Davis v. Califano, 77-2307

• Decision Date: 25 July 1979
• Docket Number: No. 77-2307,77-2307
• Citation: 599 F.2d 1324
• Parties: Bobbie J. DAVIS, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1324

599 F.2d 1324

Bobbie J. DAVIS, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant-Appellee.

No. 77-2307.

United States Court of Appeals Fifth Circuit.

July 25, 1979.

Myron K. Allenstein, Gadsden, Ala., for plaintiff-appellant.

J. R. Brooks, U. S. Atty., Caryl P. Privett, Elizabeth Todd Campbell, Asst. U. S. Attys., Birmingham Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before WISDOM, CLARK and FAY, Circuit Judges.

FAY, Circuit Judge:

This case arises on appeal from a denial of a claim for Social Security disability benefits. We vacate and remand for further proceedings.

On January 30, 1975, the claimant, Bobbie J. Davis, filed an application for disability and disability insurance benefits under Title II of the Social Security Act, as amended ¹ and for supplemental security income benefits under Title XVI of the Social Security Act, as amended. ² She alleged disability due to chronic back pain. She claimed that the back problem prevented her from being gainfully employed. After the claim was rejected by the Bureau of Disability Insurance, Mrs. Davis was granted a hearing before an administrative law judge, who also rejected her claim. The appeals council and the district court affirmed the decision of the administrative law judge.

The only medical evidence before the administrative law judge consisted of Mrs. Davis' medical records as compiled by Dr. William Haller, her orthopedic surgeon. The evidence revealed the following. Mrs. Davis worked at a local hospital as a nurse's aide for ten years. Because of back trouble, she was transferred to another job as a home health aide. After numerous absences from work due to back problems, she ceased work in September 1974. She visited the office of Dr. Haller on nine occasions beginning on September 27, 1974. A past history of low back pain was noted and Dr. Haller recommended complete bed rest. On October 7, 1974, Mrs. Davis returned to the doctor and complained that the pain was worse. On October 9, 1974, she was hospitalized for fifteen days for a myelogram and was discharged with the diagnosis of low back pain secondary to lumbosacral strain and was given empirin # 3 for pain. On November 7, 1974, she was still having back pain and was given indocin for pain. On December 3, 1974, she was again admitted to the hospital for a spinal tap and was released on December 6, 1974 with darvon compound 65 for pain. On December 20 1974, Dr. Haller concluded, "the primary problem is psychosomatic pain" and that Mrs. Davis was "chronically disabled" since she could not be rehabilitated in the hospital facilities. On December 23, 1974, Dr. Haller wrote, "I feel that this patient has chronic back pain, that cannot be helped by surgery. I think we should consider her disabled from this point on."

After Mrs. Davis testified as to her condition and its effect on her physical capabilities, the administrative law judge called Dr. James Crowder, a psychologist and government vocational expert. Dr. Crowder had neither spoken with nor examined Mrs. Davis; his contact with her was limited to listening to her testimony and studying her medical records. After testifying generally about Mrs. Davis' previous work experience, Dr. Crowder was asked the following question:

Do you have an opinion, based upon this knowledge, along with your education, background, and training as to whether the claimant is capable of engaging in substantial, gainful activity in the national economy If I should find, based upon the testimony, evidence, of record, That within the period of September the 12th, 1974 to today the claimant was physically or mentally impaired to such extent that she was capable of doing only light and sedentary work as defined in the references and documents mentioned by you? (emphasis added).

Dr. Crowder answered that, under those circumstances, she would be capable of doing "work in the light and sedentary physical requirements categories . . . ."

In denying the claim, the administrative law judge concluded that Mrs. Davis had not shown an impairment of sufficient degree to prevent her from engaging in substantial gainful activity. The reasoning of the administrative law judge bears repeating:

The Administrative Law Judge is of the opinion that claimant is experiencing back pain, however, medical evidence as to the cause of this back pain is lacking. There is no evidence of any abnormalities of the lumbar spine. There is no evidence of any continued limitation of motion or of any joint deformity. There is no evidence of any neurological impairment, nor is there any evidence of any other significant impairment which would cause claimant's back pain.

A vocational expert also testified at the hearing. Based upon the claimant's age, education, special training, and work experience, he stated that there were jobs that claimant could have done from September 12, 1974, through the date of the hearing If it were to be found that claimant was capable only of performing sedentary to light work.

The Administrative Law Judge concludes that the evidence shows that claimant could not have performed her regular work during the period in question, but that she could have performed substantial gainful activity in the types of jobs described by the vocational expert. Thus, claimant cannot be found to be entitled to disability insurance benefits or to supplemental security income benefits under the Social Security Act, as amended. (emphasis added).

We are mindful that in reviewing the decision of the administrative law judge, our role is limited. Neither this court nor the district court may substitute its judgment as to facts or credibility for the judgment of the administrative law judge, E. g., Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972); Brown v. Finch, 429 F.2d 80 (5th Cir. 1970), and we do not do so here. This case is one of those rare instances where the record is so undeveloped in a crucial area that we must remand so that the administrative law judge can build a complete record upon which to exercise his sound discretion. In view of the extensive medical treatment and examinations, coupled with Dr. Haller's opinion as to both the existing disability and presence of "psychosomatic pain", we feel this case falls within that limited area defined by McGee v. Weinberger, 518 F.2d 330 (5th Cir. 1977). These facts cry out for confirmation or refutation by a qualified expert psychiatrist. See also Turner v. Califano, 563 F.2d 669 (5th Cir. 1977). Although the orthopedic surgeon opined that the back pain was psychosomatic, he was no expert on possible mental causes of the problem. The psychologist did not even examine Mrs. Davis. As reflected by the question asked of the psychologist and the administrative law judge's reliance on his testimony, the conclusion that Mrs. Davis was not disabled was based on the false predicate that Mrs. Davis was "capable only of performing sedentary to light work." The only evidence on this question was Dr. Haller's conclusion that Mrs. Davis was disabled. The administrative law judge Assumed to the contrary.

This is not a case where the administrative law judge did not believe that the claimant was in pain. Moreover, the administrative law judge did not conclude that the pain was insignificant. The administrative law judge's doubt as to the cause of the pain seems to be the reason he denied the benefits. Having accepted that Mrs. Davis was suffering from unexplained pain, the administrative law judge could not simply deny the claim without obtaining a consultative examination by a psychiatrist pursuant to 20 C.F.R. § 404.1527. ³ "If the (administrative law judge) does not have before him sufficient facts on which to make an informed decision, his decision is not supported by substantial evidence." 518 F.2d at 332.

Accordingly, this case is vacated and remanded to the administrative law judge so that a psychiatrist can examine Mrs. Davis and testify as to the cause of her back pain.

We indicate no opinion as to the degree of credibility to be placed upon the testimony of Mrs. Davis or any other witness. Nor do we intend to indicate any inclination toward one result or another on the pending claim. Our holding is that under the peculiar facts of this case, McGee, the regulation, and justice require an examination by a qualified psychiatrist.

Vacated and remanded.

CHARLES CLARK, Circuit Judge, dissenting:

I believe my brothers misperceive the basis for the administrative law judge's rulings and thus incorrectly fault the procedures followed.

In Social Security disability cases, the claimant bears the burden of establishing the existence of a disability as defined by the Act. Rhynes v. Califano, 586 F.2d 388, 389 (5th Cir. 1978); McDaniel v. Califano, 568 F.2d 1172 (5th Cir. 1978). In drafting the Act, Congress defined with specificity both the meaning of "disability" and the type of proof a claimant must put forward to satisfy that definition. The Act states that an individual shall be considered disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Act further explains that "physical or mental impairment" is limited to "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(C).

Because of the Act's emphasis on clinically demonstrable evidence of disability, a physician's statement that a claimant is or is not "disabled" is entitled to weight only to the extent that it is...