Huston v. Bowen

• Decision Date: 02 February 1988
• Docket Number: No. 86-1741,86-1741
• Citation: 838 F.2d 1125
• Parties: , Unempl.Ins.Rep. CCH 17,907 Robert T. HUSTON, Plaintiff-Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant- Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1125

838 F.2d 1125

20 Soc.Sec.Rep.Ser. 483, Unempl.Ins.Rep. CCH 17,907

Robert T. HUSTON, Plaintiff-Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Defendant- Appellant.

No. 86-1741.

United States Court of Appeals Tenth Circuit.

Feb. 2, 1988.

Jeffrey C. Blair, Asst. Regional Counsel, Dept. of Health and Human Services (Richard A. Stacy, U.S. Atty., Toshiro Suyematsu, Asst. U.S. Atty., Ronald S. Luedemann, Chief Counsel, Region VIII, Dept. of Health and Human Services, and Thomas A. Nelson, Jr. Deputy Chief Counsel, Region VIII, Dept. of Health and Human Services, with him on the briefs), Denver, Colo., for defendant-appellant.

Caroyl J. Long (Robert T. Huston, with her on the brief), Cheyenne, Wyo., for plaintiff-appellee.

Before McKAY, ANDERSON and BALDOCK, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The claimant, Robert Huston, is an overweight sixty-one-year-old man with a bad back. He applied for Social Security disability insurance benefits in 1984, eight years after the date that his insured status expired. This eight year gap creates some difficulty and confusion, because while substantial evidence exists of the disabling character of the claimant's back problems at the time of his application for insurance benefits, the claimant's eligibility for continuing benefits since 1976 turns on the severity of his back problems in 1975-76, not in 1984.

The Administrative Law Judge ("ALJ") found that the claimant retained the residual functional capacity for light work from August 10, 1975, the alleged date of onset of his disability, through December 31, 1976, the date he last met the insured status requirements. The ALJ, therefore, held that the claimant was not entitled to disability insurance benefits under Title II of the Social Security Act. The federal district court reversed, finding that the record as a whole established substantial evidence of claimant's disability in 1975-76. Our review of the record convinces us that (1) the ALJ did not properly gauge the legal standards surrounding the role of pain in establishing a disability, failing to make findings as to the credibility of nonmedical pain testimony, and (2) the district court usurped the function of the ALJ by reweighing the evidence and making, in effect, its own determination of witness credibility. We reverse and remand to the Social Security Administration for findings as to whether testimony from the claimant and three other witnesses as to claimant's pain in 1975-76 was credible. If it was, then the combined medical and nonmedical evidence of both exertional and nonexertional pain was sufficient to preclude mechanical

application of the Secretary's medical-vocational guidelines and would appear to dictate a finding of disability. If the nonmedical testimony was not credible, then on remand the reasons for such a finding should be specified.

BACKGROUND

The claimant originally injured his back in Guam during World War II. In the late 1950s he became a farmer, an occupation he pursued until 1972. Off and on during this time, he suffered periods of acute back pain, as evidenced by various treatments by the Wheatland Medical Center in Wheatland, Wyoming and the McBride Clinic in Oklahoma City, Oklahoma. Medical records refer to disc surgery in 1962 or 1963 for degeneration of the lumbar spine. Throughout this period the claimant continued to operate his farm with help from his wife and children. In November 1970 he was hospitalized for severe pain and sciatica (nerve pain) of the right leg, accompanied by foot numbness and increased tenderness upon straight leg raising. After discharge indicating a "moderate recovery," R.Vol. II at 93, he again continued to operate his farm, apparently despite discomfort and with increasing assistance from family members.

In 1972, at the age of forty-six, the claimant sold his farm and bought a hardware store. At that time his treating physician at the McBride Clinic, Dr. Marvin K. Margo, wrote a "To-Whom-It-May-Concern" letter stating that the claimant had a "probable pseudoarthrosis" (formation of a false joint from failure of the discs to fuse properly) and that "any type of heavy work, especially on a farm and riding a tractor would be aggravating to [claimant's] back." ¹ Id. at 97. In December 1975 the claimant was treated in the emergency room of the McBride Clinic for back strain that came from lifting a tire. Dr. Kenneth Gimple's medical entry at the time stated that although the claimant's disc fusion had apparently resulted in a pseudoarthrosis, he "has had relatively little difficulty with his back except a chronic ache in cold weather." He found "no suggestion of sciatic pain down either leg." The recorded impression was "mild low back pain." Id. at 98, 99. With the exception of a brief record of a physical examination in July, 1976, there are no further medical reports until 1978--after the period of time in which the claimant must be found to be disabled in order to be eligible for insurance benefits.

Beginning in 1981 the medical reports show deterioration of claimant's back condition. In July 1982 Dr. R.E. Torkelson stated that while claimant had experienced back pain for a number of years, he "apparently did fairly well until a year ago when he developed gradual onset of increasing low back pain ..." Id. at 143, 197. Since 1981 the medical record demonstrates significant pain levels, repeated physical therapy treatments, increased medication levels, and use of a TNS unit. Recent physical therapy objectives consistently have been to try to keep the claimant functional.

Supplementing the limited medical record during 1975 and 1976, the claimant and three witnesses testified to the claimant's pain during that time. The claimant and his wife both testified that on many days he either stayed home from the hardware store because of pain or regularly sought respite for several hours on a hammock in the stockroom. In response to a question from the ALJ, the claimant's wife stated that by mid 1975, when her husband stopped working at the hardware store, "probably 90? [sic] of the time, he was in some degree of pain, and it was very seldom that he was free of some degree of pain." Id. at 49.

The claimant's brother testified that when he visited the claimant during the years he was operating the farm he found The claimant himself testified to back and leg pain from operating the farm tractors. He said he learned over time that lying on a mattress on the floor of his home for extended periods of time could relieve bouts of back strain and negate the need for comparable periods of hospitalization. In response to a question from the ALJ as to whether he could work in a "lighter or more sedentary position," the claimant stated that at the time he quit the hardware store "[i]t was getting to the point, no sir." Id. at 43. He discussed the nature of his pain at that time by saying that he hurt the most in "[t]he small of my back and then radiating down my legs. Sometimes it would feel like the pain was shooting right out the bottom of my feet, my heel." Id. at 44. At the time he left the hardware business he was taking Darvon Compound 65, two aspirin, and a shot of whiskey to "knock the pain." Id. at 45.

                him unable to lift milk cans weighing approximately twenty pounds.  During semi-annual visits in the years in which the claimant operated the hardware store the brother frequently found him experiencing pain.  "[W]hen we were home I had to watch were [sic] I walked because I'd stumble over him in the night like going to the bathroom and things."    Id. at 51.  (The inference was that the claimant was crawling around because of the pain of standing up.)    A friend testified to the claimant's long-standing pain, his dependence on his children and wife to help operate the farm, and his inability to load and unload items at his hardware store.  Id. at 53-55
                

LEGAL ANALYSIS

The primary question for resolution is whether the ALJ applied the correct legal standards regarding disabling pain. Pain can be a disabling condition under Title II of the Social Security Act. For conclusive evidence of disabling pain, however, the act requires:

"medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability."

42 U.S.C.A. Sec. 423(d)(5)(A) (1987). While this provision is not a model of clarity, it suggests that pain testimony should be consistent with the degree of pain that could be reasonably expected from a determinable medical abnormality. A close reading of the provision reveals that the medical findings themselves need not establish or confirm the degree of pain alleged but that the medical impairment itself must be shown to exist and should be reasonably capable of producing the alleged pain level in some individuals.

This court has recently determined that the relationship between the impairment and the alleged pain need only be a loose one and that "if an impairment is reasonably expected to produce some pain, allegations of disabling pain emanating from that impairment are...