Reeves v. Heckler, 83-7079

• Decision Date: 29 May 1984
• Docket Number: No. 83-7079,83-7079
• Parties: , Unempl.Ins.Rep. CCH 15,362 Dirven D. REEVES, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 519

734 F.2d 519

5 Soc.Sec.Rep.Ser. 205, Unempl.Ins.Rep. CCH 15,362

Dirven D. REEVES, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 83-7079.

United States Court of Appeals, Eleventh Circuit.

May 29, 1984.

Nelson Simmons, Jr., Legal Services of North-Central Alabama, Inc., Decatur, Ala., for plaintiff-appellant.

Elyse Sharfman, Dept. of HHS, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, RONEY and TJOFLAT, Circuit Judges.

PER CURIAM:

The Secretary denied disability insurance and SSI benefits to a 37 year-old man who suffers from hip and back problems, a hearing deficit, and a psychological condition. The district court found substantial evidence to support the Secretary's decision and affirmed. Because the Secretary failed to follow her own regulations, we vacate and remand for further consideration under proper legal standards.

The medical evidence in the record shows that in April 1979 Reeves fractured his hip in a fall, was hospitalized for ten days, and his hip was pinned. At this time, "early changes of degenerative hip disease" were seen. 2 Rec. at 168.

Dr. Blanton, Reeves's treating physician, examined claimant in February 1980. He diagnosed deafness, chronic lumbar spine derangement, painful left hip from hip pain and plate, and extreme tension. Id. at 159. Dr. Blanton reported that "[i]n my opinion he is disabled from any regular gainful work." Id.

Dr. Blanton conducted another exam in November 1980. He noted that the patient had

marked deafness left ear[,] [f]racture left hip in N.C. April 8, 1979. Limps when walks. Still has steel pin in hip which is very tender in muscle tissue around it.

Cannot stand up over one hour without sitting down. In 1969 while working in a winery he was carr[ying] a heavy tank and foot slipped and strained low back severely. Can push up a 25 lb weight but could not do it over 2 times in an hour. Cannot bend, pull, stretch, lift, climb, or stand.

Id. at 160.

Dr. Branning examined the claimant for SSA in May 1980. He concluded that Reeves suffered from:

(1) Fractured left femur, healing but painful.

(2) Decreased hearing secondary to multiple infections as a child.

(3) Subnormal intelligence.

(4) History of syncopal spells and possible seizure disorder.

Id. at 189. The doctor noted that "[t]he patient might very well benefit from further evaluation from an orthopedic surgeon." Id.

After the examination, Dr. Branning filled out a physical capacities evaluation. He concluded that claimant could lift and/or carry 50 pounds occasionally to 25 pounds frequently, could stand and walk one hour a day, could sit and work as much as six out of eight hours, and was restricted as to pushing and pulling (arm and/or leg controls), climbing and balancing, and bending and/or stooping movements. Id. at 190.

Dr. Branning evaluated Reeves again in February 1981. He diagnosed

(1) Apparent degenerative joint disease of low back and both hips.

(2) Chronic left hip pain secondary to previous surgery and/or associated degenerative changes.

(3) Marked decrease in auditory acuity.

(4) Chest pain likely musculoskeletal in origin.

(5) Chronic anxiety.

Id. at 193. The doctor concluded that

[g]enerally speaking, the patient's most limiting condition would be that of his left hip and the resulting pain from the previous fracture and surgical treatment. The patient might very well benefit from further evaluation by an orthopod to see if the removal of this plate and/or other therapy might be indicated in helping alleviating this patient's discomfort and returning him to normal ambulation. As best as I can determine, there is no obvious reason for his discomfort. Admittingly [sic], he does have some degenerative changes but they do not appear to be significant enough to result in the kind of discomfort and resultant limp that he states he has.

Id.

Despite Dr. Branning's recommendations, Reeves was not examined by an orthopedist. ¹

A radiologist, Dr. Sewell, examined Reeves in January 1981 and found slight narrowing in the space at L-5, S-1, degenerative changes in the hip, and no identifiable abnormalities in the femoral shaft. Id. at 194.

Taylor, a clinical audiologist, examined Reeves for SSA. He found that Reeves appeared to have

a sensori-neural hearing loss in each ear: mild-to-moderate in the right ear and moderate in the left ear .... Discrimination among spoken words is moderate-to-poor in the left ear and poor in the right ear. Based on today's findings, Mr. Reeves will have difficulty hearing in all listening situations. A hearing aid may provide worthwhile benefit, more so in a quiet one-to-one situation....

Mr. Reeves should be seen for an evaluation by on [sic] otolaryngologist.

Id. at 183-84.

After this evaluation, Reeves received a hearing aid for one ear. Id. at 49. With the hearing aid he "can do pretty well," and the aid "doesn't make it perfect but it helps." Id.

LeMay, Reeves's counselor at the North Central Alabama Mental Health Center, diagnosed inadequate personality. Id. at 203. He found Reeves

to have a difficult time relating to others due to several factors, mainly his extreme anxiety, sadness, and his strong feelings of guilt about those feelings.... Client also appears to have a noticeable deficiency in short and long term memory. It is a remote possibility that client may have some organic brain damage, but the Mental Health Center does not have appropriate facilities to diagnose, or rule out this possibility.

Current treatment goals are to assist client in accepting his feelings of sadness and reduce anxiety. Due to client's apparent lack of external resources and limited insight, prognosis remains poor.

Dr. Haney, a neuropsychiatrist, examined Reeves for SSA. He reported that

Reeves was on time for the appointment and understood full well the reason for being here. He claimed confusion as to time, no knowledge of recent events of any interest, walked with a halting gait, and continually moaned and complained of back pain and head discomfort throughout the entire visit.... His impression was one of marked sadness, almost tearful at times. His replies for the most part were spontaneous, but he had to be prodded into giving adequate information, continually stopping to impress the interviewer that he had a bad memory was [sic] was confused. There was no evidence of psychotic activity in the form of bizarre preoccupations, delusions, or hallucinations. There was no cognotive [sic] deficit noted, nor any evidence of organicity. His descriptions of black out [sic] spells were extremely vague but he states he has had only or [sic] or two brief ones since his accident in 1977. These do not appear to be seizure activity of any type. He is of average intelligence and his judgment is adequate to manage any funds he might receive....

His somatic complaints are not constant, nor his description consistent with any real pathology. I feel he is currently markedly depressed and would be a poor candidate for any type of employment or rehabilitation at this time.

Id. at 204-05.

Reeves applied for disability insurance and SSI benefits in September 1980. His application was denied initially and on reconsideration. He requested and received a hearing before an Administrative Law Judge, where he was represented by a paralegal. Reeves was the only witness.

At the hearing Reeves indicated that he believed he became disabled approximately two years earlier when he fractured his hip. Id. at 44-45. He also stated that he had had high blood pressure five or six years ago and had to be hospitalized because he had had a blackout and was in a car accident. Id. at 45. He explained that he was not presently on any medicine because he could not afford it. Id. at 46. However, he noted that no doctor had prescribed any medicine since he had high blood pressure. Id. He reported that he sleeps well sometimes but not others, can go grocery shopping, reads the newspapers occasionally, rides his bike, watches TV, can walk around the block, can stand for a while if he has first sat, and can lift five pounds and even ten as long as he did not have to do so all day. Id. at 46-48. He testified that he cannot climb stairs and does not drive. Id. at 47-48. In response to a question from the ALJ, Reeves stated that he thought he could be an attendant at a self-service gas station, although he does not like to handle money. Id. at 52.

The ALJ denied benefits. He concluded:

In summary, the claimant sustained a hip injury which has resulted in some limitation of motion. Limitation of motion and pain are shown by subjective means entirely as physicians have found no pathology or radiologically demonstrable deficits. The claimant has a hearing impairment of long duration which has been essentially corrected by a hearing aid. There is evidence that the claimant has experienced depression and anxiety together with nervousness, but there does not appear to be the necessity for medication. No persistent maladaptive patterns of behavior were manifested, [sic] there is no evidence of seclusiveness or autistic thinking, pathologically inappropriate suspicion or hostility, marked restriction of daily activities, constriction of interests or deterioration in personal habits or an inability to relate to other people. On the contrary, the claimant is a neat, poised individual who speaks and relates well with others. He does appear on occasions of medical examinations to amplify physical and mental problems. The claimant apparently has some minimal problems with degenerative joint disease of the low back and both hips. He has experienced chest pain which is likely musculoskeletal in origin and not of cardiac origin....

After reviewing the entire record, the undersigned is satisfied that his impairments are not that severe....