Strickland v. Califano, FS-76-86-C.

Decision Date22 March 1978
Docket NumberNo. FS-76-86-C.,FS-76-86-C.
Citation447 F. Supp. 410
PartiesBennie E. STRICKLAND, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.
CourtU.S. District Court — Western District of Arkansas

Stephen M. Sharum, Fort Smith, Ark., for plaintiff.

Larry R. McCord, U. S. Atty., Fort Smith, Ark., for defendant.

OPINION

JOHN E. MILLER, Senior District Judge.

On January 2, 1974, plaintiff, Bennie E. Strickland, filed application for disability insurance benefits in which he alleged his disability as "back injuries and nerve damage from a myelogram done five years ago, effecting legs and hands". (Tr. 72-75). The application was initially denied on February 7, 1974. (Tr. 76-77). Reconsideration was denied on May 15, 1974 on the ground that the plaintiff was not under a disability.

Hearing was held in Mena, Arkansas, by Gene C. Smith, Administrative Law Judge, on August 6, 1975, who on October 10, 1975 held that plaintiff is not entitled to the establishment of a period of disability or to disability insurance benefits on the ground that plaintiff's physical impairments consisting of residuals of vertebral fracture are not of a level of severity as to preclude him from engaging in any substantial gainful activity. He further held that plaintiff "is unable to return to his previous heavy work as a construction worker, but he is and has been able to function normally otherwise."

On January 9, 1976, the Appeals Council approved the Administrative Law Judge's decision and May 14, 1976 the plaintiff filed his complaint, in which he alleged:

"The evidence produced at the administrative hearing before the hearing examiner, Judge G. C. Smith, and the Appeals Council showed without substantial contradiction that plaintiff was severely and irremediably disabled by accidental injuries, and that such disability rendered him unable to engage in any substantial gainful activity, within the meaning of the Social Security Act. The finding of the Secretary to the contrary lacks any substantial support in the evidence."

An answer of defendant to the complaint was filed September 15, 1976 and on September 24, 1976, Chief Judge, Paul X Williams, entered an order remanding the case to the Secretary "for a new hearing before an Administrative Law Judge at which plaintiff may present new and additional factual and medical evidence."

On December 14, 1976, a supplemental hearing was held at Fort Smith, Arkansas, by Denton D. Gossett, Administrative Law Judge, who filed his opinion on February 18, 1977, in which he held:

"Mr. Strickland has not been unable for 12 continuous months to perform the jobs related by the vocational expert with the exception of porter. This job would probably require an excessive amount of bending and stooping."

In discussion of the claim, the judge stated:

"Mr. Strickland asserts constant pain over all his body which at times becomes so bad, he can `hardly stand it'. Although pain may be severe enough to result in an inability to engage in substantial gainful activity, (see Ber v. Celebrezze, 2nd Cir., 332 F.2d 293), it is equally clear that Mr. Strickland must establish the existence of severity of pain by more than mere allegations. (Social Security Act, section 223(d)(3), Dvorak v. Celebrezze, 345 F.2d 894 (10 Cir. 1965). "It is well settled that `subjective symptoms must be evaluated with due consideration for credibility, motivation and medical evidence of impairment'. Dvorak v. Celebrezze, supra at 894, Social Security Act, sections 216(i)(1)(A) and 223(C)(2). Dr. McConkie and Dr. Beard were of the definite opinion that Mr. Strickland's numerous complaints were `far in excess of what the objective findings can correlate with.'
"Cantrell v. Ribicoff, 206 F.Supp. 436, 438, the Federal Court quoted the following language with apparent approval:
"`Pain is a subjective symptom which cannot be measured qualitatively or quantitatively. However, continuous, severe and intractable pain must, and does leave its stigmata. In longstanding cases of severe and persistent back pain, there is usually present not only loss of motion in the back but such signs as impaired gait and weakness of the extremities with resultant muscular atrophy caused by the voluntary or involuntary restriction in the use of the back, weight loss, and progressive physical deterioration.'
"Such compatible, observable signs consistent with severe and intractable pain have not been evidenced in the instant case." (Tr. 122-123).

On May 17, 1977, the Appeals Council adopted said decision and found that the plaintiff was not entitled to a period of disability. The decision of the Appeals Council became the final decision of the Secretary.

On March 14, 1978, the Secretary filed his motion for summary judgment, supported by brief, on the ground that there is no issue of fact and the defendant is entitled to a judgment as a matter of law. On March 15, 1978, plaintiff filed his motion for summary judgment, supported by brief, on the ground that there is no issue of fact and plaintiff is entitled to a judgment as a matter of law.

It is undisputed that in 1965 plaintiff was involved in an automobile accident in which he received severe injuries to his right side, including the arm, shoulder, hip and leg. A myelogram was performed evidencing a lesion on his spine. Surgery was recommended but declined by plaintiff. The medical reports substantiated that the plaintiff's lesion was aggravated by the possible improper insertion of a needle during the myelogram x-ray examination. (Tr. 97).

The neurosurgeon later committed suicide.

To complicate matters, the plaintiff, in 1969, while working fell off of a ladder causing a compression fracture of the L-1 vertebrae. (Tr. 97).

On July 4, 1973, a third injury occurred when the plaintiff stepped off of a truck and in the fall, struck his back and tail bone on a blunt leg of a compressor causing severe pain and aggravation of pre-existing injuries. (Tr. 41 and 53).

Occasionally, plaintiff wears a brace which gives only partial relief from the injuries suffered by him. That he has continuous severe pain localized in his back lumbar region and entire right side of his body is admitted by all physicians, but it is contended that it is not sufficient to disable him.

Dr. Alfred B. Hathcock, of the HoltKrock Clinic of Fort Smith, Arkansas, on February 1, 1974, writing on behalf of the Orthopaedic-Neurological Professional Associates, advised Wayne G. Loftin, Director of Disability Determination of the Social Security Administration, as follows:

"This man conceivably could have been injured in the first automobile accident and had symptoms that have persisted ever since. The first myelogram showed the possibility of a surgically correctable problem, but unfortunately his original investigator is dead. He does have x-ray evidence of a compression fracture, and conceivably he had nerve root irritation in the past. I would say that the second injury definitely aggravated the first, but my guess is that he was mostly disabled from the first injury. The second injury did add enough to it that he had trouble doing the work he was doing. I would agree that heavy lifting, or stooping, or bending would be difficult for him. The obvious next step is to consider a myelogram in other words further work-up." (Tr. 98).

Dr. Hathcock did not mention the fall of plaintiff on July 4, 1973 which caused severe pain and aggravated the prior injuries of 1965 and 1969.

In the opinion of the Administrative Law Judge, Gossett, of February 18, 1977, he evaluated the statements of the physicians as follows:

"Dr. Beard's impression was:

"`The overwhelming pervasive impression of the whole exam is that there are numerous complaints far in excess of what the objective findings can correlate with.
"`Because of the old compression fracture as previously reported, I am inclined to believe he should avoid heavy lifting at any time. I am inclined to believe that he can do a full range of sedentary, light and medium work.'
"The record further shows that the well-qualified, board certified orthopedist, Dr. Hathcock, in February, 1974, found a post-compression fracture of L-1 with intermittent nerve root irritation. Dr. Hathcock stated that heavy lifting or stooping or bending would be difficult. "Another well-qualified, board certified orthopedist, Dr. McConkie in April, 1975, found:
"`In summary, Mr. Strickland presents with many more complaints than can be justified on the basis of this physical examination with the exception of a little bit of stiffness in the low back estimated at 25 to 30%. I would not feel that there is anything that would significantly point to a back injury or difficulty of any type. He has no neurologic changes and I believe his complaints as far as the leg giving way, the numbness, the pain and the groaning and moaning are all grossly overstated. "`The only significant finding then is a loss of about 25% back motion which is felt to be valid and an old lumbar fracture which is well healed. This gentleman should be able to perform well at jobs that are commensurate with his age. Heavy lifting and straining and getting in awkward positions would be troublesome and should be avoided.'
"In short, two board certified orthopedists and a board certified neurologist are of the opinion that Mr. Strickland is only limited as to work activity which involves heavy lifting. The board certified orthopedist in 1974 thought that stooping and bending would be difficult. Mr. McConkie and Dr. Beard found loss of motion in the back. This would preclude the performance of jobs which require repetitive bending or repetitive stooping.
"As set forth hereinabove, Dr. Pickard in his report of December 3, 1976, related no new findings. He merely stated that Mr. Strickland's `condition appears to be unchanged' (Emphasis added).
"In his report of August 5, 1975, (Exhibit 19) the only medically
...

To continue reading

Request your trial
3 cases
  • Hillhouse v. Harris
    • United States
    • U.S. District Court — Western District of Arkansas
    • August 30, 1982
    ...On the contrary, the administrative law judge cited a district court decision from the Western District of Arkansas, Strickland v. Califano, 477 447 F.Supp. 410 (1978), which quoted extensively from a Sixth Circuit Court of Appeals decision, Sayers v. Gardner, 380 F.2d 940 (1967), and offer......
  • Boone v. Califano, Civ. A. No. 78-74-NN.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • October 3, 1978
    ...facts. Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973); Vineyard v. Gardner, 376 F.2d 1012 (8th Cir. 1967); Strickland v. Califano, 447 F.Supp. 410 (W.D.Ark.1978). A fundamental principle in the interpretation of deeds is that the expressed intention of the parties should govern unles......
  • Ross v. Great Atlantic & Pac. Tea Co., Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • March 22, 1978

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT