Benson v. Matthews, 76-1880

• Decision Date: 04 May 1977
• Docket Number: No. 76-1880,76-1880
• Citation: 554 F.2d 860
• Parties: Norma BENSON, Appellant, v. F. David MATTHEWS, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 860

554 F.2d 860

Norma BENSON, Appellant, v. F. David MATTHEWS, Secretary of Health, Education and Welfare, Appellee.

No. 76-1880.

United States Court of Appeals,

Eighth Circuit.

Submitted April 26, 1977.

Decided May 4, 1977.

Thomas J. Agnew, Duluth, Minn., on brief, for appellant.

Robert G. Renner, U. S. Atty., and Daniel M. Scott, Asst. U. S. Atty., Minneapolis, Minn., on brief, for appellee.

Before HEANEY, ROSS and HENLEY, Circuit Judges.

PER CURIAM.

Norma Benson appeals from the denial of her application for Social Security Disability Insurance Benefits payable pursuant to 42 U.S.C. § 423. ¹ The appellant's application was denied on May 4, 1973, and on July 17, 1973, the denial was upheld on reconsideration. A hearing was held before an administrative law judge on December 6, 1973, at which claimant appeared without counsel. The administrative law judge decided that appellant was not entitled to establishment of a period of disability or to an award of disability insurance benefits under the Social Security Act. The Appeals Council, after obtaining current medical information, held, on July 10, 1975, that the evidence did not support a finding of a disabling impairment which continued for a twelve-month period. The decision thereby became the final decision of the Secretary, and claimant filed the instant action pursuant to 42 U.S.C. § 405(g). The Secretary moved for summary judgment on July 6, 1976, which was granted on July 28, 1976, without a hearing. The appellant filed a motion to vacate the judgment pursuant to Fed.R.Civ.P. 60(b) on August 2, 1976, and filed a cross-motion for summary judgment and a supporting memorandum. The motion to vacate was denied on August 13, 1976, and this appeal followed.

Claimant argues on appeal that: (1) the district court abused its discretion in denying her motion to vacate the summary judgment; and (2) the district court erred in finding that the Secretary's decision was supported by substantial evidence. We affirm the decision of the district court.

Claimant's alleged disability stems from an automobile accident in 1968 in which she suffered dislocation of her right ankle and fractures of bones in her left ankle. In January, 1973, she underwent surgery to fuse the right ankle. She gave August 10, 1971, the date she was dismissed from her last job, as the onset of her disability. Although no new physical illness or impairment occurred on that date, claimant based her disability on constant pain which prevented her from sleeping and concentrating on her work. Both the administrative law judge and the Appeals Council considered whether or not a period of disability could be established for a twelve-month period following the August, 1971, dismissal or the January, 1973, surgery.

Claimant's personal physician, Dr. Kelley, stated that the fractures suffered in 1968 were healed by September, 1969, and that claimant was able to bear her full weight on that date. He initially estimated a disability period of six to nine months following the 1973 surgery. In statements made after the initial denial of claimant's application, he revised his disability estimate to twelve months following the 1973 surgery. Dr. Reese, a general physician on the Social Security medical consultant staff, was of the opinion that the claimant could do light work, with weight bearing limited to three hours a day, by September, 1969. He also stated that claimant would recover from her surgery of January, 1973, within twelve months and found no basis for Dr. Kelley's revised opinion as to the length of disability. He stated claimant could do her bookkeeping job as of the date of his report, June 19, 1973. ² The administrative law judge also considered the findings of a psychologist and psychiatrist, who reported no psychological or psychiatric dysfunction.

Records of the Mayo Clinic indicate "good healing" from the surgery by April, 1973 and that claimant started weight bearing by July, 1973. Dr. F. W. Budd, an orthopaedic surgeon, reported on November 27, 1974, that claimant had a healed fusion of the right ankle, residuals of the fracture in the left foot and minimal arthritic changes in the left foot. He felt claimant had severe restrictions regarding function of the lower extremities. He also stated that the x-ray findings and physical findings corroborated her subjective complaints of pain. A letter from the Mayo Clinic, dated October 3, 1974, indicates that the claimant returned there on September 4, 1974, complaining of pain in the left ankle, which it was felt might be due to arthritis and possibly tendon complications.

Dr. Brav, an orthopaedic surgeon who did not examine the claimant, summarized the medical record for the Appeals Council and concluded that the appellant recovered from the injuries suffered in 1968 by March 1, 1969, at which time she could have performed sedentary work which did not require lifting over twenty pounds or extended weight bearing without periods of rest. He was of the opinion that she could stand for one-half hour, walk for a distance of one-half mile, and work in a seated position over a six-to-eight-hour work day. While she again suffered a total...