Poindexter v. Bowen, C86-0259J.
| Decision Date | 19 February 1988 |
| Docket Number | No. C86-0259J.,C86-0259J. |
| Citation | 685 F. Supp. 1545 |
| Parties | Leland Dean POINDEXTER, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant. |
| Court | U.S. District Court — District of Wyoming |
Elaine Bodurtha, Wind River Legal Services, Inc., Fort Washakie, Wyo., for plaintiff.
Carol A. Statkus, U.S. Atty., Cheyenne, Wyo., for defendant.
MEMORANDUM AND ORDER REVERSING FINAL DECISION OF THE SECRETARY
On 7 June 1985, Leland Poindexter applied for social security disability benefits. His application was denied on 18 July 1985; after reconsideration the application was again denied on 17 September 1985. A 22 November 1985 administrative hearing resulted in a 4 April 1986 decision denying benefits. This became the Secretary's final decision on 16 June 1986 when the Social Security Appeals Council denied review. On 28 July 1986 the present action was filed. The requirements of 42 U.S.C. § 405(g) have been met, and this court has jurisdiction to hear the appeal.
Leland Poindexter was born on 23 April 1953. He has earned a GED but has no formal training in any field. (R.A., p. 42) He has worked as a floor hand, laborer, construction worker, and oil field worker. (R.A., p. 95) Leland Poindexter's problems began on 22 March 1980 when he slipped while standing on heavy machinery and fell five feet to the ground. Because of the pain caused by his fall, he was taken to the Sweetwater Memorial Hospital emergency room and evaluated by Dr. Joe Oliver, who, after films were taken, began conservative treatment. (R.A., p. 120) He apparently had no significant improvement in his lower back, buttocks, and thigh pain, and in April 1980, he was taken to the University of Utah Medical Center in Salt Lake City.
On 16 April 1980, Dr. M. Peter Heilbrun examined Leland Poindexter at the University Hospital. His general physical examination of the back revealed a moderate paraspinous muscle spasm with limitation of motion on forward flexation. Straight leg raising was limited on the right. The neurological examination revealed no weakness or sensory deficit. Dr. Heilbrun's impression was of root compression secondary to spondylolisthesis.1 He advised two more weeks of rest, but if no improvement was made, he felt that fusion and decompression2 may be indicated. (R.A., pp. 120-21)
On 4 May 1980, Leland Poindexter was again admitted to the University Hospital, his chief complaint being low back pain. Dr. Heilbrun described the history of present illness as severe lumbrosacral and right anterior thigh pain and recent left buttocks pain all resulting from the fall. The doctor noted that "the pain has decreased somewhat with rest and increased with sitting, standing or walking for short distances." (R.A., p. 118) The general physical examination revealed decreased lumbar lordosis3 without spasm or lift, L5 percussion tenderness without any sciatic notch tenderness, markedly limited flexion and extension of the lumbar spine secondary to pain, and an unremarkable neurologic exam except for diminished but present ankle jerks bilaterally. (R.A., p. 118) On 7 May 1980, Dr. Heilbrun performed an L5 laminectomy4 and L5/S1 transverse process fusion on Leland Poindexter. On 13 May 1980 he was discharged with a lumbar corset brace and instructions to return to neurosurgery clinic as directed. (R.A., pp. 118-19)
After initially improving, on 9 November 1980 Leland Poindexter again was admitted to the University Hospital complaining of pain in the left posterial lateral thigh with left low back pain. The next day a lumbar metrizamide myelogram was performed, which showed Grade I to II spondylolistheses of L5-S1 not significantly changed since May 1980. Dr. Heilbrun's final clinical impression was of low back pain and possible radiculopathy following L5-S1 laminectomy and fusion. The disposition was for Leland Poindexter to be followed in neurosurgery and pain clinics. (R.A., pp. 125-26)
On 11 November 1980, Dr. S.D. Wing compared the May and November myelograms.5 He found no significant change in the Grade I to II spondylolistheses of L5 on S1, but concluded that the lower lumbar fusion may not be intact, noting an apparent cleft at L5-S1 on the scout film. (R.A., p. 132) On 21 November 1980 Leland Poindexter was discharged.
On 10 March 1981 Leland Poindexter was admitted to the University Hospital, again complaining of low back pain and leg pain. He described this pain as somewhat aggravated by activity but generally constant even when he is at rest. Dr. H.K. Dunn, the attending physician, found that x-rays suggested a pseudarthrosis,6 diffuse7 mass8 from L5 to S1 and admitted Leland Poindexter for refusion at the lumbrosacral level. (R.A., p. 133)
On 11 March 1981 surgery was performed and the fusion mass explored. Although the fusion mass was solid, there were degenerative changes at the facet between L4 and L5. Therefore the fusion mass was extended up to include L4. On 17 March 1981, Leland Poindexter was discharged with instructions that he be limited to strict bed rest and that he wear his back brace 23 hours a day. (R.A., pp. 133-34)
After about eight months spent recovering, Leland Poindexter went back to construction work. He felt pretty good for about six or seven months, but then the back pain returned. He obtained medication and continued working, but the pain grew worse until in September 1983, he was unable to work. (R.A., pp. 46-47)
On 14 October 1983, Leland Poindexter sought treatment from a local doctor, John A. Whipp, who has continued to treat him. Over the next 11 months, Dr. Whipp diagnosed Leland Poindexter's condition with lumbar myelogram and CT scans and treated him with candral epidural steroid injection. Having obtained no positive results, on 23 September 1984, Leland Poindexter was admitted to the Lander Valley Regional Medical Center for reexploration of his lumbar fusion. (R.A., p. 147)
The general physical examination preceding the surgery revealed that when Leland Poindexter stood, his lumbar muscles were tight and he placed his back in a hyperextended position. Dr. Charles Allen also observed some limited motion in the lumbar spine as seen from his inability to flex past sixty degrees. Straight leg raising caused no pain. Dr. Allen's diagnosis was of chronic lower back pain. (R.A., pp. 147-48)
Dr. Whipp performed the surgery and described it as follows: "Take down of fusion posteriorly on the right with deroofing of both the fusion mass and a rather extensive laminectomy to remove the spinal stenotic and lateral recess areas." The final diagnosis was "entrapment of nerve with scar tissue and early spinal stenosis9 from a lateral recess syndrome." (R.A., p. 146) On 2 October 1984, Leland Poindexter was discharged, having undergone his third back operation.
On 11 October 1984 Leland Poindexter notified Dr. Allen that his wound was open and draining pus. On 12 October 1984 Leland Poindexter was readmitted to the hospital and cultures of the wound drainage were performed and intravenous antibiotics were administered. Because of an illness in his wife's family, Leland Poindexter, against medical advice, signed out of the hospital the next day. He was advised to continue his oral antibiotics and to clean his wound daily with hydrogen peroxide. (R.A., p. 144)
At his hearing, Leland Poindexter testified that his back began to feel better about three months after the surgery; this continued for about two months when his back started acting up again. He attended a chronic pain clinic at the University of Utah Medical Center in the summer of 1984. He stayed for only half of the four-week program because he felt it was not working for him. (R.A., pp. 181-82) After his doctor had told him that he could not go back to work, he enrolled at Western Wyoming Community College in January 1985 for training as a medical lab technician. (R.A., p. 48) He went full-time his first semester, took one course in the summer, and enrolled for twelve hours in the fall. It was then, he says, that his back pain would have caused him to miss more than the allowed number of classes, so he withdrew. (R.A., pp. 55-57)
At the close of the hearing, the ALJ decided to have Leland Poindexter examined by a psychologist. (R.A., p. 71) On 13 January 1986, Dr. Larry J. Carlson released a confidential psychological evaluation of Leland Poindexter. This report states that both the MMPI and WAIS-R tests were administered and that (R.A., p. 183) Dr. Carlson further noted that "Mr. Poindexter has a personality make-up that would predispose him to the development of psychogenic pain disorder but history suggests that a physical condition (injury) precipitated his back problem." (R.A., p. 185)
On 4 April 1986 the ALJ denied social security disability income benefits. The main issue before the court, with other issues subsumed by it, is whether substantial evidence supports the ALJ's decision.
The Secretary's decision on the issue of disability will be affirmed if it is supported by substantial evidence. Nieto v. Heckler, 750 F.2d 59, 61 (10th Cir.1984). Substantial evidence is more than a mere scintilla, and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir.1985) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). This limited standard of review does not apply to questions of law. "Failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal." Byron...
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