Stewart v. Secretary of Health, Educ. and Welfare of U.S.

• Decision Date: 15 July 1983
• Docket Number: No. 82-5655,82-5655
• Citation: 714 F.2d 287
• Parties: Edward STEWART, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE OF the UNITED STATES. . Submitted under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 287

714 F.2d 287

2 Soc.Sec.Rep.Ser. 410

Edward STEWART, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE OF the UNITED STATES.

No. 82-5655.

United States Court of Appeals Third Circuit.

Submitted under Third Circuit Rule 12(6)

July 15, 1983.

Decided Aug. 10, 1983.

Alan L. Schwalbe, Richard E. Yaskin, on brief, Mark S. Jacobs, P.A., Voorhees, N.J., for appellant.

W. Hunt Dumont, U.S. Atty., Jerome B. Simandle, Asst. U.S. Atty., on brief, Trenton, N.J., for appellee.

Before SEITZ, Chief Judge, SLOVITER, Circuit Judge, and LORD, ^* District Judge.

OPINION OF THE COURT

JOSEPH S. LORD, III, District Judge.

Plaintiff-Appellant, Edward Stewart, initiated this action under 42 U.S.C. § 405(g) (1974) for review of a final determination by the Secretary of Health and Human Services. The Secretary, initially and on reconsideration, denied Stewart's application for disability benefits. A hearing was held before an Administrative Law Judge on January 14, 1980. The ALJ issued a written decision on February 5, 1980 finding the appellant was not disabled as of September 30, 1978, his last day of eligibility. The decision of the ALJ became the final order of the Secretary and was approved by the Appeals Council on March 13, 1980.

Stewart appealed this decision to the United States District Court for the District of New Jersey. The court determined that the Secretary failed to establish that alternative substantial gainful employment was available to Stewart and on February 27, 1981 the case was remanded for further proceedings. Stewart v. Harris, 508 F.Supp. 345, 349 (D.N.J.1981).

A second hearing by the ALJ was conducted on August 10, 1981. The ALJ issued a decision on October 19, 1981 recommending that Stewart be found not disabled. This decision was adopted by the Appeals Council and became the final order of the Secretary on December 23, 1981.

Stewart again appealed to the district court. The district court issued an unpublished opinion and order on September 21, 1982 that affirmed the denial of benefits. Stewart then filed a timely notice of appeal to this court.

FACTS

The records of the hearings disclose the following facts. Stewart was injured in an accident at work in July, 1977. He continued to work until August of that year. He was thirty-two years old at the time, and all of his work experience involved heavy construction work.

In August 1977, he was admitted to Elmer Hospital for marked pain in his back. The diagnosis was contusion of the lumbosacral area and contusion of the base of the left lung. In September, Stewart was discharged on an out-patient basis.

Stewart's claim for disability was based primarily on his back injury and consequent pain. Conflicting medical evidence was presented on the severity of the injury and the pain. Stewart's treating physician, Dr. Otto Boysen, stated in a note dated March 2, 1979 that the claimant was "totally disabled due to lumbosacral strain." (Transcript 116). In a medical report from August 1979 Boysen detailed his treatment of Stewart's injury since 1977 and reached the same conclusion. (Tr. 128-29).

Dr. Thomas Obade examined Stewart on behalf of the Secretary on May 18, 1979. His examination revealed that Stewart had twenty-five percent of the normal range of motion in his back with a mild amount of spasm, that his hips moved well without pain, and that Stewart's legs showed no evidence of atrophy. X-rays of the lumbosacral spine revealed a minimum compression factor of L-1. Obade also stated that Stewart suffered a chronic lumbosacral strain. He concluded that Stewart was capable of performing sedentary work. (Tr. 85-88).

Stewart testified that he took three or four percodan tablets a day as well as valium (Tr. 39-40), and that if he sat too long he would be in pain. (Tr. 47, 180). Stewart explained that the pain medications he used made him feel "drugged" and did not provide sustained relief from the pain. (Tr. 185-86). The medications also made it difficult for him to concentrate and impaired his memory. (Tr. 186). In addition to the medication, Stewart uses a TENS unit for relief from pain. (Tr. 179).

At the second hearing, held on August 10, 1981, Leonard Pitts, a vocational expert, testified concerning Stewart's previous work experience and his potential for future employment. Pitts testified in response to a variety of hypotheticals posed by the ALJ and by Stewart's attorney. Initially, he identified a variety of jobs that a If the drug would have an effect on his ability to what I call, to receive instructions, to do calculations, to maintain adequate interpersonal relationships on the ability to reason, it would affect an aspect of the job. It would affect what I call the mental aspect of a job that's required. If the drugs would have any effect on his ability to--that would affect his coordination, his ability to lift, to push, to pull, to carry, to reach, to handle, to finger, to feel, to talk, to see, it would affect his ability to function properly in that job.

                person of Stewart's capabilities could successfully perform.   When asked specifically about the effect of the medications Stewart took on his ability to perform the jobs in question, Pitts stated
                

(Tr. 192).

At the same hearing, the ALJ received a report from Dr. Gregory Maslow. He examined Stewart on September 24, 1981 on behalf of the Secretary. While his description of the physical examination is consistent with the diagnosis of lower back pain, ¹ his conclusion was that Stewart was not disabled. He stated:

My impression after examining this man is that he is severely hyper-reacting and I do not have the most recent myelographic reports but I sincerely doubt that he has ruptured disc and he appears not to be truthfully disabled in any way on the basis of today's exam. (Emphasis added).

(Tr. 205).

On October 29, 1982, after final disposition of this case by the district court, Stewart's attorney received a copy of an April 1982 letter by Dr. Frederick Murtagh to Drs. Boysen and Brown. In regard to Stewart, the letter states "[h]e has the clinical picture of an individual with L-4 nerve root compression and his myelogram confirms the presence of a disc herniation at this level." (Emphasis added). (Appendix 19a). On December 20, 1982, Stewart's attorney received a copy of the myelogram report apparently referred to in Murtagh's letter. The report, dated February 12, 1980 states "myelographic findings consistent with disc herniation at the L-4, L-5 level on the left side." (App. 20a). This evidence was not presented to the ALJ or to the district court. It is offered here for the first time.

ALJ Report

In his second opinion, dated October 19, 1981, the ALJ found that Stewart possessed residual functional capacity to perform sedentary work activity. He further found that Stewart possessed transferable work skills and concluded that Stewart was not disabled.

The ALJ rejected the testimony of Stewart's treating physician, Boysen, who repeatedly stated that Stewart was disabled. The ALJ concluded "Boysen's opinion is not adequately substantiated by findings from physical examination or clinical studies, appears largely based on claimant's subjective symptomatology, does not take into account the various levels of job activity available, and is adequately counterbalanced by the remainder of medical evidence of record." (Tr. 153). While he correctly noted that pain in and of itself can be a basis for disability, the ALJ did not credit Stewart's testimony regarding the pain he experienced. He wrote:

The Administrative Law Judge also notes that the claimant indicated [sic] at the hearing that he had been in constant and severe pain and that he uses heavy amounts of dramatic pain relievers. However, the Administrative Law Judge is constrained to comment that he did not find claimant's testimony regarding his symptomatology and level of discomfort to be credible or persuasive. In point of fact, the Administrative Law Judge finds that claimant is prone to exaggeration of his symptomatology. This conclusion is based on a careful review of the medical record, which reveals an essential paucity of objective findings, as well as by claimant's appearance, demeanor, and testimony at the hearing.

(Tr. 154).

The ALJ summarized Stewart's testimony concerning his dependence on pain killing drugs. He apparently found it credible. (Tr. 150). He then considered the testimony of Pitts, the vocational expert. He noted "Pitts indicated that if claimant's drugs affected him as alleged, then he obviously could not perform the job duties described." (Tr. 151). Ultimately he concluded that the claimant could perform the jobs described by the vocational expert at the hearing. (Tr. 155). This conclusion can only have been reached if the ALJ rejected Stewart's testimony concerning the effects the drugs had on him, as conditionally confirmed by the Secretary's own vocational expert, Pitts. The ALJ made no explicit finding on this point.

DISCUSSION

A reviewing court must accept findings of fact by the Secretary if those findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasoning mind might...