David Rutherford v. Richard S. Schweiker, Secretary of Health and Human Services, Defendant , 685 F.2d 60 ( 1982 )

VAN GRAAFEILAND, Circuit Judge:

Plaintiff David Rutherford appeals from a judgment of the United States District Court for the Southern District of New York, John M. Cannella, J., affirming a final decision of the Secretary of Health and Human Services terminating Rutherford’s entitlement to Supplemental Security Income (SSI) benefits on the ground he was not disabled within the meaning of § 1614(a)(3)(A) of the Social Security Act, as amended, 42 U.S.C. § 1382c(a)(3)(A).

BACKGROUND

In 1975, plaintiff, a forty-four-year-old male, applied for disability benefits, and his application was processed under both Sub-chapter II of the Social Security Act, 42 U.S.C. §§ 401-431, and Subchapter XVI, 42 U.S.C. §§ 1381-1383. The definitions of disability under both Subchapters are substantially the same. Rivera v. Harris, 623 F.2d 212, 216 n.4 (2 Cir. 1980). Plaintiffs claim under Subchapter XVI initially was denied. A year later, on August 23,1976, it was allowed. Plaintiff’s claim under Sub-chapter II also was allowed, although not at the same time. However, plaintiff was not placed on benefit status with regard to the Subchapter II claim.

Because of the conflict in entitlement findings, the Subchapter II award was reviewed by the Social Security Administration in June, 1977. The disability examiner and reviewing physician secured a Psychiatric Consultative Evaluation from Dr. Arthur Meisel, who reported that, although claimant was a chronic alcoholic, he was alert, cooperative, and responded well to questions and directions. Dr. Meisel’s report stated that plaintiff had a history of blackouts and seizures precipitated by alcoholism, but his symptoms had stabilized during the preceding year, and seizure activity had decreased. Plaintiff’s neurological examination was essentially negative, except for a mild organic brain syndrome which was under good medical control at that time.

The disability examiner and physician also reviewed a report from the Kingsboro Psychiatric Center, which showed that plaintiff had commenced a voluntary treatment program for alcoholism on April 20, 1977. At the time of his admission to the program, plaintiff was sober, well motivated, goal directed and reality oriented. He was not psychotic and had no memory impairment.

Based on these reports, the examiner concluded that plaintiff was “never under a severe disability”, a “disability that would have affected him in terms of work related functions.” The examiner decided that the Subchapter II claim should be denied “based on medical factors alone.”

In 1979, two disability examiners and two physicians reviewed plaintiff’s Subchapter XVI claim and reached substantially the same conclusion, i.e., that plaintiff’s physical impairments did not restrict him in terms of work-related functions. Disability was terminated effective November 1979. Plaintiff was granted a hearing before an Administrative Law Judge (ALJ), at which he was represented by counsel. In a decision dated July 30, 1980, the ALJ agreed with the examiners’ findings as to cessation of disability and directed that payments to plaintiff be discontinued as of the end of January, 1980. See 42 U.S.C. § 1383(a)(5). Plaintiff’s request for review by the Appeals Council was denied on September 26, 1980, and the instant suit was then commenced in the United States District Court for the Southern District of New York.

On September 29, 1981, Judge Camella granted defendant’s motion to dismiss, holding that there was substantial evidence to support the Secretary’s decision. We affirm.

DISCUSSION

On an appeal such as this, we are faced with a simple reality which appellants often overlook, namely, that factual issues need not have been resolved by the Secretary in accordance with what we conceive to be the preponderance of the evidence. Congress has instructed us that the factual findings of the Secretary, if supported by substantial evidence, shall be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3); Rivera v. Harris, supra, 623 F.2d at 216. We would be derelict in our duties if we simply paid lip service to this rule, while shaping our holding to conform to our own interpretation of the evidence. Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). We agree with Judge Cannella that there was substantial evidence to support the Secretary’s decision.

Plaintiff’s principle contention on this appeal relates to his alcoholism. Plaintiff contends, and the Secretary agrees, that chronic alcoholism can be disabling if it results in' serious personality disorders as set forth in 20 C.F.R. App. I, § 12.04 or in a substantial physical impairment, Singletary v. Secretary of Health, Education and Welfare, 623 F.2d 217, 220 (2d Cir. 1980). However, if there is a continuing interrelationship between the excess consumption of alcohol and the disability, such that termination of the former will end the latter, the issue for the Secretary is whether the claimant has lost the voluntary ability to control his drinking. Adams v. Weinberger, 548 F.2d 239, 244 (8th Cir. 1977).

The ALJ found that plaintiff’s seizures or black-out spells were alcohol induced. This finding was supported by the medical proof, and plaintiff himself conceded that he had seizures only when he drank. The record also shows that plaintiff voluntarily participated in alcohol treatment programs. For example, after plaintiff voluntarily entered the treatment program at Kingsboro Psychiatric Center in April 1977, he remained sober until May 1978. Within a week after he resumed drinking plaintiff voluntarily referred himself to the Kings County Hospital Center for further treatment.

Dr. Head, who examined plaintiff on November 13, 1979, described the plaintiff in much the same manner as had Dr. Meisel in 1977. Dr. Head said that plaintiff was alert and oriented, that his memory, comprehension and concentration were intact, and that there was no evidence of delusions, hallucinations, phobias, obsessions, compulsions, or psychosomatic difficulties. Plaintiff was able to travel around the city on his own, do his own chores and shopping, and attend to his own needs.

Dr. Head reported that plaintiff had been in an alcohol treatment program for six years and was then attending three to four times a week. He stated that plaintiff had been able to “at least overcome his alcoholism temporarily.” Dr. Head felt that plaintiff needed to continue his treatment program and would benefit from vocational rehabilitation and guidance. He failed however “to find any evidence of major psychopathology which would totally preclude this patient from working at the present time.”

The ALJ, after referring specifically to Dr. Head’s report, found that plaintiff had no significant secondary damage because of alcoholism, that his seizure disorder resulted from alcohol abuse, but that he was in an alcohol treatment program. He also found that, as of November 1979, plaintiff’s “alcoholism and other impairments were not of a severity to significantly affect his capacity to perform basic work-related functions.”

Dr. Geller, Medical Consultant for the Bureau of Disability Insurance, reported on January 8, 1980:

Claimant has a moderate impairment by virtue of his seizure disorder which is under far [sic] control since he has abstained from alcohol, however he should not work around heavy machinery or in situations where seizures may be hazardous to himself or others.

The ALJ also noted that plaintiff had diabetes, which was treated with oral medication, arthritis, hypertension and a mild respiratory disorder. He stated, however, that “medical evidence does not show that any of these conditions impose significant limitations upon the claimant’s ability to perform basic work-related functions”, and that, apart from the effects of alcohol abuse, there was an “absence of evidence of any other severe impairment.” The ALJ made specific reference to plaintiff’s complaints of pain, but obviously was not impressed. He noted plaintiff’s concession that his only pain medication was Tylenol, a non-prescription drug that may be found in almost any family’s medicine cabinet.

Following the hearing before the ALJ on May 14,1980, plaintiff’s attorney requested and was given two extensions of time in which to submit supplemental medical reports. The only report submitted was from the Bronx-Lebanon Hospital Center showing that plaintiff had reported to the Center on May 29, 1980, complaining of headaches. Plaintiff told the hospital staff that his headaches occurred three or four times a week and that each of them lasted three or four days. The report indicated that plaintiff’s blood pressure was 130/88, which was hardly indicative of hypertension. The report contained no objective findings to explain the headaches or to justify a claim of disability resulting from them. Other hospital reports in the record give no greater support to plaintiff’s claim of disabling pain. The ALJ was entitled to rely on these negative reports, on the equally negative reports of the doctors,, and on his own evaluation of plaintiff’s and his sister’s credibility in determining whether plaintiff suffered such serious pain as to be disabled. Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981).

We agree with Judge Cannella that the Secretary’s determination was based on a thorough evaluation of the evidence and that there was substantial evidence to support it. The judgment appealed from is affirmed.