Loza v. Apfel, 98-50892

• Decision Date: 13 July 2000
• Docket Number: No. 98-50892,98-50892
• Citation: 219 F.3d 378
• Parties: (5th Cir. 2000) FIDEL G. LOZA, Plaintiff-Appellant, v. KENNETH S APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 378

219 F.3d 378 (5th Cir. 2000)

FIDEL G. LOZA, Plaintiff-Appellant, v. KENNETH S APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 98-50892

UNITED STATES COURT OF APPEALS, Fifth Circuit.

July 13, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court For the Western District of Texas.

Before DUHE, BARKSDALE and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The Commissioner of Social Security, concluding that Fidel G. Loza ("Mr. Loza") was not disabled within the meaning of the Social Security Act, denied his claim for Social Security disability insurance benefits. See 42 U.S.C. § 423 (1991). Mr. Loza brought an action in the district court for judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g) (1991). The parties consented to have the case reviewed by a magistrate judge who affirmed the Commissioner's decision. Mr. Loza appealed. We reverse the district court judgment and remand the case for further proceedings as set forth in the conclusion of this opinion.

I. FACTUAL BACKGROUND

Fidel G. Loza was born on July 26, 1949. He completed elementary and secondary schools through the ninth grade and later obtained a G.E.D. He studied drafting at A.C.C. (Austin Community College) for three years but did not complete the course. The record does not reflect his work experience prior to military service. Mr. Loza served on active duty in the United States Army in Vietnam during the war from July 2, 1969 to July 1, 1970. He served in combat and was wounded three times in the line of duty. After his military service, he was employed by Glastron Boat Works from 1970 to 1973. Following that he worked sporadically as a used car lot porter and as a kennel attendant. In 1973 or 1974 the Veterans Administration (VA) determined that Mr. Loza was 100 percent permanently disabled, service connected, and therefore entitled to veteran's disability benefits. Mr. Loza has not engaged in any substantial gainful activity since 1975.

Mr. Loza applied for Social Security disability insurance benefits on June 10, 1993 when he was 43 years old. His claim was denied at the initial determination level in 1993. Upon his request, he received a hearing before an Administrative Law Judge (ALJ) on November 18, 1994. The ALJ decided on September 28, 1995 that Mr. Loza was not entitled to a period of disability or to disability insurance benefits under Sections 216(i) and 223 of the Social Security Act. The Appeals Council denied his request for review on October 22, 1996, and the district court, by a magistrate judge's decision, affirmed the Commissioner's determination on August 14, 1998.

Mr. Loza's Social Security earnings record establishes that he was insured for the purpose of entitlement to a period of disability and disability insurance benefits through June 30, 1980. In order for him to be entitled to benefits, it must be established that he had a disabling impairment or combination of impairments on or between April 27, 1979 and June 30, 1980. Due to the unusually detailed nature of Mr. Loza's medical records and the value of both prospective and retrospective medical evidence, see Ivy v. Sullivan, 898 F.2d 1045, 1049 (5th Cir. 1990); Rivas v. Weinberger, 475 F.2d 255, 258 (5th Cir. 1973), a comprehensive summary of the claimant's medical records follows.

During Mr. Loza's active duty military service in Vietnam from July 2, 1969 to July 1, 1970, his left leg and other parts of his body were injured by shrapnel in a booby trap explosion in January 1970. He sustained a gunshot wound to his left loin and abdomen in May 1970. On another occasion his leg was pierced by a punji stick. After being evacuated from Vietnam to the United States in 1970, Mr. Loza received treatment for his injuries and their sequela in VA hospitals.

From 1970 to the date of the 1994 ALJ hearing, Mr. Loza received treatment, medications, and therapy at VA hospitals for Organic Brain Syndrome ("OBS"), Post Traumatic Stress Disorder ("PTSD"), anxiety, insomnia, headaches, arthritis, elbow surgery, and pain in his upper and lower back. According to the VA records he reported that he had hallucinations, nightmares, and flashbacks related to the Vietnam war, as well as memory loss, hearing loss, concentration loss, lack of anger control, domestic conflicts with his wife and children, and withdrawal from social contacts.

Mr. Loza apparently has never been examined, treated or evaluated by any physician other than the VA doctors. The medical evidence of record consists only of copies of the VA records pertaining to his hospitalizations, examinations, treatments and therapy related to his 100 percent service connected disability and other medical problems. The Commissioner and the ALJ did not have Mr. Loza medically examined or evaluated for the purpose of determining whether he is entitled to Social Security disability insurance benefits.

The VA hospital and medical facility records reflect that, on March 21, 1974, Dr. R.W. Gaylord, M.D., examined Mr. Loza and diagnosed him as having chronic brain syndrome and psychosis due to trauma. The doctor also noted that Mr. Loza had left flank and lumbar-sacral pain for which he had been hospitalized twice since 1970. Dr. Gaylord found that some of his symptoms were not related to a detectable anatomical abnormality and concluded that Mr. Loza was in need of psychiatric evaluation and medications. He ordered that Mr. Loza be admitted to the VA hospital psychiatric ward.

When a psychiatric ward bed became available on April 8, 1974, Mr. Loza was admitted to the VA Center (Olin R. Teague Veterans Hospital) in Temple, Texas. His medical history indicates that he complained of pain in his left side which began after he was wounded by gunshot in Vietnam in May 1970. He also reported a burning sensation in his side when he lifted 25 to 50 pounds; pain in his upper and lower back; headaches from stooping that started after his injury by a booby trap explosion in Vietnam in January 1970; pain caused by shrapnel in his left foot and other parts of his body; insomnia due to the pains in his side and back; easily aroused anger; auditory and visual hallucinations in 1970 after his evacuation from Vietnam; and a recurrence of a hallucination six months prior to his hospital admission.¹

Dr. H.P. Reveley, M.D., noted during his examination of Mr. Loza at the VA hospital on April 9 and 10, 1974 that the veteran's interpretation of proverbs implied impairment of his abstract thinking; that Mr. Loza reported trouble with his hearing that required persons speaking to him to sometimes repeat questions 3 to 4 times; that Mr. Loza was said to be service-connected for chronic brain syndrome² due to trauma with headaches, tinnitus,³ and post traumatic nervous condition⁴; that he sustained a gunshot wound to the left loin and abdominal region in May 1970, had multiple metallic fragments in the arms and legs from the booby trap explosion in May 1970, and had a small stab wound to the left leg; and he may have had allergic reactions to medication received in Brooke General Hospital in 1970. The initial impressions of Dr. Reveley were: "(1) chronic brain syndrome secondary to trauma, remote (s.c.) [service connected]; and (2) scars, left flank and lateral abdominal muscles from prior gunshot wound."

Mr. Loza was discharged from the VA hospital in Temple, Texas on April 25, 1974. Dr. Reveley recorded the following diagnoses upon discharge: "(1) nonpsychotic brain syndrome due to trauma, remote (s.c.) [service connected]; (2) weakness of left flank and lateral abdominal muscles (s.c.) [service connected]; and (3) adjustment reaction of adult life with marital conflicts." The previous day Dr. Reveley had entered a provisional diagnosis of Mr. Loza's condition as "Severe anxiety/chr. brain syndrome."

Dr. Reveley's report also noted that Mr. Loza suffered from depression and nerve disorders and that antipsychotic medications were prescribed for him. Mr. Loza was placed on Haldol⁵ and advised to take 2 mg at bedtime. Dr. Reveley noted that Mr. Loza "required hospitalization for treatment of his nerves throughout." Mr. Loza admitted to bouts of depression every day but denied suicidal ideation. While in the hospital he participated actively in group therapy conferences. Because Mr. Loza did not want to remain in the hospital for psychotherapy, he was referred to the human development center at the MHMR center in Travis County, Austin, Texas. He was to return to see Dr. Reveley in 28 days for follow-up treatment for his service connected, nonpsychotic OBS. Although he was considered competent to handle funds due him, he needed a 90 day period of convalescence.

On April 25, 1974, Dr. Reveley stated that Mr. Loza "cannot return to full employment." He further noted Mr. Loza's physical problems: pain in lumbosacral area, weakness of left flank and left lateral abdominal muscles, burning in side upon lifting 25 to 50 pounds, lower and upper back pain. Dr. Reveley noted that Mr. Loza had been hospitalized in July 1973 with similar complaints. An orthopedic specialist reported to Dr. Reveley that Mr. Loza's lack of musculature in the left flank created a postural problem which resulted in pain in Mr. Loza's left lumbar area. Dr. Reveley noted that Mr. Loza had been referred for physiotherapy, and that an X-ray of the "lumbosacral spine" on August 8, 1973 showed metallic fragments in left flank. An X-ray of the "cervical spine" showed loss of cervical lordosis.

Mr. Loza was examined and treated by Dr. Reveley at the VA hospital on November 22, 1974, February 7, 1975, and June 26, 1975. He complained of worsening headaches, sore left shoulder, anxiety, hyperventilation, vertigo as in Meniere's syndrome, and poor hearing since the 1970 booby trap explosion. Dr. Reveley prescribed Haldol and Darvon⁶ for Mr. Loza's conditions on each visit.

Mr. Loza was seen by someone named...