Blankenship v. Bowen

• Decision Date: 17 May 1989
• Docket Number: No. 88-5078,88-5078
• Citation: 874 F.2d 1116
• Parties: , Unempl.Ins.Rep. CCH 14653A Billy BLANKENSHIP, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of the Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1116

874 F.2d 1116

25 Soc.Sec.Rep.Ser. 472, Unempl.Ins.Rep. CCH 14653A

Billy BLANKENSHIP, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of the Department of Health and Human Services, Defendant-Appellee.

No. 88-5078.

United States Court of Appeals, Sixth Circuit.

Submitted Nov. 15, 1988.

Decided May 17, 1989.

Steve Blanton, Pikeville, Ky., for plaintiff-appellant.

Billy Blankenship, Argo, Ky., pro se.

J.S. Osborn III, Office of the U.S. Atty., Lexington, Ky., for defendant-appellee.

Before NELSON and BOGGS, Circuit Judges; and ENSLEN, District Judge. ^*

PER CURIAM.

This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. Sec. 405(g), to review a final decision of the Secretary of Health and Human Services denying appellant's claim for disability insurance benefits. On July 30, 1985, appellant filed applications for a period of disability, disability insurance benefits, and supplemental security income, alleging a disability onset date of February 23, 1979. Benefits were denied initially and upon reconsideration. Appellant requested and was granted a hearing before an Administrative Law Judge (ALJ). The ALJ, noting that appellant last met the insured status requirements on June 30, 1985, concluded that appellant was only entitled to an award of supplemental security income (SSI). (Tr. 24-25, 50-67, 71). This decision became the final determination of the Secretary when the Appeals Council denied plaintiff's request for review May 7, 1987. Appellant now appeals the District Court's November 20, 1987 affirmation of the Secretary's decision.

Appellant was 32 years old on the day of the hearing before the ALJ. He testified that he had relevant work experience as a theater clerk, a janitor, and a coal miner. He claimed he was injured lifting timber at the coal mine. Something had snapped in his back, and he fell and struck his neck and head. He was examined in the hospital. Skull, cervical spine, and lumbosacral spine x-rays were negative. He began suffering from back pain and constant leg aches, and eventually had to quit work. (Tr. 53-57, 118).

Plaintiff did not seek further back treatment until January of 1985. Orthopedic surgeon Shafer diagnosed appellant with chronic lumbar sprain. X-ray series were unremarkable, and the doctor noted only tenderness in the back with reduced range of motion. Despite these limited clinical findings, Dr. Shafter opined in a letter dated February 1, 1985, that appellant and a possible ruptured lumbar disc with left arm contusion. ¹ (Tr. 118-121).

Dr. Guberman conducted a consultative exam in September of 1985. He found appellant to be a poor historian, contradictory, and inexact. Appellant mentioned more than one injury at the mine in 1979, and talked of treatment at hospitals not mentioned in the record. On examination, the doctor found appellant hostile, unfriendly, sullen, and withdrawn, complaining of pain throughout his entire body. The physical exam revealed moderate tenderness in the cervical and lumbar spine, limitation in range of motion, and muscle weakness and diminished sensory capacity in the entire right side. However, reflexes were normal, there was no muscle atrophy, and evidence of nerve root damage was absent. The doctor diagnosed appellant with acute and chronic lumbosacral and cervical spine strain, post-traumatic. X-rays were negative. (Tr. 123-25, 131).

Appellant was also seen that month by orthopedic surgeon Rapier. Appellant complained that his condition had gotten worse over the last two or three years. X-rays revealed slight narrowing at the L5-S1 level. Dr. Rapier concluded that appellant could have mild degenerative disc disease. (Tr. 136-37). A December 1985 CT scan was ordered by Dr. Shafer and revealed posterior disc bulging, especially to the left side, and deformity of the thecal sac. (Tr. 141).

Based on the medical records, the ALJ concluded that appellant suffered from a very mild degree of degenerative disc disease. Based on the findings of the CT scan, the ALJ found that appellant could not perform heavy work activities; however, his orthopedic impairment was not severe enough to preclude the performance of light work activities. As for appellant's subjective complaints of pain, the ALJ stated:

After weighing the significance of the results of numerous diagnostic tests performed by Dr. Shafer, and the various medical opinions expressed by consulting specialists, the Administrative Law Judge finds that prior to November 13, 1985 the claimant's symptoms of pain did not preclude performance of light work activities.

(Tr. 23).

Appellant also claimed a nonexertional impairment. Dr. Wayne conducted four diagnostic tests on appellant in October of 1980. Appellant was neatly groomed and friendly, and no bodily impairments were indicated. The doctor reports:

He stated that his back hurts constantly. He feels weak and tired. He panics and is afraid something will happen to him. He suffers constantly from severe headaches. He feels like something is choking him in the throat. The patient has chest pains. He has seen various doctors. He cannot tolerate any noise at all. Any time he finds himself in a crowd of people he gets very upset.

(Tr. 129). I.Q. testing revealed a very low range of intelligence, and although he could follow instructions, he was slow to answer questions on verbal and performance testing. Visual motor testing showed no organic brain damage, but the visual retention test indicated a developed mild memory impairment. Ink-Blot tests indicated that appellant had a developed psychoneurotic disorder. Although he had fair interpersonal relations, he had difficulty controlling impulses. On his mental status in general, the doctor stated:

He had some difficulty expressing himself and describing his symptoms. His verbal productivity and spontaneity were below normal limits. The patient appeared to be moderately anxious during the clinical interview. No bizarre or delusional material was noted. He was correctly oriented as to place, person and time. The patient's memory, concentration and attention appear to be defective to some degree.

(Tr. 130). He was diagnosed with generalized anxiety neurosis, ² moderate and chronic, associated with physical difficulties. His prognosis was guarded and the doctor believed that the 1979 injury precipitated the psychiatric disorder. Permanent partial disability was estimated at thirty percent.

Appellant was seen one year later by Dr. Feuss, a psychiatrist. This analysis was done through handwriting samples and an interview. Appellant's handwriting was not appropriate for a man with one year of college. During the interview, appellant emphasized his irritability rather than feelings of physical pain, and when speaking, La Belle Indifference (inappropriate expression) was noted. Although the doctor did not fully accept appellant's claims of hallucinations, the doctor was concerned about appellant's extreme religiosity. Appellant was considered well-oriented, but his memory was somewhat fuzzy and his insight and judgment were poor. Appellant was diagnosed with conversion reaction. ³ Appellant demonstrated indifferent affect, fuzzy hallucinations, and non-physiological symptoms. Dr. Feuss also remarked that this type of condition could start with one traumatic incident, but the underlying cause is a long-standing personality developmental condition. Appellant was considered thirty percent disabled. (Tr. 132-33).

Dr. George, a psychiatrist, examined appellant in September of 1982. After the interview, Dr. George stated,

Examination shows him to be a slightly overweight 28-year old man who is neatly dressed and groomed. He walks rather slowly and stiffly, has a rather flat, staring expression and lacks spontaneity. Frequently he says, 'I don't know' or 'I don't remember' and does seem to have difficulty with recent events. I didn't see any evidence of delusional thinking or hallucinations today but he claims to have had the visual hallucinations of other people being in the room. He implies also that when people get loud and boisterous in the community it is very threatening and he overreacts and can't explain really why. He does appear to be a little depressed and made reference to the fact that he has thought of hurting himself, but as far as I can tell, has never done anything. His fund of knowledge seems rather low for a man of his education. Much of this may be due to the fact that he doesn't try very hard and is more preoccupied with his present symptoms.

(Tr. 135). Appellant was diagnosed with schizoid personality. ⁴ The doctor did comment on the difficulty he had evaluating appellant without testing and a more accurate history. Appellant appeared a borderline individual with a psychotic-like appearance and thinking (although he could not say appellant was a clear-cut schizophrenic). Lacking any information relating to appellant's personality prior to the accident, the doctor would not make an assessment as to the relation between the 1975 accident and his current personality status. However, the doctor stated that appellant was significantly handicapped by his emotional problems and in need of psychiatric treatment. (Tr. 134-35).

The final psychiatric exam took Place November 13, 1985. Dr. Lurie reviewed the previous psychiatric tests and reports, and interviewed appellant. He also had evidence of the physiological condition, and a 1983 opinion from the Worker's Compensation Board. ⁵ Appellant was incapable of giving specific and detailed information and was unable to explain his "all over" pain.

On mental status examination, Mr. Blankenship was noted to walk stiffly and slowly into the examining room and evidenced psychomotor retardation in both his speech and behavior. He sat rigidly in his chair holding onto his cane which he used in walking. An expressionless, mask-like facies was noted and he tended to stare as if preoccupied. He appeared...