Broadbent v. Harris, 80-1920

• Decision Date: 18 January 1983
• Docket Number: No. 80-1920,80-1920
• Parties: John G. BROADBENT, Plaintiff/Appellant, v. Patricia Roberts HARRIS Secretary of Health, and Human Services, Defendant/Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 407

698 F.2d 407

1 Soc.Sec.Rep.Ser. 94

John G. BROADBENT, Plaintiff/Appellant, v. Patricia Roberts HARRIS Secretary of Health, and Human

Services, Defendant/Appellee.

No. 80-1920.

United States Court of Appeals, Tenth Circuit.

Jan. 18, 1983.

John L. Black, Jr. of Utah Legal Services, Inc., Salt Lake City, Utah (with L.G. Cutler, Salt Lake City, Utah, on the brief), for plaintiff/appellant.

Jay A. Swope, Asst. Regional Atty., Dept. of Health and Human Services, Denver, Colo. (Ronald L. Rencher, U.S. Atty., Lawrence J. Leigh, Asst. U.S. Atty., Salt Lake City, Utah on the brief, and Ronald S. Luedemann, Regional Atty., Thomas A. Nelson, Jr., Deputy Regional Atty., Dept. of Health and Human Services, Denver, Colo., of counsel on the brief), for defendant/appellee.

Before BARRETT, McKAY, Circuit Judges, and BRIMMER ^*, District Judge.

PER CURIAM.

This is an appeal from a judgment entered in the United States District Court for the District of Utah, which affirmed an agency decision denying Social Security Disability benefits to the Appellant. The sole issue on appeal is whether there is substantial evidence in the record supporting the decision of the Administrative Law Judge.

Appellant first filed his claim for Social Security Disability benefits on March 26, 1974, alleging disability since November 4, 1971. He was 46 years old at the time his application was made. Prior to that time, Mr. Broadbent had worked as an auto mechanic, a railroad laborer, and a landscape gardener. From 1965 until the onset of his physical problems, he was employed as a custodian at the University of Utah. Subsequent to 1971, he sought employment as a janitorial supervisor, but was not hired because he was unable to secure a medical release. The Appellant has completed eleven years of schooling, but has had no vocational or rehabilitation training. He had attempted to enroll in vocational retraining through the Work Incentive program in 1971, but was not allowed to receive training as a result of a physicians' determination of disability. As a practical matter, his opportunities for retraining for more sedentary employment at this stage of his life are minimal or nonexistent.

The litany of diagnosis and treatment of the Appellant's physical problems includes the opinions of five treating physicians who each concluded that he was unable to perform physical work. In 1972, Dr. M. Peter Heilbrun, a neurosurgeon, performed a myelography study on Mr. Broadbent which disclosed a mild defect of the cervical spine at the C4-5 level with a narrowing of the foramina. He diagnosed the condition as cervical spondylosis, which is described as a "degenerative joint disease" affecting the vertebra in the neck area along with their surrounding ligaments and connecting tissue. See Dorland's Illustrated Medical Dictionary (25th Ed.). Dr. Heilbrun recommended conservative treatment utilizing a soft neck brace and analgesics. In June of 1974 and April of 1976, Dr. Heilbrun concluded that Mr. Broadbent was unable to work and was not a good candidate for rehabilitation.

Dr. C. Hilmon Castle, an internist, saw Mr. Broadbent several times over a period of about eight months beginning in early 1975. Intermittent head traction and Valium were prescribed. At that time, the Appellant was also having problems with high blood pressure and an inguinal hernia. Dr. Castle concluded, in late August of 1975, that Mr. Broadbent should be considered 100% disabled.

In September of 1976, Dr. Molly Rawlings diagnosed chronic neck and arm pain due to degenerative cervical joint disease and arthritis. Her report indicates that this conclusion was based on the Appellant's marked limitations in physical activity and her examination of X-rays taken at that time. Dr. Rawlings concluded that the Appellant was unable to work and referred him to Dr. Douglas Danforth, who recommended continued treatment with Valium, a cervical collar, and cervical traction at night. Dr. Danforth also determined that Mr. Broadbent's problems were "chronic in nature" and that he would never return to full activity.

Dr. Danforth again examined the patient in August of 1977. X-rays were not repeated, however, and the doctor relied on documentation of the degenerative joint disease and the last series of X-rays taken eight months prior to that examination. In this report, Dr. Danforth recognized the difficulty in qualifying Mr. Broadbent's complaints, but found a motor weakness in the grip and a slight atrophy of the interosseous muscle between the thumb and forefinger. He also found a definite lack of biceps tendon reflex on the left arm which did not exist on the right. Hypoesthesia, an abnormally decreased sensitivity of the skin, was detected over the distribution of nerves on the C5 and C6 level. His concluding assessment was that Mr. Broadbent suffered from degenerative joint disease with radicular symptoms based on objective evidence of nerve root compression.

X-rays taken in January 1977 were interpreted by Dr. W.H. Achterman, a radiologist, as indicating a mild narrowing of the intervertebral disc space between the C4-5 and C5-6 vertebra. He also found a 50-60% narrowing of the neural foramina, the space between the vertebra through which the nerve fibers pass, in the C4, C5, C6 levels of the Appellant's neck. His conclusion, reported on March 2, 1978, was that cervical spondylosis was indicated and that the condition had not changed significantly since the performance of previous tests.

A few months later, Dr. Alvin J. Wirthlin, a neurologist, performed a consultative examination of the Appellant on behalf of the Social Security Administration. In his report, Dr. Wirthlin noted that Mr. Broadbent exhibited a great deal of histrionic display during the examination and appeared to exaggerate his difficulties. This assessment appears to be partially based on the limitations in neck movement exhibited by the Appellant while tests were being conducted as compared to the relative ease with which he turned his head to the side during the interview portion of the examination. He also felt that Mr. Broadbent exaggerated his response to palpation conducted over the muscles on the left side of the Appellant's back and neck. Dr. Wirthlin was unable to detect any focal atrophy, muscle tone abnormalities, or coordination problems. Any differences in strength between the right and left arm exhibited during lifting tests were concluded to be characteristic of functional or hysterical types of weakness.

With the use of a pin-prick test, Dr. Wirthlin made a sensory examination on each of the Appellant's limbs. When the pin was applied to various parts of Mr. Broadbent's left arm, he reported a complete lack of sensation. However, when the Appellant was instructed to intertwine his fingers with his hands crossed, and then invert their position, he made several errors, according to Dr. Wirthlin, by claiming that he felt nothing when the pin had actually come in contact with his healthy right hand. Finally, Dr. Wirthlin had the Appellant bend forward, backward, and sideways from the hips and found that the patient had a full range of lower back motion and was able to move without difficulty. From these tests, Dr. Wirthlin concluded:

My impression from the above is that there are no hard definite objective neurological signs that point to any radiculopathy, myelopathy, or other impairment of neurological function. He has a slight asymmetry in the triceps reflex which I don't feel is meaningful. ¹ His examination is for the most part functional in that his sensory examination and motor examination was greatly exaggerated and frankly hysterical. Since this is apparent on the physical examination, it makes me wonder about his subjective complaint of pain. I would have to say in summary that there are no neurological abnormalities in this patient but with the functional signs he might benefit from a psychological evaluation and follow-up.

In October of 1978, the Appellant was examined by Dr. Bruce F. Sorensen, a neurological surgeon. He found that Mr. Broadbent's deep tendon reflexes revealed an absent biceps reflex on the lower left with a diminished triceps reflex occurring bilaterally. He also concluded that the Appellant was suffering a decreased range of motion in his neck in all spheres by approximately 50%. Dr. Sorensen's review of the X-rays indicated what he termed to be a severe degeneration at the C4, C5, and C6 vertebra with some posterior osteophytes (abnormal bone-type growth) encroaching on the intervertebral foramen. A follow-up examination conducted by Dr. Sorensen on January 9, 1979, showed that Mr. Broadbent's condition remained unchanged. Dr. Sorensen reported that the Appellant suffers from "extensive cervical spondylosis or degenerated disc or arthritis of the neck" and that his condition would not improve.

I doubt whether this man would be able to do any physical work which would involve motion of the neck or extensive use of the arms because of the neck condition. I do not see him doing any job which requires any physical labor such as janitorial or other similar such activity.

Despite the consensus in opinion of the other doctors that examined Mr. Broadbent, the recommendation of the Administrative Law Judge, filed on November 2, 1978, appears to emphasize the findings of Dr. Wirthlin regarding the veracity of the Appellant's description of his condition. It was also pointed out that there were certain inconsistencies between the information disclosed at the Appellant's initial hearing, on April 21, 1976, and the hearing held in October of 1978. Based on the information then before him, the Administrative Law Judge made the following Findings of Fact 1. Claimant was born January 20, 1928 and is now 50 years of age. He completed 11 years of school, has worked as a landscaper and a janitor in a supervisory capacity at which he was last employed in 1971 for the University...