King v. Heckler, 83-3516

• Decision Date: 30 August 1984
• Docket Number: No. 83-3516,83-3516
• Parties: , Unempl.Ins.Rep. CCH 15,520 Robert B. KING, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 968

742 F.2d 968

6 Soc.Sec.Rep.Ser. 287, Unempl.Ins.Rep. CCH 15,520

Robert B. KING, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 83-3516.

United States Court of Appeals Sixth Circuit.

Argued May 2, 1984.

Decided Aug. 30, 1984.

Sanford A. Meizlish, Barkan & Neff Co., L.P.A., Lawrence J. Ambrosio, argued, Columbus, Ohio, for plaintiff-appellant.

Joseph E. Kane, Linda Tucker, argued, Asst. U.S. Atty., Columbus, Ohio, for defendant-appellee.

Before JONES and WELLFORD, Circuit Judges, and TIMBERS, Senior Circuit Judge. ^*

TIMBERS, Senior Circuit Judge.

Appellant Robert B. King commenced this action in the district court pursuant to Sec. 205(g) of the Social Security Act as amended, 42 U.S.C. Sec. 405(g) (1976 & Supp. V 1981), to review a final determination of the Secretary of Health and Human Services (Secretary) which denied his application for disability insurance benefits. The court, John D. Holschuh, District Judge, took on submission cross motions for summary judgment. In an opinion filed May 31, 1983, the court granted the Secretary's motion, denied appellant's motion, and affirmed the decision of the Secretary. From the judgment entered thereon, this appeal has been taken. We reverse and remand for an award of benefits.

I.

At the time of filing his application for disability insurance benefits on November 7, 1980, appellant was thirty years of age. He lived in Cambridge, Ohio, with his wife and two children. He had been born in Ohio. He completed his education through the twelfth grade. Since 1968, he had worked at various jobs, including a baker's assistant, truck driver, grave digger, security guard sergeant, janitor and busboy. His primary work experience had been as a grave digger, in which capacity he had been employed from September 1970 to June 1974; and as a security guard sergeant from June 1977 to October 20, 1980--just 18 days prior to the filing of his application. The security guard position consisted of filling out reports, supervising other employees, and a substantial amount of standing and walking.

Appellant's claim of disability is based on his assertion of constant and debilitating back pain in the lumbar sacral region resulting from what various medical doctors have diagnosed as degenerative disc disease. Appellant claims that he first injured his back in 1972 when he fell from a truck while unloading a lawn mower. His back was X-rayed at that time, but he sustained no injury that prevented him from returning to work. He experienced no significant back pain again until June 1974, when he ruptured a disc while digging a grave.

Appellant at that time was hospitalized at Doctor's Hospital North, in Columbus, Ohio. His treatment at first consisted of myelography, spinal fluid analysis and traction. Eventually, it was determined that his condition required surgery. Dr. Hawes performed a lumbar laminectomy in July 1974. Appellant did not experience much relief from pain after this first operation.

He underwent a second back operation in March 1975, again performed by Dr. Hawes. This operation did relieve some of his pain.

Appellant continued to receive various treatments during the next two years to relieve the pain he still experienced. During this time, he received workmen's compensation benefits since he was temporarily totally disabled. In June 1977, he commenced work as a Pinkerton security guard.

In July 1978, appellant slipped and fell on wet grass. This accident aggravated his back condition. After receiving treatment, however, he returned to work. He continued to work until October 20, 1980. At that time, the pain became so acute that he could no longer continue to do the standing and walking that his job required. He was hospitalized on October 24, 1980. He received treatment consisting of supportive analgesics, muscle relaxants, pelvic traction and physical therapy. He was discharged on October 31, 1980.

Appellant's claim for disability insurance benefits, filed November 7, 1980, was denied without a hearing on January 29, 1981 on the grounds that he retained normal muscle strength, sensation and reflexes; he suffered only minor limitation on range of movement; and he therefore could return to his security guard work. He applied on March 20, 1981 for reconsideration of the disallowance of his application. This was denied on March 26, 1981, again without a hearing. On June 19, 1981, appellant requested a de novo hearing before an administrative law judge (ALJ).

Appellant appeared before an ALJ on November 13, 1981, at 9:00 a.m. The hearing lasted for one half hour. During the hearing appellant alternately sat and stood, this being necessary to relieve the pain he felt while in any one position for too long. He was the only person who testified at the hearing.

Appellant testified that he was "never without pain", that he could not stand up straight, and that the pain frequently shot through his left leg, occasionally to his right leg. At the time he was suffering from three or four headaches a day, which he was able to relieve only by taking pain killers and lying down. He testified that he could walk only about one half block at a time, and that he required a "Canadian Crutch". He could neither sit nor stand for more than ten to fifteen minutes at a time. He testified that, during the 85 mile drive with his wife to the hearing, they had to stop more than once to allow him to get out of the car. He testified to having difficulty getting in and out of the bathtub without help, tying shoes, and putting on his trousers. He spent between ten and fourteen hours a day lying down, which he found the least painful position. He did no housework, could not lift anything of any significant weight, and left his house only infrequently. He testified to taking Percodan and Diascephen for the pain.

In addition to appellant's own testimony, several medical reports were submitted to the ALJ. The first report was that of appellant's treating physician, Dr. W.A. Larrick, of Cambridge. Dr. Larrick, a general practitioner, had been treating appellant since March 3, 1973. On November 24, 1980, when he filled out a Medical Questionaire furnished by the Ohio Bureau of Disability Determination, Dr. Larrick was seeing appellant twice a week. He reported that on October 20, 1980 appellant had sustained an acute relapse of his degenerative disease of the lumbar spine. Further, he reported that appellant suffered from "severe low back pain with muscle spasms."

A second, updated report by Dr. Larrick was submitted to the ALJ on November 17, 1981--four days after the hearing. In this report, Dr. Larrick related that he had reclassified appellant as permanently totally disabled for workmen's compensation purposes in October 1981. He stated that appellant's spine was frequently spastic and withdrawn. He noted, however, that his bad headaches had subsided in both frequency and intensity. He reported that any relief of appellant's pain could be only temporary. He concluded that

"I have reviewed the listing of impairments and it is my opinion that Mr. King's disability would be the 105C category. It is my opinion that he is permanently and totally disabled and restricted from performing any gainful employment."

A third medical report submitted to the ALJ was the Discharge Summary completed by Dr. J. Martz, who reported on appellant's hospitalization during the last week of October 1980. Dr. Martz found positive leg maneuvers limited by pain to 60 degrees on the right and 45 degrees on the left. He also found that appellant had limitation of motion in the lumbar spine and tenderness to palpatation in the sacroiliac and lumbar joints. He further found that muscle testing was "within normal limits", distal pulses were "intact", and "no reflex changes were noted". Dr. Martz treated appellant with analgesics, muscle relaxants, pelvic traction and physical therapy. His final diagnosis was acute lumbar nerve root irritation due to nerve root adhesions on the left side.

The fourth medical report submitted to the ALJ was that of Dr. M.A. Shahabi of Zanesville, Ohio. He was an electromyographer-physiatrist designated by the Secretary to conduct a consultative examination of appellant. Dr. Shahabi saw appellant on January 22, 1981. His report was dated the following day. He noted appellant's limping gait, favoring his left leg. He reported that the lumbosacral area was tender to palpation, and that the range of motion in that area was limited by pain to 30 degrees flexion, five degrees hyperextension, and ten degrees lateral rotation and bending. According to Dr. Shahabi, appellant had sustained no muscle wasting or atrophy. He graded appellant's muscle strength in his upper and lower extremities, on a scale of one low and five high, as a five. Appellant's deep tendon reflexes were reported to have moderately decreased, down to two-plus (on the same scale). Sensation in appellant's left leg was decreased to pinprick, not related to dermatomes. In the sitting position, appellant could raise both of his legs up to 60 degrees. In the supine position, he could raise his left leg to 30 degrees, his right to 60. An X-ray report attached to Dr. Shahabi's report stated that the heights of the vertebral bodies were normally maintained, and that a transitional vertebral body was located at L5 with the L5-S1 disc narrowed. Dr. Shahabi's diagnosis, like that of the other physicians, was that appellant was suffering from a degenerative disc disease of the lumbosacral spine. He stated that no ambulatory aids were necessary.

On December 28, 1981, the ALJ filed his eight page decision. After reviewing the evidence, he concluded that appellant's condition did not meet ¹ the listed impairment at 1.05(C) of Appendix 1 of the Secretary's regulations. Turning to a determination of whether appellant had any residual functional capacity to work, the ALJ...