Foote v. Chater
| Decision Date | 03 November 1995 |
| Docket Number | No. 93-2496,93-2496 |
| Citation | 67 F.3d 1553 |
| Parties | , Unempl.Ins.Rep. (CCH) P 14850B Josephine A. FOOTE, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Emily W. Lawyer, Tampa, FL, for appellant.
Steven D. Exum, Office of the General Counsel, Social Security Division, Dept. of Health & Human Srvcs., Baltimore, MD, Whitney L. Schmidt, Asst. U.S. Atty., Tampa, FL, for appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH and BIRCH, Circuit Judges, and HOEVELER *, Senior District Judge.
Josephine Foote appeals from a district court order granting judgment in favor of the Secretary of Health and Human Services (Secretary) who denied Foote's application for disability benefits under the Supplemental Security Income Program of the Social Security Act. 42 U.S.C. Secs. 1381 et seq.
On appeal, Foote maintains that the Administrative Law Judge (ALJ) who heard her case at the agency level failed to give adequate weight to the opinion of her treating
physician and ignored her complaints of pain in determining that she could perform certain jobs. Because there is substantial evidence in the record that Foote's subjective complaints of pain were supported by medical testimony, and because the ALJ failed to utilize the testimony of a vocational expert--relying instead exclusively on a mechanical application of the medical-vocational guidelines (the "grids"), this Court reverses the District Court's judgment upholding the Secretary's determination. The case shall be remanded for a new hearing.
Foote, who worked for more than eight years as a laundry worker (T. 38), filed an application for disability and disability insurance benefits on June 6, 1990, alleging disability since February 9, 1987, due to a herniated and degenerating disc. (Foote had filed an unsuccessful application in December 1988, but explained that she had not pursued the earlier denial, because she was filing for Workmen's Compensation at the time and did not read her notice of denial of disability benefits.)
After receiving an unfavorable initial determination and denial of her request for reconsideration, Foote requested a hearing. On August 6, 1991, an ALJ heard Foote's case and on August 16, 1991, issued a decision finding Foote not disabled. On February 21, 1991, the Appeals Council denied Foote's request for review, rendering the ALJ's decision as the final decision of the Secretary.
On April 16, 1992, Foote brought a civil action to challenge the decision. On March 8, 1993, the district court affirmed the Magistrate Judge's Report and Recommendation of February 17, 1993, upholding the Secretary's decision denying Foote's claim for disability insurance benefits. Foote timely appealed.
On May 4, 1987, Dr. Joseph E. Rojas reported first examining appellant Foote on referral from Dr. Leon Osmon. Foote was treated by Dr. Rojas for three months for cervical pain radiating into the left arm and hand. A May 15, 1987, X-ray revealed some bone spurring and other changes at the C4-5 and C5-6 levels. Dr. Rojas believed that the pain was caused by degenerative disc disease. He recommended that conservative treatment be tried for several months.
Appellant Foote then consulted a neurosurgeon, Dr. G. Montoya. He recommended physical therapy on an outpatient basis. On June 24, 1987, Dr. Montoya reported that Foote had pain in the left arm upon right lateral bending. Dr. Montoya diagnosed cervical radiculopathy (disease of the nerve roots) and a herniated cervical disc. Although Dr. Montoya found a slight decrease in sensation in the left forearm, he found otherwise normal reflexes and sensations. On June 26, 1987, Foote entered a hospital in Orlando for spinal X-rays. Foote was discharged the next day, after Dr. Montoya found some degenerative changes in the cervical spine and defects at C4-5 and C5-6. On July 14, 1987, Foote entered another medical center in Orlando for surgical intervention to remedy the disc problem and relief of nerve root compression. The doctors performed a left C5-6 foraminotomy and root decompression on July 15, 1987. On August 31, 1987, Dr. Montoya reported that Foote exhibited slightly limited motion in the cervical spine, but no atrophy or weakness. On March 14, 1988, Dr. Montoya reported that Foote had slight diminution of range of motion of the cervical spine. On March 30, 1988, an X-ray showed degenerative joint disease affecting the cervical vertebrae.
On May 18, 1988, Dr. Fairuz Matuk, a neurosurgeon, reported that Foote was taking no medications, and had no abnormalities apart from the cervical condition. Dr. Matuk concluded that Foote had "no motor deficit" and "subjective sensory deficit that does not conform to a dermatomal pattern". On June 17, 1988, Dr. Osmon (who began treating Foote in April 1987) opined that Foote's former job involving hoisting bags of wet laundry had contributed to her degenerative disc disease and cervical abnormalities. On July 22, 1988, Dr. Matuk reported that Foote had "mild" weakness in the left arm and wrist, but found no significant change from his prior examination.
In a September 2, 1988, letter to Foote's attorney, Dr. Matuk deferred to Dr. Montoya On October 14, 1988, Foote entered another hospital, Richland Memorial Hospital, for a trial cervical traction for her left shoulder and arm pain. Dr. Jack Smith diagnosed chronic neck, left shoulder and arm pain. Appellant testified that she was hospitalized and placed in traction in South Carolina for ten days in October 1988. (T. 43) On November 29, 1988, Dr. Smith reported that X-rays of Foote revealed a "very slight" epidural depression at C5-6 on the left, but he did not recommend another operation. Between late 1988 and early 1990, Foote saw no doctors. Foote claims to have been calling in for prescriptions, and that Dr. Montoya was out of the country during that time.
regarding whether Foote's former job contributed to her cervical problems.
On July 5, 1990, Dr. Robert J. Oliva reported that Foote experienced decreased strength in the left leg and arm, and took Tylenol # 3 for pain. On November 26, 1990, Dr. H.D. Brewer prepared a General Medical Examination Report for the Florida Dept. of Labor and Employment Security Division of Vocational Rehabilitation. He diagnosed degenerative disc disease in the cervical spine, and opined that Appellant would be able to work. On December 12, 1990, Dr. Steven A. Field found that Foote had some tenderness adjacent to her surgical scar, but a full range of motion without any real pain. He stated that Foote was employable at "some type of sedentary job in which she doesn't have to do any heavy lifting".
On April 3, 1991, Dr. Donald L. Mellman (a neurosurgeon) found some weakness in areas of the left upper extremity.
At her administrative hearing on August 6, 1991, Foote testified that she was 46 years old, 5'6"' tall and 140 pounds. She stated that she took Tylenol # 3 every six hours (T. 35) and 400 mg of Motrin as needed (T. 40). She is able to sit for 15 minutes or stand for 30 minutes before experiencing muscle spasms (T. 35), and is able to carry objects weighing less than 10 pounds. She has problems putting her bra on (T. 37) and she stated that she experienced constant, but varying, pain in the back of her neck and in her arm. She has problems concentrating (T. 41). Foote is a high school graduate, and has worked in a laundromat and a sewing factory.
In evaluating a claim for disability benefits, an ALJ must evaluate the claimant's case with respect to five criteria, as set forth in 20 C.F.R. Sec. 404.1520:
1. Is the individual performing substantial gainful activity
2. Does she have a severe impairment
3. Does she have a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1
4. Can she perform her past relevant work
5. Based on her age, education, and work experience, can she perform other work of the sort found in the national economy
Foote was found to meet the first four criteria for receiving benefits, specifically:
1. No gainful activity since February 9, 1987
2. Yes, severe musculoskeletal weakness due to degenerative disc disease of the cervical spine, status post C5-6 laminectomy with decompression, ...
3. None of the impairments listed in or medically equal to "the Listings"
4. She retained the residual functional capacity to perform a full range of sedentary work, but that her past relevant work in an industrial laundry exceeded the demands of the sedentary work classification. The ALJ noted Dr. Smith's November 29, 1988 opinion. The ALJ stated that Foote's complaints of disabling pain and other limitations were not fully credible in light of the medical evidence and her evidenced residual functional capacity.
As to the fifth element of the evaluation, the ALJ found that the appropriate regulation, 20 C.F.R. Part 404, Subpart P, Appendix 2, Table No. 2, directed a conclusion that Foote was "not disabled".
On March 8, 1993, the district court adopted...
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