Bowen v. Heckler, 83-8606

• Citation: 748 F.2d 629
• Decision Date: 13 December 1984
• Docket Number: No. 83-8606,83-8606
• Parties: , Unempl.Ins.Rep. CCH 15,672 George BOWEN, SS # 252-78-4071, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 629

748 F.2d 629

7 Soc.Sec.Rep.Ser. 277, Unempl.Ins.Rep. CCH 15,672

George BOWEN, SS # 252-78-4071, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services,

Defendant-Appellee.

No. 83-8606.

United States Court of Appeals, Eleventh Circuit.

Dec. 13, 1984.

James A. Messner, Columbus, Ga., for plaintiff-appellant.

Jack B. Hood, Asst. U.S. Atty., Macon, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before GODBOLD, Chief Judge, CLARK, Circuit Judge, and THOMAS ^*, District Judge.

CLARK, Circuit Judge:

The appellant, George Bowen, brought this action pursuant to 42 U.S.C. Secs. 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the appellee Secretary of Health and Human Services who denied his claim for disability insurance benefits and for supplemental security income benefits under Titles II and XVI of the Social Security Act respectively. Jurisdiction is founded on 28 U.S.C. Sec. 1291. Because the findings and decision of the Secretary are contrary to substantial evidence in the record, we reverse and remand for entry of an award in favor of the claimant.

George Bowen is 33 years of age and has previously worked as a medical orderly and janitor's helper. He alleged disability beginning on March 20, 1981 due to poor eye-hand coordination, low back pain, leg pain and a learning handicap. His physical and mental conditions since birth had been spina-bifida occulta, arrested hydrocephalus, retardation and a heart lesion. On June 24, 1981, the appellant filed applications for a period of disability, disability insurance benefits and supplemental security income with the Social Security Administration. These applications were denied.

Thereafter, a hearing was held before an administrative law judge. The administrative law judge found as a fact that Mr. Bowen received a high school special education and that he had previously worked as an orderly. Additionally, it was found that he met the special earnings requirement of the Act and that he was suffering from the following impairments: (1) low back pain without significant musculo-skeletal complications; (2) learning handicap with an ability to perform simple, unskilled work; and (3) poor eye/hand coordination with vision of 20/30 in each eye. The administrative law judge also found that his past work did not require fine vision or complex work skills and that his impairments did not prevent the performance of his past work as an orderly. After finding that Mr. Bowen was not under a disability as defined by the Act, the administrative law judge decided that he was not entitled to a period of disability, disability insurance benefits or supplemental security income under the Social Security Act as amended.

In response to the appellant's request for review, the Appeals Council concluded that there was no basis under the regulations for granting a request for review. As a result, it denied the appellant's request. This denial caused the administrative law judge's decision to stand as the final decision of the Secretary. Because his administrative remedies were exhausted, the appellant appealed to the United States District Court for the Middle District of Georgia. The district court found that there was substantial evidence upon which the administrative law judge could have based its decision and accordingly granted the Secretary's motion for summary judgment.

It is from this background that the court currently reviews this case. A comprehensive examination of the record is essential to a proper determination of the issues presented.

I. Review of the Record

The administrative law judge considered the testimony taken at the hearing, several exhibits, and the medical reports of Doctors Andrew Cox, Paul Mandeville, Richard Dodelin, Robert Shumate, Joseph Kersey, Julian Sizemore and the Medical Center of Columbus.

In evaluating the evidence as to a disability due to a learning handicap, the administrative law judge considered the psychological evaluation by Dr. Joseph Kersey who personally examined the appellant. After recognizing that Mr. Bowen was diagnosed as having mild retardation, the administrative law judge stated:

Dr. Kersey felt that claimant does not have adequate capabilities to give or take instructions, to meet deadlines, and perform other organizational demands sufficient to be acceptable to the average work environment, but he did feel that claimant attains scores on the WAIS-R sufficiently high to indicate that he might be able to obtain simple, unskilled work that did not require independence of action. Claimant did not reveal indications of marked constriction of daily interests or activities or serious impairment in his ability to relate to other individuals. There was also no evidence of significant depression, agitation, or anxiety or strong deterioration of personal habits. The Administrative Law Judge concludes that claimant's condition is not of sufficient severity to produce disability.

Record at 14.

Dr. Kersey, however, made observations which contradict the ALJ's conclusion:

It is my professional opinion that Mr. Bowen does not have adequate capabilities to give or take instructions; to meet deadlines; and to perform other perceptual/organizational demands sufficient to be acceptable to the average work environment.

In summary, it is my opinion that while psychological testing and objective data do not meet published guidelines for establishing disability on psychological reasons alone, the psychological reasons in conjunction with his physical impairments and other difficulties make him disabled for gainful employment.

Id. at 225 (emphasis added).

Next, the administrative law judge considered a letter from Dr. Richard Dodelin, an orthopedic surgeon, that related to Mr. Bowen's disability due to low back pain. The administrative law judge concluded that Mr. Bowen's condition was "not of sufficient severity to produce disability" and that it was not "so frequent ... as to preclude all substantial gainful activity." Id. at 14-15. Dr. Dodelin's letter indicates that he considered Mr. Bowen's eye problems, his complaints of lower back pain and the fact that he was retarded in concluding that he was "employable but would have to be employed around his disabilities." Id. at 175. It did not appear that Dr. Dodelin considered the impact of Mr. Bowen's psychological problems in combination with his other impairments when he recommended that Mr. Bowen was employable.

The administrative law judge then considered a report by Dr. Robert Shumate. The report indicated that with his glasses Mr. Bowen had vision of 20/30 and that his vision would improve to 20/25 if his prescription was changed. Based on Dr. Shumate's report, the administrative law judge determined that "[w]hile [Mr. Bowen] could not perform substantial gainful activity which required fine vision, none of the medical evidence shows his condition to be of sufficient severity to produce disability." Id. at 14. Without further explanation, the administrative law judge concluded that Mr. Bowen was "not suffering from an impairment or a combination of impairments of sufficient severity to prevent him from engaging in any substantial gainful activity for a period of at least 12 continuous months [and that he] retain[ed] the functional capacity to perform his customary work as an orderly." Id. at 15.

Also before the administrative law judge were two significant documents from Mr. Bowen's former supervisors. In the first sworn document, Mr. E.H. Ruffner, who was the manager of the J.C. Penney Store in which Mr. Bowen had previously been employed, indicated that he was familiar with Mr. Bowen and his employment record with the company. He then mentioned:

PENNEY's has a policy of attempting to employ the handicapped and in conformity with said policy we hired GEORGE M. BOWEN in a simple maintenance position.

MR. BOWEN was discharged ... because he was unable to perform even the simple tasks assigned to him. He was unable to follow instructions and his lack of hand-eye coordination and slowness made it impossible to retain him as an employee. Even simple tasks such as mopping or sweeping had to be redone as his bad eyesight and lack of hand-eye coordination hampered his performance to the extent that his work was not acceptable.

We would not rehire MR. BOWEN for any position with this company because of his combination of handicaps. In my personal opinion he would be in danger of injuring himself if employed in even the most simple job.

Id. at 185 (emphasis added).

The second sworn document was a statement from Connie Jo Pavey, an RN who had supervised Mr. Bowen when he was an orderly at the Columbus Intermediate Care Nursery Home on a daily basis. She stated:

Based on my observation, I would state that the combination of his disabilities or impairments make it impossible for him to obtain or keep a job requiring any degree of hand-eye coordination or the ability to follow instructions. George not only appears to be mentally retarded but he also complains of back and eye problems and he completely lacks the ability to follow instructions. While employed at the Intermediate Care Nursery Home his duties could be described as those of a messenger boy and frequently he would become confused and he could not even follow these simple instructions.

He is unable to perform even simple tasks such as filing or separating materials as instructed. Because of his bad vision and lack of coordination he was constantly suffering minor injuries of various types. I would not recommend or hire him for any job requiring decision making or dealing with people. I personally do not feel he is capable of performing even the most menial tasks without danger of injuring himself.

Id. at 186 (emphasis added).

With his request for review by the Appeals Council of the hearing decision, Mr....