Proctor v. Schweiker, Civ. A. No. Y 80-1694.

• Decision Date: 22 September 1981
• Docket Number: Civ. A. No. Y 80-1694.
• Citation: 526 F. Supp. 70
• Court: U.S. District Court — District of Maryland
• Parties: James W. PROCTOR, Jr. v. Richard S. SCHWEIKER, Secretary, Department of Health and Human Services.

526 F. Supp. 70

James W. PROCTOR, Jr. v. Richard S. SCHWEIKER¹, Secretary, Department of Health and Human Services.

Civ. A. No. Y 80-1694.

United States District Court, D. Maryland.

September 22, 1981.

Kevin M. Noland, Mount Rainier, Md., for plaintiff.

Glenda G. Gordon, Asst. U. S. Atty., Baltimore, Md., for defendant.

MEMORANDUM

JOSEPH H. YOUNG, District Judge.

Plaintiff, James W. Proctor, Jr., filed this action pursuant to 42 U.S.C. § 405(g) for review of a final decision by the defendant, the Secretary of Health and Human Services (hereinafter referred to as "the Secretary"), terminating disability insurance benefits which he had been awarded under Title II² of the Social Security Act. This case is presently pending on cross motions for summary judgment and plaintiff's alternative request for remand. No hearing is deemed necessary at this time. Local Rule 6.

On February 28, 1977, plaintiff filed an application for disability insurance benefits, alleging therein that he became disabled on August 8, 1976 due to ruptured spinal discs. (Tr. 68-71). The Secretary found on May 26, 1977 that plaintiff had in fact established a disability beginning August 8, 1976, and, consequently, awarded plaintiff continuing disability insurance benefits. However, on January 25, 1979, the Secretary determined that plaintiff's disability had ceased in November of 1978. Accordingly, disability insurance benefits were terminated. (Tr. 73-74). The Secretary's initial decision to terminate plaintiff's benefits was upheld on reconsideration. (Tr. 80-81). Plaintiff was subsequently granted a hearing before an Administrative Law Judge (ALJ) so that his claim could be considered de novo. (Tr. 21-67). On February 15, 1980, the ALJ decided that plaintiff's back impairment was not of disabling severity because plaintiff retained the residual functional capacity to perform sedentary labor. (Tr. 8-15). Plaintiff submitted two additional medical reports for the Appeals Council's consideration, but the ALJ's decision was nevertheless affirmed on March 24, 1980 and May 2, 1980. (Tr. 3-5). Plaintiff sought review of the Secretary's decision in this Court by filing the instant complaint on June 30, 1980.

At the administrative hearing, plaintiff testified that he was born on November 21, 1937 and has a high school education. (Tr. 41, 50). He has worked as a school bus driver and a night manager/clerk at a liquor store. (Tr. 24-36). Plaintiff's work as a bus driver involved driving students both to school and on "activity runs." (Tr. 25). He drove a full eight hour shift and had to operate a clutch. In addition, plaintiff was required to clean the interior of the bus periodically, check underneath of the bus for oil leaks, and wash the bus once a week. (Tr. 27). As a manager/clerk in the liquor store, plaintiff had to lift cases of beer and liquor weighing between thirty-five and fifty pounds. (Tr. 31). He also operated the cash register, set up window displays, dusted shelves, took inventory while standing on a ladder, mopped floors, stocked the coolers daily, and was generally responsible for the store when the owners were not present. (Tr. 32-36). Plaintiff testified that his back problems prevent him from sitting or standing for more than fifteen or twenty minutes at a time. (Tr. 36-37). He complained of difficulty in sleeping, paralysis in his left leg (Tr. 37), inability to bend or lift (Tr. 40), urinary incontinence (Tr. 46), and muscle spasms with accompanying pain in his back. (Tr. 53-54). Plaintiff takes Tylenol 4 for his pain. (Tr. 45). He sometimes drives his car a distance of five miles or less (Tr. 42), attends church, arranges the supper dishes after his wife places them on the table (Tr. 45), walks short distances in his backyard for exercise (Tr. 47), and watches television (Tr. 48). Plaintiff, however, has difficulty in getting in and out of the bathtub, and must also wear loafers because he cannot bend to tie his shoes. (Tr. 49).

The medical evidence of record shows that plaintiff has undergone back surgery on two separate occasions. In September of 1976, plaintiff was hospitalized for a ruptured disc, and a lumbar laminectomy³ was performed. (Tr. 113-126). Plaintiff underwent a second laminectomy in October of 1977. A posterolateral fusion was also performed at that time. (Tr. 132-142). A series of medical reports submitted by Dr. Francis D. Fowler, plaintiff's treating orthopedist (Tr. 152), and Dr. Guy W. Gargour, plaintiff's treating neurologist (Tr. 159), trace the progress which plaintiff made following his operations.⁴

Dr. Fowler reported on December 12, 1977 that plaintiff's "overall picture" was "satisfactory," but that plaintiff was unable to perform normal work duties. (Tr. 143). Prolonged standing, walking or lifting of heavy objects was contraindicated. On February 27, 1978, Dr. Fowler reported that plaintiff's fusion was healing well. Nonetheless, the doctor believed that plaintiff would be "unable to return to any type of duties before August 1978." (Tr. 145). In a letter dated July 18, 1978, Dr. Fowler stated:

It is my opinion that ... plaintiff should be allowed to return to work at a program of work which does not require extensive lifting. He is very capable of maintaining himself at a sitting position at a desk or the like. He may walk from one room to the other. He may lift objects not weighing more than ten pounds.

(Tr. 156). Dr. Fowler indicated on August 24, 1978 that plaintiff was still experiencing pain and tightness in his back. (Tr. 147, 165). It was noted, however, that plaintiff had become "more active with walking and with activities about the house." (Tr. 147).

In November of 1978, plaintiff demonstrated positive straight leg raising at about forty degrees. (Tr. 165). Range of motion in the lower back was also significantly restricted. Dr. Fowler commented:

It is apparent to this examiner that at this time this man is not able to continue at his usual work for the school board and should be retired on a disability retirement. He is not at this time able to seek out vocational rehabilitation counseling because of his continued complaints.

(Tr. 165). On January 9, 1979, the doctor indicated that plaintiff's fusion was solidly healed, but that muscle spasms were present, range of motion was still significantly restricted, and plaintiff's spine had lost, to a certain degree, "the usual lumbar lordotic curve." (Tr. 150). In March of 1979, it was noted that plaintiff hoped to pursue vocational rehabilitation notwithstanding his significant positive findings and the doctor's prior recommendation not to go forward with vocational retraining. (Tr. 153-154). Dr. Fowler stated on October 18, 1979 that plaintiff "continued to be disabled and demonstrates a restricted range of motion to the back." (Tr. 166). No specific therapy or care was required except that plaintiff was advised to wear his back brace regularly. Finally, the doctor reported on February 20, 1980 that plaintiff continued to have significant limitation of motion in his lower back. (Tr. 179). Straight leg raising was positive at twenty degrees. Plaintiff was unable to flex his trunk or sit comfortably. Therefore, Dr. Fowler opined that plaintiff was "unable to perform any gainful employment because of the continuing limitation of motion to the back and the continuing pain in the back." (Tr. 179).

Dr. Gargour evaluated plaintiff's back impairment from a neurological perspective. On February 23, 1978, Dr. Gargour reported that plaintiff's fusion was healing well. (Tr. 108-109). The doctor's prognosis at that time was that plaintiff should be able to return to his job as a bus driver, but that a job which did not involve prolonged periods of sitting would be more advisable. In October of 1978, Dr. Gargour reported that plaintiff was experiencing incapacitating pain and swelling in the left side of his back. (Tr. 149). The doctor ascribed a thirty percent permanent partial disability to plaintiff's back and stated that further medical treatment would probably not improve plaintiff's condition. On May 29, 1979, Dr. Gargour indicated that plaintiff was "comfortable in a totally sedentary activity." (Tr. 158). The doctor explained, however, that plaintiff had the propensity to have muscle spasms and to be incapacitated; plaintiff's recovery from his surgery was described as less than satisfactory. Dr. Gargour opined that plaintiff was permanently and totally disabled. Finally, Dr. Gargour submitted a report dated February 26, 1980. This report is not contained in the transcript but is included in the court file. It was considered by the Appeals Council on May 2, 1980. (Tr. 3). In this report, Dr. Gargour stated that plaintiff "has a very significant back disorder that is painful in a constant and disabling way and that he will never be able to engage in any gainful employment." See Exhibit Attached to Plaintiff's Motion to Modify the Record, filed November 26, 1980. Dr. Gargour concurred with Dr. Fowler that vocational rehabilitation would not be tolerable by the plaintiff.

Based on plaintiff's testimony and the reports submitted by Doctors Fowler and Gargour, the Secretary found that plaintiff regained the residual functional capacity to perform "appropriate" sedentary work in January of 1979. (Tr. 14-15). The function of this Court on review is not to try plaintiff's claim de novo, but rather to leave the findings of fact to the Secretary of Health and Human Services and to determine upon the whole record whether the Secretary's decision is supported by substantial evidence. King v. Califano, 599 F.2d 597 (4th Cir. 1979); Teague v. Califano, 560 F.2d 615 (4th Cir. 1977). Substantial evidence is more than a scintilla but less than a preponderance of the evidence presented. Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be...