Crisp v. Secretary of Health and Human Services

• Decision Date: 02 May 1986
• Docket Number: No. 84-3982,84-3982
• Citation: 790 F.2d 450
• Parties: , Unempl.Ins.Rep. CCH 16,763 James CRISP, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 450

790 F.2d 450

13 Soc.Sec.Rep.Ser. 355, Unempl.Ins.Rep. CCH 16,763

James CRISP, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 84-3982.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 7, 1986.

Decided March 3, 1986.

Rehearing Denied and Opinion

Ordered Published May 2, 1986.

John A. Cervay (argued) E.S. Gallon & Assoc., Dayton, Ohio, for plaintiff-appellant.

Joseph E. Kane, Asst. U.S. Atty., Columbus, Ohio, Nicholas J. Pantel (argued), Asst. U.S. Atty., Cincinnati, Ohio, for defendant-appellee.

Before KEITH and GUY, Circuit Judges, and TAYLOR, District Judge. ^*

OPINION

PER CURIAM.

On July 9, 1981, Crisp filed for social security disability benefits claiming disability from December 15, 1977, as a result of a back problem. The claim was denied at all levels with the administrative law judge's (ALJ) denial coming on July 26, 1982. Crisp sought district court review under 42 U.S.C. Sec. 405(g). On April 26, 1984, a U.S. Magistrate recommended affirmance of the ALJ and, on October 29, 1984, after a de novo review, the district court adopted the report and recommendation of the magistrate and denied benefits.

Plaintiff was born on May 19, 1945. He completed the sixth grade in school. His relevant vocational experience includes work as a roofer, upholstery trainee, laborer, welder, and truck driver. These are for the most part heavy, unskilled labor jobs. In December of 1975, Crisp injured his back in a fall at work. He attempted to return to work but his back bothered him too much. He has continued treatment with doctors for his back problems and the related pain ever since, and does not work. He is now divorced and has four children living with his ex-wife.

Although much of the evidence presented throughout the various proceedings in this case involved plaintiff's back problems and the pain generated therefrom, it is unnecessary to review this evidence since the ALJ found him unable to perform his past relevant work as a roofer. The ALJ also found him to have a back impairment which causes both exertional and non-exertional limitations, and a psychological impairment which causes non-exertional limitations only. Considering his exertional limitations only, the "grid" would direct a finding of not disabled. The ALJ concluded that Crisp had the residual functional capacity to perform sedentary work, as defined in Regulation 404.1567, and that "[t]he level of work the claimant can do in light of the exertional limitations is not significantly affected by the non-exertional limitations." (App. 18) ¹

On appeal, Crisp does not challenge the ALJ's findings as to exertional limitations, nor as to non-exertional limitations except as to his psychological impairment. It is Crisp's claim that the psychological impairment is disabling, stopping him from doing any work, and that there was not substantial evidence to support the ALJ's findings to the contrary.

Plaintiff's initial application for disability was filed on July 9, 1981. The only disability claimed was "back disorder" which was specifically related to a December 8, 1975 job injury. The original denial of his claim on August 19, 1981, stated that "[t]he medical evidence shows you have pain in your back but good muscle strength and feeling. Your condition does not prevent you from working."

On August 26, 1981, Crisp filed a Reconsideration Disability Report in which he indicated no change in his condition since the filing of his original claim. He also indicated on this form, however, in response to the question "Do you have any additional illness or injury that isn't recorded in the file?", that he had "developed a nervous condition." He also stated as his reason for requesting reconsideration that "I am not able to work because of my medical condition. I cannot bend, stoop, nor lift. I suffer from pain in back and legs all the time." There was no elaboration on any disabling aspect of the alleged "nervous condition," nor was there any indication of having sought or received any medical treatment for this condition. The reconsideration determination which again denied benefits did not reference claimant's nervous condition.

Claimant's request for a hearing was filed on November 16, 1981, and indicated he was now represented by an attorney. In answer to the question "Has there been any change in your condition [since your request for reconsideration was filed]?", Crisp responded: "I cannot remember anything--problem getting along with family--I suffer a lot of headaches." Crisp (or his attorney) also checked the blank on the form which indicated he had no additional evidence to submit. Medical reports through August 17, 1981, dealing exclusively with plaintiff's back problem were submitted.

Claimant's hearing date before an ALJ was set for July 15, 1982. Prior to that date, his attorney sent him to Jerry F. Flexman, Ph.D., a psychologist, for an evaluation. Flexman's report was the only outside evidence of a psychological impairment other than Crisp's own testimony at the hearing. ² Although Flexman concluded that Crisp was not "capable of engaging in any substantial work activity," the ALJ correctly concluded that this was a legal conclusion which was not binding on him. 20 C.F.R. Sec. 404.1526; LeMaster v. Weinberger, 533 F.2d 337 n. 4 (6th Cir.1976). The ALJ also concluded that Flexman's findings limited "the claimant unnecessarily based on the empirical findings." (App. 17.) The "empirical findings" of Flexman which the ALJ referenced included an adequate memory for recent and remote events; fair judgment for ordinary daily affairs; no looseness or tangentialities in claimant's thought processes; no delusions or hallucinations; a Wechler...