Leontine Mcgaha, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 27 F.3d 567 (6th Cir. 1994)

Before: KENNEDY and SILER, Circuit Judges; and SPIEGEL, District Judge.^* 

ORDER

Leontine McGaha, a social security claimant represented by counsel, appeals a district court judgment affirming the Secretary's denial of her applications for social security disability benefits. The parties have waived oral argument, and this panel unanimously agrees that oral argument is not needed in this case. Fed. R. App. P. 34(a).

McGaha filed an application for disability insurance benefits on February 6, 1991, and for supplemental security income benefits on September 5, 1991, alleging a disability due to a "spot" on her lung, dizziness, chest pain, flank pain, fatigue, hypertension and diminished visual acuity. She last met the disability insured status requirements for disability insurance benefits on June 30, 1992.

An administrative law judge (ALJ) determined that McGaha has hypertension, a mild pulmonary disease and a history of surgery for lung cancer, but that her impairments were not severe. He further indicated that McGaha did not have any impairment that limited her from performing basic work-related activities and that she was, therefore, not disabled. See 20 C.F.R. Secs. 404.1521 and 416.921. The Appeals Council denied McGaha's request for review.

McGaha then sought judicial review of the Secretary's decision. A magistrate judge found that the Secretary's conclusion of nondisability based on a non-severe impairment was not supported by substantial evidence. The magistrate judge recommended remanding the case to the Secretary so that she could complete the sequential evaluation set forth in 20 C.F.R. Secs. 404.1520 and 416.920. The district court rejected the magistrate judge's recommendation and granted summary judgment in favor of the Secretary.

On appeal, McGaha argues that the Secretary's decision denying disability is not supported by substantial evidence because she suffers from a severe pulmonary impairment which limits her ability to perform basic work activities.

Upon de novo review, we conclude that substantial evidence does not support the Secretary's decision. Brainard v. Secretary of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (per curiam). An impairment can be considered non-severe only if it could constitute a "slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with an individual's ability to work, irrespective of age, education and past work experience." Farris v. Secretary of Health and Human Servs., 773 F.2d 85, 89-90 (6th Cir. 1985). In light of McGaha's history of emphysema and a right lobectomy for lung cancer, with continued symptoms of incisional pain, fatigue and shortness of breath, the Secretary's decision of nonseverity in this regard is not supported by substantial evidence.

Accordingly, we hereby vacate the district court's judgment and remand the case for further proceedings before the Secretary for the completion of the sequential evaluation set forth in 20 C.F.R. Secs. 404.1520 and 416.920.