Unpublished Dispositionroy B. Romines, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 798 F.2d 1416 (6th Cir. 1986)

Plaintiff-Appellant, Roy B. Romines, appeals from an order of the district court affirming the Secretary's denial of social security disability benefits, Appellant filed applications for disability insurance benefits and Supplemental Security Income benefits on May 1, 1980. These applications were denied. Upon remand from the district court, the Appeals Council found that appellant established a date of onset of disability as of June 1, 1983. Appellant subsequently was awarded Supplemental Security Income benefits in June 1983. However, because his insured status expired on September 30, 1982, appellant was not entitled to disability insurance benefits because his onset of disability date was June 1, 1983. Upon appeal to the district court to establish an earlier onset of disability date, the district court affirmed the Secretary's decision. For the following reasons, we affirm the district court's decision.

Appellant was born on February 2, 1935 and was forty-seven years old when his insured status expired. Appellant had a sixth-grade education and past relevant work experience as a police officer, humane officer, security guard and laborer.

Appellant alleged disability because of a respiratory impairment, blackouts, diabetes, leg and foot trouble, hardening of the arteries, regurgitation of blood and coughing spells with extreme weakness. The Appeals Council found that appellant's impairments included foot discomfort, syncope, and chronic obstructive pulmonary-disease. However, the Appeals Council found that although the medical evidence established disability due to severe pulmonary disease (cancer), the disability did not begin until June 1983. Thus, prior to June 1983, the Appeals Council held that appellant retained the residual functional capacity to perform light work including his prior jobs of security guard and humane officer.¹  The medical evidence indicates that Dr. Patterson examined appellant in November 1978, with regard to appellant's allegations of pain in his lower extremities due to leg and foot trouble. The examination revealed that appellant had a higher than normal arch, but the overall alignment of his foot was normal and that no significant bone or soft tissue abnormalities were noted. Although appellant experienced some tenderness and discomfort of his feet, Dr. Patterson's examination indicated that appellant had excellent range of motion in the ankles, walked without limping, had normal sensation in all the toes, had no apparent knee abnormalities and no atrophy of either thigh or calf. Dr. Patterson did not find appellant disabled.

Treating physician, Dr. Thomas, examined appellant for respiratory problems. As of March 23, 1979, Dr. Thomas stated that although appellant had considerable trouble with respiratory infections and chronic bronchitis; he did not believe appellant was disabled.

Dr. Robert A. Broady, another treating physician, noted as of April 25, 1980, that an X-ray of plaintiff's chest showed some fibrosis of the lungs. Although Dr. Broady stated that appellant had chronic severe pansinusitis and secondary chronic obstructive pulmonary disease, he did not indicate that appellant was disabled due to his physical impairments.

Dr. Charles Roach, another one of the appellant's treating physicians, reported on May 12, 1980, that he believed the appellant was capable of lifting 20 pounds occasionally and 10 pounds frequently. Appellant could walk up to two hours, stand up to four hours; sitting was unimpaired. Appellant was again examined by Dr. Roach on September 22, 1980, and it was noted that although the appellant appeared chronically ill, coughed frequently and that there were scattered rales and coarse rhonchi in the lung, it was the opinion of Dr. Roach that the appellant was not disabled due to any neurological causes.

Dr. Jack Seariano, a neurologist, examined the appellant on January 30, 1981. He reported that cranial nerves were intact and a sleeping EEG did not show any abnormalities. Dr. Seariano indicated that in his opinion appellant's shortness of breath would cause some degree of limitation of physical exertion, but he did not believe appellant to be totally disabled based upon physical examination.² 

Between January 1981, when Dr. Seariano performed his consultative examination, and September 1983, when plaintiff was hospitalized and cancer of the left lung was discovered, no other medical reports were submitted.

Appellant argues that the Secretary's decision is not supported by substantial evidence. We disagree.

Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Pearles, 402 U.S. 389, 401 (1971). Even if this court might arrive at a different factual conclusion, the decision mist be affirmed if it is supported by substantial evidence. Lane v. Gardner, 374 F.2d 612, 616 (6th Cir. 1967).

In the instant case, the Secretary's decision is supported by substantial evidence. Not one of the treating physicians found that appellant was disabled. Furthermore, no medical evidence indicates that appellant was disabled prior to his insured status expiration date. Consequently, we believe the medical evidence supports the Appeals Council's finding that appellant was capable of returning to his past relevant work as a humane officer or security guard prior to the expiration of his insured status.³ 

Appellant next argues that his lung cancer was clearly traceable to a latent condition which existed prior to the expiration of his insured status. Again, we disagree.

The standard plaintiff urges with respect to the relation back of a disabling condition requires that there be "a high degree of medical probability" that the disability evolved from a condition which was present but dormant during the period of insurance coverage. Cassel v. Harris, 493 F. Supp. 1055, 1058 (D. Colo. 1980) (The Cassel standard has not been adopted by any Court of Appeals and is contrary to our decision in Henry v. Gardner, 381 F.2d 191 (1967); nevertheless, even under that relaxed standard, appellant has failed to make his case). Here, appellant had the opportunity and responsibility to present this evidence to the Secretary, however, he failed to do so. Thus, we agree with the district court's order which states that there is no medical opinion linking the appellant's current cancer to a condition existing, prior to September 30, 1982.

Accordingly, we AFFIRM the decision of the Honorable James H. Jarvis.

Elizabeth SORIANO, Plaintiff-Appellant,

v.

GREYHOUND LINES, INC., Hazel Thompson, and Manager,

Greyhound Lines, Defendants-Appellees.

No. 85-5580.

United States Court of Appeals, Sixth Circuit.

July 22, 1986.

W.D. Ky.

AFFIRMED.

Before LIVELY, Chief Judge, MILBURN, Circuit Judge, and PECK, Senior Circuit Judge.

ORDER

Elizabeth Soriano timely filed this pro se appeal from the June 5, 1985, order of the district court dismissing her civil rights complaint. This case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs of the parties, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Soriano filed this action against Greyhound Lines, Inc., Hazel Thompson, a Greyhound ticket clerk, and the Manager of Greyhound Lines, alleging that the defendants deprived her of the full enjoyment and use of her property (a Greyhound bus ticket), and that they prevented her from conducting her affairs as planned on two occasions, in violation of 42 U.S.C. § 1983. Specifically, Soriano alleged that on December 24, 1984, defendant Hazel Thompson gave her incorrect departure information and she missed her bus home for Christmas, although she was at the terminal on time. As a result, Soriano became hysterical and, rather than the manager performing his part of the contract by arranging other connections or giving her a refund, he allowed the police to arrest her. Thus, the misinformation given to her by Hazel Thompson caused her incarceration and subsequent suffering. Soriano further alleged that on January 26, 1985, she was falsely accused by the defendants of purchasing a round-trip ticket to New York City with a counterfeit $100 bill. As a result, her property was taken, she missed her bus again, and she was detained by the police for over three hours.

On May 14, 1985, the district court granted defendants' motion for a more definite statement and ordered Soriano to file an Amended Complaint stating a cause of action for which relief could be granted. Soriano filed an Amended Complaint on May 21, 1985, which was dismissed (on defendants' motion) by the district court on June 5, 1985. It is from this dismissal that Soriano has appealed.

Pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), and they should not be dismissed for failure to state a claim "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Soriano's original complaint was a narrative recitation of events surrounding two bus trips she allegedly planned to take, which she contended were interrupted by the actions of the defendants. The district court afforded Soriano an opportunity to amend her complaint so as to state a claim for relief. After carefully scrutinizing the amended complaint filed by Soriano, taking all of the allegations therein as true, and construing the complaint most liberally in favor of Soriano (See Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976)), there appears to be no set of facts which would entitle her to relief in this case. Therefore, the district court correctly dismissed the complaint for failure to state a claim upon which relief can be granted.

It is ORDERED that the judgment of the district court is affirmed. Sixth Circuit Rule 9(d) (3).