Jones v. Secretary, Health and Human Services, 90-3492

• Decision Date: 30 September 1991
• Docket Number: No. 90-3492,90-3492
• Citation: 945 F.2d 1365
• Parties: , Unempl.Ins.Rep. (CCH) P 16286A, 2 NDLR P 98 Donna JONES, Plaintiff-Appellant, v. SECRETARY, HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1365

945 F.2d 1365

35 Soc.Sec.Rep.Ser. 194, Unempl.Ins.Rep. (CCH) P 16286A,

2 NDLR P 98

Donna JONES, Plaintiff-Appellant, v.SECRETARY, HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 90-3492.

United States Court of Appeals Sixth Circuit.

Argued Jan. 22, 1991.

Decided Sept. 30, 1991.

Debra S. Shifrin(argued and briefed), Emershaw, Mushkat & Schneier, Akron, Ohio for plaintiff-appellant.

Michael Anne Johnson, (argued), Iden Grant Martyn, (briefed), Michael A. Jeter, Asst. U.S. Attys., Office of U.S. Atty., Cleveland, Ohio, for defendant-appellee.

Before GUY and BOGGS, Circuit Judges, and EDWARDS, Jr., Senior Circuit Judge.

GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

Plaintiff, Donna Jones, formerly a secretary, indisputably suffers from the collapse of 60 percent to 70 percent of the fourth vertebrae of her back.However, the Secretary of Health and Human Services has denied her claim for disability benefits under the Social Security Act, 42 U.S.C. §§ 401 et seq., finding that there is no objective basis for her claim.The district court affirmed this judgment, and plaintiff now seeks reversal.Because we find that the record lacks substantial evidence upon which to base the Secretary's conclusions, we vacate the judgment of the district court and remand to the Secretary for further proceedings.

I.BACKGROUND

At the time of her administrative hearing, Donna Jones was fifty-six years old.She was born and raised in Akron, Ohio.After graduating from high school, she steadily worked for twenty-four years as a secretary in the area.She has worked for Firestone Tire & Rubber, Eastern Greyhound, and most recently as a temporary secretary for Kelly Services and Superior Staffing.On December 27, 1984, she was on the verge of completing a ten-month assignment with Adjustco Company and expected to be placed on the permanent payroll.On that day, she slipped and fell on icy steps.

After the fall, Jones never returned to full-time secretarial employment.The fourth vertebrae of her spine was fractured and, since then, she has allegedly experienced debilitating pain in the upper thoracic region of her back whenever she stands or sits for any extended period of time.Sixty to seventy percent of her thoracic vertebrae have collapsed.Her treating orthopedic physician, Dr. Robert Kepley, expects "that her condition will continue on a permanent basis as there is no other medical or surgical remedy that can help her out of this current dilemma."Her other personal physician, Dr. Mark Apte, and his associate, Dr. Susan Yeahley, share this opinion.

A. Donna Jones' Ailment

The prognosis of Jones' condition was long in coming.At first, Jones' personal physician, Dr. Apte, thought she suffered a minor sprain.On December 31, 1984, her first visit to Dr. Apte after the injury, he noted "no bones were broken," and recommended heat compresses and bed rest.¹However, in subsequent weekly visits Jones asserted that her back pain was so great that she could no longer comfortably bend, sit, or stand.²When, on February 3, 1985, Jones' ability to flex had dwindled to six degrees, Dr. Apte referred her to an orthopedic surgeon, Dr. Robert Kepley.

Jones reiterated her complaint that "she has pain with any prolonged standing or sitting," during her first examination with Dr. Kepley, on February 19, 1985.After re-examining the x-rays taken at the time of Jones' fall, Dr. Kepley determined that there was a fifty percent compression fracture of the fourth thoracic vertebrae of her spine.He prescribed a back brace and a cane to keep the spine in an upright and rigid position until the fracture healed.After this treatment, the x-rays showed "good consolidation of the fracture."

Dr. Kepley did not take new x-rays until February 22, 1988.In the interim three-year period, Jones continued to complain of back pain.Nonetheless, Dr. Kepley assumed Jones' problem was now "postural" in origin.When she complained that she could not bear to sit at a typewriter for more than one and one-half hours, Dr. Kepley reassured her that "it would merely take more time for her to build up tolerance for an eight hour day."When her complaints continued, Dr. Kepley prescribed a physical fitness and strengthening program.Afterward, when Jones still complained of back pain, Dr. Kepley prescribed only a mild pain reliever, Motrin.It was only after Dr. Kepley took new x-rays in 1988 that he recognized that her fracture had never healed.

Meanwhile, she tried to return to secretarial work.She went back to Superior Staffing, her employer at the time of her injury.The temporary secretary agency accommodated Jones, assigning her to an office where she could set her own hours, not carry objects, bend, or stand for an extended period of time.Despite these accommodations, Jones found that she could not meet even the lenient demands of this position: "[F]or every 4 hrs worked, I spent 18 on ice & flat on back, and spasms got worse."On December 3, 1986, she stopped working altogether.

For the next year, Jones led a sedentary life, resting in her apartment.She continued to assert that she was experiencing back pain.Even climbing the stairs to her second-floor bedroom had become an ordeal.³By the end of the year, her savings had dwindled to $20 in her bank account, and she turned to her daughter for financial support.⁴On December 7, 1987, she filed for disability benefits with the Secretary.She explained:

I tried, and wanted to work, but condition seemed to worsen.I can still not sit for more than 2 hrs. in a straight position--Must recline.Bending or reaching to file even causes much pain....

While awaiting the Secretary's decision on her disability claim, she returned to Dr. Kepley on February 22, 1988.Dr. Kepley took the first x-rays of Jones' spine in nearly three years.On this basis, he determined that 60 to 70 percent of her fourth thoracic vertebrae had collapsed in the interim.Moreover, he found that her upper back was contorted by thoracic kyphosis into a "hunchback."He noted that any "flexion of the spine" was "very painful."

While Dr. Kepley informed the Secretary of his new diagnosis, it still denied the application on March 9, 1988.On April 15, 1988, Jones moved for reconsideration of the decision, explaining:

[T]he pain in my upper back is so severe I could not hold a full time job.A fracture in the spine was misdiagnosed & mistreated--healed improperly.

Her request was denied; she then moved for an administrative hearing.

B.The Administrative Hearing

The administrative hearing was held on February 9, 1989.Jones was the only person to testify, stating that her back "hurts all the time;" the pain was relieved only by lying down with an ice pack pressed against her back.She also testified that she could not sit down in a straight chair for more than ten minutes before experiencing a "great deal of discomfort."As for secretarial work,

I would type about 10 minutes and that was it and I went laying down.I mean it was, I was actually in tears by the time I got done doing it ... because my back hurt so much, can't sit that straight.

Her testimony comported with a condition of a very painful nature.Experiencing severe pain when she stood or sat down for any extended period of time, Jones spent her waking hours in a reclining position.As she had no assistance, she bathed herself with the use of an apparatus attached to the bathtub, and prepared meals in a microwave.She said that her daughter visited her once a week, and together they shopped for groceries.Otherwise, she lived a sedentary life.She rarely left her apartment because she did not drive, there was no public transportation nearby, and even walking a short distance was difficult.In the winter, she tried to stay inside for she was "scared to death of walking on ice."

In addition to her own testimony, medical reports were submitted into evidence.Dr. Kepley opined that she was suffering from the collapse of 60 to 70 percent of her vertebrae and thoracic kyphosis.Dr. Apte, who regularly saw Jones for other ailments, reported that the patient consistently complained of back pain.He added that she also suffered from chronic migraine headaches, mild hypothyroidism, and mild hypertension.His associate, Dr. Susan Yeahley, conducted her own examination, and agreed with Dr. Apte's diagnosis.There was no countervailing medical testimony.

Nonetheless, the administrative law judge denied benefits, giving the following reasons for his determination:

Three separate attending physicians, Doctors Apte, Kepley and Yeahley indicate in effect, that claimant is "unemployable because of the fracture of the fifth dorsal vertebra, migraine headaches and essential hypertension.However, the objective findings they offer in support of their condition [sic] concerning claimant's employability are scant, and fail to support either their glib opinions or claimant's allegations."

Jones requested review by the Appeals Council.For this purpose, Dr. Kepley re-examined her and provided the following report:

Thus far, everything we have done has failed to relieve her symptoms.The spinal orthosis which was recommended and ordered did not control symptoms and was not well tolerated by the patient.She is also having difficulties with her right knee and left ankle, both of which are contributing to the back problem and making it extremely difficult for her to do any activities which require standing, walking or even sitting for any length of time.We have recommended that she utilize a cane or walker on a consistent basis, as being the only means to support the spine for upright activities.She has also been continued on Ibuprofen medication for pain relief and as an anti-inflammatory.We expect that her condition will continue on a permanent basis as there is no other medical or surgical remedy that can help her out of this current dilemma.(emphasis added).

The ...