Lee v. Sullivan
| Decision Date | 12 August 1991 |
| Docket Number | No. 89-2861,89-2861 |
| Citation | 945 F.2d 687 |
| Parties | , Unempl.Ins.Rep. (CCH) P 16295A, 1 NDLR P 277 James D. LEE, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Margaret J. Krecke, Office of Gen. Counsel, Department of Health and Human Services, Philadelphia, Pa., argued (Beverly Dennis, III, Chief Counsel, Region III, Charlotte Hardnett, Chief, Social Sec. Litigation Div., Victor Jerry Pane, Asst. Regional Counsel, Office of Gen. Counsel, Department of Health and Human Services, Philadelphia, Pa., Michael W. Carey, U.S. Atty., and Stephen M. Horn, Asst. U.S. Atty., Charleston, W.Va., on brief), for defendant-appellee.
Before ERVIN, Chief Judge, and RUSSELL and SPROUSE, Circuit Judges.
The plaintiff, James D. Lee, appeals the affirmance by the district court of the Secretary's denial of his claim for Social Security disability benefits and Supplemental Security Income benefits under Title II and Title XVI, respectively, of the Social Security Act. The Secretary found that the plaintiff was not entitled by his alleged disability to either disability or supplemental security income benefits. The plaintiff disputes this finding as unsupported by substantial evidence. The district court considered that the Secretary's findings were supported by substantial evidence and sustained the Secretary's dismissal of the claim. We affirm this denial of benefits.
The plaintiff is a 46-year-old male who had been employed for some twenty years as a millwright or mechanic at the Celco plant of Celanese Incorporated in Narrows, Virginia. He discontinued such employment on November 5, 1986, because he allegedly became physically unable to perform his normal work duties at the plant. His primary physical complaint was later diagnosed as a Grade I spondylolisthesis. 1 Accordingly to his statement, this condition made it too painful for him to perform the normal lifting and bending requirements of his job. He traced his condition to an extreme jolt sustained by him while riding in a National Guard truck during reserve exercises in July 1986. He consulted Dr. Robert W. Sandell, a chiropractor in Union, West Virginia, about his condition on the day he discontinued work.
Dr. Sandell submitted a report on March 27, 1987, to the plaintiff's employer on his treatment of Mr. Lee up to that date. He summarized in this letter the result of the physical and x-ray examination of the plaintiff as revealing that the plaintiff's primary disability to be a "Grade I anterior spondylolisthesis of L5 on S1 [resulting in] ... a marked increase of the lumbosacral angle accentuated by poor posture and overweight, narrowing of L4/L5, L5/S1 intervertebral foramen and degenerative changes starting in the L5/S1 disc." He added that he had initially put the patient on treatment "of a conservative nature using mild chiropractic adjustments to improve neuromuscular skeletal function." At the time of this report, Dr. Sandell said "[t]he patient has made very good progress but still has some mild to moderate soreness in his low back which is aggrevated [sic] when he does any vigorous activities." Dr. Sandell referred to a fall on ice by the patient on February 23, 1987, which exacerbated somewhat his "symptoms that have not completely resolved." He concluded his report by stating that the patient's "symptoms have not cleared up enough to enable him to return to his normal work duties." He referred the patient to Drs. Louis P. Ripley and William A. Merva for further examination and diagnosis.
The record includes statements by both Dr. Ripley and Dr. Merva. In his statement, Dr. Ripley, a medical orthopedist, said that he had earlier seen the plaintiff in August of 1986 when he complained of "problems involving both of his knees ... and he was not incapacitated at that time." However, on referral he saw the plaintiff again on February 4 and 5, 1987. The plaintiff told Dr. Ripley at that time that he had "developed some increasing discomfort," had quit work on November 5, 1986 because of such discomfort, and had begun at that time a treatment prescribed by Dr. Sandell. This treatment consisted "of the use of an alignment machine, an adjustment, ultrasound, vibrating massage and exercise program" three times a week for three months and then two times a week. Clinical examination of the plaintiff revealed that his reflexes were "active and equal," his neurological examination was "negative," his "leg lengths [were] equal," Review of the x-rays showed "a Grade I spondylolisthesis with bilateral pars defect at the L-5, S-1 level." His complete diagnosis, based on both the clinical and x-ray reviews, was:
I would feel that this patient's major problem is that of a spondylolisthesis, Grade I which is, at this point, mildly symptomatic. I don't feel that manipulations would be beneficial at this time, but would rather suggest continued use of his exercise program to build up his own compensatory muscle strength. The use of a low back support on a symptomatic prn basis would be beneficial. The loss of some weight would certainly help as well. I would feel that this man would benefit from work that did not require extremely heavy lifting or bending and will so inform his employer's [sic] at Celanese with the hopes that he might be able to be assigned to selective work.
Dr. Merva, a neurologist, in his historical review of the plaintiff's condition, referred to the plaintiff's accounts of his fall on the ice and his involvement "in a trucking accident while in the National Guard" as factors exacerbating his back pain. Dr. Merva then diagnosed the plaintiff's "back and leg problems [as] most probably secondary to anterior spondylolisthesis of L-5 and S-1, especially because of the recent history of trauma." He recommended that if the plaintiff's pain continued, "myelography may be indicated ... [and] pt. might even be a candidate for spinal fusion." He also inquired of the plaintiff whether "returning to work would make the situation worse." The plaintiff's response was that "there is a lot of heavy work in his job and he feels this definitely makes his back pain worse." Dr. Merva agreed.
Dr. Merva again saw the plaintiff on April 22, 1987. At that time, a myelogram and CT scan of plaintiff's spine were performed. Other studies were also conducted, including "CBC and differential, sedimentation rate, RPR, creatinine, BUN, lytes, analysis of spinal fluid, and Chem-12." All such tests "were within normal limits with the exception of a mildly elevated blood sugar but the patient had an IV at the time." The "Principal Diagnosis" was spondylolisthesis.
On September 2, 1987, the plaintiff was seen by Dr. Yogesh Chand, an orthopedic surgeon. Dr. Chand examined the plaintiff and reviewed his medical record. He referred to the lumbar myelogram and CT scan performed "which showed no evidence of nerve root compression" and an EMG and nerve conduction study which showed no "evidence of nerve root entrapment." At the physical examination, the plaintiff "showed tenderness of the low back at the L5 sacral area with a palpable shift of L5 on sacrum." X-ray studies revealed His diagnosis was that the plaintiff had "a mechanical type of low back pain secondray [sic] to the spondylolisthesis at the L5 sacral level with degenerative changes there." He suggested the plaintiff might have a spinal fusion. "In terms of functional capabilities," he expressed the opinion that the plaintiff was "unable to do work that requires more than fifteen pounds of weight lifting on a continuous basis" and was incapable "of sitting, standing or walking for more than thirty minutes at a time."
The plaintiff was concerned about the recommendation of a fusion by Dr. Chand and Dr. Merva. He asked that an appointment be secured for an examination by the medical staff at Duke University Medical School. The appointment was made and an examination of the plaintiff was conducted at that institution. The result of such examination on January 14, 1988, was summarized in the report of Dr. William Richardson of the Hospital's orthopedic staff:
reveals an overweight white male in no acute distress. His gait is normal. He can heel and toe walk. He has mild tenderness to percussion of the left paralumbar muscles. Straight leg raising is negative both sitting and lying. He has good range of motion of the hips without discomfort. He can flex fingertips to mid thigh only. Extension is about 20 degrees of increased pain also. Motor is exam is 5/5. Deep tendon reflexes are symmetric. Sensation is intact to light touch and pin prick. X-rays revealed a Grade I spondylolisthesis with bilateral pars defects L5-S1. Report of myelogram and CT scan from April 1987 showed no evidence of nerve root impingement.
Dr. Richardson gave this "Assessment" of the plaintiff's condition: "Grade I spondylolisthesis L5-S1 with mechanical back pain." His "Recommendation" was:
I have discussed options with Mr. Lee. Currently, he would prefer to continue with nonoperative approach using a corset, exercise program and nonsteroidal medications. I think that age 46 and with primarily mechanical symptoms and a spondylolisthesis, that the potential benefit from decompression and fusion are significant. He elects in the future to have this procedure done. I would be happy to see him back. Currently, he is disabled being unable to lift anything greater than 15 to 20 pounds or stand, walk, or sit for more than 30 minutes at a time.
The plaintiff also sought VA disability benefits during this time. In connection with that claim, he was examined and...
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Issue topics
...chiropractor’s opinion). Fourth Circuit A chiropractor’s assessment can qualify, at most, only as a layman’s opinion. Lee v. Sullivan , 945 F.2d 687, 691 (4th Cir. 1991). Although a chiropractor’s opinion is not an acceptable medical opinion, chiropractors are specifically listed as “accept......
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Issue Topics
...chiropractor’s opinion). Fourth Circuit A chiropractor’s assessment can qualify, at most, only as a layman’s opinion. Lee v. Sullivan , 945 F.2d 687, 691 (4th Cir. 1991). Although a chiropractor’s opinion is not an acceptable medical opinion, chiropractors are specifically listed as “accept......