Tyra v. Secretary of Health & Human Services

• Decision Date: 23 February 1990
• Docket Number: No. 89-1581,89-1581
• Parties: , Unempl.Ins.Rep. CCH 15256A Ronald M. TYRA, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1024

896 F.2d 1024

29 Soc.Sec.Rep.Ser. 3, Unempl.Ins.Rep. CCH 15256A

Ronald M. TYRA, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant-Appellee.

No. 89-1581.

United States Court of Appeals Sixth Circuit.

Submitted Feb. 1, 1990.

Decided Feb. 23, 1990.

Matthew F. Taylor, Saginaw, Mich., for plaintiff-appellant.

Donna Morros Weinstein, Chief Counsel, Denise S. Spencer, Dept. of Health and Human Services, Office of Gen. Counsel, Region V, Chicago, Ill., Michael Hluchaniuk, Asst. U.S. Atty., Bay City, Mich., for defendant-appellee.

Before MILBURN and NORRIS, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Claimant Ronald M. Tyra appeals from the judgment of the district court in favor of the Secretary of Health and Human Services (Secretary) affirming the Secretary's denial of Tyra's claim for a period of disability and disability insurance benefits under sections 216(i) and 223 of the Social Security Act as amended. For the following reasons we affirm the judgment of the district court.

I.

Claimant filed his application for disability insurance benefits on March 11, 1986, alleging that he became disabled and unable to work on November 1, 1984, due to lower back pain. The Secretary denied claimant's application in April, 1986. The Secretary denied claimant's application upon reconsideration in June, 1986. Dissatisfied with the Secretary's determination, the claimant requested a hearing before an Administrative Law Judge (ALJ). This hearing was held before Administrative Law Judge Alfred H. Varga on October 10, 1986.

On November 24, 1986, the ALJ issued his decision granting Tyra's claim for disability insurance benefits. The ALJ determined that claimant's residual functional capacity was compromised by his symptomatology. The Appeals Council, however, noting that a discrepancy existed in the record concerning claimant's work history, reopened the hearing decision on June 25, 1987. The Appeals Council vacated the ALJ's decision and remanded the action for further proceedings. See 20 C.F.R. Secs. 404.977, 404.988, 404.989 (1988).

A new hearing was conducted before Administrative Law Judge Dennis Runyan on August 26, 1987. On September 26, 1987, Judge Runyan issued his decision denying benefits to the claimant. The Appeals Council denied claimant's request for a review on February 18, 1988, making the ALJ's decision the final decision of the Secretary. Claimant thereafter appealed to the district court. On December 20, 1988, the United States Magistrate issued a Report and Recommendation proposing that the Secretary's decision denying appellant's claims be upheld. Claimant filed objections to the magistrate's Report and Recommendation. On April 27, 1989, the district court issued its Order granting the Secretary's motion for summary judgment in accordance with the magistrate's Report and Recommendation. Claimant thereafter filed this timely appeal.

The following evidence was introduced at the August 26, 1987 hearing.

Claimant was born on August 2, 1937, and was 48 years old when he filed for disability insurance benefits on March 11, 1986. He has a ninth grade education and can read and write. Claimant operated garbage trucks, snow plows and salt spreaders for the city of Saginaw, Michigan, from 1967 to 1983. The job entailed walking and standing eight hours per day, bending, reaching, and lifting 25-50 pounds. Tyra has been employed on a part-time basis (20 hours per week) since 1984 as a light equipment operator. This job entails collecting garbage, cutting grass, painting, sweeping, and maintaining small tools. Claimant alleges disability since November 1, 1984, due to lower back pain.

The medical evidence indicates that claimant was treated for lower back and right side leg pain prior to his alleged onset date of disability. Dr. George Schanz performed an intradiscal chemonucleolysis of L4-5 and L5-S1 in June, 1983 because an electromyogram had shown moderate L-5 abnormalities. Dr. Schanz later reported that claimant showed post-surgical neurological improvement and anticipated Tyra's return to work in approximately 1 month.

Though Dr. Schanz noted that Tyra's "neurological picture improved as an outpatient in terms of strength in the right lower limb," the doctor recommended further surgery to relieve claimant's back pain. Tyra underwent a decompressive laminectomy, removal and discectomy of L5-S1. In June, 1984, Timothy Webber, D.O., examined the claimant and noted ligamentous instability. Dr. Webber performed prolotherapy injections of Tyra's spinal ligamentous region and sacral areas. In April, 1985, Dr. Schanz examined the claimant and found "irritable" straight leg raising but noted normal vital signs, normal musculoskeletal responses, and normal neurological responses.

K. Timm, a physical therapist, examined claimant in June, 1985, and noted normal dermatomes and deep tendon reflexes though he also found limited lumbar ranges of motion and slightly decreased muscle strength. Tyra was given a physical therapy plan consisting of postural correction exercises. In August, 1985, a CT scan indicated some stenosis with narrowing of L4-5 and L5-S1. Dr. William F. Chandler, a neurosurgeon, examined Tyra in November, 1985, and found paraspinal muscle spasm and a limited range of lumbar motion, but otherwise normal strength, reflex, and neurological responses. Straight leg raising was negative bilaterally.

In January, 1986, claimant complained of persistent sciatic pain. Dr. Schanz performed a left L4-5 spinal fusion and a decompression of the left L5-S1 area, though the doctor admitted that the objective pre-surgery examination indicated clinically and neurologically negative findings, no neurological dysfunction, no atrophy, no plantar or dorsal flexion weakness, and 70% of normal forward flexion. In March, 1986, Tyra complained of back and bilateral thigh pain to Dr. Schanz. The doctor, finding negative musculoskeletal and neurological findings, encouraged the claimant to continue his walking program. Dr. Schanz's medical records from 1983 to 1986, as well as Dr. Webber's medical records, consistently indicate that Tyra's subjective complaints of pain were generally contradicted by normal neurological and physiological findings.

Tyra testified that he has trouble dressing, that he must lie down 2 hours per day, and that he can only sit for thirty minute intervals. Claimant, however, prepares a snack for himself, eats 2-3 meals per day, walks, exercises, watches television, and drives a car. Tyra also washes dishes, shops, does yard work, socializes with neighbors, and visits his relatives monthly.

Referring to claimant's initial disability award, Mr. Floyd P. Kloc, Chief Assistant Saginaw City Attorney, stated in a January 23, 1987 letter to the Secretary that Tyra's allegations of an inability to perform all but "make-shift" work were inaccurate. Mr. Kloc wrote:

Although it is true Mr. Tyra has definite work limitations at present, I suggest that his is a very inaccurate picture of Mr. Tyra's duties and his ability to perform them. First of all, all the duties he is assigned are within the job classification of a Light Equipment Operator, the position he has held since before his injuries. He has merely been assigned the lighter duty types of work within his job classification pursuant to his doctor's orders. This effort to accommodate him is not merely "make-shift" work. Enclosed is a copy of a self-explanatory communication to me from his supervisor on this issue, which has attached to it the various duties Mr. Tyra may perform, depending on department needs on any given day, during his present 4 hours per day, 5 days per week schedule.

Secondly, while the "Evaluation of the Evidence" portion of the award indicates that Mr. Tyra apparently testified that he did not work between May 1983 and January 1984, and October 1984 through July 1986, our records show that [this testimony] is not correct either. While he did lose much time during these periods as a result of the initial injury and subsequent surgeries and treatment, he did in fact work all of May and through June 19, 1983. He [similarly] worked from June 27, 1984 through March 17, 1985, and he has worked part time, on his 4 hours per day, 5 days per week schedule, from June 16, 1986 to the present with only a few lost work days.

Mr. Kloc's letter included a copy of a January 15, 1987 communication from Robert Obuchowski, Assistant Superintendent of Streets, Parks and Cemeteries. Obuchowski's communication confirmed that Tyra's work assignments were not merely "make-shift" work.

Daniel Rogalny, a vocational expert (VE), testified at the hearing that Tyra's past relevant work was heavy to very heavy and unskilled. Tyra's current work was light to medium and unskilled. Rogalny testified that if all of the claimant's subjective allegations of disabling symptomatology were true, Tyra would not be able to perform any work. However, based upon a series of hypotheticals posed by the ALJ concerning a claimant with Tyra's objective medical limitations of lumbar motion, back spasms, and straight leg raising irritation, claimant could still perform a limited range of sedentary, unskilled work including television monitor/security guard, information clerk, assembler and inspector. The VE testified that approximately 13,800 such positions providing a sit/stand option exist in the regional economy. The VE also testified that Tyra's current position could not be considered "make-shift" work because the work claimant performed was consistent with the duties of a light equipment operator.

On September 26, 1987, the second ALJ found Tyra not disabled within the meaning of the Social Security Act. The ALJ determined that claimant suffered from "severe impairments of lumbosacral disc disease, status post multiple back surgeries, and persistent left lower extremity sciatica," but that he did...