Jones v. Heckler, 81-7753

• Decision Date: 14 April 1983
• Docket Number: No. 81-7753,81-7753
• Parties: Oscar JONES, Plaintiff-Appellant, v. Margaret M. HECKLER, Individually and in her capacity as Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 950

702 F.2d 950

1 Soc.Sec.Rep.Ser. 320

Oscar JONES, Plaintiff-Appellant, v. Margaret M. HECKLER, Individually and in her capacity as Secretary of Health and Human Services, Defendant-Appellee.

No. 81-7753.

United States Court of Appeals, Eleventh Circuit.

April 14, 1983.

Lisa J. Krisher, Augusta, Ga., for plaintiff-appellant.

Bernard E. Namie, Asst. U.S. Atty., Macon, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

CLARK, Circuit Judge:

Oscar Jones brought this action to obtain judicial review of the termination of his social security disability insurance benefits and supplemental security income. The United States District Court for the Middle District of Georgia upheld the decision of the Secretary of Health and Human Services, finding appellant not to be disabled within the meaning of the Social Security Act, 42 U.S.C. sec. 301, et seq. Specifically, the district court found that appellant's refusal to submit to a myelogram and/or disc surgery constituted willful failure to follow prescribed treatment without which the Secretary was unable to determine if appellant was under a disability. Because we find that there was inadequate evidence to support the district court's ruling that appellant willfully failed to follow prescribed treatment, we reverse the decision of the district court and remand this case for consideration of whether appellant is otherwise entitled to receive disability benefits.

Oscar Jones was born on May 18, 1927 and completed the third grade in school, before beginning work as a sharecropper on a farm. At the age of 14, Jones was employed in the pulpwood industry. Jones worked as a woodcutter, truck loader and unloader, and in various other positions in the pulpwood industry until he was injured on the job in February of 1974. At that time, Jones fell off a truck on which he was loading wood and injured his back and right hip.

Jones' initial treating physician noted that Jones reported intense pain and, in addition to other symptoms, was unable to perform straight leg raising above 20 degrees. After treating Jones for several weeks for pain, his physician referred Jones to a surgeon, Dr. Perry Cohn. Dr. Cohn recommended a spinal fusion, but Jones elected to follow more conservative treatment. Dr. Cohn saw Jones again in March of 1975 and noted that Jones was still having severe pain in his back and down into his leg. Dr. Cohn continued to diagnose the problem as an acute herniated disc and noted:

I plan to admit him to the hospital where he will undergo a myelogram and if indicated a consideration for surgery. A laminectomy and fusion will probably come to pass.

(Record, Vol. 2 at 129). In notes dated April 4, 1974, Dr. Cohn recorded that Jones was offered a myelogram, but refused to have the myelogram, feeling that he was much better since the initial attack. Dr. Cohn noted that Jones had obtained some relief of pain through heat, exercise, and massage. Dr. Cohn continued to believe, however, that a myelogram should have been done in spite of the risk involved. (Record, Vol. 2 at 131).

Jones filed applications for social security and disability benefits on April 4, 1975 and April 5, 1976. Jones' applications were denied initially. Jones was subsequently examined by Dr. Howard B. Krone in May of 1976. Dr. Krone concluded that Mr. Jones had a herniated nucleus pulpasus, untreated. On the standard Social Security form for evaluation of functional capacity, Dr. Krone indicated that Jones could lift twenty pounds occasionally to ten pounds frequently, could stand and walk two out of eight hours, could not sit and work as much as six out of eight hours, and was restricted from bending and stooping. Jones' applications were reconsidered, with Dr. Krone's evaluation, and in November of 1976 Jones was awarded social security benefits for a disability period beginning February 24, 1974.

On December 29, 1978, the Social Security Office referred Jones to Dr. Joe Christian. Dr. Christian reported that his examination was negative for any objective findings, although Jones complained bitterly of tenderness in the lower back and pain on motion of the lower back. Dr. Christian commented that it was peculiar that Jones complained so bitterly of pain yet refused treatment that might help him. Dr. Christian concluded by diagnosing Jones' problem as mild degenerative arthritis. Using the standard Social Security form for evaluation of functional capacity, Dr. Christian indicated that Jones was capable of lifting 20 pounds occasionally and 10 pounds frequently, and standing and walking 6 or more hours in a normal workday. Thus, Jones was qualified as able to do light work. In January of 1979, the Social Security Office, apparently relying on Dr. Christian's report, concluded that Jones did not have a significant impairment at that time. Finding Jones capable of doing his former work as a laborer in the pulpwood industry, Jones, at age 51, was deemed not entitled to disability benefits as of December of 1978.

On August 6, 1979, a hearing was held before an administrative law judge to evaluate the termination of Jones' supplemental social security income and disability insurance benefits. The sole witness at the hearing was Jones. The administrative law judge first questioned Jones about his background and education. Jones testified that he had attended school through the third grade and that he was able to read his name and a few different things. He testified further, however, that he was unable to read a newspaper and that in reading a letter he had to skip over certain words. Jones' legal representative then questioned him about his prior work and his injury. Jones testified that he had intense pain from his lower back down the right side of his leg. He further stated that he took pain medication but that the medication failed to relieve the pain. Jones also said that he suffered from high blood pressure for which he was also taking medication. Jones testified that he was informed about the possibility of surgery but that he was told that the surgery could result in paralysis or death. (Record, Vol. 2 at 51). He testified that several doctors had mentioned the possibility of surgery, but none had reassured him. Jones specifically stated that one doctor said, "I ain't going to tell you to take it, and I ain't going to tell you not to take it," with regard to the surgery. Jones asserted he could not stand for long periods of time and that he could only walk short distances. In response to additional questions from the administrative law judge, Jones replied that he was unable to even lift his four-month-old grandchild.

In August of 1979, Jones was seen by Dr. W.S. Helton. He recorded that Jones had pain in his back in the straight leg raising test. Dr. Helton recommended that Jones have a complete neurological or orthopedic evaluation. In the final medical report in the record dated August 21, 1979, Dr. Gilmore, Jones' personal physician who had treated him over the years, stated that based on his neurological examination of Jones, he found the symptoms to be essentially unchanged from April of 1974. Dr. Gilmore concluded, "It is my considered opinion that this man is totally disabled and also surgical intervention would be of no benefit to him." (Record, Vol. 2 at 147).

In an opinion dated October 9, 1979, the administrative law judge summarized Jones' background as follows:

Claimant was found disabled in February 1974 due to a herniated disc L4-L5, L5-S1. Evidence also shows that claimant at that time refused to undergo a myelogram and possible surgery, and elected to conservative treatment which did not help claimant. Current medical evidence of record indicates that claimant suffers from mild degenerative arthritis of the lumbar spine but there is good preservation of the disc space. The claimant is closely approaching advanced age and has a marginal education at best. He can and does speak and understand the English language and can do simple transactions. His experience is at an unskilled level involving labor in the pulpwood industry. However, the medical evidence of record indicates that claimant, at least since December 1978, has been capable of performing work-related functions at a light exertional level....

(Record, Vol. 2 at 14). Considering the claimant's age, education, work experience, and maximum sustained capacity, the administrative law judge concluded that under the Social Security Regulations Jones was not disabled within the meaning of the Social Security Act. 20 C.F.R. sec. 404.1513 and sec. 416.913 (...