Hanrahan v. Shalala

• Decision Date: 17 September 1993
• Docket Number: No. 91-C-981.,91-C-981.
• Citation: 831 F. Supp. 1440
• Parties: James HANRAHAN, Plaintiff, v. Donna M. SHALALA, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

831 F. Supp. 1440

James HANRAHAN, Plaintiff, v. Donna M. SHALALA,¹ Secretary of Health and Human Services, Defendant.

No. 91-C-981.

United States District Court, E.D. Wisconsin.

September 10, 1993.

As Amended September 17, 1993.

Thomas E. Busch, S.C., Milwaukee, WI, for plaintiff.

Charles A. Guadagnino, Asst. U.S. Atty., Milwaukee, WI, for defendant.

DECISION AND ORDER

WARREN, Senior District Judge.

Before the Court is plaintiff's Motion for Award of Attorney's Fees Pursuant to the Social Security Act ("SSA"), 42 U.S.C. § 406(b), and the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. For the following reasons, the Court hereby grants this motion and awards attorney's fees and costs under the EAJA in the amount of $7,965.89 to Thomas E. Bush, counsel for the plaintiff, and attorney's fees under the SSA in the amount of $2,941.25 to the plaintiff, James Hanrahan.

I. BACKGROUND

A. PROCEDURAL BACKGROUND

On June 9, 1989, the plaintiff, James Hanrahan, filed a claim with the Department of Health and Human Services, Social Security Administration, seeking disability benefits stemming from a work-related lower-back injury. His claim was denied both initially and upon reconsideration. The plaintiff was granted a hearing before Administrative Law Judge Ronald G. Bernoski ("the ALJ"), where the plaintiff, a physical therapist (Bonnie Beyer), and a vocational expert (Maude Prall) testified. On September 25, 1990, the ALJ concluded that, while his impairment was severe, the plaintiff did not qualify as disabled under the SSA and therefore was not entitled to disability benefits.

On July 15, 1991, the plaintiff's request for review of the ALJ's decision was denied by the Appeals Council. He then filed the instant complaint, appealing the ALJ's final administrative decision. A briefing schedule was promulgated, and both the plaintiff and the Secretary filed motions for summary judgment. Pursuant to Title 28, U.S.C. § 636(b)(1)(B) (1988 & Supp.1993), Magistrate Judge Robert L. Bittner concluded that the ALJ's dismissal of the plaintiff's claim was contrary to the evidence presented at the hearing, and recommended that this Court grant his motion for summary judgment of reversal and deny the Secretary's motion for summary judgment of affirmance. On January 6, 1993, after properly conducting a de novo review of Magistrate Bittner's findings, see 28 U.S.C.S. § 636(b)(1)(C) (1988 & Supp.1993), this Court adopted his recommendation regarding disposition of the parties' respective summary judgment motions.

B. FACTUAL BACKGROUND

On July 15, 1988, the plaintiff was allegedly disabled when he strained his lower back while moving tables at work. At the ALJ hearing, he described his pain as a "throbbing dull pain" which spans his back about one or two inches above his belt line and then extends down his left leg, where it becomes a tingling "pins and needles"-type pain. Tr. at 74-75. According to the plaintiff, this pain prevents him from remaining in one position for any great length of time. Id. at 76-77. He is reportedly able to sit from eight to twenty minutes at a time if he can shift his weight, and can stand for two to twenty minutes. Id. The plaintiff testified that he is able to do light housework that does not involve lifting or reaching, and he drives only short distances based on the physical discomfort caused by sitting in one position for an extended time. Id. at 79. During the day, the plaintiff ordinarily watches television or reads while he is resting. Id. at 76. Approximately ten times a month, he walks one block to a park near his house, rests for a short time on a bench, then returns home. Id. at 81.

Since suffering his injury, the plaintiff has experienced at least four episodes where the pain across his lower back becomes acute, forcing him to remain off his feet for approximately four days. Tr. at 75. During these times, even the slightest movement, such as shifting positions in bed, causes him significant pain. Id. at 90. The plaintiff reportedly spoke with a neurological surgeon, Dr. Marshall Cushman, about this pain and possible treatments. Id. at 84. According to the plaintiff, Dr. Cushman discussed surgery to remove a herniated disc as a possible treatment; however, because Dr. Cushman acknowledged a likelihood that surgery would actually worsen his condition, the plaintiff has not followed that course of treatment. Id.

The plaintiff's physical therapist, Bonnie Beyer, testified before the ALJ that she treated him for a year, starting in October of 1988, during which time he made only minor improvements. Tr. at 43. During therapy, the plaintiff often went into muscle spasms due to his lower back pain, a reaction which is medically documentable and consistent with the pain accompanying a herniated disc. Id. at 48. When this pain occurred, Ms. Beyer instructed him to go into the "90/90 position," where he lay on the floor with his feet propped up on a stool so his thighs were at a 90-degree angle to his back and his calves were at a 90-degree angle to his thighs. Id. at 46. This position, which he would maintain for 20 to 30 minutes, would alleviate his pain sufficiently to allow him to continue working in a sitting or standing position. Id. Similar relief could be attained by lying on his side with his legs in the 90/90 position. Id. Although sitting in a chair would place his legs in a 90/90 position, the gravitational pull on his spine would exacerbate, rather than relieve, his pain. Id. at 47. The plaintiff was comfortable at a minimum level of activity, where he had the option of going into the 90/90 position when he felt discomfort. Id. at 52-53. Pacing was more comfortable than standing still, because the pressure on his left side was relieved with every other step. Id. at 55. Eventually, however, Ms. Beyer instructed the plaintiff to continue his prescribed exercises at home, as he was not making progress in formal therapy. Id. at 49.

The vocational expert, Maude Prall, testified before the ALJ that the plaintiff's most recent job as a security instructor was skilled labor which put him at an exertional level of medium. Tr. at 94. His previous experiences fell in a range of unskilled to semiskilled with a light to high medium exertional level. Id. at 95. Ms. Prall indicated that the plaintiff was physically capable of acting as a security guard at a light exertional level, but that his educational background would enable him to perform entry-level clerical work with skill levels ranging from unskilled to semiskilled.² Id. at 97-99. In addition, unskilled sedentary factory jobs were available, where he could perform tasks such as packaging, assembling, and section work. Id. at 99. These jobs all provide a sit/stand option. Id. Ms. Prall conceded on cross-examination, however, that, if the plaintiff's testimony about his physical capabilities was true, he would need a job which would allow him to sit, stand, and walk intermittently. Id. at 100. She admitted that no jobs with a sit/stand/pace option were currently available. Id.

After hearing this testimony, the ALJ considered reports from both treating and consulting physicians. The plaintiff had originally been treated for his condition by Dr. M.A. DeJohn and Dr. Donald Fonte in Louisiana, where he lived until late 1988. Tr. at 20. An MRI taken in July, 1988, revealed a herniated disc and degenerative disc disease with no bulging or herniation. Id. at 191. The plaintiff proceeded with physical therapy on an out-patient basis, and his condition improved symptomatically over a three-month period. Id. at 20. Surgery was not viewed as an immediate option in the hope that the therapy would be effective. Id.

After moving to Wisconsin, the plaintiff began seeing Dr. Richard Rustia, Dr. Michael Brennan, and Dr. Cushman. Tr. at 20-22. While a lumbar myelogram done in January, 1988, showed normal results, a CT scan given at the same time showed either a large herniated disc or artifact at L4-L5. Id. at 21. Various other tests led the physicians to conclude that the plaintiff suffered from a mildly herniated or protruding disc in the L4-L5 region. Id. at 22. The plaintiff underwent a series of epidural steroid injections in the spring of 1989; however, he claimed that this treatment exacerbated, rather than relieved, his discomfort. Id. at 23. The plaintiff was also taking Naprosyn and Flexeril; however, financial constraints limited his ability to ingest these medications on a regular basis. Id. at 71.

Finally, the ALJ considered a functional capacity evaluation by Ottie Bruno, a physical therapist, who opined that the plaintiff was not magnifying his symptomatology. Tr. at 23. The plaintiff's pain had prevented him from performing some of the standard tests in the evaluation, resulting in findings too low to compare with normal healthy males. Id. at 23; 217-18. Mr. Bruno concluded that the plaintiff would not be an appropriate candidate for the Work Hardening Program. Id. at 225.

On September 25, 1990, the ALJ issued his findings. He concluded that, although the plaintiff did have a mildly herniated disc, he was not disabled under the SSA. Tr. at 30-31. The ALJ found his allegations of pain not credible in light of the objective medical evidence and based upon his failure to seek alternative treatments and to visit his doctors more frequently. Id. at 28-29. For example, his failure to undergo surgery indicated an "apparent willingness to tolerate the status quo," while the lack of muscle atrophy noted in the medical records indicated that the plaintiff's activities were not as restricted as claimed. Id. at 28-29.

According to the ALJ, a number of job positions involving sedentary work with a sit/stand option could be filled by the plaintiff, including certain types of security work. Tr. at 29. Although the ALJ discussed Bonnie Beyer's testimony, he nevertheless concluded that the plaintiff was not restricted to that category...