Smolen

Catherine Smolen appeals the decision of the district court affirming the denial by the Commissioner of Health and Human Services (“Commissioner”) of her application for disabled child’s benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 416 , 423 (1988 & Supp. Ill 1991).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In April 1966, when Smolen was five years old, she was diagnosed as having a Wilms tumor of the left kidney and a metastatic lesion in her lower right lung. On April 30, 1966, Smolen underwent surgery to have the Wilms tumor and her left kidney removed. Throughout the next four years, Smolen received extensive chemotherapy and radiation treatment. Although this therapy reduced the metastatic lesion in her lower right lung, Smolen developed a new metastatic lesion in her upper left lung. Because the chemotherapy and radiation treatment did not reduce this lesion, Smolen had to undergo a left upper lobectomy on April 4, 1968. After the lobectomy, Smolen continued to receive chemotherapy through July 1970. Thereafter, Smolen was apparently free of carcinoma until February 1987, when she was diagnosed as having invasive grade III ductal…

dissenting:

Catherine A. Smolen appeals from the judgment of the district court affirming the determination by the Secretary of Health and Human Services (“Secretary”) that she is not entitled to disabled child insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 416 and 423. She contends that the finding of the Administrative Law Judge (“ALJ”) that she was not continuously disabled between 1982, when she reached the age of 22, and 1987, when she was undisputedly disabled, was not supported by substantial evidence. She also contends that the Secretary failed to prove that she could perform other work.

To be entitled to disabled child’s benefits, Smolen was required to establish disability beginning prior to her twenty-second birthday, on November 1,1982, and continuing for at least a twelve-month period. 42 U.S.C. § 402 (d)(l)(B)(ii). In order to establish disability, Smolen had to demonstrate “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423 (d)(1)(A). The ALJ determined…