Tideswell v. Secretary of Health and Human Services
| Decision Date | 03 March 1989 |
| Docket Number | No. 88-1087,88-1087 |
| Citation | 869 F.2d 1493 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Robert K. TIDESWELL, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KRUPANSKY and BOGGS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.
Robert Tideswell appeals the denial of disability benefits by the Secretary. He claims that his back ailment qualifies him as disabled under the listing of impairments and/or other regulations, and that the ALJ failed to show that there are jobs available in the national economy which he is able to perform. We affirm.
Tideswell is a fifty-year-old man residing in Farwell, Michigan. He filed for benefits on October 17, 1985, alleging that he became disabled on May 24, 1984 as a result of back injury. He claims that his back injury keeps him from lifting, sitting, standing and walking.
At Tideswell's request, a hearing was held before an ALJ. In his decision, the ALJ found that Tideswell had not engaged in substantial gainful activity since May 24, 1984, and that the medical evidence established that Tideswell has "severe spondylolisthesis with spondylosis, scoliosis and degenerative changes of the lumbar spine" which precludes his return to his past relevant work as a carpenter/carpenter foreman. However, the ALJ also concluded that Tideswell's condition neither meets the listed impairments nor includes a non-exertional impairment which renders the listings inapplicable. Thus, the ALJ denied benefits, finding that there are a significant number of jobs in the national economy which Tideswell could perform. He reached this conclusion despite his recognition of the fact that Tideswell's residual functional capacity even for sedentary work is reduced by his inability to sit for long periods of time.
Tideswell submitted additional evidence to the Appeals Council in the form of a deposition of Dr. Haverbush and a letter brief of counsel. However, the Appeals Council denied Tideswell's request for review in a form letter.
Tideswell then filed the instant suit, which was referred to a magistrate. The magistrate ordered that motions for summary judgment together with supporting briefs be filed. In his report and recommendation, the magistrate stated that there was substantial evidence to support the conclusion that Tideswell is not disabled. The magistrate recommended granting summary judgment to the Secretary. The district judge adopted this recommendation and granted summary judgment to the Secretary.
Tideswell is a high school graduate. The Secretary's vocational expert characterized his past relevant work as skilled and heavy. Tideswell's employment ceased when he sustained a severe lower back injury while carrying a 100 pound load at work. He claims that his pain is constant and dull, and that at times it shoots down his legs and up his back. He claims that his left leg becomes numb on occasion, and that the lower half of the right leg and foot area are numb. He testified that he can stand for 15 minutes, after which the pain gets severe, and he can walk for 15 to 20 minutes, after which the pain also gets too severe. He cannot bend or lift, and cannot sit for longer than 15 to 20 minutes before having to move. The pain in his lower back is there all of the time, and is worse when he is active, or when he has been inactive for a time. He claims to have difficulty dressing himself, especially putting his socks on. He does not help with housework, make his bed, wash clothes, take out trash unless it is very light in weight, or vacuum. He works in the yard occasionally, mowing the lawn for ten minutes at most. He does not sleep well due to pain. He stated that the pain does get much worse at times, and he cannot move at all at those times. Usually, the severe pain lasts for about ten minutes, during which time he tries to get to a chiropractor or lies or sits down for about a half hour. He has stiffness every morning, and has difficulty ascending and descending stairs. He further testified that he would be working if he could.
On the other hand, Tideswell has taken only non-prescription Tylenol for his pain, allegedly because he does not want to become addicted to prescription drugs. He does not take the Tylenol every day. He also stated in his disability report that he drives about 300 miles per week. He testified that he no longer camps and fishes, but his disability report states the exact opposite. Also in his disability report, he stated that he babysits his granddaughter, performs small chores with domestic animals, does odd jobs and goes out to eat several times a month. All of this was inconsistent with Tideswell's own testimony.
The vocational expert testified that there are semi-skilled jobs available which Tideswell could perform if he had the residual functional capacity to perform sedentary work. In addition, there would be a large number of unskilled jobs available with a sit/stand option. However, the expert further stated that if Tideswell had all of the symptoms and limitations to which he had testified, he could not find any work.
The medical evidence is voluminous. Dr. William Schaefer, now deceased, evaluated Tideswell's condition on June 4, 1984. He found a reduced range of motion, diminished reflexes at the knees and ankles, bilaterally, diminution of pinprick sensation over the lateral thigh and lower leg on the left. He prescribed physical therapy, which Tideswell underwent but which was unsuccessful in relieving Tideswell's symptoms. In fact, his condition worsened.
Dr. William Redmon, a Board certified orthopedist treated Tideswell in connection with Dr. Schaefer, from July to November 1984. He noted that there was substantial loss of motion of the lumbrosacral spine, and his x-rays showed "Grade Two spondylolisthesis of L-5, S-1 with virtually complete obliteration of the L-5/S-1 disc space." Spondylolisthesis is the "forward displacement of one vertebra over another." Dorland's Illustrated Medical Dictionary 1458 (25th ed. 1974). Spondylolisis is immobility and consolidation of a vertebral joint and is also a general term for degenerative changes due to osteoarthritis. Ibid.
Dr. John London, a family practitioner, examined Tideswell at the Secretary's request on November 5, 1985. He noted a positive straight leg raising test at 45 degrees, significant loss of motion of the lumbrosacral spine, and numbness in parts of both ankles. Dr. London also noted that Tideswell had difficulty getting on and off of the examining table without assistance. However, he further stated that Tideswell could walk on heels and toes without problem, and could squat and recover without difficulty.
Dr. Haverbush, also a Board certified orthopedist, began treating Tideswell on February 14, 1986, at which time he noted left leg atrophy, decreased pinprick sensation on the right, weakness of the extensor hallucis longus muscles more so on the right than the left, diminished left achilles reflex, severely limited range of lumbrosacral motion to 1/3 of normal, and a "positive" straight leg test on the right at 45 degrees with a crossover effect noted (which is caused by putting pressure on the nerve root which then sends pain down the opposite leg). Dr. Haverbush reviewed x-rays taken at the request of Dr. London, stating that they showed "a marked decrease in the L5/S1 disc space and also a Grade II spondylolisthesis at L-5/S-1." Haverbush admitted Tideswell to the hospital to perform a lumbar myelogram on March 26, 1986. The myelogram revealed no evidence of nerve root impairment, though it did show spondylolisthesis.
Dr. Haverbush testified that Tideswell's condition could be very painful because of the marked degree of narrowing at the lumbosacral juncture. He stated that "it certainly is very irritating to the small nerves that supply the tissue around the vertebra and the small joints behind the vertebra, and when the displacement is present it causes pressure on the tissues and irritation of those small nerve endings." Haverbush stated that Tideswell cannot intermittently sit, stand or walk during the course of an eight hour shift, that he is limited to lifting 10 lbs. occasionally, and cannot bend, twist, or climb stairs or ladders. His opinion was that Tideswell was disabled to the extent that he cannot work a regular eight hour shift on a daily basis because he must lie down two to three times a day to relieve the pain. He further explained that persons suffering from spondylolisthesis at L5-S1 "can have disc trouble and nerve root irritation at the disc one level higher than the spondylolisthesis, which in this particular case would be the L5 nerve root level." He also noted that diminution of the ankle reflex was often associated with motor loss in the sense of calf weakness, although he added that this was difficult to demonstrate during an examination. Haverbush concluded that the back condition met the criteria of Listed Impairment 1.05(C).
The district judge summarily adopted the magistrate's report and recommendation. That report and recommendation reviewed all of the above medical evidence and testimony, finding that substantial evidence supported the ALJ's conclusion that Tideswell was not disabled. He found that the ALJ had properly analyzed the case according to his own review of the evidence and his independent finding of residual functional capacity, not from complete reliance on the listings. The magistrate noted that the ALJ did not find Tideswell to be completely credible. The magistrate stated that, had he decided this case in the first instance, he might have ruled differently. How...
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...Ins. Co. of N. Am., 486 F.3d 157, 161 (6th Cir. 2007) (noting the difference); see also Tideswell v. Sec'y of Health & Human Servs., 869 F.2d 1493 (Table), 1989 WL 20595, at *1 (6th Cir. Mar. 3, 1989) ("medical evidence established that Tideswell has 'severe spondylolisthesis with spondylos......