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Williams v. Sullivan

filed: July 14, 1992; As Amended July 16, 1992.

THOMAS WILLIAMS, APPELLANT
v.
LOUIS W. SULLIVAN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES



On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 91-00961)

Before: Hutchinson, Cowen and Garth, Circuit Judges

Author: Cowen

Opinion OF THE COURT

This is an appeal from a denial of disability benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq. (West 1991). Following a hearing in 1989, the administrative law Judge found that appellant Thomas Williams was disabled as of March 28, 1988. Williams sought review by the Appeals Council regarding the date of onset of his disability, requesting that the Council award retroactive benefits back to December 1986. Upon review, the Appeals Council determined that Williams was not disabled at all. The district court affirmed the ruling of no disability by the Appeals Council. Because the Appeals Council acted within its discretion when it reviewed the case in full, and its Conclusion that Williams was not disabled was supported by substantial evidence, we will affirm.

I.

Williams applied for disability insurance benefits on October 20, 1987, alleging disability as of October 1986. His claim was denied, and Williams took no appeal. On June 15, 1988, this time with the assistance of counsel, he filed a new application for disability insurance benefits, stating that his disabling condition was "orthopedic, neurological, neuropsychiatric, psychiatric, psychological, pulmonary, internal, diabetic and conditions related thereto." App. at 82. His claim was again denied on December 15, 1988, and he exhausted his administrative remedies.

Williams appeared at an administrative hearing before an Administrative Law Judge (ALJ) on August 8, 1989. The ALJ issued a decision on August 24, 1989, finding Williams disabled as of March 28, 1988, but not earlier. Williams requested review by the Appeals Council regarding the date of onset of total disability. He asserted an onset date of total disability as of December 1986, and requested additional retroactive disability insurance benefits. On January 29, 1991, the Appeals Council issued a decision which held that, not only was Williams not entitled to an earlier date of onset of total disability, but he was not entitled to any disability benefits whatsoever. This decision was adopted by the Secretary.

Williams appealed this decision to the district court. The district court affirmed the Secretary's decision, finding that it was supported by substantial evidence. This appeal followed. We have jurisdiction under 28 U.S.C. § 1291 (1988).

II.

A.

Title II of the Social Security Act provides for the payment of disability insurance benefits to those who have contributed to the program and suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1)(D) (1988). "Disability" is defined in section 423(d) as follows:

(1) The term "disability" means--

(A) inability 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

(2) For purposes of paragraph (1)(A)--

(A) 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.

(3) For purposes of this subsection, a "physical or mental impairment" is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

42 U.S.C.A. § 423(d) (West 1991). See also 42 U.S.C. § 1382c(a)(3)(A) (1988). The Secretary of Health and Human Services has established a five step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. § 404.1520 (1991). The Supreme Court explained the operation of this sequential evaluation process thus:

The first two steps involve threshold determinations that the claimant is not presently working, and has an impairment which is of the required duration and which significantly limits his ability to work. In the third step, the medical evidence of the claimant's impairment is compared to a list of impairments presumed severe enough to preclude any gainful work. If the claimant's impairment matches or is "equal" to one of the listed impairments, he qualifies for benefits without further inquiry. If the claimant cannot qualify under the listings, the analysis proceeds to the fourth and fifth steps. At these steps, the inquiry is whether the claimant can do his own past work or any other work that exists in the national economy, in view of his age, education, and work experience. If the claimant cannot do his past work or other work, he qualifies for benefits.

Sullivan v. Zebley, 493 U.S. 521, 110 S. Ct. 885, 888-89, 107 L. Ed. 2d 967 (1990).*fn1 The claimant bears the burden of persuasion through step four, while at step five, the burden shifts to the Secretary to show that the claimant is capable of performing substantial gainful employment other than the claimant's past relevant work. Bowen v. Yuckert, 482 U.S. 137, 146, 96 L. Ed. 2d 119, 107 S. Ct. 2287 n.5 (1987).

The Secretary concedes that Williams satisfies the requirements of the first two steps of the sequential evaluation process, i.e., that Williams was not working (step one) and had a "severe impairment" (step two). Williams does not, however, meet the requirements of step three, and there is substantial evidence to support the Secretary's decision at step four that Williams was capable of returning to his past relevant work as a security guard.

B.

Williams was born in 1934. He went to a segregated school in South Carolina for less than one full year. He has the equivalent of only a first grade education, and is unable to read, write or do simple arithmetic. He did agricultural work in the South. Upon moving north, he did construction work for two years and then worked in a steel drum factory, where he performed various jobs including welding and "feeding the weld." He stopped working when the factory closed in 1983. Afterwards he worked as a security guard for about a year. At this job he spent his time walking or standing, and occasionally had to shovel snow. He stopped working in 1986.

Williams has arthritis and controlled diabetes for which he takes insulin daily. He takes medication for pain and walks with a cane. In preparation for his compensation case, he was examined in 1988 by five physicians and one psychologist for orthopedic, neuropsychiatric, and psychological disorders. Three of the doctors were Social Security consultative physicians, two of whom diagnosed Williams as having diabetes and arthritis. Two physicians, Drs. Ahmad and Pollock, were retained by Williams' counsel to perform orthopedic and neuropsychiatric exams, respectively. An IQ test administered by the psychologist yielded a verbal scale IQ of 66 on the Wechsler Adult Intelligence Scale.

The Administrative Law Judge found that Williams retained the residual functional capacity to perform the physical requirements of medium work*fn2 except for work requiring intellect to perform complex and detailed tasks. Although the ALJ concluded that Williams' work history did not indicate or reveal lifelong mental retardation, the ALJ nevertheless concluded that Williams' intellectual deficit was sufficient to establish disability. The ALJ held that Williams was "unable to perform his past relevant work as a welder and security guard in light of the decision in Velazquez,"*fn3 app. at 27, and found him under a "disability" since March 28, 1988, the date the psychologist administered the IQ test.

The ALJ concluded that Williams did not have an impairment or combination of impairments listed in, or medically equal to any listed in the regulations, 20 C.F.R. Pt. 404, Subpt. P., App. 1 (1991). Consequently, under step three of the sequential evaluation process, the ALJ stated that Williams could not be presumed disabled. Similarly, under step four, the ALJ found that "based on an exertional capacity for medium work, and the claimant's age, education, and work experience, section 404.1569 and Rule 203.10 & 203.18 (at onset), Table No. 1, Appendix 2, Subpart P, Regulation No. 4 would direct a Conclusion of 'not disabled.'" App. at 27. Thus, despite concluding that the sequential evaluation procedure set out in the regulations would dictate a finding of "not disabled," the ALJ nevertheless found that Williams was disabled. The ALJ reasoned that Williams was unable to perform his past relevant work as a welder or security guard because of a recent reduction in intellect, which the ALJ found to be manifest as of March 28, 1988 but not before.

Upon review of the ALJ's findings, the Appeals Council concluded that the limitations on Williams' ability to perform work-related activities did not preclude the performance of his past work as a security guard. The Council found that Williams' only medically determinable severe impairments were arthritis and lumbar strain, and that he was still able to perform medium work. These impairments were neither listed in nor medically equal to any listed in the regulations. The Appeals Council did not consider Williams' mental impairments; instead it concluded that his allegations about inability to handle the demands of his past work were not credible. Consequently, the Appeals Council concluded that Williams was not disabled as defined in the Social Security Act at any time.

Our standard of review is whether the district court properly found that the Appeals Council's determination was supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). An appellate court is limited in its scope of judicial review as set forth in 42 U.S.C. § 405(g) (1988), which provides that a court may review the Secretary's factual findings only to determine whether they are supported by substantial evidence in the record. Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). Neither the district court nor this court is empowered to weigh the evidence or substitute its Conclusions for those of the fact-finder. Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984).

III.

Williams first challenges the Appeals Council's authority to review his entire case. He appealed one narrow issue, the onset date of his disability, but the Appeals Council reviewed his entire record and reversed the ALJ's determination of disability altogether. Williams asserts that this policy of wide open review is fundamentally unfair and violates due process because it chills a claimant's right to appeal by implicitly threatening the potential loss of benefits already granted.

Although an ALJ's findings of fact may be taken as conclusive, the Appeals Council may review all the evidence of record to decide whether the ALJ's findings are supported by substantial evidence. In Powell v. Heckler, 789 F.2d 176 (3d Cir. 1986), this court held that the Appeals Council need not limit its review to the issue appealed, but may review a claimant's entire case provided it gives sufficient notice that appeals will be subject to full review. Id. at 179; see also Hale v. Sullivan, 934 F.2d 895, 898 (7th Cir. 1991) (once the Appeals Council receives a timely request for review, it is entitled to review the entirety of the case); Gronda v. Secretary of Health & Human Serv., 856 F.2d 36, 38-39 (6th Cir. 1988) (Appeals Council had authority to review entire case within 60 days of ALJ's decision even though claimant only requested review of narrow aspect of case), cert. denied, 489 U.S. 1052, 109 S. Ct. 1312, 103 L. Ed. 2d 581 (1989); Bivines v. Bowen, 833 F.2d 293, 297 (11th Cir. 1987) (where claimant files application for review, Appeals Council may not revisit unchallenged issues unless it gives claimant notice); Kennedy v. Bowen, 814 F.2d 1523, 1524 (11th Cir. 1987) (Appeals Council must give notice of its intent to re-examine issues not challenged by claimant); DeLong v. Heckler, 771 F.2d 266, 267-68 (7th Cir. 1985) (application for limited review of date of onset of disability gave Appeals Council the prerogative to broaden the scope of its review).

When Williams was first notified of the results of his hearing before the ALJ, he received a letter stating he had received a favorable decision. This letter contained a paragraph which put him on notice that if he appealed he might lose those benefits:

When you appeal, you request the Appeals Council to review the decision. If the Appeals Council grants your request, it will review the entire record in your case. It will review those parts of the decision which you think are wrong. It will also review those parts which you think are correct and may make them unfavorable or less favorable to you. You will receive a new decision.

App. at 19. This paragraph was sufficient to put Williams on notice that if he appealed he risked losing his award.*fn4 Since this means of notification was reasonably calculated to apprise both Williams and his counsel of the risk associated with appealing the award, no due process violation can be found. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 94 L. Ed. 865, 70 S. Ct. 652 (1950).

"Fundamental fairness requires that partly dissatisfied claimants . . . be apprised of the risks inherent in their projected appeals." Powell, 789 F.2d at 180. Here, Williams received, along with the partially favorable hearing decision, a notice explaining his appeal rights. This notice, mailed directly to Williams and his attorney with the hearing decision, plainly stated that if an appeal were taken, the Appeals Council would review the entire record and might make a decision different from that of the ALJ.

Williams argues that the Appeals Council should have notified him within 60 days of the date of the hearing decision of the issues upon which it would review Williams' case. The 60-day limit upon which Williams relies, however, applies only to review initiated by the Council upon its own motion. 20 C.F.R. § 404.969 (1991). Here, Williams himself initiated the request for review. No mandatory deadlines apply to claimant-initiated requests. See Heckler v. Day, 467 U.S. 104, 115-117, 81 L. Ed. 2d 88, 104 S. Ct. 2249 (1984) (federal courts may not prescribe mandatory deadlines with respect to the administration of Social Security disability claims). In any event, because the notice explaining his appeal rights accompanied the letter notifying Williams of the favorable decision of the ALJ, it complies with 20 C.F.R. § 404.969. There was no violation of due process in the Appeals Council's review of the entire record underlying the ALJ's decision.

IV.

Williams next asserts that he qualifies for disability because his medical condition renders him disabled per se under step three of the sequential evaluation process. A claimant automatically qualifies for a period of disability if he or she suffers from an impairment listed in or equal to a list of impairments set out in the regulations at 20 C.F.R. Pt. 404, Subpt. P, App. 1. "For wage earners, the listings at step three of the sequential evaluation process provide a convenient way for the Secretary to determine which claimants are ...


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