Tyler v. Weinberger

• Citation: 409 F. Supp. 776
• Decision Date: 05 March 1976
• Docket Number: Civ. A. No. CA 75-0242-R.
• Parties: Philip E. TYLER v. Caspar WEINBERGER, Secretary, HEW.
• Court: U.S. District Court — Eastern District of Virginia

409 F. Supp. 776

Philip E. TYLER v. Caspar WEINBERGER, Secretary, HEW.

Civ. A. No. CA 75-0242-R.

United States District Court, E. D. Virginia, Richmond Division.

March 5, 1976.

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Anita K. Henry, Neighborhood Legal Aid Society, Inc., Richmond, Va., for plaintiff.

N. George Metcalf, Asst. U. S. Atty., Richmond, Va., for defendant.

MEMORANDUM

WARRINER, District Judge.

This matter is before the Court on cross motions for summary judgment filed by plaintiff, Philip E. Tyler, and defendant, Caspar Weinberger, Secretary of Health, Education and Welfare. Plaintiff filed an application with the Social Security Administration for entitlement to disability insurance benefits under the Social Security Act, as amended, 42 U.S.C. § 405 et seq. The request was denied, whereupon plaintiff filed a request for reconsideration which was also denied. Thereafter a hearing was held on the matter wherein the Administrative Law Judge upheld the earlier decisions against plaintiff's application. This decision was appealed to the Appeals Council which affirmed the finding of the Administrative Law Judge. Having exhausted his administrative remedies plaintiff now seeks judicial review of defendant's unfavorable decision under 42 U.S.C. § 405(g).

To be entitled to disability benefits under the Act one must establish:

. . . An inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months . . .. 42 U.S.C. § 416(i)(1)(A).

. . . An individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. . . . "Work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. Id. § 423(d)(2)(A).

When making a finding as to plaintiff's ability to engage in any substantial gainful activity there are four elements of proof to be considered: (1) plaintiff's age, education and vocational background; (2) subjective complaints; (3) medical data and findings; and (4) expert medical opinion. Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1967).

Pertinent to the above inquiries the record discloses the following information. Plaintiff is 53 years old, has a seventh grade education, and has been limited to the following unskilled occupations: farming; pushing tobacco loads in a tobacco factory; loading and unloading boxcars; sorting leather; and door to door sales.

Plaintiff claims he injured his back in 1953, that he reinjured his back in an automobile accident in 1969 and that he again injured his back and injured his neck in an automobile accident in 1970 or 1971. As a result he claims he suffers from aching pains primarily in the lower and upper back, and in the hips, neck, shoulders, arms and legs. He further claims that the pains plus fatigue make prolonged sitting impossible; sometimes he must repeatedly change position to avoid the pains; usually he has to lie down for four hours after sitting for an hour or more. He also states that the pains make difficult repeated lateral movements of the head and movements of the arms, hands, and feet. In addition, he complains of sudden attacks of nervousness and dizziness which, on occasion, have completely immobilized him for short periods.

Plaintiff alleges that as a result of his condition he has been unable to work since April of 1974. He describes his present activities as reading, watching television and, on occasion, walking to his daughter's house about a block away. He reports that during the daytime he must lie down for about four hours daily, that he cannot drive a car for more than twenty minutes and that he cannot lift more than five pounds.

Diagnostic and clinical reports indicate that plaintiff has the following afflictions: strain of the cervical and lumbosacral spine and excessive lumbar stiffness; fusion of the upper left part of the sacroiliac joints (probably congenital); mild anterior degenerative spur formation present on all the lumbar vertebrae; arthritis of the low dorsal, lumbar, and sacroiliac spine; benign hypertrophy of the prostate gland; chronic prostatitis; osteopoikilosis in both femoral necks; possibly Reiter's syndrome; and likely, bullous emphysema.

Two orthopedic surgeons submitted into evidence findings concerning plaintiff's physical condition and prognosticated as to how plaintiff's impairments will affect his capacity to work. Dr. James Tucker, plaintiff's principal physician, examined and attended him on a number of occasions from January of 1969 until April 1974. Dr. Packer examined plaintiff on behalf of the government on 26 November 1973.

Dr. Tucker's medical report dated 30 October 1973 noted an examination of plaintiff in 1969 that indicated lumbosacral strain and an examination on 21 October 1970, after the first car accident, that indicated strain of the cervical spine and lumbosacral spine. A back brace and periodic bed rest were prescribed. The report further noted an examination of plaintiff on 17 October 1973 that indicated 50% limitation of motion of the lumbar spine. Dr. Tucker diagnosed traumatic arthritis of the lumbar spine for which plaintiff must wear a back brace continuously.

On 26 November 1973, after the second car accident, Dr. Packer again examined plaintiff, who at this time was selling goods door to door but complained that this work was too difficult for him. The examination indicated that the lumbar curve was flattened and that there was considerable lumbar spine rigidity. Spinal motion range indicated 50% loss of spinal flexion, 1/3 loss of rotation. Motion range of the cervical spine showed mild loss of rotative and side bending with good flexion and extension range. X-rays were taken which were read as showing minimal degenerative arthritic changes characteristic of his age and normal hip sacroiliac and lumbar joints. Posture, strength in the arms and hands, sensation in the extremities and reflexes were all found to be essentially normal.

In his report of the examination, Dr. Packer commented that plaintiff's excessive lumbar stiffness suggested an arthritic condition or could be due to traumatic disc degeneration, but stated that the x-rays were essentially normal showing no gross collapse or arthritic spur formation.

Dr. Packer filled out a physical capacities evaluation form on plaintiff which required that the answers be based exclusively on his findings without regard to plaintiff's complaints. He found that in an eight hour day plaintiff could: stand or walk 3 to 4 hours; sit 5 to 6 hours; lift up to 10 pounds, occasionally; use his hands for simple grasping, pushing and pulling or fine manipulation; use his feet for repetitive movements such as operating foot controls; occasionally climb stairs; reach above shoulder level; and work with arms extended at the waist or shoulder. Dr. Packer further found that plaintiff could not bend his back at the waist or bend at the knees.

Dr. Packer concluded that plaintiff apply for indoor type of sales work which would be less strenuous than what he was doing. He felt that plaintiff would need rehabilitative help in finding suitable sales work. He further noted that rehabilitation physiotherapy and medication may be needed.

Dr. Tucker re-examined plaintiff on 4 December 1973. He reported that plaintiff's back was stiff and immobile to a great degree and that he still suffered from arthritis of the low dorsal, lumbar and sacroiliac spine for which he must continue to wear a brace. He concluded that heavy work was certainly beyond plaintiff's capabilities.

On 9 April 1974 Dr. Tucker again examined plaintiff finding his back rigid with muscle spasm, and finding limitation of motion in all directions. The doctor's impression was that plaintiff was totally disabled. Plaintiff was, on that date, hospitalized and treated by Dr. J. E. Hill, a urologist, for urinary tract bleeding. Dr. Hill, in consultation with Dr. J. B. Roberts, a pathologist, diagnosed benign hypertrophy of the prostate gland and chronic prostatitis. An evacuation of the clots stopped the bleeding. Plaintiff also underwent a transurethral resection of the prostate. After surgery his condition was described as improved, but not recovered. The hospital report noted that plaintiff was additionally suffering from chronic back pain.

Subsequent to the 20 August 1974 hearing before the Administrative Law Judge, there were further medical developments, records of which were submitted to the Appeals Council for consideration. On 9 September 1974 plaintiff was admitted to Virginia Commonwealth University Hospital Emergency Room for an attack of nervousness, leg weakness and "feeling his heart beat." He had been taking valium as prescribed. An examination indicated that back motion was limited to 30° to the left, 20° to the right and 40° forward, with marked muscle spasm in the lumbosacral area. An x-ray of the lower back showed only four lumbar vertebrae, with mild anterior degenerative spur formation on all of those vertebrae. Plaintiff was referred to the hospital's corrective tissue clinic where he complained of pain in the left shoulder, arm, neck and low back, and weakness at times. The clinic report of 14 October 1974 noted decreased muscle strength in the extremities. The...