Ashworth v. Sullivan
| Decision Date | 30 December 1991 |
| Docket Number | No. 91-5699,91-5699 |
| Citation | 951 F.2d 348 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Gladys B. ASHWORTH, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KENNEDY and BOGGS, Circuit Judges, and LIVELY, Senior Circuit Judge.
Gladys B. Ashworth appeals a district court ruling that upheld an Administrative Law Judge's decision denying social security benefits to her. She maintains that there is not substantial evidence to support the ALJ's findings that she was able to return to her previous employment. We affirm the district court.
Gladys B. Ashworth worked with wave machines (a soldering machine used to make circuit boards), crimping machines, and tow motors, until she injured her back while operating a tow motor. She claims that she has been unable to work since April 1, 1985 on account of this injury. However, she worked part-time as a cashier at a CeeBee Foods Store from February 1987 through February 1988, making approximately $75 per week. At the store, she was apparently permitted to sit and stand as she wished; however, she does not believe she can still do this job, particularly since it involved stocking the shelves. Her manager at the store agreed with this conclusion. She also operates a ceramic shop at which she works two hours a day; the shop has netted her approximately $900 per year, although she states it has not been profitable.
Ms. Ashworth filed an application for disability insurance benefits, which was denied initially and on reconsideration. She requested a hearing, which was held on May 4, 1989. Several medical reports were introduced during the course of these proceedings. Dr. William J. Jekot, an orthopedic surgeon in Murfreesboro, Tennessee, began examining Ms. Ashworth in November 1984. He reported that for one and one-half years she had a history of intermittent mechanical low back pain. At the time he first saw her, she had noted sudden attacks of pain upon lifting an object. His examination revealed a decreased range of motion of the lumbar spine with difficulty in performing voluntary movements (dyskinesia); his first impression of her condition was acute lumbar syndrome. He prescribed therapy that produced some improvement, and she returned to work on November 26, 1984. However, on December 21, 1984, she returned with a sharp exacerbation of her lower back, and reported an injury at work loading metal shelves. Over the next few months she showed gradual improvement and returned to work in the middle of February 1985.
Dr. Jekot examined Ms. Ashworth again on April 3, 1985; she had suffered another back injury at work ten days previously. Dr. Jekot diagnosed lumbar syndrome without sign of spinal nerve irritation or deficit. He changed her medication, placed her on an exercise program, and advised her to refrain from work until she became more comfortable. He saw her again on August 30, 1985, when she was doing better, though with occasional right leg pain. At this time, he believed her to have a herniated disc.
Dr. Jekot referred Ms. Ashworth to Dr. William Davis, a Nashville orthopedic surgeon. Dr. Davis examined her in early December 1985, and concluded that she had S-1 nerve root compression, although he could not see this on a myelogram or a computerized axial tomography (CAT) scan. He did not think she would be a good candidate for surgery because her pain had persisted for over a year and some of her pain had a nonorganic source. Dr. Davis referred Ms. Ashworth to the Middle Tennessee Back Care Center in Brentwood, which conducted medical and psychological evaluations on December 4, 1985, and issued a report on November 4, 1986. Its doctors diagnosed chronic low back pain, radicular and mechanical, with degenerative joint disease aggravation and chronic pain syndrome. Dr. Thomas C. Whitfield, the Center's Assistant Medical Director, concluded that Ms. Ashworth would benefit greatly from the Center's comprehensive rehabilitation program on an out-patient basis. The Center's psychological evaluation found that she was anxious to restore her physical abilities so that she could return to gainful employment.
Because of delays in having her treatment paid for by worker's compensation, her program at the Center did not begin until April 1987. By this time, the Center had been renamed the Comprehensive Medical Rehabilitation Center. The Center discharged Ms. Ashworth on June 5, 1987, after a six-week program. In his discharge summary, Dr. William R. Halliday, the Center's Medical Director, noted that she had made significant progress in all areas, particularly during a two-week full-time program. However, he concluded that "her ability to make further progress was limited by the coexistence of significant low back disease and sacroiliac abnormality." He also found that she regressed upon returning to a commuter program while attempting to work. He determined that However, as noted earlier, she continued working at CeeBee Foods until February 1988.
On January 26, 1988, Dr. Jekot's deposition was taken in Ms. Ashworth's worker's compensation case. He concluded that she could work only fifteen to twenty hours a week, was limited to lifting no more than five pounds, and could not perform any repetitive bending or twisting. In a medical assessment concerning work-related activities, he marked that she could lift and carry ten pounds for one-third of the workday or no more than five pounds frequently for two-thirds of a workday. He also marked that she could stand and/or walk for three hours total during a workday and for one and one-half hours without interruption. He found that she could sit for no more than three hours during the workday and no more than one hour without interruption.
In November 1988, at the request of the Secretary, Ms. Ashworth was examined by Dr. David W. Gaw, a board-certified Nashville orthopedic surgeon. Dr. Gaw diagnosed degenerative lumbar disc disease with radiculopathy on the right. He noted that she could lift and/or carry twenty pounds for about one-third of an eight-hour workday, or that she could frequently lift and carry ten pounds for about two-thirds of a workday. He also felt that she could stand or walk with normal breaks for at least two hours in the workday, and that she could sit for about six hours in an eight-hour workday.
Dr. S. Frank Carter, Ms. Ashworth's family physician, also submitted a medical assessment form dated May 12, 1989. He indicated that Ms. Ashworth could lift no more than five pounds occasionally and nothing frequently, and that she could stand and walk no more than two hours in an eight-hour day or a half-hour at a time.
Finally, Ms. Ashworth submitted a report from George E. Copple, a vocational expert. Based upon the Wechsler Adult Intelligence Scale test, he concluded that Ms. Ashworth's I.Q. was 81. He also administered a Wide Range Achievement Test to her, and determined that she was considerably limited in the range of jobs she could perform. Reviewing the appraisals by the treating physicians, he concluded that she had a 65-70 percent occupational disability and that her occupational outlook was bleak.
On June 23, 1989, the ALJ issued a decision denying benefits. He gave less weight to Dr. Jekot's findings regarding residual functional capacity because the findings were based primarily upon Ms. Ashworth's history, and because Dr. Jekot had performed no formal functional testing. He discounted Dr. Carter's findings, which he found to be inconsistent with the reports of other physicians. He also stated that there was no showing that Dr. Carter had actually treated Ms. Ashworth. The ALJ was not impressed by Mr. Copple's conclusions, since "the psychologist [Mr. Copple] has made conclusions about her functional capacity ... which are not consistent with the conclusions in this case." While the ALJ concluded that Ms. Ashworth had a significant back condition, he did not believe that it "would preclude the claimant from performing essentially light exertion."
In reaching this conclusion, the ALJ relied upon Dr. Gaw's findings concerning lifting and carrying capacity. However, he concluded that Dr. Gaw's statements regarding walking, standing, and sitting limitations were inconsistent with his findings and Ms. Ashworth's own testimony. In fact, the ALJ placed significant weight on Ms. Ashworth's statements:
At the hearing, the claimant indicated that she walks two to three miles a day, can sit an hour at a time, has operated a ceramic shop ... and has worked part-time at other jobs. She also has acknowledged that she drives, keeps a house, and mows the yard. The undersigned finds that such activities are consistent with the ability to perform at least light exertion and demonstrate the ability to perform light activity.
On February 20, 1990, the Appeals Council refused to grant Ms. Ashworth's request for review. Having exhausted her administrative remedies, she filed this suit in the Middle District of Tennessee. The district court assigned this case to a magistrate, who filed a report and recommendation on January 15, 1991. The magistrate concluded that the ALJ's ruling was backed by substantial evidence, and recommended that Ms. Ashworth's case be dismissed. The district court adopted this report in full on April 3, 1991. Ms. Ashworth appeals to this court.
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Balknight v. Comm'r of Soc. Sec.
...simply over-the-counter medication."). Similarly, the injections she received constitute conservative treatment. See Ashworth v. Sullivan, 951 F.2d 348 (6th Cir. 1991) (holding that treatment of back pain with epidural steroid injections, mild medication, exercise, and a heating pad was con......