Milam v. Bowen
| Citation | 782 F.2d 1284 |
| Decision Date | 18 February 1986 |
| Docket Number | No. 85-4395,85-4395 |
| Parties | , Unempl.Ins.Rep. CCH 16,663 Freddie E. MILAM, Plaintiff-Appellant, v. Otis W. BOWEN, Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Wright & Hennen, Dennis Hennen, Monroe, La., for plaintiff-appellant.
Thomas Stanton, A. Faye Dance-Sheppard, Dallas, Tex., defendant-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before CLARK, Chief Judge, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.
On May 17, 1983, appellant Freddie E. Milam filed for disability benefits under the Social Security Act, alleging that he was unable to work because of injuries sustained in two automobile accidents. He was denied benefits administratively at three levels.
Milam then obtained a de novo hearing before an Administrative Law Judge. The ALJ also denied benefits, finding that appellant was not disabled within the meaning of the Social Security Act. The Appeals Council did not grant Milam's request for review, and the ALJ's decision thus became the final decision of the Secretary.
Pursuant to 42 U.S.C. Sec. 405(g), Milam sought review of the Secretary's final decision in United States District Court. The United States Magistrate recommended that the Secretary's motion for summary judgment be granted and the district court, accepting this recommendation, granted summary judgment for the Secretary. Timely appeal to this Court was filed. Finding substantial evidence to support the Secretary's decision, we affirm.
Appellant was forty-one years old at the time of the hearing before the ALJ. He is a high school graduate but has had no subsequent training or education. Appellant's past relevant work consists of being a co-owner in an import production business, an owner and supervisor in a building and painting business and a truck driver for a transport company.
Milam received disability benefits from February 24, 1978 through March 31, 1983 for an unrelated disability (a severe herniated disc), but his present claim arose as a result of two automobile accidents which occurred on January 25, 1983 and February 25, 1983. As a result of these accidents, the ALJ found, Milam now has a severe spinal impairment, which renders him unable to perform past relevant work.
Appellant was hospitalized twice after his first accident. His chief complaint was of headaches. Although extensive testing was done, there were no significant findings. After his second accident, Milam experienced pain in the neck, right shoulder, and head. He returned to the hospital, where he stated that he had been feeling much improved until the second accident. Again, testing produced no significant results. Analgesics, muscle relaxants, and application of moist heat to the neck resulted in some improvement of Milam's condition.
On April 20, 1983, appellant had an orthopedic consultation with Dr. Rifat M. Nawas, M.D. Dr. Nawas found early degenerative changes in the cervical spine. There was no evidence of nerve root compression or disc herniation. Milam was advised to use a soft neck collar for a few hours a day and to take Naprosyn for pain. Dr. Nawas was of the opinion that Milam's recovery could take up to a year. Dr. Nawas saw Milam again in May. At that time EMG nerve conduction tests showed no impairment of the nerve functions in appellant's neck.
On May 1, 1983, appellant was admitted to Doctor's Hospital in Shreveport, Louisiana under the care of Dr. H.K. Faludi, M.D., a neurosurgeon. During this hospitalization, a bilateral occipital neurectomy was performed to relieve his persistent severe cervico-occipital pains. His postoperative course was uneventful and he indicated that he was free from his previous severe headaches.
On May 31, 1983, Milam was hospitalized again for treatment of post-traumatic depression. Laboratory results were essentially negative. There were findings of psychosomatic problems and depression. There were no gross neurological defects found. It was recommended that Milam go to a chronic pain center for treatment and appellant did this.
On July 12, 1983, Milam was admitted to Riverside Community Hospital under the care of Dr. James A. Albright, M.D. for evaluation of acute low back symptoms developed after Milam slipped in a pool. Exploratory surgery of the L3-S1 spine was done and a considerable amount of scarring was removed, but no significant disc material was found. Milam's back pain improved, but his neck pain returned and did not respond to treatment.
Dr. Albright continued to follow appellant's condition. Milam continued to suffer headaches and therefore exploratory surgery of the greater occipital nerves was performed on January 20, 1984. Neuromas were found alongside the nerves and were removed along with substantial segments of the nerves. Following this procedure, Dr. Albright rendered this opinion:
Mr. Milam was totally disabled on March 31, 1983, apparently the date in question. At the present time, he is significantly better than he was prior to the last two operative procedures. Nevertheless, he is still totally disabled for any type of productive activity. I feel that his disability is permanent and do not feel that he will ever reach the point where he will be able to work in the future.
At the February 3, 1984 hearing before the ALJ, appellant testified that he suffered unbearable pain in his head, although it had been reduced quite a bit by the January 20 surgery. He also stated that he had constant back and leg pain which prevented him from sitting normally or driving any distance by himself.
Milam also stated that he usually goes to church. He is active on church committees and sometimes attends their meetings. He works a little bit in the yard, does some fishing and walks about a quarter of a mile every day.
After considering the evidence summarized above, the ALJ determined that Milam had a severe cervical impairment and was unable to perform his past relevant work as a builder or truck driver. However, the ALJ found that Milam's complaints of disabling pain were not medically substantiated and were not credible. He determined that appellant had the residual functional capacity to perform the full range of "light work" as defined by the regulations. 20 C.F.R. Sec. 404.1567(b) (1985). Applying the standards set out in the regulations to this finding, along with Milam's age, experience and education, the ALJ was required to find that Milam was not disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, No. 202.20 (1985). These standards may be used in lieu of calling a vocational expert to testify. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).
Under the applicable standard of review, the Secretary's final decision must be upheld if it is supported by substantial evidence. 42 U.S.C. Sec. 405(g); see Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983). In determining whether substantial evidence exists, we must consider objective medical facts, diagnoses and opinions of treating and examining physicians, subjective evidence of pain, and claimant's age, education and work experience. See DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972). We must also be mindful that once a claimant proves that he is unable to engage in past relevant work (as Milam did here) the burden of proof shifts to the Secretary to show that the claimant is able to perform some other type of substantial work in the economy. Ferguson v. Schweiker, 641 F.2d 243, 246 (5th Cir.1981).
It is also important to note that Milam last met the special earnings requirement of the Social Security Act on March 31, 1983. 42 U.S.C. Sec. 416(i)(3) and Sec. 423(c)(1). Therefore, Milam is only eligible for disability benefits if he became disabled on or before March 31. See Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.), cert. denied, 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323 (1979). An impairment which arose or became disabling after March 31 (e.g., an impairment resulting from the slip in the pool or the subsequent surgical procedures) cannot be the basis for a finding of disability. Owens v. Heckler, 770 F.2d 1276, 1280 (5th Cir.1985).
Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. Sec. 416(i)(1)(A) and Sec. 423(d)(1)(A). The fact Milam suffered some impairment does not establish disability. Milam was disabled only if he was incapable of engaging in any substantial gainful activity. Owens, supra, 770 F.2d at 1280. The ALJ's conclusion that Milam's impairment would not prevent him from performing "light work" was supported by substantial evidence.
First, the objective medical evidence on appellant's condition supports the conclusion that he was not disabled. X-ray studies of Milam's cervical spine showed no significant abnormalities. His EEG was normal. Dr. Greer's physical examination showed only "some limitation to range of motion" in the neck area. Dr. Nawas found "moderate limitation of motion in the cervical spine in all directions." He also noted "full range of motion in the shoulders and upper extremities." Dr. Nawas concluded that Milam had early degenerative arthritis in the cervical spine but found no evidence of nerve root compression or disc herniation.
Dr. Nawas expected that Milam would recover within a year. Dr. Faludi also indicated that Milam's response to treatment was good. Dr. Faludi noted that the occipital neurectomy had relieved appellant of his severe headaches. Dr. Albright also stated that appellant's response to the January 20, 1984 exploratory surgery was "excellent." In short, the bulk of the medical evidence and opinions supports the conclusion that...
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