Thorne v. Weinberger
| Decision Date | 19 January 1976 |
| Docket Number | No. 75--1337,75--1337 |
| Citation | 530 F.2d 580 |
| Parties | Lucille F. THORNE, Appellant, v. Caspar W. WEINBERGER, as Secretary of Health, Education and Welfare, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Deborah G. Mailman, Raleigh, N.C., for appellant.
Richard A. Olderman, Appellate Section, Civ. Div., U.S. Dept. of Justice (Rex E. Lee, Asst. Atty. Gen., Washington, D.C., Thomas P. McNamara, U.S. Atty., Raleigh, N.C., Leonard Schaitman, Atty., Appellate Section, Civ. Div., U.S. Dept. of Justice, Washington, D.C., on brief), for appellee.
Before CLARK, Associate Justice, * BRYAN, Senior Circuit Judge, and WINTER, Circuit Judge.
The appellant, Lucille E. Thorne, seeks review of the decision of the Secretary of Health, Education and Welfare denying her claim for social security disability benefits. The United States District Court, on cross motions for summary judgment treated the same, respectively, as motions to affirm and dismiss under Rule 7(b)(1), Fed.R.Civ.P. Torphy v. Weinberger, 384 F.Supp. 1117, 1119 (E.D.Wis.1974). Finding that the Secretary's ruling was supported by substantial evidence on the record as a whole, the district court dismissed the case. We cannot agree.
Our examination of the record indicates that, contrary to the findings of the Hearing Examiner (now Administrative Law Judge), every doctor examining appellant found pain caused by degenerative arthritis or by a herniated disc. One doctor found her totally disabled to work. Another determined that she was able to carry out only 50 percent of the normal motion in her lumbar spine, which severely limited her ability to bend and lift. The claim was that this condition resulted from a bout with cancer, that radiation therapy treatment left her with a degenerative condition of the lumbar spine. Together the herniated disc and damaged lumbar spine cause her severe pain which, in our view, renders her unable to perform her duties as a sewing machine operator in a shirt factory. We, therefore, reverse and remand the case for the entry of judgment in appellant's favor, subject to the Secretary's right to show, if he can, that she can do other work of a substantial nature and that such other employment suitable to her physical condition is available as provided in the Act.
The record shows that after working in a shirt factory for some twenty-five years, Mrs. Thorne was stricken with cancer of the cervix. She began radiation therapy in April 1970, which, after three months, produced a favorable response. As often happens, however, the radiation produced side effects, including in this case inflammation of the intestines, colitis, hematuria, and cystitis cysticia, but fortunately the cancer was arrested. In March 1971, appellant was examined for severe pain in her back. Examinations over a 30-day period showed physical change in appellant's back accompanied by pain on the straight raising of her right leg at 45 degrees. The x-rays revealed a degenerative arthritic condition in the lower lumbar spine and a bilateral antalgic gait, which was pain related. She exhibited bilateral back pain with limitation of motion in the lumbrosacral joint and generalized tenderness in the lumbar area. In early 1972, x-rays of the lumbrosacral spine showed moderate changes of degenerative arthritis. The doctor at the time, Dr. Presson, considered the condition disabling. In the fall of 1972, at the request of the Government, appellant was examined again. The examination revealed a mild round back in the thoracic area with tenderness over the lower lumbar area on pressure and proved that Ms. Thorne could carry out only 50 percent of normal motion in her lumbar spine. Straight leg raising on the right was 60 degrees and hypertrophic changes were shown in x-rays of the lumbar spine.
All of the medical experts found the existence of pain caused by degenerative arthritis or intervertebral disc disease. One doctor (Dr. Presson) found a rather severe lumbro-sacral strain with possible herniated nucleus polposus that was accentuated by lifting. The Government's doctor found definite degenerative changes in Ms. Thorne's lumbar spine accentuated by symptoms of a herniated disc, moderate functional limitation for walking long distances, stooping, bending, lifting, reaching and climbing steps. He also found a mild limitation for sitting in one position for a long time.
The subjective evidence of pain sworn to by appellant was substantiated by both family and neighbors and is uncontradicted in the record. It was described as constant with aggravation on standing, walking or sitting. The left leg becomes numb at times, and appellant's general condition precludes housework and requires that she take two rest periods each day. Ms. Thorne's daughter testified that her mother suffered blackout spells and that her nonmobility prevented her return to her old job.
Ms. Thorne's work required sitting for long periods of time, the carrying of bundles of shirts weighing some 50 pounds to and from her machine some 15 to 20 feet. Her sewing operation required her to stoop and bend to the side of her machine to secure a...
To continue reading
Request your trial
-
Frazier v. Colvin
...(8th Cir. 1992); Thompson v. Sullivan, 987 F.2d 1482 (10th Cir. 1993); Totten v. Califano, 624 F.2d 10 (4th Cir. 1980); Thorne v. Weinberger, 530 F.2d 580 (4th Cir. 1976). However, the undersigned notes that the ALJ did not rely solely on Plaintiff's ADLs in assessing her credibility. She a......
-
Wood v. Schweiker, Civ. A. No. 77-94-8.
...e.g., Myers v. Califano, 611 F.2d 980 (4th Cir. 1978); Stawls v. Califano, 596 F.2d 1209 (4th Cir. 1979); Thorne v. Weinberger, 530 F.2d 580 (4th Cir. 1976). Plaintiff's objection to the magistrate's report on this basis is well Third, although the decision herein is based on the two defect......
-
Ware v. Schweiker
...through testimony by the claimant or friends, family, and co-workers. Such testimony cannot merely be disregarded. Thorne v. Weinberger, 530 F.2d 580, 583 (4th Cir. 1976); DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972). See Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980); Laffoon v. Calif......
-
Duncan v. Harris
...evidence even though it is not fully corroborated by objective examinations and tests performed on the claimant. See Thorne v. Weinberger, 530 F.2d 580, 583 (4th Cir. 1976); Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974) cert. denied 420 U.S. 931, 95 S.Ct. 1133, 43 L.Ed. 403 Althoug......