Lamb v. Bowen, 87-3114

• Decision Date: 16 June 1988
• Docket Number: No. 87-3114,87-3114
• Citation: 847 F.2d 698
• Parties: , Unempl.Ins.Rep. CCH 14006A James F. LAMB, A/N 252-48-2311, Plaintiff-Appellant v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 698

847 F.2d 698

21 Soc.Sec.Rep.Ser. 581, Unempl.Ins.Rep. CCH 14006A

James F. LAMB, A/N 252-48-2311, Plaintiff-Appellant v. Otis R. BOWEN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 87-3114.

United States Court of Appeals, Eleventh Circuit.

June 16, 1988.

R. Jeremy Solomon, Tallahassee, Fla., J. Christopher Deem, Barkan & Neff Law Offices, Tampa, Fla., for plaintiff-appellant.

Ross A. Nabatoff, Alan G. Burrow, Asst. U.S. Attys., Tallahassee, Fla., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY, Chief Judge, ANDERSON, Circuit Judge, and ALLGOOD ^*, Senior District Judge.

ALLGOOD, Senior District Judge:

James F. Lamb appeals from the order of the district court affirming the Secretary of Health and Human Services' denial of his claim for Social Security disability benefits. Because we find that the decision of the Secretary lacks the support of substantial evidence and the proper application of legal standards, we reverse and remand.

Appellant was born September 20, 1928, has a fifth grade education and past relevant work experience as a construction project engineer. Appellant ceased working following a fall from a ladder on October 13, 1982. The fall resulted in compression fractures of the twelfth thoracic vertebra and the second lumbar vertebra. Appellant was admitted to Tallahassee Memorial Regional Medical Center for treatment of this injury on October 13, 1982 and was discharged on October 21, 1982 following a course of treatment which included bedrest, limited activities, muscle relaxers, pain medications and, eventually, back exercises to be continued following discharge.

On October 29, 1982, Dr. William J. Hutchison, an orthopedic surgeon, examined appellant. Dr. Hutchison indicated that after appellant's back injury, the appellant suffered temporary neck pain. However, after the injury, appellant continued to have mid-dorsal and lumbar pain. Dr. Hutchison reported that appellant suffered no radiation of pain.

Dr. Hutchison's physical examination of appellant disclosed that appellant had a moderate dorsal kyphosis and lumbar lordosis and a fifty percent limitation of back motion in all directions. No appreciable muscle spasm existed and appellant suffered no pain on straight leg raising. Dr. Hutchison also reported that the x-rays taken at Tallahassee Memorial Regional Medical Center revealed a compression fracture of the twelfth thoracic vertebra and a fracture of the second lumbar vertebra. Dr. Hutchison could not discern the age of the fractures, and ordered a bone scan. The positive bone scan indicated fresh multiple fractures of the dorsal and lumbar spine. Dr. Hutchison advised appellant to restrict his activities for three months to allow the fractures to heal and to obtain a lumbosacral corset.

On April 25, 1983, Dr. Hutchison reexamined appellant. The appellant complained of pain at the lumbosacral joint. A physical examination revealed that the appellant suffered a marked round back deformity but was not tender over that area. Appellant, however, was tender over the lumbosacral joint area. Appellant could flex forward to within six inches of touching the floor and suffered weakness of the left extensor hallicus longus muscle and pain on straight leg raising bilaterally. Recent x-rays disclosed bilateral pars defects at the L5 with a minimal spondylolisthesis of two or three millimeters.

Dr. Hutchison opined on July 1, 1983 that the appellant's multiple compression fractures were not a problem. The doctor concluded that appellant was probably symptomatic on the basis of the minimal spondylolisthesis. Dr. Hutchison, therefore, believed that an electromyography and a different back support were necessary for treating appellant's spondylolisthesis.

On May 16, 1983, Dr. Max E. Burr of the Hughston Orthopaedic Clinic, Columbus, Georgia, examined appellant. Dr. Burr's physical examination revealed that appellant moved slowly but suffered no acute distress. No obvious spinal deformity existed. Appellant was tender to palpation from about the mid back to the lower back, but the palpation was ill-defined. X-rays revealed his compression fractures were healing. Dr. Burr concluded that the appellant suffered multiple compression fractures involving the lower thoracic and upper lumbar spine, approximately seven months old. Dr. Burr, however, could not determine the source of appellant's left leg pain. Dr. Burr recommended rehabilitative therapy.

In June 1983, Dr. Burr reexamined the appellant and concluded that appellant was improving. Appellant, however, still suffered pain. Dr. Burr still believed that rehabilitation constituted the most effective method to relieve appellant's pain. He also indicated at this visit that a return to any work was at least four to five months off.

On August 29, 1983, the appellant was seen again by Dr. Burr. At that time, the appellant was not improving. Appellant was still suffering left leg pain. The pain, however, was slightly improved. The doctor was unable to determine any neurological problems with the appellant, but appellant's compression fracture and left leg pain raised his suspicions. Dr. Burr suggested that appellant admit himself into a hospital for diagnostic studies.

On September 19, 1983, the Doctors Hospital, Columbus, Georgia, admitted appellant for diagnostic tests. The physical examination revealed an individual with no acute distress. Appellant moved slowly but easily. Appellant suffered increasing tightness in the lower thoracic region near the thoracolumbar junction and mild, vague tenderness to palpation about that area. No definite evidence, however, of sciatica, nerve root irritation, or neurological deficit existed. The origin of appellant's left leg pain was not determined, but it was concluded that a herniated nucleus polposus was not the source.

The hospital performed diagnostic tests. A lumbar myelogram suggested nerve root abnormalities on the right side. The abnormalities, however, were insignificant because the appellant suffered pain on his left side. A CT scan revealed a compression fracture of the T,12 vertebral body with an associated deformity of the epidural sac anteriorly. A bone scan indicated an abnormal uptake corresponding to compression fractures. The electromyogram was normal.

After the hospital performed the diagnostic tests, Dr. Burr informed appellant that there existed some evidence of pressure on the conus. He found no evidence of disk herniation. Dr. Burr decided to initiate physical therapy modalities consisting of heat, traction, dynawave and a Tens unit from which appellant obtained some relief. When the hospital discharged appellant, he was feeling considerably better. Dr. Burr decided to continue with observation and rehabilitation, but was unable to determine a disability or a prognosis for appellant.

On January 5, 1985, appellant returned to Dr. Burr. Intense muscle spasms were no longer a problem. Appellant continued to exercise and walk, but discovered that alleviation of pain was best accomplished by severely restricting his activities. Dr. Burr believed that appellant could not return to his usual and customary work. On June 19, 1984, Dr. Wilton R. Kane wrote a letter also indicating that appellant's activity restriction was not compatible with appellant's previous type of employment. On January 7, 1985, Dr. Burr opined that no further improvement could be expected and that appellant was permanently unemployable.

Appellant filed his initial application for disability and disability insurance benefits on June 23, 1983 claiming an onset date of October 13, 1982. The Social Security Administration denied appellant's initial application and his application for reconsideration. Appellant did not seek judicial review. On January 12, 1984, again claiming his back condition as the disability, appellant filed a second application for disability and disability insurance benefits. The Social Security Administration denied the second application and appellant's request for reconsideration. On April 30, 1984, appellant requested a hearing, and on June 19, 1984 an administrative law judge (ALJ) held a hearing. On August 8, 1984, the ALJ determined that appellant was entitled to disability benefits commencing October 13, 1982.

The ALJ determined that the medical evidence indicated that appellant suffered residual status post compression fractures of the dorsal lumbar spine, minimal spondylolisthesis, and severe residual pain syndrome. The ALJ determined that the appellant's pain allegations were credible and that the objective medical evidence supported them. Additionally, the ALJ determined that appellant's severe impairment prohibited return to his prior medium exertional work activity, and therefore, appellant's residual functional capacity was reduced to sedentary work activity. After considering appellant's residual functional capacity, his age, his education and his work experience, the ALJ determined that the appellant was disabled and entitled to benefits.

The Appeals Council reviewed, on its own motion, the recommended decision and, applying 20 C.F.R. Sec. 404.970(a)(3) (1986), determined that the decision of the ALJ was not supported by substantial evidence. The Secretary reversed the ALJ's decision. The Secretary, through the Appeals Council, determined that appellant suffered a severe skeletal impairment rendering him incapable of returning to his former employment and restricting his residual functional capacity to light work. The Secretary further concluded that appellant's pain allegations were inconsistent with the evidence. Moreover, the Secretary reasoned that appellant's skills were transferable to other jobs and, therefore, considering his residual functional capacity for light work, his age, his education and his work experience, the Secretary determined that appellant was not...