Ernest Harris v. Secretary of Health & Human Services

863 F.2d 48 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Ernest HARRIS, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee. No. 87-1997. United States Court of Appeals, Sixth Circuit. Nov. 16, 1988. Before WELLFORD and DAVID A. NELSON, Circuit Judges, and RICHARD B. McQUADE*, District Judge. PER CURIAM. [1] In this social security case, the appellant suffered a heart attack ("an evolving myocardial infarction") after administrative procedures relating to assertions that he was disabled due to back surgery and diabetes had begun. Although the Administrative Law Judge (ALJ) weighed evidence relating to all three ailments, he denied the appellant's request for benefits. In our view he failed to determine whether the appellant's heart impairment met the statutory duration requirement. See 42 U.S.C. Secs. 423(d)(1)(A), 1382c(a)(3); 20 C.F.R. Secs. 404.1509, 416.909. [2] The appellant suffered a heart attack on July 11, 1985. The administrative hearing was held about one month later, on August 14, 1985. If a disability application is adjudicated before the claimant's impairment has lasted twelve months, then the nature of the impairment, the therapeutic history, and the prescribed treatment will serve as the basis for determining prospectively whether the impairment will continue to prevent the individual from engaging in any substantial gainful activity or any gainful activity for the additional number of months needed to establish the required twelve-month duration. The ALJ who hears a claim before the twelve-month period has expired must make a determination whether the claimant's impairment may be expected to last for the requisite time. [3] Since the ALJ in the instant case failed to make such a determination, we REMAND to the Secretary for a finding and determination as to when or if a disability period relating to the appellant's heart attack exists which might qualify him for benefits. Footnotes [-s] * THE HONORABLE RICHARD B. McQUADE, JR., United States District Court for the Northern District of Ohio, sitting by designation