Manigan v. Califano, Civ. No. 77-1197.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: WESLEY E. BROWN
• Citation: Manigan v. Califano, 453 F.Supp. 1080 (D. Kan. 1978)
• Decision Date: 13 June 1978
• Docket Number: Civ. No. 77-1197.
• Parties: William F. MANIGAN, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

453 F. Supp. 1080

William F. MANIGAN, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

Civ. No. 77-1197.

United States District Court, D. Kansas.

June 13, 1978.

COPYRIGHT MATERIAL OMITTED

D. Stewart Oswalt, Hutchinson, Kan., for plaintiff.

Stephen K. Lester, Asst. U. S. Atty., Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

WESLEY E. BROWN, District Judge.

Plaintiff brings this action to seek judicial review of the denial of his two claims for benefits; one for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq.; the other for supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1381 et seq. The denials are the "final decisions" of the Secretary and therefore this Court may undertake limited review under 42 U.S.C. §§ 405(g) and 1383(c)(3).

On May 7, 1976, plaintiff filed an application (Tr. 90-93) to establish a period of disability and to obtain disability insurance benefits, 42 U.S.C. §§ 416(i) and 423. The application received consideration and reconsideration by the Social Security Administration (Tr. 96-97, 101) and the claim was denied.

On the same date, plaintiff filed his application for supplemental security income disability benefits, 42 U.S.C. § 1381a. This application was also denied on reconsideration by the Social Security Administration on September 21, 1976 (Tr. 108).

On January 28, 1977, at plaintiff's request, a hearing was held, at which he appeared and testified. Plaintiff was represented by counsel at the hearing. On February 11, 1977, the Administrative Law Judge ALJ made a determination unfavorable to plaintiff. He found that plaintiff was not under a "disability" as defined in the Social Security Act, as amended. Thus, plaintiff was not entitled to a period of disability or to disability insurance benefits under 42 U.S.C. §§ 416(i) and 423, or to supplemental security income under 42 U.S.C. § 1381. On March 21, 1977, the Appeals Council of the Social Security Administration affirmed the hearing determination (Tr. 5). Thus, the determination of the ALJ stands as the final decision of the Secretary. This action was filed May 20, 1977. Plaintiff asserts that there is no substantial evidence to support the Secretary's decision.

Defendant has filed a motion for summary judgment on the pleadings currently on file in this action and the certified transcript of the record of proceedings relating to plaintiff's claim. For the reasons stated herein, we grant the motion.

The facts as outlined in defendant's brief are not in dispute. In summary, the facts indicate that plaintiff has worked primarily at manual labor, including house mover, ranch work, elephant trainer for circus, steel buffing and spraying, and scooping meat for Winchester Packing Company. Plaintiff finished eighth grade in school and has no further education. His verbal I.Q. testing in 1976 was 72. He was born August 27, 1923. In his application for benefits, plaintiff stated that he became unable to work in November 1974, at age 51, because of two hernias. There is no indication in the record that plaintiff has had any employment since November 1974.

Plaintiff testified about his physical condition at the hearing of January 28, 1977, before the ALJ. He stated that he had been injured on at least four different jobs, once injuring his coccyx (tailbone), twice his back and lastly his abdominal muscles. He complained of pains in the chest, back, and stomach, not fully relieved by medications. He stated that his spine aches and spreads to his arm, neck, and right leg and calf. Because of his multiple pain, he felt that he was unable to sit or stand for very long, could not bend, lift, stoop or walk more than one-half block. He said that he uses a walker to get around.

Plaintiff was admitted at Hutchinson Hospital, Hutchinson, Kansas, on February 14, 1974, for evaluation of recurrent headaches. Examination and tests showed that plaintiff had a hiatal hernia. Dr. J. E. McMullen, a surgeon, performed surgery to repair the hiatal hernia. Recovery from surgery was uneventful (Tr. 167). The headaches were thought to be due to tension. When questioned about plaintiff by the Social Security Administration in June, 1976, Dr. McMullen stated that he did not feel that plaintiff's current complaints were due to the hiatal hernia or the repair of it. He felt it was doubtful that plaintiff would ever seek gainful employment on his own initiative.

Plaintiff was admitted to the Hutchinson Hospital again on April 7, 1974, complaining of abdominal pain of acute onset. Final diagnosis was acute gastroenteritis (inflammation of the stomach and intestines). X-rays showed some degenerative changes in the dorsal spine. (Tr. 168-174).

On October 30, 1974, plaintiff was admitted to Hutchinson Hospital complaining of acute epigastric pain (pain in the upper abdomen). Plaintiff stated that he was injured while scooping meat at Winchester's Packing Company. The final diagnosis was strain of the abdominal rectus muscle and mild anxiety depression. (Tr. 175-181).

Plaintiff was admitted to Hutchinson Hospital on November 26, 1974, again complaining of epigastric pain. The only significant physical finding was marked tenderness in the epigastrium. The final diagnosis was abdominal pain and anxiety depressive reaction. (Tr. 182-187).

On March 29, 1975, plaintiff went to the emergency room at Hutchinson Hospital complaining of pain in the chest and back. He said that he slipped and fell in the bathtub striking his upper back and the side of his chest against the tub. No deformity of the spine or back was noted. Fractured ribs were ruled out and the diagnosis was contusion of the back and chest wall. (Tr. 188).

Dr. Jerold Dee Albright, a general practitioner and plaintiff's personal physician in Hutchinson, referred plaintiff to Dr. J. W. Butin, a gastroenterologist, for evaluation of complaints of chest and abdominal pain. On March 31, 1975, plaintiff was admitted to St. Francis Hospital under Dr. Butin's supervision, and remained there until April 10, 1975, undergoing extensive testing and examination. (Tr. 189-204).

During plaintiff's hospitalization he complained of headaches and weakness in the extremities with arm and leg aches following exertion. He also admitted to depression accompanying his problems with health and financial affairs. Plaintiff noted difficulty in sleeping and decreased appetite, and stated he had difficulty in getting his food down and pain in his chest after eating. On physical examination, plaintiff was well developed, well nourished, and appeared not to be in acute distress. Significant physical findings were some prominence of duodenal folds, possibly related to inflammatory disease, a transient stricture (occasional spasm) in the esophagus, and diverticula (pockets in the membrane) in the descending and sigmoid colon. Dr. M. B. McKee, who evaluated plaintiff's heart, found that he did not have significant angina. Dr. John Pearson was consulted concerning psychological profile. Plaintiff's verbal I.Q. tested 72. Dr. Pearson felt plaintiff fit the pattern of a hard working, intellectually and emotionally marginal individual who was denied and postponed his own dependency needs, but given in to them once he had found a socially acceptable rationale for doing so. Dr. Pearson stated that plaintiff had strong unconscious motivations to prolong his convalescence, and characterized plaintiff as undergoing a massive somatization reaction (physical expression of psychological conflicts) partially masking depression. Final diagnosis was (1) abnormal esophageal motility, characterized by lack of peristaltic contraction in distal esophagus, probably secondary to vagal denervation (problems with food moving through the esophagus), (2) no evidence of coronary eschemia (blood flow to heart is normal), (3) massive somatization reaction with underlying depression, (4) diverticular disease of left colon, and (5) hypertriglyceridemia (fats in the blood).

On May 5, 1975, plaintiff was admitted to Hutchinson Hospital with pain in the right calf and in the left side of the chest. Thrombophlebitis (inflammation of a vein) in the right lower leg was diagnosed. Plaintiff responded quickly to anti-coagulant medication, and when he was discharged on May 15, 1975, he was totally free of symptoms. (Tr. 205-213).

In August, 1975, plaintiff was seen at Hutchinson Hospital for complaints of epigastric and lower chest pain. An upper gastrointestinal series disclosed a recurrence of a moderate sized sliding hiatal hernia with evidence of free esophageal reflux (back flow from stomach). Anxiety depressive reaction was also diagnosed. Plaintiff's condition improved and medication was prescribed. (Tr. 214-219).

A report of contact with Dr. Albright was made on September 10, 1975. Dr. Albright indicated that plaintiff suffers severe spasms of the abdomen, shortness of breath, and dizzy spells when he gets tense and angry. Dr. Albright indicated that plaintiff was not aware that his emotional tensions caused this difficulty. The report states that "Dr. Albright sees this man as an emotional cripple and he said the man has tried to get work, but people just will not hire him basically because they know that he will get these anxiety types of attacks and lose work." (Tr. 220) In a report June 7, 1976 (Tr. 222), Dr. Albright had the following to say about plaintiff's pain:

The severe intermittent abdominal pain has required hospitalization on a number of different occasions. . . . These pains can be extremely severe. They occur in the epigastric region and radiate up into his chest. Often they are associated with changes in position. He cannot tolerate any lifting whatsoever. At this point we know that he has a slight recurrence of his hiatal hernia. He has also developed a fairly large ventral hernia on the abdomen. He has been seen in

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