Abshire v. Bowen, 87-4709
| Decision Date | 05 July 1988 |
| Docket Number | No. 87-4709,87-4709 |
| Citation | 848 F.2d 638 |
| Parties | , Unempl.Ins.Rep. CCH 14034A Wilbert P. ABSHIRE, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of the United States Department of Health and Human Services, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John D. Thompson, Jr., Lafayette, La., for plaintiff-appellant.
Marguerite Lokey, DHHS/OGC, Dallas, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before POLITZ, JOHNSON, and HIGGINBOTHAM, Circuit Judges.
Plaintiff Wilbert Abshire appeals an order by the district court granting the Secretary of Health and Human Services' motion for summary judgment and affirming the Secretary's denial of Abshire's claim for disability benefits and supplemental security income (SSI). Finding that the Secretary's determination is not supported by substantial evidence, we reverse and remand for proceedings not inconsistent with this opinion.
At the time of the administrative hearing determining Abshire's eligibility for disability benefits, Abshire was forty-nine years old, stood five foot six inches, weighed 210 pounds, and possessed a ninth grade education. Abshire previously worked as a salesman and deliveryman for a bread company until ankle surgery in 1974 prevented him from walking long distances. Abshire then worked for the Lafayette Parish Police Jury operating heavy equipment until he injured his back and neck in March 1982 when he slipped on a catwalk and grabbed onto a rail. Also during this time, Abshire ran a small lawn mower repair business which netted little income.
Shortly after his injury, while working for the police jury, Abshire consulted Dr. J. Hugh Larriviere, who diagnosed Abshire as having degenerative disease of the lower cervical spine, large vertebral spurs with intervertebral encroachment at the spur sites, and spurring of the left shoulder joint and elbow. To alleviate the pain which Abshire was experiencing in his left arm and hand when he extended his neck, Dr. Larriviere recommended a conservative treatment of pain medication and physical therapy. From June 1982 until March 1983, Abshire was treated by Dr. James C. McDaniel who, like Dr. Larriviere, diagnosed Abshire as suffering from degenerative disc disease. While Abshire's condition improved somewhat under Dr. McDaniel, Abshire did not continue under Dr. McDaniel's care when McDaniel suggested a myelogram. Abshire refused the myelogram fearing it might interfere with his lawn mower repair business.
Thereafter, in August 1983, Abshire contacted Dr. Robert Rivet, a neurosurgeon in Lafayette, Louisiana. After a lumbar and cervical myelogram was performed on Abshire revealing evidence of multi-level disc disease, Dr. Rivet performed surgery on Abshire's neck. On April 22, 1984, Dr. Rivet reported that Abshire continued to experience pain and a plug in Abshire's back had collapsed since his initial treatment earlier in 1983. Thus, Dr. Rivet recommended a repeat myelogram which was performed the following day. While Dr. Rivet did recommend further surgical intervention, Abshire elected not to undergo another surgery. At the administrative hearing, however, Abshire testified he would now have the surgery providing he could afford the procedure.
Thereafter, on November 7, 1984, Abshire filed an application for disability and SSI benefits, alleging that he became disabled in March 1982 after his injury while working for the police jury. Abshire was subsequently examined consultatively in connection with his disability claim by Dr. Fred Webre, an orthopedic surgeon. Dr. Webre observed that while Abshire guarded full mobility of his neck, Abshire did have full mobility of his back for a patient his size and full mobility of his right ankle. Dr. Webre also noted that Abshire complained of pain when bending his back or sitting. In this regard, x-rays revealed the presence of degenerative spurs on the vertebras of Abshire. Recognizing that Abshire suffered residual problems from his neck surgery, Dr. Webre recommended that Abshire avoid activities involving strenuous neck movements.
Abshire's application for benefits was initially denied and thereafter, Abshire requested a hearing on his application before an administrative law judge (ALJ). At the administrative hearing, Abshire testified that he has a steady pain that runs from the top of his head and down his back and that he experiences some numbness in his left arm. Abshire further stated that he can sit about one hour at a time, stand twenty minutes at a time, and walk a maximum distance of one block at a time. Abshire also testified that he has trouble bending and stooping, that he is unable to place his arms on his head, and that he can lift a maximum of only five pounds. During his testimony at the administrative hearing, Abshire stood up and braced himself in an awkward position to relieve his pain, a fact the ALJ specifically recognized in his decision denying Abshire disability and SSI benefits. When asked about his job duties during his previous job as a route salesman for the bread company, Abshire testified that his position included loading his truck for forty-five minutes to an hour every morning, lifting loads weighing approximately ten to fifteen pounds, and climbing in and out of his truck to make deliveries which included carrying the ten to fifteen pound loads from his truck to the store. Further, his delivery route involved drives in excess of one hour.
After considering the evidence, the ALJ concluded that Abshire was precluded, due to his injuries, from engaging in work involving heavy lifting and carrying, excessive reaching with the left arm, and repetitive climbing and balancing. However, the ALJ further found that Abshire was capable of performing light work and concluded that Abshire's past position as a bread company salesman-deliveryman qualified as such light work.
Following the denial of his benefits by the ALJ, the Social Security Appeals Council denied review, rendering the ALJ's decision the final decision of the Secretary. Abshire then sought review of the Secretary's decision in federal district court. The matter was referred to a magistrate who, on March 20, 1987, issued a report recommending that the Secretary's decision be affirmed. The district court subsequently adopted the magistrate's recommendation and entered judgment accordingly. Abshire now appeals.
In reviewing the Secretary's decision to deny disability and SSI benefits, this Court is "limited to a determination that the Secretary's decision was supported by substantial evidence existing on the record as a whole and that no errors of law were made." Neal v. Bowen, 829 F.2d 528, 530 (5th Cir.1987). In this regard, the Court must refrain from reweighing the evidence, trying the issues de novo, or substituting its judgment for that of the Secretary. Id.; Fields v. Bowen, 805 F.2d 1168, 1169 (5th Cir.1986). Substantial evidence means more than a scintilla, less than a preponderance, and is:
[S]uch relevant evidence as a reasonable mind might accept to support a conclusion. It must do more than create a suspicion of the existence of the fact to be...
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