Mason v. Shalala

• Decision Date: 01 June 1993
• Docket Number: No. 92-5395,92-5395
• Citation: 994 F.2d 1058
• Parties: , Unempl.Ins.Rep. (CCH) P 17271A Harold MASON, Appellant, v. Donna E. SHALALA, Secretary of Health & Human Services, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 1058

994 F.2d 1058

41 Soc.Sec.Rep.Ser. 269, Unempl.Ins.Rep. (CCH) P 17271A

Harold MASON, Appellant, v. Donna E. SHALALA, Secretary of Health & Human Services, Appellee.

No. 92-5395.

United States Court of Appeals,

Third Circuit.

Argued Feb. 26, 1993.

Decided June 1, 1993.

Herbert L. McCarter (argued), Hackensack, NJ, for appellant.

Susan J. Steele (argued), Office of U.S. Atty., Newark, NJ, for appellee.

Before: HUTCHINSON and NYGAARD, Circuit Judges and POLLAK, District Judge. ^*

OPINION OF THE COURT

LOUIS H. POLLAK, District Judge.

Appellant Harold Mason appeals the decision of the United States District Court for the District of New Jersey affirming the final decision of the Secretary of Health and Human Services ("Secretary") to terminate appellant's disability insurance benefits.

I. Factual and Procedural History

Appellant Harold Mason, born on January 30, 1950, was hired by Martex Corporation in 1974 to work in shipping and receiving. On September 2, 1975, appellant suffered a severe back injury while on the job and was granted a period of disability. His disability benefits continued until March 1988 when, pursuant to a medical examination requested by the Secretary, the Secretary determined that appellant's medical condition had improved and that he was no longer disabled. Appellant requested reconsideration of the Secretary's decision, but reconsideration was denied on April 7, 1988.

A hearing on the termination of appellant's benefits was scheduled before Administrative Law Judge ("ALJ") Frederick Harap for October 31, 1988. Based on this hearing, ALJ Harap ruled on March 29, 1989 that appellant was no longer disabled and that he could be gainfully employed to perform light work. ¹ See Appendix ("App.") at 82-85. Appellant appealed, and on November 27, 1989 the Appeals Council vacated ALJ Harap's decision and remanded the case for further consideration. The Appeals Council found that ALJ Harap had failed to provide a detailed explanation for his conclusion that appellant's medical condition had improved and that, therefore, the decision could not be said to be supported by substantial evidence. See App. at 78.

ALJ Harap held his second hearing on the matter on February 16, 1990. During this hearing, appellant gave extensive testimony on his medical history and his physical condition.

Describing the then current state of his injury, appellant stated that he suffered from severe lower back pain radiating into his left leg down to his toes. According to appellant, the pain flared both at times of rest and activity and lasted for approximately an hour once it began. See App. at 95-96. Appellant explained that he had undergone two surgeries for his injury that had improved his condition slightly but had not eased the pain. See App. at 98-100. Appellant noted that since his last operation in 1975 he had not sought or received medical treatment, having allegedly been told by his then treating physicians that there was nothing else that could be done for him. Appellant testified that to combat his pain he was taking nonprescription pain relievers. See App. at 96. While he had taken a prescription muscle relaxant for a time, appellant stopped after his doctor supposedly advised him that he would become "allergic" to the medication. See App. at 96.

Appellant also testified as to his daily routine and his physical abilities. Whereas his job before his injury required that he stand a full eight hours and lift objects between 50 and 60 pounds, appellant testified that he could now only stand for 10 to 15 minutes and could only lift objects weighing two or three pounds. See App. at 99, 100. Appellant stated that he had difficulty walking more than a few blocks or sitting for longer than 15 to 20 minutes. See App. at 99-100. After sitting for these 15 to 20 minutes, his back and legs became stiff and he needed to walk for 10 to 15 minutes. See App. at 106. Appellant also testified that he had trouble bending and needed assistance putting on his shoes and clothes. See App. at 103. Appellant explained that, given his physical limitations, he spent his days--about seventeen waking hours between 5:00 a.m. or 6:00 a.m. and 10:00 p.m.--watching television, reading the newspaper and lying down. See App. at 105. According to appellant, he did not play sports, help in household chores or even engage in social activities. See App. at 100-105. Two or three times a week, appellant would drive his car for a distance of about five miles. See App. at 91.

Appellant testified that despite his injury he was able to return to work at Martex Corporation in a sheltered position in or around 1980. See App. at 118. According to appellant, he worked approximately two to three hours a day in a sitting job and was provided with a bed upon which he could lie when necessary. While appellant testified that he had the job for only a couple of weeks, App. at 107., it appears appellant continued in the job through 1981, see App. at 142, 187, 194, if not through 1984, see App. at 169.

In addition to appellant's testimony, ALJ Harap also considered medical evidence regarding appellant's physical condition. To assess appellant's current condition for signs of improvement, the ALJ needed first to review appellant's medical condition at a comparable point, which under the regulations was the date of appellant's last favorable medical decision finding him disabled. See 20 C.F.R. § 404.1594(b)(1) (1992). Here, that date was November 25, 1981 in a ruling by ALJ Howes. Appellant's medical condition was apparently described to ALJ Howes in the medical reports of Dr. John C. Pellosie and Dr. Carl E. Rothschild. ² Then, appellant's forward flexion was about 15 to 20 degrees and his lateral flexion was approximately 10 degrees. ³ See App. at 187, 194. Appellant stood erect, with a rigid back and with rigid legs. Both doctors concluded that appellant could engage in gainful employment. See App. at 188, 194. Dr. Pellosie completed a form suggesting, among other things, that appellant could walk, stand and/or sit for eight hours in an eight hour day, could lift 20 pounds frequently, could bend and stoop, and could pull. See App. at 188. Dr. Rothschild concluded that in the eight-hour work day, appellant could walk and stand for four hours intermittently, could sit for six hours intermittently, could lift up to ten pounds frequently, could carry up to ten pounds frequently, could climb stairs and ladders to a limited extent and could bend, stoop, push and pull to a limited extent. See App. at 194. Despite the medical evidence that appellant seemed able to perform sedentary work ⁴, ALJ Howes had nonetheless found that appellant was entitled to disability benefits. ALJ Howes concluded that appellant's sheltered job at Martex Corporation--a job appellant apparently had at the time of the hearing before ALJ Howes--was not "substantial gainful activity" under 20 C.F.R. § 404.1574(b)(2) since appellant earned less than $300 per month.

The evidence bearing on appellant's medical condition as of the time of the second hearing before ALJ Harap in February of 1990 consisted of three doctors' medical evaluations:

(1) At the behest of the Secretary, Dr. R. Bagner, a board certified surgeon, examined appellant on February 23, 1988. The examination appears to be the only time Dr. Bagner examined appellant. Dr. Bagner observed that appellant walked with a slow cautious gate, was able to get on and off the examining table without difficulty, was not uncomfortable in the seated position during the examination, could perform the heel-and-toe walk without difficulty, and got dressed and undressed without assistance. See App. at 164. Describing appellant's range of back motion, Dr. Bagner noted that appellant's flexion was "limited to 50 (degrees) by pain." See App. at 164. Dr. Bagner also noted that appellant's extension was zero, his lateral flexion 10 degrees to the left and right, and that appellant experienced pain in both the prone and seated positions after doing a straight leg lift of 50 degrees of the left leg and 60 degrees of the right leg. Dr. Bagner found no atrophying of appellant's gluteal, thigh or calf muscles, but found that appellant had no reflexes in his left ankle.

(2) On October 11, 1988 Dr. Regina Hillsman, an orthopedic surgeon who was not board certified, examined appellant at his counsel's request. Like Dr. Bagner, Dr. Hillsman found that appellant's flexion was 50 degrees. Appellant's lateral flexion was determined to lack 35 degrees on both the left and right side. Dr. Hillsman noted that appellant's reflex in the left Achilles was absent and that the left lower extremity presented paresthesia. ⁵ Dr. Hillsman commented that each of the maneuvers in the examination produced back, flank and gluteal pain in appellant, eventually causing increased spasticity in appellant's lower back such that Dr. Hillsman had to stop the examination briefly. After completing her examination, Dr. Hillsman concluded that appellant was "totally disabled overall and unable to function as [a] working unit." App. at 171.

(3) Finally, ALJ Harap had before him the medical report dated January 9, 1990 of a physician from the New Jersey Division of Vocational Rehabilitation. See App. at 176-177. The form report, responsive to a vocational counselor's inquiry asking the physician to "complete form and indicate how functional limitations are a handicap to employment." App. at 176, contained the following salient entries:

                FUNCTIONAL LIMITATIONS: (describe functional impairment)
                Standing:                No long period (> 1 hr.) at a time
                Walking:                 Minimal
                Climbing:                Minimal
                Stooping:                Unable
                Bending:                 Unable
                Lifting:                 Not over 20 lb
                Use of hands:            No pulling
                

App. at 177. Under the caption "DIAGNOSIS," the physician checked boxes characterizing appellant's disability as "a...