Haskins v. Finch

• Court: U.S. District Court — Western District of Missouri
• Citation: Haskins v. Finch, 307 F.Supp. 1272 (W.D. Mo. 1969)
• Decision Date: 26 August 1969
• Docket Number: Civ. A. No. 15645-3.
• Parties: Ralph W. HASKINS, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant.

307 F. Supp. 1272

Ralph W. HASKINS, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant.

Civ. A. No. 15645-3.

United States District Court W. D. Missouri, W. D.

August 26, 1969.

COPYRIGHT MATERIAL OMITTED

Silas Woodson Longan, III, Kansas City, Mo., for plaintiff.

Calvin K. Hamilton, U. S. Atty., by John L. Kapnistos, Asst. U. S. Atty., Kansas City, Mo., for defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND REVERSING JUDGMENT OF DEFENDANT

BECKER, Chief Judge.

This is an action under Section 405 (g), Title 42, U.S.C., providing for judicial review of a final decision of the Secretary of Health, Education and Welfare. The plaintiff filed an application for disability benefits under Section 423, Title 42, U.S.C., on April 27, 1964. After denial of the application by the defendant Secretary, the plaintiff sought judicial review by filing his complaint in this Court on August 17, 1965. Thereafter, on defendant's motion, the case was remanded to defendant "for the purpose of obtaining evidence which exists but has not been submitted, and, if then necessary, to arrange for additional medical examinations of plaintiff in order to obtain more evidence as to the severity of his alleged impairments."

After this remand to the defendant, the Appeals Council of the Social Security Administration remanded the case to a hearing examiner, who took additional evidence and held another hearing at which plaintiff, a medical advisor, and a vocational consultant testified. The hearing examiner then recommended that the claim be denied. This recommendation was adopted by the Appeals Council and the claim was denied by the defendant Secretary. As a result, the final decision of the Secretary held that plaintiff was not entitled to benefits under the Social Security Act before or after the 1965 amendments.

APPLICABLE STATUTES

Before the 1965 amendments, disability was defined by the Social Security Act as:

"inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued indefinite duration * * *."

The 1965 amendments to the Act changed the definition of disability to the following:

"inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * *." See Sections 416 (i) (1) and 423(c) (2), Title 42, U.S.C.

THE MEDICAL EVIDENCE

In his application for Social Security benefits filed April 27, 1964, plaintiff alleged that he became unable to work on September 30, 1963, at the age of 56, because of "back troubles." The following medical evidence on that application was available and was considered by defendant in rendering his final decision:

Robert H. Dunham, M. D., reported that plaintiff consulted him in September of 1963, reporting an 18-to-20 year history of back injury and complaining of pain and limitation of motion in his back. Dr. Dunham found plaintiff to be suffering from osteoarthritis of the 3rd and 4th lumbar vertebrae with destruction of the interspace between them. He noted that plaintiff was unable to flex or extend his back completely without pain, that he suffered from muscle spasms in the lumbar region, that the condition was "static or deteriorating", that, in addition to the above "objective findings", there was an "acute exacerbation of plaintiff's preexisting condition." Dr. Dunham stated that plaintiff was able to engage in "Sedintary (sic) activity only."

Harry B. Overesch, Jr., M.D., an orthopedic surgeon, examined the plaintiff in March 1964 and reported a marked degenerative disc of the lumbar spine. This report was confirmed by x-rays taken by Dr. Overesch. Dr. Overesch's opinion was that the condition was static and he recommended a surgical spinal fusion. Dr. Overesch found that plaintiff had pain to the extent that "coughing and sneezing causes pain in the low back"; that there was limitation of all motions of the spine; and that there was some list and scoliosis of the dorsal lumbar spine. He stated that surgery might be corrective but that following surgery the claimant would have functional loss "mainly in back motion," such as bending. Dr. Overesch felt that the plaintiff should not return to his former occupation of welder and stated that he should avoid "heavy lifting and repeated stooping or bending" and that he would "carry a disability rating for moderate or heavy work."

Plaintiff was examined in February of 1966 (Tr. 264-267) by Charles E. Vilmer, M.D., whose objective findings were substantially the same as those previously made by Dr. Dunham and Dr. Overesch. Dr. Vilmer found that a gradual onset of pain felt by plaintiff began in September 1963; that the pain had persisted until the time of his examination in February 1966; that at that time the pain, according to plaintiff, extended into both legs; that plaintiff stated the pain to be constantly present, and relieved somewhat by reclining and worsened by stretching or lifting; that plaintiff was able successfully to complete a Patrick's test (sitting with legs crossed) to indicate that he did not have arthritis of the hip;¹ that the examining positions were taken by plaintiff with "considerable agility"; that there was "some straightening of the lumbar spine with some tenderness noted on deep pressure at the lumbosacral joint area"; and that motion of the lumbar spine could be carried out in a range of "about seventy-five percent of normal in forward and lateral flexion beyond which point the patient complained of pain in his low back." In addition, there was "minimal tenderness on deep pressure over the sciatic notch on each side." X-rays revealed a "considerable amount of osteoarthritic change throughout the lumbosacral area. The right side of the intervertebral disc showed marked narrowing with some spur formation at adjacent borders." Dr. Vilmer concluded:

"It is my feeling that this individuals (sic) objective findings can not be correlated with his subjective complaints. It would be my feeling that this individual can perform most activities without a lot of difficulty, if lifting, excessive stooping or use of the back would be eliminated.

"I believe that much (sic) of this individuals (sic) complaints are magnified by the fact that they are probably constantly present and by the fact that there is considerable functional overlay. Most of these complaints could be eradicated by surgical fusion L-3 L-4 L-5 and L-5 S-1 level, however I do not believe that this patient is a good surgical risk from a psychogenic standpoint and I would not consent to do so for that reason." (Tr. 266)

Dr. Vilmer deemed the strength in plaintiff's back, legs and hips to be normal.

At the request of plaintiff's attorney, plaintiff was examined in August of 1965 by William H. Duncan, M.D., a surgeon (Tr. 316). He diagnosed:

"Old, pre-existing hypertrophic changes and degenerative disc disease of the lower back with manifestations of discomforts in both lower extremities. There is an old marked disability of the right elbow and left leg."

An old fracture of the right elbow, Dr. Duncan reported, resulted in "about thirty to thirty-five percent disability at the elbow joint with marked stiffness and limitation of motion." Also, as a result of an old leg injury dating back to 1950, plaintiff had a 25% disability of the leg. Dr. Duncan noted that plaintiff had chronic stiffness and pain in those sections of his body and that his objective impairments, together with pain and functional overlay disabled him from engaging in any substantial gainful activity. Dr. Duncan further found the condition to be "permanent and continuous throughout his lifetime."

At the hearing held by defendant after the remand at defendant's request, Leonard F. Peltier, M.D., an orthopedic surgeon and professor of orthopedic surgery at the University of Kansas Medical School, evaluated the medical testimony of record. Dr. Peltier did not examine plaintiff. His diagnosis of "lumbarization of the first sacral segment" and "degenerative disc disease" was in agreement with the diagnoses of the examining doctors. Dr. Peltier recognized that plaintiff had pain, but concluded that the degenerative condition was congenital and was related to plaintiff's age. He acknowledged, however, that prolonged sitting or standing might aggravate the plaintiff's condition.

Robert H. Fitzgerald, M.D., examined plaintiff in connection with an application for unemployment insurance in the state of California and found tenderness in the left sacroiliac joint, the ability to bend forward 70 degrees and to raise the leg laterally to 70 degrees. In the prone position, plaintiff complained of pain. Dr. Fitzgerald found marked intervertebral space narrowing between the 3rd and 4th and 5th and 6th bodies with extensive hypertrophic spurring in the former and minimal spurring with slight reverse spondylolisthesis at the latter area; a straight lumbar curve superior to the 5th lumbar vertebra with list of the lumbar spine to the right above the 3rd lumbar level; and slight hypertrophic spurring of all of the lumbar vertebrae. Dr. Fitzgerald recommended conservative care.

Ralph A. Powell, D.C., submitted a report dated March 24, 1965. He noted "reoccurring lumbar and sacrolumbar pain, spasms, and immobility"; that the radiograph revealed "narrowing of the space between 4L & 5L with severe `lipping' of the surface of the bodies. Lumbarization of the 1st segment of sacrum. Suggestion that 4L disc may be ruptured." His diagnosis was "chronic 3L, 4L and 5L lesions" and his prognosis was that it was "possible to promote healing to the point of tolerating everything but excessive activity."

Plaintiff's history showed that he...