Preston v. Secretary of Health and Human Services, 87-5222

Citation854 F.2d 815
Decision Date13 June 1988
Docket NumberNo. 87-5222,87-5222
Parties, Unempl.Ins.Rep. CCH 14130A Alice PRESTON, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Gregory N. Schabell, Florence, Ky., James Roy Williams (argued), Cincinnati, Ohio, for plaintiff-appellant.

Louis DeFalaise, U.S. Atty., Lexington, Ky., John S. Osborn, III, Mary Ann Sloan (argued), Office of Chief Counsel, Dept. of Health and Human Services, Atlanta, Ga., for defendant-appellee.

Before LIVELY and KENNEDY, Circuit Judges, and PECK, Senior Circuit Judge.

PER CURIAM.

This is an appeal from a district court judgment which reversed the decision of the Secretary of Health and Human Services denying Alice Preston's application for social security disability benefits. Although Preston agrees with the district court's determination of disability, she appeals from the part of the judgment which sets the date of onset of her disability as March 26, 1986. She argues that the medical evidence supports a finding that her disability and corresponding right to benefits began May 12, 1983. For the reasons stated herein, we reverse and remand for an award of benefits consistent with this opinion.

Preston applied for social security disability benefits on February 16, 1984, when she was 48 years old. Preston, who has eight years of formal education and a G.E.D., last worked as a telephone operator and filing clerk for thirteen years until May 12, 1983, the alleged date of the onset of her disability. Preston attempted to return to work in July 1983 but stopped after ten days due to pain. The Secretary found that this was an unsuccessful work attempt. Preston has never returned to work and receives a disability pension from her employer. Her disability benefit application alleged that the cause of disability is a bulging disc, arthritis, and chronic allergies. Preston's application was denied initially and upon reconsideration. An administrative hearing was then held on her claim.

At the hearing Preston testified that she has problems with swelling in her face, neck, and back. She maintained that she also has pain in her back and down her left leg, as well as numbness in her arms. Preston stated that she also has had problems with her "nerves" for which she had been treated by Dr. Robert Noelker, a psychologist. Preston testified that she has great difficulty sleeping, can do little housework, and is never completely without pain.

The medical evidence revealed that Preston was hospitalized from May 20, 1983, to June 3, 1983, by Dr. Crabbs, her family physician. After X-rays and CT scans she was diagnosed as having acute lumbar strain and/or sprain; bulging posterior L5-S1 disc; compression fracture of D-12; degenerative cervical disc disease at C5-6 and C6-7; and degenerative arthritis of the spine. She was treated with traction and medication.

In September 1983, Dr. Bridwell, an orthopaedic surgeon, examined Preston due to her continuing complaints of pain. He found no abnormalities. In October 1983 Dr. Bridwell stated that X-rays and CT scans taken looked "quite good." His report states that he was "not quite sure what to make of all this." In December 1983 he again saw her. Although she seemed to be able to walk with no problem, she complained unrelentingly of pain. Dr. Bridwell recommended a myelogram.

Dr. Kramer, a neurologist who had evaluated Preston during her hospital stay, again saw Preston in December 1983. He reported a weakness which suggested an L5 radiculopathy and also recommended a myelogram. The myelogram performed in January 1984 revealed a minimal L4 disc bulging, but no significant abnormality. Dr. Kramer could find no clear-cut anatomical basis for her pain.

Dr. Crabbs reported on February 17, 1984 that he had last seen Preston February 15, 1984. Preston had decreased sensation over the L5 dermatone on the left with decreased left ankle jerk and a continued weakness, findings consistent with a L4 or L5 radiculopathy. Dr. Crabbs stated that Preston was unable to lift more than ten pounds and that he had instructed her not to engage in repeated stooping or bending. He also stated that she had difficulty being on her feet for more than fifteen to twenty minutes, had difficulty sitting in any one position for a significant time, and could not walk more than 100 feet at a time due to pain. Dr. Crabbs believed that Preston continued to be 100% disabled and would be for at least two or three years.

Dr. Noelker, a clinical psychologist, examined Preston on June 9, 1984. He stated that she had multiple psychological problems overlaying or exaggerating her physical symptoms. He completed a residual functional capacity assessment and found that Preston had a moderately severe restriction of her daily activities and a mild limitation in her ability to relate to others. Dr. Noelker further indicated that Preston had poor ability to perform work requiring either frequent or minimal contact with others, and complex or repetitive tasks. Dr. Noelker found that Preston had a fair ability to comprehend and follow instructions, as well as good ability to perform simple tasks. Dr. Noelker diagnosed hysterical conversion neurosis, moderately severe depression, and musculoskeletal psychophysiological reaction. He was of the opinion that Preston's psychological condition rendered her incapable of gainful employment, and that she suffered a functional impairment in the 60 to 70% range.

In August 1984 Dr. Petit conducted a consultative psychiatric examination of Preston for the Social Security Administration. He diagnosed depression secondary to limitations imposed by pain in her back; he did not think the depression was severe.

Dr. Crabbs reported in August 1984 that Preston's condition had not improved since his report in February 1984. In a physical capacities evaluation dated August 30, 1984, Dr. Crabbs again restricted Preston from sitting or standing for more than 15 to 20 minutes at a time, lifting more than ten pounds, bending, squatting, crawling, and climbing. He also restricted her from activities involving unprotected heights, being around moving machinery, and exposure to marked temperature changes, dust, fumes and gases. He moderately restricted her from driving. In a letter dated October 8, 1984, Dr. Crabbs indicated that he was continuing to see Preston every 3 or 4 weeks. He saw Preston September 27, 1984. Preston presented symptoms of muscle spasms and weakness, decreased sensation of the L5, decreased left ankle jerk limited by raising ability and moderately limited range of motion at the waist. Dr. Crabbs' ongoing diagnosis was chronic lumbar strain, bulging disc, radiculopathy, recent compression fracture of D-12, degenerative cervical disc disease, moderate degenerative arthritis of the spine, chronic allergic sinusitis, hysterical conversion and neurosis, moderately severe depression, and musculoskeletal psychophysiological reaction. He prescribed medications for pain and depression. Using American Medical Association guidelines for permanent disability, Dr. Crabbs determined that Preston had a 35% impairment to the body as a whole. He estimated a 60-70% functional impairment that rendered her disabled from the labor market.

In November 1984 Dr. Noelker reported that Preston continued to be disabled due to major psychological problems overlaying her physical maladies. He noted that Preston was experiencing sleep disturbances, vegetative signs of depression and occasional confusion. Dr. Noelker also reported that she had moderately severe short term memory problems, lethargy, and an extremely constricted daily routine.

Based on this evidence, the administrative law judge (ALJ) found that Preston had a severe impairment due to her bulging L4 disc and depression. However, he found her not to be disabled. The ALJ cited Dr. Kramer's inability to find a clear anatomical basis for Preston's pain, and the lack of significant abnormalities in the myelogram. The ALJ also noted that Dr. Bridwell did not report objective findings consistent with Preston's allegations of severe pain and functional limitation. The ALJ found that Dr. Crabbs' findings were inconsistent with those of specialists who had examined Preston; he therefore did not accord Dr. Crabbs' findings great weight. The ALJ determined that the greater weight of the evidence supported a finding that Preston could perform sedentary work, including her past relevant work as a telephone operator and file clerk. Although the ALJ acknowledged that Preston was limited by her depression, he found, referencing Dr. Noelker's assessments of her residual functional capacity, that the limitation would not preclude her from performing her past relevant work.

The Appeals Court declined to review Preston's claim. Preston then filed a complaint in district court for review of the decision. The district court remanded the case for further consideration of Preston's alleged mental impairment under relevant new regulations.

At the supplemental hearing conducted upon remand held on March 28, 1986, Preston presented testimony similar to that at the first hearing.

Dr. Crabbs testified at the hearing that he had recently diagnosed Preston's primary impairment as fibrositis, a condition...

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