Benskin v. Bowen

• Decision Date: 04 November 1987
• Docket Number: No. 86-2360,86-2360
• Citation: 830 F.2d 878
• Parties: , Unempl.Ins.Rep. CCH 17,601 Nadine BENSKIN, Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 878

830 F.2d 878

19 Soc.Sec.Rep.Ser. 351, Unempl.Ins.Rep. CCH 17,601

Nadine BENSKIN, Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Appellant.

No. 86-2360.

United States Court of Appeals Eighth Circuit.

Submitted June 10, 1987.

Decided Oct. 5, 1987.

Rehearing Denied Nov. 4, 1987.

Yvonne M. Ernzen, Kansas City, Mo., for appellant.

Timothy C. Harlan, Columbia, Mo., for appellee.

Before ARNOLD and WOLLMAN, Circuit Judges, and DUMBAULD, ^* Senior District Judge.

ARNOLD, Circuit Judge.

This is a social-security disability case in which the Secretary appeals the District Court's reversal of the Secretary's decision denying benefits. The issue before us is one that has vexed the courts and the Secretary for some time and in many cases: whether the Secretary's finding that the claimant is not disabled is supported by substantial evidence, when the claimant alleges that she suffers disabling pain. The ALJ (whose opinion was substantially adopted by the Appeals Council, and therefore states the Secretary's rationale), applying the standards we have set out, see Polaski v. Heckler, 739 F.2d 1320 (order), supplemented, 751 F.2d 943 (8th Cir.1984), vacated, --- U.S. ----, 106 S.Ct. 2885, 90 L.Ed.2d 974 adhered to on remand, 804 F.2d 456 (8th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 3211, 96 L.Ed.2d 698 (1987), found Mrs. Benskin's complaints of disabling pain inconsistent with the evidence as a whole, and discounted them. On appeal, the District Court held that the Secretary did not properly evaluate the allegations and thus reversed the denial of benefits. It also held that claimant had demonstrated her entitlement to benefits, so it remanded to the Secretary with instructions to calculate the appropriate award.

We reverse the District Court. In our view, the Secretary properly evaluated Mrs. Benskin's accounts of pain, and his decision denying benefits is supported by substantial evidence.

I.

Mrs. Benskin was 56 years old at the time of the hearing, has a twelfth-grade education, and has worked as a junior accountant, personnel clerk, and cashier. She has had two operations on her back: the first, in April 1980, was to cut out a herniated disk, and the second, in September 1982, was to remove the posterior arch between two of her lumbar vertebrae and fuse the vertebrae together. After her second surgery, she saw her treating physician, Lynn O. Litton, M.D., twice, once in November 1982 and once in January 1983. Litton noted at the time of the January 1983 visit:

Patient is better. She is not having much pain. Still soreness in her back. Today her back looks good. SLR [straight leg raising] is negative. X-RAYS show the fusion mass to be in good position. She is to stay in her back support. Certainly not ready to return to any activity.

Record (R.) at 95. She has not seen Litton since that visit.

After Mrs. Benskin filed her claim for benefits, the State Agency referred her to a consulting physician, J.D. Morris, D.O., for an examination on November 29, 1984. Morris reported that she had mild muscle spasms in the lower back and restricted flexion in the lower spine. Mrs. Benskin told him it was painful to bend forward more than 40 to 45 degrees. Morris concluded that she had "Chronic low back pain, 2) Status post lumbar spine surgery times two, 3) Left S1 radiculopathy [a disease of the roots of the spinal nerves], probably old, or chronic." R. 98.

At the hearing, Mrs. Benskin stated that she had to quit her last full-time job in February 1982 because of back problems. (The record, however, shows that she worked four days a week from June through September 1982 as a personnel clerk. R. 66.) She described the pain as sometimes "a jabbing pain, sometimes just a solid pain, an ache or pain. Other times it's spasms." R. 28. She feels it in her lower back and right leg, and occasionally in both legs. Standing for an hour aggravates the pain. She has to sit on the edge of a straight-backed chair or have one leg under her in order to take the pressure off her back while sitting. She takes Advil in the morning and evening, and an aspirin in the afternoon. In the morning she gets up at seven, cooks breakfast, waters and trims 20 hanging plants, and walks about two blocks. Then she lies down in the fetal position for about an hour and a half because of back spasms. When she gets up she fixes lunch, tries to walk some more, and embroiders. She lies down again for about two and one-half hours in the afternoon.

According to the claimant's testimony, her hips are so sore she can barely touch them. She drives once or twice a month to the grocery store, which is 12 miles from her home, to go shopping. Sitting in a car does not bother her, but she gets tense driving. She can dress herself except for putting on socks. Her husband does all of the housework except for washing dishes and dusting, which she does. She goes to bed at 9:30 or 10:00 and sleeps soundly. She cannot lift more than eight pounds off the floor, but she can carry eight to ten pounds from a countertop to the refrigerator.

The ALJ was concerned that, at the time of the hearing, Mrs. Benskin had not seen a doctor in about three years. Earlier she had explained, "I didn't have the money. It took me almost two years to get [the doctor] paid off from the surgery and every time I'd go see him, it was another $80. I couldn't afford it." R. 28. The ALJ asked:

Q: And [the pain is] not getting any better.

A: No.

Q: Don't you think seeing a doctor would make it any better.

A: I've had oodles and oodles of therapy between these operations.

Q: That's what I was getting at. Are you taking any physical therapy now?

A: No.

Q: Or have you in the last 6 months; whirlpool treatments or heat treatments?

A: I get in the shower about twice a day and let that hot water run on me, that's--

Q: Well, has the doctor ever prescribed any exercises for you?

A: No.

* * *

* * *

Q: Did he ever prescribe any type of back brace for you?

A: I wore a brace for about 6 months [after the second operation].

* * *

* * *

Q: Have you ever thought about going back and getting a prescription for some better type brace?

A: No.

Q: Has anyone ever prescribed anything to help you; for instance, you say you can't sit in the back of the chair. Have they ever prescribed a gadget such as I have here for bad back?

A: I had two pillows, I sat on one and put the other to my back.

Q: How about riding in a car; how do you do that?

A: It's not very much bothering [to] me, I just get all tense.

Q: You said something about muscle spasms; have you called your doctor on the phone about some medication for these spasms that you have?

A: Well, I was on that for a while--

Q: Like that'd help you to just call him on the phone and ask for some suggestions, you know, as to a different type back brace for muscle spasm, or something like that. Obviously, you're still in a lot of pain, aren't you?

A: Yes sir.

R. 34-35.

After the ALJ had made his decision, Mrs. Benskin was examined by her surgeon, Garth S. Russell, M.D., and his report was made part of the record during her administrative appeal. Russell's letter stated that her condition was improved after the second surgery, but she continued to have substantial symptoms of pain. He concluded:

This is a 55-year-old lady with a history of advanced degenerative disease of her back. This has required two surgical procedures with a fusion of two segments in her back. Her acute severe pain is gone, but she continues with generalized pain and stiffness in her back.

... [I]n my medical opinion, this patient would have difficulty pursuing any gainful employment inasmuch as she will have difficulty in standing or sitting for any period of time sufficient to pursue such duties.

R. 9-10.

II.

The ALJ found that Mrs. Benskin suffered a severe impairment because of the residual effects of her operations, but that it was not severe enough to prevent her from engaging in her past relevant work. He then considered her complaints of disabling pain:

Subjective complaints must be considered within the standards of the recent ... Polaski decision. Although the claimant alleges that she has been totally disabled since September, 1982, she has not been under the care of any ... physician since January, 1983. At that time, the progress notes indicate that she was having very minimal pain. She is not undergoing any active exercise or physical therapy program. She has not been admitted to a pain clinic. She is not taking any prescription medications. Dr. Morris did not describe her as suffering from any significant distress during the examination.

During the hearing she did not appear to be experiencing any pain or discomfort. Her facial expressions were not that of an individual suffering significant pain or discomfort. She was able to appropriately respond to all questions propounded to her. Thus, although the claimant has a history of back surgery in 1980 followed by her procedure in September, 1982, her complaints of pain to preclude sedentary work activities are not credible. Not all pain reaches a level [at] which it is disabling. The claimant's level of care is not consistent with an individual who alleges the severity of her complaints. The claimant is precluded from prolonged walking, standing, or lifting in excess of 10 pounds. However, she retains the capacity to perform the full range of sedentary work including her past work as junior accountant and cashier.

R. 17-18.

The District Court ruled that the ALJ had improperly discounted Mrs. Benskin's complaints because, in its review of the record in light of Polaski, the following nine "undisputed facts" were apparent:

(1) [T]he objective medical evidence conclusively established the existence of chronic back problems which twice required surgical intervention;

(2) the claimant's prior work record was good;

(3) plaintiff's treating physicians noted that she...