Aurednick v. Sullivan

• Decision Date: 20 February 1990
• Docket Number: No. 87-324-CIV-T-10C.,87-324-CIV-T-10C.
• Parties: Gary S. AUREDNICK, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Middle District of Florida

733 F. Supp. 1460

Gary S. AUREDNICK, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

No. 87-324-CIV-T-10C.

United States District Court, M.D. Florida, Tampa Division.

February 20, 1990.

Susan Allen, J. Christopher Deem, Tampa, Fla., for plaintiff.

Peter B. Loewenberg, Asst. U.S. Atty., Tampa, Fla., for defendant.

ORDER

HODGES, District Judge.

THIS CAUSE came on for consideration upon the filing of a petition for review of the decision of the Secretary of Health and Human Services. This matter was considered by the Magistrate, pursuant to the general order of assignment, who has filed her report recommending that the decision of the Secretary denying benefits be reversed and the case remanded to the Secretary for further proceedings.

Upon consideration of the report and recommendation of the Magistrate, and upon the court's independent examination of the file, the Magistrate's report and recommendation is adopted and confirmed and made a part hereof.

Accordingly, it is ORDERED:

(1) The above styled cause is remanded to the Secretary for further proceedings.

REPORT AND RECOMMENDATION

December 28, 1989.

ELIZABETH A. JENKINS, United States Magistrate.

Plaintiff brings this action pursuant to the Social Security Act (the Act), as amended, Title 42, United States Code, Section 405(g) to obtain judicial review of a final decision of the Secretary of Health and Human Services (the Secretary) denying claims for disability insurance and supplemental security income benefits under the Act.¹

The undersigned has thoroughly reviewed the record consisting of a transcript of the proceedings before the Administrative Law Judge (ALJ) as well as the exhibits filed in the administrative record, the pleadings, and memoranda submitted by the parties. Oral argument has also been held.

In an action for judicial review, the reviewing court must affirm the decision of the Secretary if it is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). If there is substantial evidence to support the Secretary's findings, this court may not decide the facts anew or substitute its judgment as to the weight of the evidence for that of the Secretary. Goodley v. Harris, 608 F.2d 234, 236 (5th Cir.1979).

If an error of law was committed by the Secretary, the case must be remanded to the Secretary for application of the correct legal standard. McDaniel v. Bowen, 800 F.2d 1026, 1029-30 (11th Cir.1986); Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983). If the reviewing court is unable to determine from the ALJ's decision that the proper legal standards were applied, then a remand to the Secretary for clarification is required. Jamison v. Bowen, 814 F.2d 585 (11th Cir.1987).

I

On August 16, 1988 this case was remanded by this court for further administrative proceedings for the purpose of evaluating plaintiff's complaints of pain according to the standards set forth in Landry v. Heckler, 782 F.2d 1551 (11th Cir.1986), as well as to determine whether plaintiff had any significant non-exertional limitations which precluded reliance on the medical-vocational guidelines ("the grids").²

On November 2, 1988 a supplemental hearing was held before the ALJ. Upon remand, the ALJ found that plaintiff was disabled within the meaning of the Act on February 7, 1985 and continuing thereafter due to psychological problems which interfered with plaintiff's ability to concentrate, interact with others and persist at tasks which combined with his other impairments to preclude any work activity on a sustained basis. However, the ALJ found that plaintiff was not disabled prior to February 7, 1985 because he was able to perform at least sedentary work not requiring fine manipulation with the capability of changing positions at least once an hour, as demonstrated by the testimony of a vocational expert. (ST1 377).³ The ALJ found plaintiff's impairments prior to February 7, 1985 to consist of: a back condition with degenerative disc disease, status-post multiple surgeries with a failed fusion and accompanying discomfort. The ALJ made this determination after applying the standards set forth in Landry v. Heckler, supra, in determining that plaintiff's severe back impairment prior to February 7, 1985 permitted him to perform a reduced range of sedentary work engaging in such occupations as security board-room monitor, file clerk, hand packager, surface printing machine operator, telephone clerk and leaf tier or piercer in the tobacco industry. (ST1 376).

Plaintiff contends that the Secretary's post-remand decision as to the non-existence of a disabling impairment or impairments prior to February 7, 1985 must be reversed. Specifically, plaintiff contends that:

(1) the ALJ failed to articulate specific reasons for rejecting plaintiff's testimony as to disabling pain;

(2) failed to consider pain as a non-exertional factor limiting the range of jobs plaintiff could perform prior to February 7, 1985; and

(3) arbitrarily chose February 1985 as the onset date of plaintiff's psychological symptoms.

Plaintiff requests the court to reverse the decision of the Secretary denying benefits prior to February 7, 1985 and to award disability benefits commencing on February 1981.

II

A. The Eleventh Circuit pain standard requires the Secretary to credit a claimant's subjective pain testimony if there is (a) evidence of an underlying medical condition and (b) either (1) objective medical evidence to confirm the severity of the alleged pain or (2) that the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain. Landry v. Heckler, 782 F.2d at 1553. Under the alternate prong of the pain standard, subjective pain testimony which is supported by clinical evidence of a condition which can reasonably be expected to produce the symptoms of which plaintiff complains is itself sufficient to sustain a finding of disability. This prong requires the Secretary to evaluate the credibility of a claimant's testimony as to pain and to articulate a reasonable basis for rejecting the testimony if it is rejected. Sewell v. Bowen, 792 F.2d 1065, 1068 (11th Cir.1986). The reasons must be based on substantial evidence. See Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.1987); cf. Lamb v. Bowen, 847 F.2d 698, 702 (11th Cir.1988).

Plaintiff testified at the supplemental hearing that he has constant neck and back pain and occasional chest pain. (ST2 408-411). He testified that he can sit for only about twenty minutes and then he has to get up and move around to relieve the pain. He testified sometimes that the pain is so bad that he has to take his medication and lie down. Plaintiff testified that he takes Tylenol # 3 and Motrin 800 as needed. (ST2 413-416). Plaintiff also testified that the pain sometimes causes his hands and legs and feet to become numb. (ST2 422-424). Plaintiff testified that he has been told by his physician that he can drive about two hours in a day as long as it is not all at one time. (ST2 426).

During the period May 1981 (the date of plaintiff's back injury) and February 1985 (the onset date of plaintiff's total disability as determined by the ALJ), plaintiff was seen by a number of physicians and had operations in 1981 and in 1982. On April 21, 1982, Dr. Robert Callahan, an orthopedic surgeon, performed a cervical discectomy and fusion of C4-5 and C5-6. In September of that year Dr. Callahan indicated that plaintiff could perform light duty work. (T 229). In March of 1983, Dr. Callahan determined that plaintiff had a non-union at two cervical levels and that the segmental instability was causing his neck pain and occasional nerve irritation. The physician recommended a posterior fusion or alternatively that plaintiff cease his activities as a heavy laborer. (T 231). Plaintiff elected not to have further surgery and in May 1983, Dr. Callahan opined that plaintiff had a permanent partial disability of 15% of the whole body and that he could return to work with restrictions on lifting, carrying, climbing, etc. (T 231).

Plaintiff subsequently saw two specialists, Dr. Donald Mellman, neurosurgeon, and Dr. Michael Wasylik, orthopedic surgeon for complaints relating to his continuing pain. Dr. Wasylik recommended that a laminectomy and posterior cervical fusion be performed but plaintiff declined to undergo the procedure. At a deposition on June 21, 1985, Dr. Wasylik testified that plaintiff would be difficult to rehabilitate and that there were very few jobs that he could perform. He indicated, however, that plaintiff could probably perform a security guard job involving no driving on the job, handling of firearms or significant climbing. Dr. Wasylik opined that plaintiff had "significant organic pathology", "significant functional overlay" and that even if surgery were performed, the best plaintiff could hope for would be a 50% improvement in his pain. (T 245-265).

None of the other examining physicians provided an evaluation of plaintiff's ability to engage in work despite his back impairment.

In evaluating plaintiff's complaints of pain under the Landry standard upon remand, the ALJ stated:

In the instant case, there is evidence of a medically determinable condition which could give rise to pain. However, the credible evidence of record fails to support a determination that the claimant's back condition has resulted in pain of sufficient severity, intensity or duration to be "disabling" in and of itself or to further limit his ability to engage in those activities consistent with a reduced range of sedentary work as described above, (sic) February 7, 1985. The record clearly documents that claimant's back pain is brought on by activity but

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