8 Soc.sec.rep.ser. 343, Unempl.ins.rep. Cch 15,881gene Knipe, Plaintiff-appellant, v. Margaret M. Heckler, Secretary, Department of Health Andhuman Services, Defendant-appellee, 755 F.2d 141 (10th Cir. 1985)

Gene Knipe appeals from the denial of Social Security disability insurance benefits and supplemental security income benefits. I R. 2. On August 7, 1981, Mr. Knipe filed an application for benefits alleging that he was "disabled because of back problems, heart trouble, high blood pressure and diabetes." I R. 74; see also II R. 73-76. At the administrative level the Secretary of Health and Human Services (Secretary) determined that Mr. Knipe was not disabled under the Social Security Act, and denied Mr. Knipe's request for benefits. II R. 97-111. On May 28, 1982, after a hearing the Administrative Law Judge (ALJ) denied benefits, II R. 22, 34, and on February 7, 1983, the Appeals Council denied Mr. Knipe's request for review. II R. 4.

On March 25, 1983, Mr. Knipe brought an action in district court for review of the administrative decision. I R. 1. The district court denied Mr. Knipe's motion for summary judgment, affirmed the ALJ's decision, and entered judgment for the Secretary. I R. 78. Mr. Knipe appeals.

* A. Facts

At the time of the ALJ's decision, Knipe was forty-five. II R. 32-33. He had a high school education. He had worked as a police officer for a number of years, a security guard, and then as a driver/salesman. He left his job as a salesman after his second job-related back injury.

Knipe sought benefits alleging that he had essentially four impairments. First, he complained of his bad back and the pain related to it. His back injuries had required his hospitalization on at least two occasions. In February 1980, X-rays showed significant narrowing of the intervertebral disc at the lumbrosacral junction, indicating probable disc degeneration or herniation. Brief for Appellee 3. Surgery was not performed because Mr. Knipe was a diabetic with high blood pressure and extensive heart disease. Because of these other health problems, one physician commented that " [n]o neurosurgeon in his right mind will operate on this patient." II R. 273. He was given conservative treatment including local heat, massage, II R. 153, traction and exercise, the latter two to be continued at home. II R. 189. This treatment did provide him with some relief from the pain. II R. 296, 298.

Second, Mr. Knipe suffered from adult onset diabetes mellitus. II R. 259.¹  He takes insulin for this condition. II R. 284. He has "had trouble controlling [his] diabetic problem of 11 years in duration with apparently a so-called brittle type of diabetes," II R. 194, which "necessitates the patient's having hospitalization for management at intervals." II R. 189. He has been in a diabetic coma on two occasions. II R. 146.

Third, Mr. Knipe suffered from high blood pressure. This condition has necessitated that he take medication. See II R. 189.² 

Fourth, he suffers from severe heart disease, having had four heart attacks in the previous three years before the hearing. II R. 26, 57, 284. He has severe left ventricular dysfunction with an ejection fraction of only 22%,³  II R. 265, and severe diffuse three vessel coronary artery disease. II R. 265. His left anterior descending artery was totally occluded at the level of the first diagonal branch; one circumflex marginal branch had an 80% proximal stenosis and the right coronary artery was a small vessel with a 90% mid lesion. II R. 265. Prior to the hearing before the ALJ, the agency reports on two occasions stated the diagnosis that Knipe had arteriosclerotic heart disease. II R. 101, 103.⁴  After the hearing the ALJ found that Knipe suffered from ischemic heart disease.⁵ 

Knipe also complained of troubles with his legs which may be attributable to the above health problems. See II R. 134. He had numbness in his left great toe and adjacent areas. II R. 153; see also II R. 63-54, 275. Knipe testified that when he stands for several hours his legs become swollen. II R. 63-64; see also II R. 134. There is also atrophy of his intrinsic foot muscles. II R. 153.

Further compounding the above health problems is Mr. Knipe's mental impairment which he alleges is attributable to brain damage from one of his heart attacks. II R. 13. Although it is unclear whether Knipe explicitly asserted that this was a separate impairment before the ALJ, the ALJ did refer to a psychological evaluation of Mr. Knipe. II R. 28. This evaluation stated that "with regard to [Mr. Knipe's] neuropsychological status, test data (the Hain scored Bender Gestalt) is indicative of organic impairment. The difficulty which Mr. Knipe seems to experience in putting both conceptual and concrete things together ... could well be a reflector of this type impairment." II R. 285. The evaluation also found that Knipe had a verbal I.Q. of 82, a performance I.Q. of 76, and a full scale I.Q. of 78. II R. 285. He had an eighth grade reading level, a sixth grade spelling level, and a third grade arithmetic level. Id.⁶  The evaluation did find that Knipe was "socially sensitive" and that his strengths were his "common sense" and his "facility with the English language." However, his " [w]eaknesses were apparent in his ability to think and reason abstractly as well as his visual-motor coordination in both familiar and unfamiliar settings. He has difficulty putting concrete things together with his hands as well as generalizing from his knowledge of concepts." II R. 285.

With this brief summary of Mr. Knipe's impairments as our backdrop, we now turn to the decisions of the ALJ, the Appeals Council, and the district court.

The ALJ stated that the issues were whether Knipe "is entitled to a period of disability and to disability insurance benefits under Sections 216(i) and 223 respectively of the Social Security Act; and whether the claimant is disabled under Section 1614(a) (3) of the Social Security Act." II R. 22. The ALJ found that the claimant had "the following impairments: ischemic heart disease, controlled diabetes mellitus, controlled herniated intervertebral disc, L4, right, treated conservatively." II R. 32.

In concluding that Knipe was not disabled, the ALJ first reasoned that the preponderance of the medical evidence demonstrated that Knipe did not suffer from an impairment equal to any impairment in the Listing of Impairments. II R. 31. See Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, app. 1 (1982) (Listing of Impairments). He reached this conclusion apparently believing that neither the claimant's diabetes, heart disease, nor back troubles met the Listing of Impairments. The ALJ concluded that although the claimant suffered from a combination of impairments which would prevent him from performing his past occupations of patrolman or security guard, which was work requiring a medium level of exertion, these impairments would not prevent him from engaging in light work on a sustained basis. II R. 31. Finally the ALJ explained that Knipe is 45 years old and under Regulations 404.1563 and 416.963 he is a younger individual. Under Regulations 404.1564 and 416.964, he has a high school education and above, and he has performed primarily skilled work. Given this, Rule 202.21 of the Medical Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2 (1982) (the grids), directs that Mr. Knipe be found not disabled. II R. 32. The Appeals Council concluded that there was no basis under the regulations for granting Knipe's request for review of the ALJ's decision.

The district court affirmed and entered summary judgment for defendant. The court reasoned that the finding of the Secretary and the inferences based on those findings cannot be disturbed if supported by substantial evidence. I R. 75; see 42 U.S.C. § 405(g). The court said that the record reflected that Knipe had a twelfth grade education with work experience as a truck driver, salesman, security guard, and sheriff's deputy; that he had testified that his daily activities consisted of limited lawn mowing and sitting around his mother's house; and that Knipe stated he could walk two or three blocks and drive an automobile short distances. I R. 77. The court concluded that the decision was supported by substantial evidence and that the "evidence clearly reflect [ed]" that Knipe had a residual functual capacity to do light work. I R. 77, 78.⁷ 

II

Disability under the Listing of Impairments

Mr. Knipe applied for disability insurance benefits, 42 U.S.C. § 423(a) (1), and supplemental security income benefits. 42 U.S.C. § 1382(a) (1). Under each, a claimant must be disabled to qualify for benefits. See, e.g., 42 U.S.C. §§ 423(a) (1), 1382(a) (1). Our scope of review of a disability award determination is restricted. We must uphold the decision if it is supported by substantial evidence. See 42 U.S.C. § 405(g); Tillery v. Schweiker, 713 F.2d 601, 603 (10th Cir. 1983); see also Bowen v. Heckler, 748 F.2d 629, 634 (11th Cir. 1984).

Substantial evidence is "defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' It must be 'more than a mere scintilla.' " Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir. 1983) (per curiam) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)). This oft-cited language is not a talismanic formula for adjudication; the determination is not merely a quantitative exercise. Evidence is not substantial "if it is overwhelmed by other evidence--particularly certain types of evidence (e.g., that offered by treating physicians) or if it really constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).

The ALJ and the appeals council held that Mr. Knipe was not disabled and accordingly denied all benefits. We conclude that the agency findings are not supported by substantial evidence, and reverse. From our detailed review of the record, we must hold that Knipe's ischemic heart disease, his chest pain, and his severely deficient ejection fraction of 22% meet the requirements of Sec. 4.04(D) of the Listing of Impairments and he is therefore per se disabled.⁸ 

Sections 423(d) (1) and 1382c(a) (3) (A), 42 U.S.C., define a disabled individual as one who 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 12 months." Under these sections a claimant is determined to be "under a disability only if" his physical or mental 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" existing in the national economy. 42 U.S.C. §§ 423(d) (2) (A), 1382c(a) (3) (B).

Mr. Knipe argues, among other things, that if a claimant has an impairment contained in the Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, app. 1 (1982) (Listing of Impairments), it warrants a conclusive finding of disability without consideration of any other factors. Brief of Appellant 18. Knipe says that because his ejection fraction is below the level of severity in the Listing of Impairments, he should have been found to be disabled. The Secretary merely makes a general response that "none of appellant's impairments meet or exceed the Listing of Impairments." Brief of Appellee 28. We are convinced that Mr. Knipe's heart impairments do meet Sec. 4.04(D) of the Listing of Impairments. We, therefore, hold that the findings that he is not disabled are not supported by substantial evidence and that he is disabled within the meaning of the Act.

The Regulations provide that if the severity of a claimant's impairment meets or exceeds that found in the Listing of Impairments, he will be found "disabled without considering [his] age, education, and work experience." 20 C.F.R. Sec. 404.1520(d) (1982). The Regulations describe the disabilities in the Listing of Impairments as "impairments which are considered severe enough to prevent a person from doing any gainful activity." 20 C.F.R. Sec. 404.1525(a) (1982). As the Supreme Court noted, " [t]he regulations recognize that certain impairments are so severe that they prevent a person from pursuing any gainful work." Heckler v. Campbell, 461 U.S. 458, 460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983). When a claimant's disability is equal to or more severe than an impairment in the Listing of Impairments, he is per se disabled. See, e.g., Chico v. Schweiker, 710 F.2d 947, 951 (2d Cir. 1983); Jackson v. Schweiker, 696 F.2d 630, 632-33 (8th Cir. 1983); see also Davis v. Heckler, 748 F.2d 293, 294 n. 4 (5th Cir. 1984); Tillery v. Schweiker, 713 F.2d 601, 602 (10th Cir. 1983).⁹ 

Section 4.00 of the Listing of Impairments deals with impairments of the cardiovascular system. Under Sec. 4.04 and Sec. 4.04(D), a claimant is disabled if he has " [i]schemic heart disease with chest pain of cardiac origin as described in 4.00E. With ... Left ventricular ejection fraction of 30 percent or less measured at cardiac catheterization or by echocardiography." The ALJ found that Mr. Knipe suffers from ischemic heart disease, II R. 32, and the evidence is uncontroverted that Mr. Knipe's left ventricular ejection fraction at cardiac catheterization is below 30 percent. See II R. 261 (25%); II R. 264 (22%); II R. 265 (22%).

Given that Mr. Knipe has ischemic heart disease with an ejection fraction below 30 percent, he is per se disabled if he also has chest pain of cardiac origin under Sec. 4.00E ("pain which is precipitated by effort and promptly relieved by sublinguinal nitroglycerin or rapid acting nitrates or rest"). It appears the ALJ believed that Mr. Knipe did not have chest pain of cardiac origin and therefore did not have ischemic heart disease of such severity to equal an impairment in the Listing of Impairments.¹⁰  On appeal the Secretary appears to argue that Mr. Knipe's ischemic heart disease does not meet Sec. 4.04(D) of the Listing of Impairments because "he does not suffer chest pain." Brief of Appellee 28. We cannot agree that substantial evidence exists to support a finding that Mr. Knipe did not suffer from chest pain of cardiac origin under Sec. 4.00E.

To conclude that Mr. Knipe did not have chest pain of cardiac origin, it appears that the ALJ relied on three physicians' reports. The first reported that Mr. Knipe had no chest pain during a stress test in which he stopped with fatigue. II R. 261, 266. The second was a report of Dr. Kearns in which he said that Mr. Knipe "did have chest pain in the hospital which I believe was musculoskeletal rather than anginal type pain." II R. 267. The third was a report of Dr. Barnes in which he said that " [a]t the present time, [Knipe] has no significant dyspnea on exertion nor any chest pain." II R. 305.¹¹  Considering these reports and the record as a whole, however, there is not substantial evidence to support a finding that Mr. Knipe does not have chest pain of cardiac origin as defined in Sec. 4.00E.

Section 4.00E defines chest pain of cardiac origin as:

pain which is precipitated by effort and promptly relieved by sublingual nitroglycerin or rapid acting nitrates or rest. The character of the pain is classically described as crushing, squeezing, burning, or oppressive pain located in the chest.

To establish that chest pain of cardiac origin is present, the pain need not occur during a stress test, see Jackson v. Schweiker, 696 F.2d 630, 632 (8th Cir. 1983); nor must it occur at any threshold level of frequency or duration. See Blumberg v. Heckler, 598 F. Supp. 1250, 1261 (S.D. Fla. 1984). For example in Jackson the claimant had ischemic heart disease. The results of her stress test demonstrated that her heart was sufficiently impaired under Sec. 4.04(A) (1) of the Listing of Impairments so that she would be disabled if she also experienced chest pain of cardiac origin. In concluding that such chest pain was not present, the ALJ apparently relied upon a doctor's statement that the claimant had no chest pain during the stress test. Jackson, 696 F.2d at 631-32. The Eighth Circuit reversed, concluding that although the absence of pain during a stress test could be an important factor, it was not determinitive "because of the undisputed evidence elsewhere in the record that [the claimant] experienced frequent chest pain." Id. at 632.

Similarly, in Blumberg v. Heckler, 598 F. Supp. 1250 (S.D. Fla. 1984), a claimant had sufficiently severe ischemic heart disease so that he would be automatically disabled under Sec. 4.04(A) (1) if he also had chest pain of cardiac origin. The ALJ had denied benefits. He had found that the claimant's "allegations of constant or severe chest pains are clearly not supported by the evidence of record, the claimant's own testimony or the Administrative Law Judge's observation at the hearing, and are not credible to the degree alleged." Id. at 1255-56. The court relied on numerous medical reports that the claimant had chest pain of cardiac origin, and concluded that the ALJ's decision was not supported by substantial evidence.

To support its conclusion, Blumberg noted that Section 4.00D of the Listing of Impairments indicates that a claimant has ischemic heart disease if he experiences chest pain of cardiac origin and there is objective medical evidence, such as a positive treadmill test, which supports the clinical impression of chest pain. "It does not require the chest pain of cardiac origin to occur at any designated minimal level of frequency or duration.... Rather in order to support an automatic finding of disability according to the literal, textual language of Sec. 4.04(A) (1), an individual must merely demonstrate an objective test consistent with the requirements, and experience chest pain of cardiac origin." Blumberg, 598 F. Supp. at 1261 (emphasis added).

Mr. Knipe satisfied the requirements to support an automatic finding of disability. He has submitted an objective test consistent with the requirements of Sec. 4.04(D), and he has chest pain of cardiac origin.¹²  First, his low 22% ejection fraction measured at cardiac catheterization is undeniably low enough to meet the requirements of Sec. 4.04(D). Second, there is undisputed record evidence that Knipe has experienced chest pain of cardiac origin, and, of course, the ALJ found that he had ischemic heart disease.

With respect to chest pain, in April 1980 Dr. Zisman reported that Mr. Knipe had chest pain while doing the Williams exercises for his back. The report also noted that he had been hospitalized five to six years earlier with acute chest pain and was diagnosed as having a myocardial infarction. II R. 146. In March 1981, after Knipe was hospitalized with congestive heart failure, Dr. Rothkopf reported that Mr. Knipe had "intermittent chest pressure from time to time which may be anginal and possibly musculoskeletal." II R. 262. Dr. Aebersold in a report of August 1981 described Mr. Knipe's second episode in two weeks of "congestive failure, left ventricular decompensation." Although in describing the episode Dr. Aebersold reported that Mr. Knipe had "only minimal pain," the doctor did recognize that he experienced chest pain. II R. 297.

Mr. Knipe testified that he had chest pain on exertion. The ALJ did not find that Mr. Knipe's testimony on this point was not credible; rather the ALJ never discussed this testimony. In response to questioning from his attorney, Mr. Knipe related that " [e]very once in a while, whenever I over-exert myself or something like that you know, I'll have some chest pains." II R. 64. If Mr. Knipe "tr [ies] to do exercise or mow the lawn" he has "heart pain." II R. 66-67. He also testified that his condition, including his other impairments, is worsening. II R. 66.¹³ 

In addition, it is undisputed that Mr. Knipe takes nitro-bid for his heart pain. II R. 58, 64-65, 134. In fact, the ALJ noted in his opinion that during an 11-day hospitalization in February 1982 for low back and knee pain, an electrocardiogram showed tachycardia and an apparent previous anterior myocardial infarction and Knipe was "continued on Nitrobid and Lasix, 40 mg. daily." II R. 29. Nitro-bid is a brand name for nitroglycerin. See J. Long, The Essential Guide to Prescription Drugs 460 (rev. ed. 1980). Nitroglycerin is one of the drugs which Sec. 4.00E of the Listing of Impairments describes as "promptly reliev [ing]" chest pain of cardiac origin. See Listing of Impairments Sec. 4.00E (chest pain of cardiac origin promptly relieved by "sublingual nitroglycerin or rapid-acting nitrates or rest"). Mr. Knipe's uncontradicted testimony establishes that he takes an extra nitrobid when he has chest pains. II R. 64-65. This further dictates the conclusion that Mr. Knipe has chest pain of cardiac origin.¹⁴  See Blumberg, 598 F. Supp. at 1260 (court notes that claimant takes a prescribed nitrate and that nitrates are one of relief-causing agents under Sec. 4.00E for chest pain of cardiac origin).¹⁵ 

It is not questioned that Mr. Knipe's ejection fraction measured at catheterization (22%) is well below 30 percent as required by Sec. 4.04(D). Moreover, the only conclusion that can be drawn from the evidence is that he has ischemic heart disease, and he has had chest pain of cardiac origin under Sec. 4.00E. Accordingly we hold that Mr. Knipe is per se disabled under Sec. 4.04(D) of the Listing of Impairments and that the findings adverse to him on disability are clearly not supported by substantial evidence and must be reversed.¹⁶ 

III

Conclusion

Mr. Knipe applied for disability insurance benefits, 42 U.S.C. § 423(a) (1), and supplemental security income benefits, 42 U.S.C. § 1382(a) (1). Under Sec. 423(a) (1) an individual is entitled to disability insurance benefits if he is so insured; he has not attained retirement age; he has filed an application for such benefits; and he is under a disability. We have held that Knipe is disabled, and there is no dispute that he meets the other requirements to be entitled to social security disability insurance benefits.¹⁷  Therefore, we hold that Knipe was entitled to disability insurance benefits, 42 U.S.C. § 423, as of May 1, 1981, the date he alleged that he became disabled.

As to eligibility for supplemental security income, 42 U.S.C. § 1382(a) (1) defines an eligible individual as an "aged, blind or disabled individual who does not have an eligible spouse and" whose income and resources are below a specified level. Although we can say that Mr. Knipe is disabled under Sec. 1382(a) (1), and the record does indicate that he has no income, II R. 26, we are unable to determine from the record if he also has resources as defined by the Act below the statutory limit. We must remand to the Secretary to determine if Knipe's resources and income are below the statutory maximum. We hold that if the Secretary determines that Knipe's resources and income do not exceed the limit, he was eligible for supplemental security income benefits as of May 1, 1981.

Accordingly, the judgment is reversed. The case is remanded to the Secretary for prompt payment to Knipe of social security disability insurance benefits from May 1, 1981, to the present and future payments to which he is entitled. Without delaying such disability payments, the Secretary shall also make a prompt determination whether Knipe had resources below the statutory limit so as to qualify him for supplemental social security benefits, and if he was so qualified, for prompt payment thereof.¹⁸