Byron v. Heckler

• Decision Date: 10 August 1984
• Docket Number: No. 84-1046,84-1046
• Parties: , Unempl.Ins.Rep. CCH 15,534 Joe N. BYRON, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1232

742 F.2d 1232

6 Soc.Sec.Rep.Ser. 297, Unempl.Ins.Rep. CCH 15,534

Joe N. BYRON, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 84-1046.

United States Court of Appeals Tenth Circuit.

Aug. 10, 1984.

Jeffrey Kauffman, John Hogan Stewart, P.A., Albuquerque, N.M., for plaintiff-appellant.

Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., and Peter Krynski Trial Atty., Dept. of Health and Human Services, Baltimore, Md., and William L. Lutz, U.S. Atty., and Ronald F. Ross, Asst. U.S. Atty., Albuquerque, N.M., for defendant-appellee.

Before DOYLE, McKAY and LOGAN, Circuit Judges.

PER CURIAM.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

The question in this case is whether or not the appellant was mistreated at various levels by the Secretary, the Administrative Law Judge and the Appeals Council. He suffered an injury at the age of 34 years old. He has worked as a cook, butcher, gas station attendant and janitor. On August 29, 1972 he was admitted to the hospital for a spinal fusion. On that day he was found to be disabled and he began receiving disability benefits. He has been basically unemployed since that time.

In 1982, the Secretary notified appellant that he was no longer disabled as of November, 1981. In making this decision, the Secretary considered a report filed by Emmett Altman, M.D., appellant's physician. Dr. Altman had been treating appellant for over ten years. On December 1, 1981, Dr. Altman stated that appellant had increased back pain, difficulty in sleeping, dizziness caused by medication, back pain that went down to his groin area, and that his situation remained unchanged. A CAT scan revealed "[m]oderate bulging in the annulus at 3-4 which is producing some central compression, and the localized bulge of the disc at 4-5 which partially extends into the left lateral recess and may be significant in view of the patient's left-sided symptomology." It was Dr. Altman's opinion that further surgery would not benefit the appellant. In addition, Dr. Altman indicated that the objective findings of the scan were the cause of appellant's persistent pain and disability.

The Secretary also considered a report filed by Frank Jones, M.D., who examined the appellant at the request of the Disability Determination Unit. Dr. Jones conducted a physical examination and took x-rays. Dr. Jones was of the opinion that appellant was capable of light or sedentary work.

Appellant appealed this decision to terminate his disability benefits. He waived the right to appear personally. The Administrative Law Judge found that appellant was still disabled and that the benefits ought to continue. The Appeals Council reversed this decision. It was appealed to the district court, which affirmed. This appeal followed.

On this level, appellant has argued that the decision of the Appeals Council ought to be reversed because it was unsupported by substantial evidence. In addition, appellant asserts that it was error for the Council to give more credence to the report filed by the consulting physician than to the report filed by Dr. Altman, appellant's personal physician. Finally, appellant argues that the Council erred in not giving sufficient weight to his allegations of pain.

The response of the appellee in contention here is that its decision was supported by substantial evidence and they point out that this court is not to reweigh the evidence or try the case de novo. According to appellee, the decision to terminate appellant's benefits ought to be affirmed because appellant failed to meet his burden of proving that he had a disability. The appellee also argues that she was entitled to find that appellant's complaints of pain were not credible. Finally, appellee asserts that she was entitled to weigh the conflicting evidence submitted by the two physicians, and reach the result that appellant is no longer disabled.

In reviewing the decision of the Secretary, this court is bound by the findings of fact if they are supported by substantial evidence. This is, of course, accepted doctrine. Daring v. Heckler, 727 F.2d 64 (3d Cir.1984). This limited scope of review does not apply, however, to questions of law. "Failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal." Smith v. Heckler, 707 F.2d 1284 (11th Cir.1983); Smith v. Schweiker, 646 F.2d 1075 (5th Cir.1981). The fact that this court finds that there is not substantial evidence to support the decision to terminate appellant's benefits, and because it appears that an incorrect legal standard was applied, this court concludes that it must reverse.

On appeal, appellant makes the contention that the Secretary failed to give sufficient weight to the testimony of Dr. Altman, appellant's physician. According to appellant, the Secretary erred in giving more weight to the report filed by Dr. Jones, the consulting physician requested by the Disability Determination Unit, who saw appellant once, than to the report filed by Dr. Altman. Appellant's argument is persuasive.

Unless good cause is shown to the contrary, the Secretary must give substantial weight to the testimony of the claimant's treating physician. Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir.1982). If the opinion of the claimant's physician is to be disregarded, specific, legitimate reasons for this action must be set forth. Murray v. Heckler, 722 F.2d 499 (9th Cir.1983).

In the case at bar, the Appeals Council chose to accept the findings of Dr. Jones based upon a very limited examination. This was in preference to the findings of Dr. Altman, appellant's long-time physician. The Council's only statement regarding this was to indicate that Dr. Altman had not assessed the appellant's capacity to sit, stand, walk or lift. (It is to be noted that in his statement appellant indicated that he could not stand for over 20 minutes, walk over one-half mile, or lift over 15 pounds, and that Dr. Altman had told him not to lift anything). Dr. Altman did find, however, that while the results of the CAT scan were "not too remarkable", they were consistent with persistent back pain and disability. The Appeals Council apparently focused only on the words, "not too remarkable" and ignored Dr. Altman's additional findings. Dr. Altman also indicated that appellant had limited back motion and that his situation remained unchanged. In light of the evidence submitted by Dr. Altman and the weight to be accorded to it, the Council's note that Dr. Altman had not assessed appellant's capacity to sit, stand, walk or lift is an insufficient reason to disregard his findings.

More important in the present...