Lewis v. Heckler
| Decision Date | 08 January 1987 |
| Docket Number | No. 85-2514,85-2514 |
| Citation | 808 F.2d 1293 |
| Parties | , Unempl.Ins.Rep. CCH 17,122 James D. LEWIS, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert W. Pratt, Dis Moines, Iowa, for appellant.
Robert C. Dopf, Asst. U.S. Atty., Des Moines, Iowa, for appellee.
Before LAY, Chief Judge, and WOLLMAN and MAGILL, Circuit Judges.
James Lewis appeals from the judgment of the district court 1 entered in favor of the Secretary of Health and Human Services denying him disability benefits under 42 U.S.C. Sec. 423 (1982).
James Lewis is a fifty-four year old man who has work experience as a welder, millwright and layout person. He has had nine years of formal education but also earned his Graduate Equivalency Degree while in the service. In late 1981, Lewis suffered a heart attack and underwent open heart surgery. The surgery was successful and Lewis returned to work. Until December 1984, aside from some shortness of breath, Lewis suffered no serious side effects from either the attack or the surgery. At that time, Lewis claims he began to suffer chest pains which radiated down his left arm and made his left hand half numb, symptoms similar to those he experienced before his heart attack. A medical examination by Dr. Fouad A. Salama performed several weeks later, however, revealed no symptoms indicative of any impending complications.
Before the 1984 complications, on April 9, 1983, Lewis injured his back at work when he fell on his tailbone. This injury provides the primary basis for Lewis' disability claim. He was first examined by Dr. M. Flapan, a specialist in orthopedics, on April 18. X-rays revealed a cervical spondylosis at the C6-C7 level and degenerative disc disease in the L5-S1 interspace. His fall on April 9 aggravated these conditions. Dr. Flapan recommended that Lewis refrain from working for two weeks, and prescribed pain medication. Three subsequent examinations, however, on May 2, May 19, and June 6, revealed no improvement in Lewis' lower back. A CAT scan on June 9 suggested a herniated disc at the L5 level.
On June 22, 1983, Lewis was admitted to Iowa Lutheran Hospital. A myelogram performed by Dr. M.J. Quinn the following day revealed a marked bulging of the L4-L5 interspace and an amputation of the S1 nerve root on the left side. On June 24, Dr. Flapan gave Lewis Chymopapain injections at the L4-L5 and L5-S1 levels. Lewis was discharged a week later. 2
On July 22, 1983, Lewis informed Dr. Flapan that he no longer experienced pain or discomfort thanks to the Chymopapain injection, but Dr. Flapan determined that he was still disabled and unable to work due to the effects of that injection. Another follow-up examination on August 26, revealed complete relief of symptoms in Lewis' left leg, but discomfort in the right buttock and stiffness in the mornings. The doctor's opinion at that time was that Lewis was still disabled. On October 7, Lewis complained of low back discomfort radiating up between his shoulders, which Dr. Flapan attributed to difficulties relating to Lewis' colostomy. None of the above examinations, however, revealed any weaknesses in Lewis' legs.
On October 20, 1983, Lewis was examined by Dr. William Boulden, who believed that, given the nature of Lewis' problems, the wrong procedure had been performed. He believed that due to the substantial amount of foraminal stenosis present, Lewis would be a candidate for a laminectomy, the operation he should have had in the first place. Dr. Boulden confirmed this a month later after a second CAT scan had been performed. He recommended that Lewis undergo this procedure as soon as he had fully recovered from his bowel surgeries and received the approval of his cardiologist. Lewis has yet to undergo this procedure.
Lewis filed an application for disability benefits with the Department of Health and Human Services on January 16, 1984. Four days later he was examined by Dr. Flapan for the last time. Dr. Flapan refused to prescribe further pain medication for Lewis, due to Lewis' history of drug abuse, and noted that he had little more in the way of treatment to offer Lewis. On February 3, 1984, Lewis underwent a consultative examination by Dr. Fouad Salama at the request of the Secretary. Lewis explained to Dr. Salama that the Chymopapain injections initially relieved his discomfort, but that the back pain had returned and lately was getting worse. Dr. Salama found a marked narrowing of the intervertabral disc space at L5-S1 and, to a lesser degree, at L4-L5. Due to Lewis' back condition and pain, Salama gave him a guarded prognosis.
Another examination by Dr. Edward R. Posner on February 22, 1984, revealed that in Posner's opinion, Lewis was capable of frequent lifting and carrying of up to ten pounds, with a maximum lifting ability of twenty pounds; standing or walking up to six hours a day; sitting up to six hours a day; and occasional climbing, stooping, kneeling, and crouching. Dr. Posner concluded that Lewis was capable of performing light work activity as it is defined in 20 C.F.R. Sec. 404.1567(b) (1986). In a May 15, 1984, examination, Dr. William Minks reached the identical conclusions.
Based upon this information, Lewis' application for benefits was denied as was his request for reconsideration. He requested a hearing which was held before a Social Security Administration Administrative Law Judge (ALJ) on January 7, 1985. At the hearing Lewis testified that aside from the recent pain in his chest and left arm, he has experienced no cardiac problems since his bypass surgery. He testified that he does have back pain which increases upon bending and lifting, but has no problems stooping or squatting. Upon the advice of his heart doctor, he takes two mile walks four days a week and he is able to be on his feet up to three hours a day.
The ALJ found that Lewis' back problem prevented him from returning to his past relevant work as a welder, millwright, or layout person. He did find, however, without indicating whether the burden of proof had shifted to the Secretary, that Lewis had the residual functional capacity for moderate to heavy lifting and carrying, as well as frequent bending and was therefore capable of performing light work as defined in 20 C.F.R. Sec. 404.1567(b). He also found no significant nonexertional limitations. Accordingly, the ALJ applied the Medical-Vocational Guidelines (see 20 C.F.R. Part 404, Subpart P, Appendix 2 (1986)), and by finding that Lewis fell within the "closely approaching advanced age" category, had a high school education, and had previous work experience of a skilled nature, Rule 202.14 mandated a finding of not disabled. The district court affirmed the denial of benefits, holding that although the ALJ failed to expressly recognize the need for a shift in the burden of proof once Lewis proved he could no longer perform his past relevant work, this failure was harmless in this case since the record clearly indicated Lewis would have been denied benefits regardless of the allocation of the burden of proof. Lewis appeals.
It is well established that once a claimant proves to the ALJ that the claimant's impairment prevents him from returning to his past relevant work, the burden of proof shifts to the Secretary, who then has a duty to establish that the claimant is not disabled within the meaning of the Social Security Act, 42 U.S.C. Sec. 423 (1982). E.g., Tucker v. Heckler, 776 F.2d 793, 795 (8th Cir.1985). This court requires that the ALJ expressly recognize in his or her written decision that the burden of proof has shifted to the Secretary. See, e.g., Dover v. Bowen, 784 F.2d 335, 337 (8th Cir.1986). In cases where the ALJ fails to expressly recognize this shift, we will assume that the...
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