan"), an applicant for Social
    Security disability insurance and supplemental security income
    benefits    ("SSI"),    appeals    the       Secretary's   determination     that
    Greenspan   was   not   disabled    within       the   meaning   of   the   Social
    Security Act (the "Act").          Because we find that the Secretary's
    decision is based upon substantial evidence and is in accordance
    with law, we affirm.
    I.
    Patricia Greenspan was fifty-two years old when she applied
    for disability payments. She has a high school education, one year
    of junior college, and one year of vocational school.                 For most of
    her life, she worked primarily as a sales manager, clothing buyer,
    and supervisor in the clothing business;                   she also has held
    *
    District Judge of the Eastern District of Louisiana,
    sitting by designation.
    1
    numerous clerical positions. From 1984 to 1987, she in turn worked
    at Lefcourts Imports, a Jordon Marsh department store, and the
    Doral Country Club Pro Shop.     She was also a part-time bookkeeper
    for her landlord and a receptionist and clerk at a hospital.           All
    these positions were held for only a brief period of time.
    Greenspan's relevant medical history began in 1979 with the
    diagnoses of her treating physician, Dr. Martin Cohen, a specialist
    in endocrinology and metabolism.         While Greenspan had alleged
    complaints   relating   to   virtually   every   body   system,1   Cohen's
    1
    According to the administrative law judge's (ALJ's)
    summation of Greenspan's testimony, her physical and mental
    symptoms include:
    chest pain, intense fatigue, confusion, unusual
    sleepiness, brain swelling, difficulty in recalling
    words, memory loss, episodic catatonic state (sitting
    and staring straight ahead/stopped movements), swelling
    in all veins, blurred vision, feeling of being unreal,
    chills, hot flashes, runs a low grade fever most of the
    time, red blotches, fear, depression, reactions that
    mimic anxiety attacks, blackouts, headaches, swelling
    and tenderness in the joints, high blood pressure,
    visual motor deficits, disorientation, inability to
    concentrate, hearing loss, pressure or pain in left
    eye, eyeballs feel swollen, exertional and
    non-exertional shortness of breath, lightheadedness,
    spacey feelings, rapid heartbeat, slow heartbeat, pale
    and clammy skin, flushed and puffy skin, rashes, red
    sores on face, numbness, loss of grip strength, motor
    loss in knees and legs, stiff knees and legs, blisters
    on extremities, lumps, sensitivity to light, difficulty
    in swallowing, choking, edema and burning of knuckles
    left wrist, frozen wrist, hot and swollen knees,
    swelling or lump on left ribs, burning thighs, leg and
    feet aches, bones hurt, pain from clothes touching
    body, cysts in left breast, swelling and pain in
    breast, swelling on top center of head, cerebral
    allergy, indigestion, crushing squeezing numbness in
    chest and forearm, fluid retention, intolerance to
    florescent lights, muscle spasms, nasal congestion and
    sneezing, slurred speech, veins in left arm and leg
    swell and itch, line of red rash along vein on left
    2
    examination found no physical basis for Greenspan's problems.      He
    opined that "there is an enormous amount of emotional overlay
    contributing to her illness."
    From March 1983 to May 1985, Greenspan saw Dr. Hobart Feldman,
    a specialist in allergy and immunology.       He is also a "clinical
    ecologist."   Feldman concluded, in contrast to Cohen's diagnoses,
    that Greenspan was "severely affected with ecological illness, and
    multiple allergies."   According to Feldman, Greenspan's condition
    prevented her from being able to perform any type of work.
    Greenspan's condition did not prevent her from consulting
    medical professionals, however.       During this approximate period,
    she was counseled for emotional problems by a psychology intern of
    the Department of Youth and Family Development. At separate times,
    Greenspan also was examined by Dr. Norman Gaylis, Dr. Norman Azen,
    Dr. Robert Fox, and numerous physicians and interns at the Jackson
    Memorial Hospital and the North Miami Hospital.          The blanket
    findings of these examinations was that no physical explanation
    could be found for Greenspan's numerous complaints, test results
    were within normal limits, and she suffered from emotional or
    psychosomatic   aliments.       Significantly,    Azen   did   observe
    "dermographism," the raising of whelps resulting from moderately
    firm stroking or scratching of the skin.
    In September 1985, Greenspan applied for disability insurance
    and SSI benefits under titles II and XVI of the Act, 42 U.S.C. §§
    inner forearm and along side ribs and stomach,
    excessive salivation, emotional liability, fungus on
    toenails.
    3
    423 and 1381a (1991), claiming she suffered from ecological illness
    and chronic anxiety reaction.     She contended that she had multiple
    allergies to almost everything in the work environment that caused
    respiratory, arthritic, neurological, cerebral, and other symptoms.
    She later amended her application to reflect a March 1983 onset
    date.
    Meanwhile, upon Feldman's recommendation, Greenspan began
    seeing Drs. William Rhea and Ralph Smiley, specialists in clinical
    ecology and "environmental medicine."      Rhea placed Greenspan in a
    "safe-house,"    a   chemically   free   environment,   where    she    was
    instructed to consume only organic foods and bottled water.            Rhea
    also made a list of Greenspan's subjective responses to various
    molds, plants, animals, and chemicals.        Some medical testing was
    done, and Rhea found evidence of Epstein-Barr virus.           Greenspan,
    however, did not follow up on this testing, and no conclusive
    result was reached.     Based upon their observations, Rhea and his
    associates concluded that Greenspan would not be able to perform
    any occupation because of her immune system dysfunction.
    A hearing was held before an ALJ, who rendered a decision
    partially favorable to Greenspan, whom he found to be disabled
    after June 19, 1987.
    Greenspan requested reconsideration.      Additional evidence was
    entered   into   the    record.     Russell    Mitchell,   a     clinical
    psychologist, conducted a psychological evaluation and diagnosed
    atypical somatoform disorder and histrionic personality.         Dr. Joel
    Mulhauser, a specialist in internal medicine, submitted a report
    4
    questioning the validity of "ecological medicine."            His review of
    Greenspan's medical records showed no objective medical findings of
    immune deficiency or other physical explanation for her alleged
    symptoms.     The Appeals Council vacated the ALJ's decision and
    remanded for additional medical evidence.
    A second hearing was convened, and the ALJ considered evidence
    derived from three consultive examinations. Dr. Lawrence Muirhead,
    a clinical psychologist, concluded that Greenspan was not impaired
    by any psychological dysfunction. Another consultative psychiatric
    evaluation was performed by Dr. Henry Gardiner, whose findings were
    consistent with Muirhead's.
    Dr. John Pippin performed a consultative internal medicine
    examination and found no objective evidence of any major illness
    and no physical limitations except for avoiding dust, fumes, and
    chemicals.     This   time,    the   ALJ   determined   that   Greenspan's
    impairments did not preclude her from performing her past relevant
    work, and, therefore, she was not disabled within the meaning of
    the Act.
    Again Greenspan appealed, and the Appeals Council determined
    that further evaluation of the record was necessary, this time on
    the question of her subjective complaints.              The decision was
    vacated and remanded, and a third hearing was held.
    Further medical evidence was gathered.        Dr. William Lumry, an
    allergist, was unable to make a diagnosis that would explain
    Greenspan's    reported       symptoms.       Because    of     Greenspan's
    dermographia, he was unable to perform skin testing for allergies.
    5
    He instead ordered a "RAST" screen, which was completely negative
    and ruled out a significant number of possible allergies.      Lumry
    also noted that dermographia would cause falsely positive results
    from skin tests such as those performed by Smiley and Feldman.
    Another consultative psychiatric examination was performed by
    Dr. William Skinner.   The ALJ heard testimony from a vocational
    expert, who testified that a person with Greenspan's background and
    impairments of moderate depression and severe allergies would be
    capable of doing light work.
    The ALJ again denied benefits.     An appeal was taken, and more
    extensive medical testing was done, this time diagnosing mitral
    valve prolapse and chronic fatigue syndrome.     This time, however,
    the Appeals Council denied Greenspan's requests for review and
    reopening, and the Secretary's decision became final.      Greenspan
    sought review in the district court, which approved of the report
    and recommendation of the magistrate judge and, over Greenspan's
    objections, dismissed the suit.
    II.
    We review the Secretary's decision only to determine whether
    it is supported by substantial evidence on the record as a whole
    and whether the Secretary applied the proper legal standard.      
    42 U.S.C. §§ 405
    (g), 1383(c)(3);   see also Richardson v. Perales, 
    402 U.S. 389
    , 401, 
    91 S.Ct. 1420
    , 1427, 
    28 L.Ed.2d 842
     (1971);   Haywood
    v. Sullivan, 
    888 F.2d 1463
    , 1466 (5th Cir.1989).         Substantial
    evidence is "such relevant evidence as a reasonable mind might
    accept as adequate to support a conclusion."    Richardson, 
    402 U.S.
                                      6
    at 401, 
    91 S.Ct. at 1427
     (quoting Consolidated Edison Co. v. NLRB,
    
    305 U.S. 197
    , 229, 
    59 S.Ct. 206
    , 217, 
    83 L.Ed. 126
     (1938)).                In
    applying the substantial evidence standard, we scrutinize the
    record to determine whether such evidence is present. Haywood, 888
    F.2d at 1466.    We may not reweigh the evidence, try the issues de
    novo, or substitute our judgment for that of the Secretary.               Id.
    The law and regulations governing the determination of
    disability are the same for both disability insurance benefits and
    SSI.    Id. at 1467.   Disability under the Act is defined as the
    "inability to engage in any substantial gainful activity by reason
    of any medically determinable physical or mental impairment which
    can be expected to ... last for a continuous period of not less
    than twelve months...."        
    42 U.S.C. § 423
    (d)(1)(A).        Under this
    provision, a "physical or mental impairment" is defined as "an
    impairment    that   results    from       anatomical,   physiological,    or
    psychological abnormalities which are demonstrable by medically
    acceptable clinical and laboratory diagnostic techniques."            
    Id.
     §
    423(d)(3). Furthermore, an individual is "under a disability, only
    if his 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...."               Id. §
    423(d)(2)(A).
    In determining whether a claimant is disabled, the Secretary
    utilizes a five-step sequential evaluation:
    (1) An individual who is working and engaging in substantial
    gainful activity will not be found disabled regardless of
    7
    medical findings.
    (2) An individual who does not have a "severe impairment" will
    not be found to be disabled.
    (3) An individual who meets or equals a listed impairment in
    Appendix 1 of the regulations will be considered disabled
    without the consideration of vocational factors.
    (4) If an individual is capable of performing the work he has
    done in the past, a finding of "not disabled" will be made.
    (5) If an individual's impairment precludes him from
    performing his past work, other factors including age,
    education, past work experience, and residual functional
    capacity must be considered to determine if other work can be
    performed.
    Villa v. Sullivan, 
    895 F.2d 1019
    , 1022 (5th Cir.1990) (paraphrasing
    
    20 C.F.R. § 404.1520
    (b)-(f)).       "A finding that a claimant is
    disabled or is not disabled at any point in the five-step review is
    conclusive and terminates the analysis."     Lovelace v. Bowen, 
    813 F.2d 55
    , 58 (5th Cir.1987).
    To be entitled to benefits, an applicant bears the initial
    burden of showing that he is disabled.    Abshire v. Bowen, 
    848 F.2d 638
    , 640 (5th Cir.1988) (per curiam).    Under the regulations, this
    means that the claimant bears the burden of proof on the first four
    steps of the sequential analysis.   Bowen v. Yuckert, 
    482 U.S. 137
    ,
    146 n. 5, 
    107 S.Ct. 2287
    , 2294 n. 5, 
    96 L.Ed.2d 119
     (1987).    Once
    this initial burden is satisfied, the Secretary bears the burden of
    establishing that the claimant is capable of performing work in the
    national economy.   
    Id.
    Following the sequential steps, the ALJ found that while
    Greenspan had not engaged in substantial gainful activity since
    June 1987 and suffered from severe allergies and somatoform, she
    8
    nevertheless could perform her past relevant work as per step four
    of the analysis.        The ALJ determined that Greenspan had the
    residual functional capacity to work in jobs that did not require
    lifting more than twenty pounds occasionally and carrying ten
    pounds    frequently.       Greenspan    also      was   restricted        from   work
    environments that were highly stressful or contained the extremes
    of    dust,   fumes,   or   poor   ventilation.            The   ALJ    found     that
    Greenspan's work in the clothing field and as a receptionist was
    not precluded by these requirements, and, therefore, she was not
    disabled within the meaning of the Act.
    III.
    Greenspan argues that the ALJ erred by given no or little
    weight to the opinion of her treating physicians. The ALJ accepted
    the opinion of Mulhauser, who stated that "[t]here is no such thing
    as Ecologic Illness," and rejected the reports and opinions of her
    treating      physicians,   Rhea   and       his   associates.         Furthermore,
    Greenspan        believes      the           ALJ    erred        by        rejecting
    Ecological/Environmental Illness ("EI") as a recognized disease.
    She points out that the Program Operation Manual System ("POMS") of
    the   Social    Security    Administration         lists    EI   as    a   potential
    disability.      We read these arguments to mean either that the ALJ
    applied the wrong legal standard in evaluating the weight of the
    physician's testimony or erred because his conclusion were not
    based upon substantial evidence.
    A.
    We have long held that "ordinarily the opinions, diagnoses,
    9
    and medical evidence of a treating physician who is familiar with
    the   claimant's       injuries,      treatments,         and     responses        should   be
    accorded considerable weight in determining disability."                            Scott v.
    Heckler,     
    770 F.2d 482
    ,    485     (5th       Cir.1985).       The       treating
    physician's opinions, however, are far from conclusive. "[T]he ALJ
    has   the    sole      responsibility         for       determining     the       claimant's
    disability status."           Moore v. Sullivan, 
    919 F.2d 901
    , 905 (5th
    Cir.1990).
    Accordingly, when good cause is shown, less weight, little
    weight,     or   even    no    weight       may    be    given    to   the    physician's
    testimony.       The good cause exceptions we have recognized include
    disregarding        statements       that     are       brief    and   conclusory,          not
    supported by medically acceptable clinical laboratory diagnostic
    techniques, or otherwise unsupported by the evidence.                             Scott, 770
    F.2d at 485.           In sum, the ALJ "is entitled to determine the
    credibility of medical experts as well as lay witnesses and weigh
    their   opinions        accordingly."             Id.;      see    also      
    20 C.F.R. § 404.1527
    (c)(2) ("If any of the evidence in your case record,
    including    any     medical     opinion(s),         is    inconsistent           with   other
    evidence or is internally inconsistent, we will weigh all the other
    evidence and see whether we can decide whether you are disabled
    based on the evidence we have.").
    A reading of the ALJ's decision shows that he carefully
    considered,      but    ultimately      rejected,         the    treating     physicians'
    conclusions that Greenspan was disabled.                    While we might not have
    accorded "no weight" to the opinions of the treating physicians,
    10
    the Act empowers the ALJ to analyze the physicians' testimony.
    Substantial evidence supports the ALJ's decision to disregard
    the physicians' conclusions.       That basis is enough to survive our
    review.     The record supports the ALJ's determination that the
    treating physicians' diagnoses were based upon dubious medical
    techniques and were conclusory.          The doctors' evidence also was
    contradicted by both itself and outside medical evidence.
    Few recognized medical techniques were used by the doctors.
    Feldman's treatment notes spanning a period of three years reveal
    that he performed no clinical testing other than taking Greenspan's
    blood       pressure       and       performing          controversial
    "provocative-neutralization tests."2         Feldman also did not observe
    any of the numerous symptoms with which Greenspan claimed to be
    plagued;    all "evidence" of these complaints was by history.
    Rhea's    records   consist    mainly    of   handwritten   lists   of
    Greenspan's subjective responses to various substances.            Testing
    was also done by "Iriscorder," a machine that allegedly measures
    changes in the pupils of the eye in response to the body's exposure
    to       substances.         Like         Feldman,      he       performed
    "provocative-neutralization tests."           Rhea and Smiley, however,
    admitted that this testing had not produced reliable results.
    2
    This controversial technique consists of exposing a patient
    to a dose of a chemical, food extract, or allergen either by
    sublingual drop or subcutaneous or intercutaneous injection. Any
    "symptoms" are then "neutralized" by applying a lower dose of the
    same substance. POMS § 24515.065. The POMS states that "[t]he
    results are based solely on the subjected report of symptoms by
    the patient." Id. Greenspan disputes this, arguing that
    measurement may also be made by the "wheals" caused by the
    injection.
    11
    Based upon the minimal nature of testing done by these physicians,
    the   ALJ's    determination   that        their    opinion    on   Greenspan's
    disability was conclusory is supported by the record.                      Cf. 
    20 C.F.R. § 1527
    (d)(3) ("The more a medical source presents relevant
    evidence to support an opinion, particularly signs and laboratory
    findings, the more weight we will give that opinion.").
    The record supports the ALJ's finding that the doctors'
    records and recommendations were contradictory.                  While Feldman
    diagnosed     "ecological   illness    and       multiple    allergies,"     which
    allegedly could result in a host of severe physical problems, his
    only prescriptions were organic foods, bottled water, filtered air
    conditioning, and the shots from the "provocative-neutralization
    tests."    Rhea admitted that Greenspan could commute up to an hour
    to work, but there was no safe work environment to which she could
    commute.      Most damning was Rhea's testimony that "there was no
    occupation safe enough for the claimant to work in," while, at that
    time, Greenspan was employed, working at a hospital on a full-time
    basis.3
    Numerous    outside   opinions       and     testing    contradicted    the
    opinions of the treating physicians.                The other physicians and
    medical experts who examined Greenspan or her records found little
    or no physical evidence of her many complaints; most subscribed to
    3
    Greenspan's behavior and testimony also contradicted the
    doctor's conclusions. The most obvious contradiction occurred at
    a hearing before the ALJ, where Greenspan appeared wearing
    make-up and heavy perfume. The ALJ also noted that Greenspan
    testified that she is still able to perform the routine tasks
    necessary to maintain her household, and she was researching and
    writing a handbook on "environmental illness."
    12
    the theory that mental rather than physical aliments were at the
    bottom of her problems.
    Greenspan's original treating physician, Cohen, noted that her
    physical condition was normal, and emotional factors contributed to
    her complaints.      Elizabeth Blake, Greenspan's treating psychology
    counselor from 1984 to 1986, reported that Greenspan suffered from
    somatization,    dysthymic    disorder,     histrionic      personality,        and
    multiple   allergies.        Dr.   Norman        Gaylis   found    no    physical
    explanation    for   the   complaints      but    suspected      the    cause   was
    psychosomatic.
    Azen found no objective evidence of the many symptoms of which
    Greenspan complained but did observe Greenspan's dermographism.
    This finding,     which    Lumry   later   seconded,      cast    in    doubt   the
    accuracy of any "provocative-neutralization tests."
    Hospital records from 1985 through 1987 do not reveal any
    abnormal test results, and Greenspan was discharged from Jackson
    Memorial Hospital with a diagnosis of histrionic personality and
    mildly elevated blood pressure.             Russel Mitchell, a clinical
    psychologist, diagnosed atypical somatoform disorder and histrionic
    personality.     Many other medical professions testified in a like
    fashion.
    In sum, a substantial medical record has been created in this
    application, and it supports the ALJ's decision to disregard the
    opinions of Feldman, Rhea, and Smiley.               The power to judge and
    weigh evidence includes the power to disregard, and we must uphold
    that determination if supported by substantial evidence.
    13
    B.
    Greenspan's argument that the ALJ erred in not recognizing
    "ecological illness" is misplaced.                    The relevant medical and
    scientific communities eventually will determine whether and how to
    recognize "ecological illness."              Greenspan's burden here, however,
    was to prove that she was disabled within the meaning of the Act.
    That     requirement        means   that      she    must     show   a    "medically
    determinable" impairment.              
    42 U.S.C. § 423
    (d)(1)(A).             Such an
    impairment must be demonstrated by "medically acceptable clinical
    and laboratory diagnostic techniques."                
    Id.
     § 423(d)(3);       see also
    
    20 C.F.R. § 404.1508
     ("A physical or mental impairment must be
    established by medical evidence consisting of signs, symptoms, and
    laboratory findings, not only by your statement of symptoms.").
    Finally, the law requires a showing that the claimant is unable "to
    engage    in    any   substantial       gainful      activity."      
    42 U.S.C. § 423
    (d)(1)(A).
    We    recognize     that   because      "ecological      illness"      is   not
    accepted widely, and no "yes or no" test apparently exists, direct
    proof of illness and, hence, disability is hard to produce.                     Proper
    circumstantial        evidence,     however,        would   be   enough    to    prove
    disability.         Such    evidence,       under    the    regulations,     includes
    "signs," anatomical, physiological, or psychological abnormalities
    that can be observed, 
    20 C.F.R. § 404.1528
    (b), and "laboratory
    findings," anatomical, physiological, or psychological phenomena
    that can       be   shown   by   use   of    medically      acceptable    laboratory
    diagnostic techniques, 
    id.
     § 404.1528(c).
    14
    Indeed, POMS states that
    in evaluating claims based on environmental illness, all the
    claimant's symptoms, signs, and laboratory findings must be
    considered to determine if there is a medically determinable
    impairment and the impact of any impairment on the claimant's
    ability to work.     This evaluation should be made on an
    individual case-by-case basis to determine if the impairment
    prevents substantial gainful activity.
    POMS § 24515.065.    While we agree with the Secretary that the POMS
    is not binding law, because it is an unpublished policy statement,
    cf. Schweiker v. Hansen, 
    450 U.S. 785
    , 789-90, 
    101 S.Ct. 1468
    ,
    1471-72, 
    67 L.Ed.2d 685
     (1981), we would read nothing more into
    this statement than that already required by law.         A case-by-case,
    factual inquiry will consider proper circumstantial evidence of
    disability.
    Here, Greenspan has provided little direct or indirect proof
    of EI beyond her subjective complaints.        This task should not have
    been impossible, as Greenspan alleged numerous symptoms that are
    observable and testable.        The record supports the ALJ's conclusion
    that Greenspan's testimony was exaggerated.
    IV.
    Finally, we must reject Greenspan's appeal, because she has
    not verified these symptoms and their severity in a way the law
    recognizes.     Contrary to the tenor of Greenspan's arguments on
    appeal, the ALJ did find that she was impaired.                  He did not
    conclude,     however,   that    her    impairment   precluded    her   from
    continuing to work successfully in the occupations she had held
    previously.
    The ALJ considered the credible testimony of the consulting
    15
    physicians on Greenspan's physical and mental condition.            He heard
    testimony from Greenspan on her daily activities. He had heard the
    testimony of a vocational expert.         Greenspan, moreover, bore the
    burden of showing that she could not do her past relevant work.
    Here, substantial evidence supports the ALJ's conclusion that
    Greenspan successfully could perform her past relevant work.
    Greenspan's last minute showing that she might suffer from
    nitral valve prolapse or chronic fatigue syndrome does not overcome
    this finding.    The record shows the ALJ considered and weighed the
    extent of     Greenspan's   disability.     This   new   evidence    on   the
    potential cause of Greenspan's disability does not mandate a
    finding of further functional limitations beyond those considered
    by the ALJ.
    We do note that Greenspan's recent unsuccessful efforts to
    hold jobs for extended periods cast some doubt on her fitness to
    work.   See Singletary v. Bowen, 
    798 F.2d 818
    , 822 (5th Cir.1986)
    (holding the record did not support finding that mentally impaired
    claimant was capable of holding a job).       This doubt, however, does
    not create a basis to overturn the ALJ's determination.
    The evidence on Greenspan's past work experience cuts both
    ways.   It shows she was able to work when her treating physicians
    claimed no job existed that she could do.       Her progression through
    the jobs suggests that her mental and physical impairments did
    limit her ability to be a successful wage earner.         Our job here is
    not to weigh this evidence;     that task is for the ALJ.      As long as
    there is substantial evidence in the record as a whole supporting
    16
    the ALJ's determination, as there is here, we must uphold that
    decision.
    AFFIRMED.
    17