Hale v. Bowen, 87-7233

• Decision Date: 06 November 1987
• Docket Number: No. 87-7233,87-7233
• Citation: 831 F.2d 1007
• Parties: , Unempl.Ins.Rep. CCH 17,659 Sue HALE, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health & Human Services, Defendant-Appellee. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1007

831 F.2d 1007

19 Soc.Sec.Rep.Ser. 396, Unempl.Ins.Rep. CCH 17,659

Sue HALE, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health & Human Services Defendant-Appellee.

No. 87-7233

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

Nov. 6, 1987.

R. Michael Booker, Shores & Booker, Birmingham, Ala., for plaintiff-appellant.

Frank W. Donaldson, U.S. Atty., Jenny L. Smith, M. Neal Reynolds, Birmingham, Ala., for defendant-appellee.

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

Before TJOFLAT, VANCE and EDMONDSON, Circuit Judges.

VANCE, Circuit Judge:

This is an appeal of an affirmance by the district court of the Secretary of Health and Human Services' denial of disability benefits under the Social Security Act.

On April 7, 1983 claimant Mary Sue Hale applied for disability insurance benefits and supplemental security income, alleging she was disabled ¹ as a result of her recurrent back problems. After a series of administrative hearings, denials and appeals, ² the district court affirmed the Secretary's final decision denying benefits. Ms. Hale now appeals the district court's decision.

I.

Ms. Hale worked as a drug store sales clerk from 1959 to 1969, and as a department store cashier from 1970 to 1972. Both jobs included stocking duties which required her to lift 15-20 pound boxes. From 1972 to 1979 Ms. Hale worked as a seamstress at a hosiery mill. This job required her to lift 50 pound boxes and pull 200 pound boxes a distance of 20 feet.

In late 1980 Dr. Robert Q. Craddock, a neurosurgeon, admitted Ms. Hale to the hospital with complaints of back and neck pain. Dr. Craddock diagnosed cervical nerve root compression syndrome, and performed a cervical hemilaminectomy and nerve root decompression. Although Dr. Craddock reported in December of 1980 and January of 1981 that Ms. Hale was recovering well from the surgery and was experiencing less pain, he continued to treat Ms. Hale for several years.

In April, 1982 Ms. Hale was admitted again to the hospital with complaints of back pain. X-rays revealed mild lumbar scoliosis and degenerative disc disease. In August, 1982 Ms. Hale was hospitalized again. Dr. Max E. Burr reported that he believed her physical disability was minimal, but that "genuine back difficulties exist," and that Ms. Hale was very anxious about her back problems. Dr. Burr added that from a psychological standpoint Ms. Hale's disability was considerable.

Dr. Craddock hospitalized Ms. Hale in January and again in February of 1983. Dr. J.L. Gravlee conducted a myelogram, which confirmed cervical spondylosis, most marked at C5-C6, and some mild post-operative changes in the lumbar area. Dr. Craddock administered a caudal epidural injection.

In March, 1983 having treated Ms. Hale for over three years, Dr. Craddock sent a brief letter to the Alabama Disability Determination Division stating that in his opinion, she was disabled, and unable to carry on any gainful employment. He wrote a similar letter to Ms. Hale's attorney in August of 1983.

In July, 1984 the Social Security Administration employed Dr. James L. Rollins in connection with Ms. Hale's disability claim. Based on his clinical evaluation of Ms. Hale and other testing results, Dr. Rollins reported that Ms. Hale could sit, stand and walk two hours each during an eight-hour day, and that she could carry only occasionally up to five pounds.

Finally, Dr. James Quimby, who treated Ms. Hale from April, 1984 to April, 1986, reported in a Physical Capacities Evaluation that Ms. Hale could only sit for one hour a day and stand or walk for one hour a day. Dr. Quimby also reported that the most reasonable lifting or carrying expectation for Ms. Hale during a normal work day was "five pounds occasionally " (emphasis in original). He determined that her degree of pain was moderately severe. ³

A vocational expert testified at the second hearing before the Administrative Law Judge (ALJ). In response to questioning by the ALJ, the expert testified that from the severity and frequency of the pain described by Ms. Hale, Ms. Hale was unable to do any of her past jobs as cashier, seamstress or sales clerk. The expert further testified that there were no sedentary jobs to which her skills would transfer. In response to questioning by Ms. Hale's attorney, the vocational expert testified that assuming the restrictions, limitations and capabilities reported by Dr. Rollins, there were no jobs existing in significant numbers in the national economy that Ms. Hale would be able to do. ⁴

Despite this testimony, the ALJ found that Ms. Hale retained the capacity to return to her past work as a cashier. The basis for this ruling was the ALJ's finding that Ms. Hale's "testimony regarding the severity of her pain was not credible in light of the absence of a medically determinable impairment which could be expected to produce such pain." The Appeals Council adopted the ALJ's findings, and added that the various physical examination reports "do not reveal any significant sensory or motor loss, muscle deterioration, or other neurological deficits which would be indicative of an individual suffering from severe, disabling pain." ⁵

II.

A.

In reviewing claims brought under the Social Security Act, our role is limited, but not non-existent. We must affirm the Secretary's decision if it is supported by substantial evidence. Johns v. Bowen, 821 F.2d 551, 554 (11th Cir.1987); Viehman v. Schweiker, 679 F.2d 223, 227 (11th Cir.1982); 42 U.S.C. Sec. 405(g). Yet, although our role is limited, this court has consistently emphasized that we must not act as automatons in reviewing the Secretary's decisions. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.1986); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). We must scrutinize the record as a whole to determine if the Secretary's decision is reasonable and supported by substantial evidence. Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir.1983), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982); Bloodsworth, 703 F.2d at 1239.

Substantial evidence is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). It is "more than a scintilla, but less than a preponderance." Bloodsworth, 703 F.2d at 1239.

Ms. Hale argues that the Secretary's decision that she is not disabled is not supported by substantial evidence. The claimant bears a heavy burden in establishing the existence of a disability. She must first show that her impairment prevents her from performing her previous work. "This stringent burden has been characterized as bordering on the unrealistic." Id. at 1240. The burden then shifts to the Secretary to show the existence of other jobs in the national economy which, given the claimant's impairments, the claimant can perform. Finally, the burden shifts back to the claimant to prove she is unable to perform the jobs suggested by the Secretary. Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir.1985); Boyd, 704 F.2d at 1209.

This case initially involves the question of whether the Secretary's finding that Ms. Hale failed to demonstrate that she could not perform her past relevant work as a cashier is supported by substantial evidence. The Secretary adopted the ALJ's findings that Ms. Hale retains the residual capacity to perform "light work," ⁶ and that while Ms. Hale's back condition may produce mild pain at the light work exertion level, "such pain would not prevent her from returning to her past work as a cashier...."

An initial difficulty with these findings is that there is overwhelming evidence to the contrary. The vocational expert testified that given the medical evidence of Ms. Hale's pain, there are no jobs that Ms. Hale is able to perform. The vocational expert testified that based on the report of the Secretary's own examining physician, Ms. Hale cannot do even sedentary work.

In order to find that Ms. Hale could perform her previous relevant employment as a cashier, let alone any job in the national economy, the Secretary had to reject as not credible the testimony of Ms. Hale as well as the records, reports and opinions of all her treating physicians. The inquiry thus becomes whether there is substantial evidence to support these determinations by the Secretary.

B.

Subjective pain testimony that is supported by objective medical evidence of a condition that can reasonably be expected to produce the symptoms of which the claimant complains is itself sufficient to sustain a finding of disability. Johns, 821 F.2d at 557; MacGregor, 786 F.2d at 1054; Landry v. Heckler, 782 F.2d 1551, 1552 (11th Cir.1986). See 42 U.S.C. Sec. 423(d)(5)(A). If the Secretary refuses to credit such testimony, he must articulate explicit and adequate reasons. Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir.1986); MacGregor, 786 F.2d at 1054.

In this case the ALJ and the Appeals Council found that there were no medical signs and findings showing the existence of an anatomical or physiological impairment which could reasonably be expected to produce Ms. Hale's pain. There is no evidence, however, to support this finding. In fact, the objective medical evidence shows several medical impairments that could reasonably be expected to cause to Ms. Hale's pain.

Dr. Craddock diagnosed cervical nerve root compression syndrome in 1980, and scoliosis and degenerative disc disease in 1982. In August, 1982 Dr. Burr noted an additional psychological element to Ms. Hale's condition, which he believed made her disability considerable. In early 1983, Dr. Gravlee reported cervical spondylosis at the C5-C6 level. Ms. Hale's continued pain is confirmed in the record by the Secretary's own consultant, Dr. Rollins, and by Dr. Quimby, who reported medical evidence of "several back operations with poor results." Finally,...