Fields v. Harris

• Citation: 498 F. Supp. 478
• Decision Date: 05 September 1980
• Docket Number: Civ. A. No. C79-193R.
• Parties: Thomas E. FIELDS, Plaintiff, v. Patricia HARRIS, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Georgia

498 F. Supp. 478

Thomas E. FIELDS, Plaintiff, v. Patricia HARRIS, Secretary of Health and Human Services, Defendant.

Civ. A. No. C79-193R.

United States District Court, N. D. Georgia, Rome Division.

September 5, 1980.

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Robert J. Harriss, Brown, Harriss, Hartman & Ruskaup, Rossville, Ga., for plaintiff.

William L. Harper, U. S. Atty., Curtis E. Anderson, Asst. U. S. Atty., Atlanta, Ga., for defendant.

I. STATEMENT OF THE CASE

HAROLD L. MURPHY, District Judge.

This case is currently before the Court on plaintiff's appeal from the Social Security Administration's cessation of disability insurance benefits. The record discloses that on October 28, 1976, the plaintiff filed a claim for disability and an application for disability insurance benefits, alleging that he had been disabled since August 11, 1976, due to a broken arm, back and neck injuries, and a slight concussion. That application was denied initially on November 11, 1976, because it was believed that although the plaintiff then suffered a disabling impairment, it would not last continuously for twelve months. Plaintiff then requested reconsideration on December 8, 1976; and, on February 23, 1977, the Administration granted plaintiff's claim for disability and disability insurance benefits to be awarded retroactively as of the alleged onset date of August 11, 1976.

By way of a letter dated May 17, 1978, the plaintiff was informed that his disability insurance benefits would probably cease. A cessation determination was made by the state agency on May 31, 1978, effective March, 1978, because the agency determined that the medical evidence then in the record indicated that plaintiff's impairments of a broken right arm and attendant limitations were no longer disabling since the condition had improved or the plaintiff had resisted further treatment. Plaintiff was formally notified on June 16, 1978 that his benefits would cease. He requested reconsideration of that termination on June 26, 1978. Upon reconsideration, the agency made the determination that plaintiff's diagnosed impairment of "partial radial nerve paralysis" was no longer of sufficient severity to prevent substantial gainful activity.

Plaintiff then requested and received de novo consideration by an Administrative Law Judge (hereinafter ALJ). Appearing and testifying at the hearing were the claimant, his wife, and Irene Morgan, a vocational rehabilitation counselor with whom he had worked. Plaintiff was represented by counsel. On May 31, 1979, the ALJ rendered a decision adverse to the claimant, finding that although the claimant was prevented from engaging in his former work as a plumber and pipe fitter, he could engage in sedentary employment and, therefore, was found not to be disabled within the meaning of the Social Security Act. On July 31, 1979, plaintiff requested a review of this hearing decision. When the Appeals Council upheld the decision of the ALJ on August 30, 1979, it became the final decision of the Secretary. On September 18, 1979, plaintiff commenced this action seeking judicial review of the administrative determination. 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(b) and this Court's Local Rule 290, this case was initially referred to a magistrate who issued his Recommendations on June 27, 1980. The Magistrate recommended that the case be remanded to the Secretary for "development of a full and fair record, and for application of the correct legal principles."

The Court has carefully scrutinized the voluminous record in this case, and studied the Recommendation of the Magistrate. The Recommendation of the Magistrate will not be adopted. Instead, the decision of the Secretary is reversed, and the claim will be remanded to the Secretary for the sole purpose of determining what benefits are due the claimant, and to address the issue of attorney's fees.

II. STATEMENT OF THE FACTS

A. Medical Evaluation

Plaintiff was originally found to be disabled due to the residual effects of an on-the-job accident in 1976, when he fell 30 feet from scaffolding, breaking his right arm, sustaining back and neck injuries, and sustaining a light concussion. As to the residual effects that plaintiff still suffers, he testified at the hearing that he still does not have good control of his right hand and arm and he would estimate that his grip in his right hand is about one-half that of the left. Although he can use his right arm some, i. e., he can use it to hold a tool in his hand, he cannot control the movement so as to twist or turn a screwdriver, or use a hammer to pull a nail out. He also experiences pain in his neck, back, and legs. He described the sensation in his neck as that of a knife sticking in it or a sprain. In addition to his neck hurting most of the time, he also said that his lower back and legs were in constant pain. His left leg is shorter than his right, and he wears elevated shoes to compensate for this deficiency. He also complains of dizzy spells that he experiences four to five times a day, whether sitting or standing, constant, throbbing headaches, difficulty in remembering, and a loud ringing in his ears. For these problems, he takes pain pills, muscle relaxants, and 100 mg. of Phenobarbital daily, along with 5 mg. of Valium three times a day for nervousness.

Plaintiff said that on a "good day", he tends to his rabbits and chickens at his rural home. He can take care of his personal needs and help his wife wash the dishes and dust about the house. He no longer drives a car because he believes that he cannot, but occasionally, he drives his tractor, which is the smallest farm tractor manufactured. While these activities are those that he performs on a typically "good day", on "bad days" (4-6 days per month) he does not leave his room. The claimant does not "go off by himself" because of his fear of getting lost, and his fear of having a dizzy spell or a lapse of consciousness. His wife, to whom he had been married seven years as of the time of the hearing, corroborated this testimony, adding that she is concerned because he becomes withdrawn and stays alone in his room about four to six times a month. She added that she accompanies him everywhere, whether he is walking or whether she must drive him.

The medical evidence in the record corroborates plaintiff's narrative regarding his on-the-job accident and his reports that he has consulted physicians regarding his dizziness and the loud ringing in his ears. As a result of various examinations by, and consultations with, these physicians, the following findings and diagnoses have been made.

First, as to plaintiff's pain and limited motion in his right arm and hand, the record shows that plaintiff was treated by Dr. Hamlin Graham, an orthopedic surgeon, immediately following his accident and up to August 1, 1977. Because the plaintiff's arm had been broken and damage had been done to the nerves of the arm, the doctor set his arm and later repaired the radial nerve. Apparently, plans were also made for the doctor to perform muscle transplants to aid the plaintiff in regaining use of his arm, but the plaintiff did not return to see him.

Plaintiff has also been treated by Dr. Edward Johnson, another orthopedic surgeon. Dr. Johnson has treated the plaintiff for pain and weakness in his right arm, pain and spasms in the lower back and right leg, and chronic lower back strain. On July 24, 1978, the doctor recorded in his office notes that "Patient has no pain in the arm, has numbness of the right thumb and index finger. He has about 165 degrees of extension and full flexion of the right elbow. Well healed scar across the lateral aspect of the elbow." After detailing leg and back problems as well, the doctor concluded that, "I would estimate that he has about 50% permanent partial disability of the whole body due to his back injury and arm injury combined." On January 26, 1979, Dr. Johnson wrote that the plaintiff

has regained about 50% use of the right arm but at present time had continuous pain in the lower back, pain in the right arm, spells of vertigo and temporary unconsciousness, is consoled on phenobarbital 100 mg. daily

This patient has had rather severe cerebral concussion followed by post traumatic episodes of syncope and dizziness, plus chronic back strain and nerve injury to the right arm.

In my opinion, this man has total and permanent disability.

On July 9, 1979, Dr. Johnson further reported:

At the time of my last examination on Mr. Fields he was suffering from rather severe low back and bilateral leg pain requiring two to three pain tablets daily. It was my feeling at this time that this man was not able to do any physical work within the foreseeable future.

It is true that physical findings as well as x-rays have failed to substantiate his complaints, but this fact does not prove that the patient is not disabled from severe pain which is aggravated by activity.¹

On May 31, 1978, the plaintiff was examined by Dr. Exum Walker, a neurosurgeon, who evaluated the plaintiff's back problems. Dr. Walker noted additionally that plaintiff suffered right neck pain which radiates into his right arm. Although the humeral fracture had been repaired, the plaintiff still suffered extensive tissue damage. On March 30, 1979, Dr. Walker concluded that Mr. Fields had been totally disabled since August 11, 1976, and continued to be disabled through the date of the examination. He could not estimate if or when he could return to work.

Plaintiff has also been examined by Dr. Jane Pearson, a neurologist, for his dizziness, headaches, and the loud ringing in his ears. Dr. Pearson noted that the plaintiff had poor memory, pain in his leg which intensified by walking, pain and soreness in the bone on the right side of the head, from the middle over behind the ear, and weakness in the right upper extremity which "is difficult to quantitate due to pain produced...