Estabrook v. Apfel

• Decision Date: 30 July 1998
• Docket Number: No. 3-97-CV-90147.,3-97-CV-90147.
• Citation: 14 F.Supp.2d 1115
• Parties: Raymond A. ESTABROOK<SMALL><SUP>1</SUP></SMALL>, Plaintiff, v. Kenneth S. APFEL,<SMALL><SUP>2</SUP></SMALL> Commission of Social Security, Defendant.
• Court: U.S. District Court — Southern District of Iowa

Page 1115

14 F.Supp.2d 1115

Raymond A. ESTABROOK¹, Plaintiff, v. Kenneth S. APFEL,² Commission of Social Security, Defendant.

No. 3-97-CV-90147.

United States District Court, S.D. Iowa, Davenport Division.

July 30, 1998.

Michael DePree, Davenport, IA, for Plaintiff.

Christopher D. Hagen, Assistant U.S. Attorney, Des Moines, IA, for Defendant.

MEMORANDUM OPINION AND ORDER

PRATT, District Judge.

Plaintiff, Raymond A. Estabrook, filed a Complaint in this Court on August 19, 1997, seeking review of the Commissioner's decision to deny his claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq., 1381 et seq. This Court may review a final decision by the Commissioner, 42 U.S.C. § 405(g). For the reasons set out herein, the decision of the Commissioner is reversed.

BACKGROUND

Plaintiff filed his applications for benefits September 21, 1993. Tr. at 99-107. Plaintiff claimed that he became disabled August 22, 1993. Plaintiff's date last insured for Title II purposes is June 30, 1994. Plaintiff's applications were denied initially and upon reconsideration and Plaintiff requested a hearing before an Administrative Law Judge. On December 27, 1994, the ALJ remanded the case to the reconsideration stage to obtain additional physical and mental examinations. Tr. at 142-44. Plaintiff's claims were again denied on reconsideration (Tr. at 173-77) after which Plaintiff again requested a hearing. Tr. at 178. After a hearing in front of Administrative Law Judge John P. Johnson (ALJ) (Tr. at 52-97), a Notice of Decision — Unfavorable was issued on January 25, 1997. Tr. at 12-41. A request for review by the Appeals Council was denied July 19, 1997. Tr. at 7-9. This appeal followed.

MEDICAL EVIDENCE

The medical evidence in this case begins with a discharge summary from Mercy Hospital in Iowa City, Iowa. Plaintiff was admitted January 15, 1993 and discharged two days later on the 17th. Plaintiff had presented himself, upon referral from Dr. Swayze, with headaches which began in his early 20's. The headaches generally occurred in clusters lasting 3 weeks to 3 months. During the previous month, Plaintiff had been "literally in bed because of intensities occurring about 2 to 10 times a day and last anywhere from 10 minutes up to 3 to 4 hours." The pain was described as a sharp pain in the right temporal region with pain above the right ear and the right eye. Plaintiff also had water in his eye and nose, and had nausea and vomiting. Upon arrival, Plaintiff "appeared to be in an acute degree of discomfort." A CT scan of the head was entirely normal. Plaintiff was started on Lithium Carbonate which essentially resolved the headache. Tr. at 223.

On August 21, 1993, Plaintiff saw James L. Blouse, a physician's assistant for Mark S Odel, M.D. for concrete burns of both lower extremities. Plaintiff reported that the previous day he had been working in concrete and on his way home noticed that his legs and ankles were burning. Tr. at 234. Dr. Odell wrote to Robert Sandahl, an examiner at Disability Determination Services, on November 4, 1993. Dr. Odell had not understood that an examination was requested and so "a very limited exam was done". Dr. Odell noted that Plaintiff complained of head and back aches. The doctor's examination revealed that Plaintiff has a very limited range of motion of the lumbar back. Tr. at 235.

On September 17, 1993, V. Warren Swayze, M.D., wrote a short note addressed "To whom It May Concern": "Raymond Estabrook is my patient, due to his back condition which restricts his activities, I have advised him to terminate his present employment as a construction laborer with local 1238 in Iowa City, Iowa. There may be some less exertional form of activity Raymond can be retained for, but he should not continue his present work." Tr. at 246.

On October 14, 1993, the Iowa Department of Job Service issued a decision on Plaintiff's application for unemployment benefits. The Department found that Plaintiff was required to leave his employment on the advice of his doctor because of an illness or injury directly connected with the employment which made it impossible to continue employment because of serious danger to the employee's health. Tr. at 278.

Statements from two employers were submitted to the Social Security Administration on which 1993 earnings were reported. Realm Construction reported 1993 earnings of $659.81. Tr. at 282. Civil Construction reported 1993 earnings of $189.12. Tr. at 286.

On November 1, 1993, Dr. Swayze filled out a form for Disability Determination Services. On this form Dr. Swayze stated that Plaintiff could lift 10 to 15 pounds, but "goes down on knees with any lifting." Dr. Swayze said that standing, moving about, walking, and sitting in an eight hour day were "impossible." Dr. Swayze wrote: "Can stand or walk short time resulting in great pain." Tr. at 248. In a letter dated April 15, 1994, Dr. Swayze stated that he was not prepared to complete a questionnaire concerning Plaintiff's permanent impairments. Dr. Swayze suggested examinations by an orthopedist and a psychologist to evaluate Plaintiff's disability. Tr. at 247.

On July 20, 1994, Richard F. Neiman, M.D. wrote to Dr. Swayze. Plaintiff saw Dr. Neiman because of a tremor which Dr. Swayze thought was caused by Parkinson's disease. Dr. Neiman was of the opinion that the dosage of Lithium, prescribed for the headaches, was too high and recommended dropping the dosage to 300 mg. 4 times a day. Dr. Neiman also noted Plaintiff's back pain. Tr. at 267. Dr. Neiman wrote: "I think he has a considerable amount of problems regarding his back which would certainly preclude his return to construction work. He has also had severe headaches. Frankly, I think he is now unemployable and would support his claim for disability." Tr. at 268.

Plaintiff was seen for a psychiatric examination by James Yeltatzie, M.D. on February 15, 1995. Plaintiff related that, while working construction, he sustained a work related injury that required back surgery. After he recovered, he returned to work and sustained a second injury which also required back surgery. Once again Plaintiff returned to work and injured his back a third time. This time, when surgery was offered, Plaintiff declined. Tr. at 255. Dr. Yeltatzie noted "a circumducting and slow gait." On mental status examination, Plaintiff's mood was dysphoric, and his affect was labile on the verge of tearfulness. The doctor's impression included major depressive disorder, single episode, moderate. Tr. at 256. Dr. Yeltatzie concluded his report:

Raymond would have difficulties in being able to remember and understand any instructions, procedures or locations. The pain that he feels as well as his depression impair his attention span, concentration and his ability to work at any sort of pace. His problems with his temper and anger also would affect his ability to interact socially whether it be with the public at large, any co-workers and definitely with any supervisors. Raymond would be able to adapt to changes but would find this to be very difficult. He would be able to handle any of his own financial matters.

Tr. at 257.

Plaintiff was seen by Dr. Neiman on February 7, 1995, for a physical examination at the request of Disability Determination Services. Plaintiff walked with a cane and put weight on the left foot only on the heel. Dr. Neiman wrote that the first back surgery had been done at the University of Iowa in 1982. The second surgery was in 1989. Plaintiff reported that he was in constant back pain. Plaintiff also reported cluster headaches but said that the headaches had improved somewhat since taking Lithium on a routine basis. Tr. at 259. After his examination, Dr. Neiman wrote:

His ability to lift and carry probably would be characterized by 5 to 10 pounds at maximum. He needs to be able to change positions and move about. He cannot sit, walk or stand for an 8 hour day, probably more like a 2 hour day. Stooping, climbing, kneeling, crawling are next to impossible. Handling objects would be possible. Temperature change should be avoided. Prolonged traveling in a car probably ½ hour to an hour should be avoided since it aggravates the problem with the back. The work environment, temperature change should be avoided.

From my viewpoint I think he is totally disabled for all occupations. The back itself is enough to cause problems, intermittent headaches are certainly an aggravating factor. I am not sure there is much more we can do for his back....

His headaches seem to be under reasonable control. However, when he has headaches he is out probably three to four days. The long term side effects of medication require constant monitoring as far as the Lithium. He does take a fair amount of medicine otherwise to help control the pain. He walks around the use of a cane.

Tr. at 260.

An X-ray study of Plaintiff's back, dated February 24, 1995, showed severe degenerative disc disease at L5-S1 with markedly diminished disc height and sclerosis of the adjoining vertebral body end plates. There was also osteophytosis at that level. The study also showed facet arthropathy at the L5-S1 level bilaterally. Finally, the study showed moderate degenerative disc disease at L4-5. Tr. at 274.

A medical assessment of residual functional capacity form was completed by William Catalona, M.D. on November 18, 1995. Tr. at 294-98. Dr. Catalona opined that Plaintiff could lift a maximum of 10 pounds, and "none" frequently. Tr. at 294. The doctor opined that Plaintiff could walk 15 to 20 minutes at a time for a maximum of 4 hours during a day. He said that Plaintiff would be able to sit for an hour at a time, or a maximum of three hours a day. The doctor also said that Plaintiff needed to alternate between sitting and standing every 30 minutes. Tr. at 295. According to Dr. Catalona, Plaintiff should never climb, balance, crouch, kneel or crawl. He...