MacGregor v. Bowen, 85-3690

• Decision Date: 14 April 1986
• Docket Number: No. 85-3690,85-3690
• Citation: 786 F.2d 1050
• Parties: , Unempl.Ins.Rep. CCH 16,744 Dale J. MacGREGOR, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1050

786 F.2d 1050

13 Soc.Sec.Rep.Ser. 167, Unempl.Ins.Rep. CCH 16,744

Dale J. MacGREGOR, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary, Health and Human Services Defendant-Appellee.

No. 85-3690.

United States Court of Appeals Eleventh Circuit.

April 14, 1986.

James F. McKenzie, McKenzie & Assoc., Pensacola, Fla., for plaintiff-appellant.

Michael Finney, Asst. U.S. Atty., Pensacola, Fla., Christine Bradfield, Dept. of H.H.S., Atlanta, Ga., for defendant-appellee.

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

Before GODBOLD, Chief Judge, VANCE, Circuit Judge, and THOMAS ^*, Senior District Judge.

VANCE, Circuit Judge:

This case is an appeal of the denial by the Social Security appeals council of disability benefits to an arthritic claimant, Dale MacGregor. The case has traveled a complex path through two administrative law judges, three visits to the appeals council, and two district court proceedings before arriving here. MacGregor first applied for benefits in January 1981 alleging onset in December 1980 of disability due to rheumatoid arthritis and depression. After he was turned down he made an unsuccessful appearance before an administrative law judge (ALJ) and the appeals council. He then filed suit in the district court which found no substantial evidence to support the refusal of disability. The court ordered a remand because of improper treatment of MacGregor's depression claim and the lack of a vocational expert's testimony on the transferability of his job skills. The appeals council then vacated the previous decision and remanded the case to an administrative law judge to hear testimony from a psychologist and a psychiatrist on MacGregor's depression. He was also to hear from a vocational expert on the transferability of job skills and the availability of employment in the national economy for a person in MacGregor's situation. The ALJ was then to issue a recommended decision. In that decision the ALJ found MacGregor disabled back to December 1980 and recommended award of benefits. The appeals council incorporated by reference the ALJ's statement of the pertinent provisions of the Social Security Act, the issues in the case and the evidentiary facts but denied total disability. The appeals council found him severely impaired and unable to return to his previous work but found him physically able to take on sedentary jobs which exist in significant numbers in the national economy. MacGregor then filed suit in the district court, which referred the case to a magistrate. The district court accepted the magistrate's recommendation and affirmed the appeals council. This appeal followed.

I.

When he first applied for benefits in January 1981, Dale MacGregor was forty-seven years old with a master's degree in counselling. His previous work ran the gamut from marine collector to plumber to sailor-counsellor for troubled teenagers, all of which required moderate to heavy physical exertion. The counselling work also required intense mental concentration. MacGregor retired from the sailor-counsellor job, the last he has held, on the advice of his physician because his arthritis and depression made him unable to cope with either the physical or mental demands of the work. He testified in 1984 that his daily activities include dressing himself, watching TV, and talking to his children. He is occasionally able to drive short distances. He can neither stand nor sit for more than thirty minutes. He is unable to walk any distance. He is left-handed and finds the grip in his left hand has deteriorated. He has basically given up all physical activities because of his constant pain. He has on occasion had to be carried from his bed to the shower by his wife and children so that the hot water could loosen him up enough to be able to move. He testified to an inability to get through the day without one or more naps. His depression has made him unable to watch the news or read a newspaper without getting upset. Similar reactions to the problems of his patients were part of his decision to leave his counselling job.

The medical evidence relevant to his testimony begins in 1980 with findings by both a treating family practitioner and the Veterans' Administration of a history of rheumatoid arthritis. The VA granted him ten percent disability because of arthritis occurring in a Korean War wound. In January 1981 a rheumatologist, Dr. V. Lorraine Flatt, reported following MacGregor since 1979 due to joint pain and swelling and degenerative arthritis of the left shoulder. She saw him to be an early rheumatoid who, as evidenced by his long-term back problems, might also have spondylitis. Another rheumatologist, Dr. Diana Harris, reported polyarthralgia with a probable component of fibromalgia. She found that he had morning stiffness and difficulty in buttoning and writing. Dr. Leo Flynn, the only orthopedist to treat MacGregor, testified in 1981 that during a hospitalization he had found significantly restricted motion in MacGregor's neck and spine, radicular pain in the left upper extremity and one leg, one-third of normal spine motion, atrophy of the shoulder muscle, weakness in the shoulder blade and leg, muscle spasms, and reflex changes. Dr. Flynn had tomograms taken, which showed significant degenerative muscle and disc changes and worsening of arthritis. He testified that MacGregor would have frequent flareups requiring several days bed rest, severely interfering with the regular attendance required to hold down even a sedentary job. Dr. Mooneyham, a treating chiropractor, found degenerative disc disease and arthrosis as well as problems of pain, numbness, atrophy, swelling and lack of dexterity. He testified to finding a nucleus pulposis in the spine. He joined Dr. Flynn in testifying that MacGregor would be unable to hold down any full-time work. At the 1984 hearing before the second ALJ Dr. Flynn testified once again that MacGregor was in considerable pain from arthritis. He testified that both he and a consulting neurosurgeon, Dr. Kimbell, found that MacGregor had a ruptured disc in the neck and in the lower back. He further testified that MacGregor still had nerve root damage involving the C-5 and C-6 vertebrae in the neck and the fourth and fifth nerve in the back. A 1983 thermogram showed significant muscle spasm, trigger point and nerve root involvement. Flynn further testified to MacGregor's problems with depression and anxiety and stated that his medication would be expected to cause sleepiness and to interfere with his ability to think and concentrate. He explained that the medication could affect MacGregor's ability to make decisions and to react in certain situations. The ALJ took testimony from a consulting psychologist, Dr. Frank Brown, who interviewed MacGregor and gave him a battery of tests, including the Minnesota Multiphasic Personality Inventory. Based on his interview and the testing, Dr. Brown found plaintiff severely depressed and stated that his depression and low energy levels made appropriate interaction with supervisors difficult and any employment difficult to hold down. The ALJ also heard from a psychiatrist, Dr. K.D. Ragan, who found no psychiatric anomalies in MacGregor which would interfere with his reasoning or ability to follow orders. Finally, the ALJ heard from a vocational expert who stated that there existed jobs in the sedentary category that a person with MacGregor's exertional limitations alone could hold down. When the hypothetical was altered to include the likelihood of frequent arthritic flareups requiring several days' bed rest, however, the vocational expert stated that there would be no jobs available in the economy. He stated that the same lack of jobs would hold true if the claimant suffered side-effects from arthritis medicine sufficient to cause sleepiness or to compromise alertness or concentration levels, or where depression was significant enough to affect concentration levels or to interfere with appropriate relationships with supervisors and co-workers.

II.

The appeals council here decided claimant was disabled to the extent that he could no longer perform his previous work. Once that decision has been made the burden shifts from the claimant to the secretary to demonstrate that there are jobs in the national economy that claimant could perform with his degree of disability. Gibson v. Heckler, 762 F.2d 1516, 1518 (11th Cir.1985). The Secretary found that MacGregor had the ability to perform a full range of sedentary work. ¹ Our examination of the record shows no substantial evidence to support that finding.

Our review of the Secretary's decision ² is limited. Even if we find that the evidence preponderates against the Secretary's decision, we must affirm if the decision is supported by substantial evidence. 42 U.S.C. Sec. 405(g); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). Within this narrowly circumscribed role, however, we do not act as automatons. We must scrutinize the record as...