Hogan v. Schweiker, Civ. A. No. 81-K-1692.

• Decision Date: 09 February 1982
• Docket Number: Civ. A. No. 81-K-1692.
• Citation: 532 F. Supp. 639
• Parties: Kent HOGAN, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Colorado

532 F. Supp. 639

Kent HOGAN, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

Civ. A. No. 81-K-1692.

United States District Court, D. Colorado.

February 9, 1982.

Susan E. Perry, Colorado Legal Services, Inc., Denver, Colo., for plaintiff.

Janis Chapman, Asst. U. S. Atty., Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is an action pursuant to 42 U.S.C. § 405(g) for review of a final decision of the Secretary of Health and Human Services ("secretary"), denying Title II social security disability benefits to the plaintiff under 42 U.S.C. § 423(a). The claimant-plaintiff, Hogan, is 40 years old and has worked since his youth in unskilled jobs including newspaper boy, grocery stacker, factory worker, truck driver and cement finisher. He has a second grade education and he last worked as a cement finisher. In 1979, Hogan fell through a hole in the floor on his job and suffered trauma to the left thoracic region and tailbone and suffered a fracture of the ninth left rib. As a result of this accident, Hogan suffered spasms in his lumbar muscles and severe pain in the lower back, left thigh and groin.

Hogan initially applied for disability benefits in April, 1980 and was rejected in June, 1980. He filed a request for reconsideration in August, 1980 which the secretary denied in September, 1980. Hogan then filed a request for a hearing with the secretary in October, 1980. After a hearing in March, 1981, the administrative law judge ("ALJ"), determined that Hogan was not disabled. In July, 1981, the appeals council affirmed the ALJ's decision.

For the reasons expressed in this opinion, the secretary's decision is vacated and the case remanded to the secretary for consideration of additional evidence as enumerated.

I. MEDICAL EVIDENCE

Dr. Elmer Franz, an orthopedist, examined Hogan on several occasions. Dr. Franz noted that while there was some actual flattening of Hogan's lumbar spine, sensory tests revealed that his severe pain might be "functional and not due to any specific nerve root irritation". Dr. Franz initially prescribed an anti-inflammatory medication, butazolidin, and recommended that if Hogan's pain did not improve he should receive physical therapy and traction. Dr. Franz initially stated that Hogan was not able to work,¹ even though he found that Hogan appeared sincere in stating that he wanted to work. (Tr.130, Ex. 18). Dr. Franz noted that Hogan tried working for four and one half days on his old job but he had to stop due to pain in his back, lumbosacral area and groin. (Tr.141, Ex. 20). However, Dr. Franz also believed that Hogan's severe pain "is on a hysterical basis and is not primarily organic", (Tr. 143, Ex. 21), and that Hogan might be able to pursue some other gainful employment with rehabilitation in lighter work. (Tr. 159-62, Ex. 24).

Dr. William Warmath, a neurological surgeon, also examined Hogan on several occasions. Dr. Warmath observed that Hogan had limitation of back motion due to pain and "give-way" weakness in all muscle groups in the lower left extremities. Dr. Warmath initially recommended conservative treatment and then physical therapy and a back brace if Hogan did not respond. (Tr. 134, Ex. 19). Dr. Warmath stated on several occasions that he did not feel that Hogan could return to his former work or perform manual labor generally but he felt that with some rehabilitation, Hogan could do work which does not entail lifting, or prolonged walking. (Tr. 159-162, Ex. 24).

Hogan's most recent medical exam was by Dr. H.F. Stolowski, an osteopathic physician and surgeon, on March 23, 1981. Dr. Stolowski observed that Hogan:

"has become progressively worse creating an increasing disability with the following pathologic findings:

1. Multiple joint pain (Structural and skeletal exam)

2. Limitation of motion, dorsal lumbosacral spine the ranges of all motion are limited in this entire area, 30% in all angles namely flexion, extension forward, bending and lateral rotation.

Neurological findings are consistent with a multiple neuritis with pains in all trajectories of most of the peripheral nerves. This is probably due to radicular injuries incurred in the original accident and has become progressively worse in the past months.

(Tr. 187, Ex. 30).

In Dr. Stolowski's opinion, Hogan "has a permanent partial physical disability limiting him severely from partaking in a gainful occupation for which he is trained." Id.

Hogan's only examination for mental impairments was done by Michael Meade, a clinical psychologist. Meade noted that Hogan had an IQ of 79 which placed him at the borderline-mentally deficient range of intellectual development. Meade also observed that many of Hogan's responses were "indicative of a person with significant neurological impairment" and that significant indications lead to a diagnosis of central nervous system dysfunction". (Tr. 177-79, Ex. 27). Hogan's greatest difficulties were in visual motor integration and short term auditory memory. Accordingly, Meade suggested that Hogan seek jobs with concrete repetitive tasks and, little eye-hand coordination that were isolated or semi-isolating such as truck driver, assembly worker, bench work and repair work. Meade further stated that Hogan sincerely desires going back to work and that there are "no indications of malingering, hypochondriacal or psychosomatic symptoms". Meade therefore felt that Hogan's physical pain was "quite real and obviously restricting". Id.

The only vocational evidence was a report by Pat Kirkpatrick, a state rehabilitation counselor. Ms. Kirkpatrick stated that Hogan seemed sincere and motivated but he was having trouble in a basic education course at opportunity school due to his deficient reading and writing skills. (Tr. 164, Ex. 25).

The claimant testified at the hearing and complained of severe pain that limits his ability to stand, walk, bend and move his joints. Hogan stated that his wife helps to wash and dress him and she opens the pill bottle with his pain medications in the morning since he is unable to perform these very simple tasks due to pain. Hogan also stated that he cannot stand the pain without his pain killing medications which include valium, codeine and empirin. Hogan stated that some of these medications make him nauseous, others induce drowsiness and dizziness.

II. DISCUSSION

A. STANDARD OF REVIEW

The function of this court on review is not to try the plaintiff's claim de novo, but rather to determine upon the whole record whether the secretary's decision is supported by substantial evidence. Cagle v. Califano, 638 F.2d 219-221 (10th Cir. 1981). Substantial evidence is more than a scintilla but less than a preponderance. Laws v. Celebreeze, 368 F.2d 640, 642 (4th Cir. 1966). It is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Wroblewski v. Califano, 609 F.2d 908, 913 (8th Cir. 1979). It is well settled that if there is substantial evidence to support the secretary's decision then that decision must be upheld. Cagle v. Califano, Supra at 220. However, the district court should not blindly affirm the secretary's decision but must instead scrutinize the entire record to determine if the plaintiff's claim has been fairly evaluated and the law has been correctly applied. Proctor v. Schweiker, 526 F.Supp. 70, 73-74 (D.Md.1981).

42 U.S.C. § 423(d)(1)(A) defines "disability" as "inability to engage in any substantial gainful activity by reason of any medical impairment that can be expected to last for over 12 months." Section 423(d)(2)(A) further defines disability to mean not only inability to do the previous type of work but also the inability to do any other kind of work which exists in the national economy "considering opportunities that exist either in the claimant's region or in the several regions of the country."

Once the claimant makes a prima facie showing of an impairment which effectively precludes him from returning to his past work,² the burden shifts to the secretary to show: (1) that the claimant, considering his age, education, work experience and physical shortcomings, has the capacity to perform alternative jobs and (2) that these specific types of jobs exist in significant numbers in the economy. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); Salas v. Califano, 612 F.2d 480, 482-83 (10th Cir. 1979); Gardner v. Brian, 369 F.2d 443, 446-47 (10th Cir. 1966).³

To regularize the adjudicative process, the Social Security Administration has recently promulgated new and detailed regulations incorporating longstanding medical-vocational evaluation policies that take into account a claimant's age, education, and work experience in addition to his medical condition. These new regulations were intended both to clarify for claimants how disability is determined when vocational factors are considered and to assure consistent disability determinations at all levels. 43 Fed.Reg.55,349, 55,349 (1978). Codified at 20 C.F.R. Subpart P, §§ 404.1501-1598 & Apps. 1-2 (1980), they became effective February 26, 1979 and governed the ALJ's decision in this case.

These regulations establish a "sequential evaluation process" to determine whether a claimant is disabled. Hall v. Harris, supra at 264.

The procedure has been succinctly described as follows:

The first inquiry under the sequence concerns whether a claimant is currently engaged in substantial gainful employment. If it is found that he is, the claim is denied without reference to the other steps in the sequence. If he is not, the second inquiry is whether the claimant has a "severe" impairment. If he does not, the claim is denied. If a severe impairment is present, the third inquiry is whether such an impairment meets or equals one of the impairments listed under Appendix 1 to Subpart P of the Administrative Regulations No. 4. If it does, the claim is approved. If it does not,...