Walker v. Bowen

• Decision Date: 24 November 1987
• Docket Number: 86-3160,Nos. 86-3068,s. 86-3068
• Citation: 834 F.2d 635
• Parties: , Unempl.Ins.Rep. CCH 17,683 Benny WALKER, Plaintiff-Appellant, Cross-Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 635

834 F.2d 635

20 Soc.Sec.Rep.Ser. 20, Unempl.Ins.Rep. CCH 17,683

Benny WALKER, Plaintiff-Appellant, Cross-Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Defendant-Appellee, Cross-Appellant.

Nos. 86-3068, 86-3160.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1987.

Decided Nov. 24, 1987.

Lisa R. Hayes, Legal Services Organization of Indiana, Indianapolis, Ind., for plaintiff-appellant, cross-appellee.

Michael T. Lamb, Office of Gen. Counsel, Dept. of Health & Human Services, Chicago, Ill., for defendant-appellee, cross-appellant.

Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. ^*

RIPPLE, Circuit Judge.

This case is an appeal from the denial of Social Security disability benefits to Benny Walker by the Secretary of Health and Human Services (the Secretary). Mr. Walker seeks disability benefits for the period from December 12, 1981 to December 29, 1983. To be eligible for such benefits, the claimant must show that he has been totally disabled for at least twelve consecutive months. The Secretary denied benefits and Mr. Walker appealed that decision to the district court. The district court reversed the Secretary's decision with respect to the first part of the period in dispute and awarded disability benefits to Mr. Walker for the time from December 12, 1981 through July 7, 1983. Then, in the second portion of its decision, the district court upheld the denial of benefits for the time from July 7, 1983 to December 29, 1983.

Mr. Walker now appeals from the district court's ruling denying benefits from July 8 to December 29, 1983; the Secretary cross-appeals from the district court's award of benefits from December 12, 1981 to July 7, 1983. We reverse that portion of the judgment which granted Mr. Walker benefits from December 12, 1981 through July 7, 1983. We affirm that portion of the district court's judgment which approved the denial of benefits to Mr. Walker for the period after July 8, 1983.

FACTS

On October 14, 1980, Benny Walker injured his back while lifting a box at work. Mr. Walker went to Dr. Peter Hall, a neurosurgeon, for treatment. Dr. Hall was Mr. Walker's treating physician at all relevant times. Dr. Hall diagnosed Mr. Walker's injury as a left lumbar disc protrusion. Dr. Hall first prescribed bed rest, but Mr. Walker's condition worsened. Then, in March 1981, Dr. Hall concluded that Mr. Walker needed surgery and performed a discectomy. Mr. Walker's back pain again As Mr. Walker recuperated from the second operation, his back began to improve. On December 14, 1981, in response to a letter from the Disability Determination Division of Indiana Rehabilitation Services, Dr. Hall rendered the following opinion on Mr. Walker's condition:

grew worse and Dr. Hall performed a second discectomy on July 31, 1981.

Postoperatively [following the July 31, 1981 surgery], the patient made a significant improvement on this occasion with a marked decrease in back pain and sciatica. I last saw Benny in the Neurosurgery Clinic on December 2, 1981 at which time, he had a good range of lumbar movement, though he had some pain on straightening back up. Straight leg raising was normal at 90 degrees and was pain free.

I plan to see Benny back in February of 1982, and I feel that Benny will probably be medically fit at that time to return to work.

In conclusion, Mr. Walker has been medically unfit from October 14, 1980 thru February of 1982 secondary to a lumbar disc protrusion. I believe that he will be left with a permanent partial impairment of about 5% to 10%, the body taken as a whole.

Ex. 24, Tr. at 154-55. At the request of the Secretary, Dr. J.N. Garber examined Mr. Walker on December 11, 1981; Dr. Garber's opinion agreed substantially with that of Dr. Hall. Dr. Garber found that Mr. Walker's range of motion was nearly normal and that Mr. Walker experienced pain only upon flexion of his back. Dr. Garber further opined that, although he should lift no more than ten pounds, Mr. Walker would be able to stand and bend for short periods and could manipulate his hands and arms without difficulty. Ex. 26, Tr. at 156-58. Based on the reports of Dr. Hall and Dr. Garber, the Secretary found Mr. Walker eligible for a closed period of disability benefits from October 14, 1980 (the date of Mr. Walker's injury) to December 11, 1981 (the date of Mr. Walker's examination by Dr. Garber). Thus, the Secretary found that Mr. Walker's disability ended by December 11, 1981. Mr. Walker did not seek judicial review of that determination.

By January 1982, however, Mr. Walker again experienced problems with his back and he returned to see Dr. Hall. Dr. Hall hospitalized Mr. Walker on January 11, performed a CT scan on his back, and gave him steroid injections. The CT scan revealed no new damage to the back. The steroid injection had reduced the pain in his back. Mr. Walker was released on January 14. However, in March, Mr. Walker experienced more back pain and again visited Dr. Hall. This time Dr. Hall prescribed treatment by hanging lumbar traction. Mr. Walker improved dramatically following the traction and, by April 1982, his prognosis seemed good. On April 20, 1982, Dr. Hall reported:

When last seen in the Neurosurgery Clinic on March 31, 1982, lumbar flexion was restricted to about 15 degrees, and straight leg raising was limited to 70 degrees on the left with production of sciatica.

The patient was referred to Long Hospital for treatment with hanging lumbar traction and showed a dramatic response with virtual full recovery of the pain. I anticipate that he should be medically fit to return to work in June of 1982.

I feel Benny will always be subject to recurrent back and leg pain and that he should do no prolonged stooping or heavy lifting. I think he will be left with a 20% permanent partial impairment, the body taken as a whole, as a result of pain, previous back surgery, and limitation of lumbar range of movement and straight leg raising.

Ex. 29, Tr. at 166. On May 10, 1982, Dr. Lee Cattell examined Mr. Walker at the request of the Secretary and, like Dr. Hall, Dr. Cattell estimated that Mr. Walker had a "20% partial permanent impairment of the body as a whole." Dr. Cattell also noted that Mr. Walker was taking Tylenol # 3 to relieve his back pain. Tylenol # 3 contains codeine, a narcotic; therefore, Dr. Cattell recommended that Mr. Walker change medications to avoid addiction. Ex. 39, Tr. at 303.

Between May and November 1982, Mr. Walker apparently did not see a doctor, although he did receive physical therapy. Notes from Mr. Walker's physical therapy sessions in August reveal that Mr. Walker experienced some pain during therapy and that, on August 19, 1982, Mr. Walker reported that his pain was increasing. Ex. B-41, Tr. at 312-13. Then, on November 29, 1982, Mr. Walker once more saw Dr. Hall. Although Mr. Walker had earlier reported pain primarily in his left leg, he now felt pain in his right leg. Dr. Hall hospitalized Mr. Walker for diagnosis, and a myelogram revealed a bilateral disc protrusion. Mr. Walker then underwent approximately a month of physical therapy without improvement and, on January 18, 1983, Dr. Hall operated on Mr. Walker's back for the third time in less than two years.

Upon Mr. Walker's release from the hospital after the third surgery, Dr. Hall estimated that Mr. Walker would be unfit for work for at least four months. Ex. 29, Tr. at 241. On March 15, 1983, Dr. Hall estimated that Mr. Walker was still at least three to four months away from being ready to return to work and, further, that Mr. Walker had been totally disabled for the entire period following his injury. ¹ Ex. B-30, Tr. at 251-53. During his recovery from the third operation, Mr. Walker continued to suffer from recurrent back pain and, in June 1983, he received treatment for back pain in a hospital emergency room. Ex. B-41, Tr. at 319.

By July 1983, Mr. Walker's back condition seemed to have stabilized. In July and August 1983, three doctors examined Mr. Walker and reached substantially similar conclusions. On July 7, 1983, Dr. Sae Rhee of Indiana Vocational Rehabilitation Services examined him and restricted him from lifting, bending, or stooping. Ex. B-37, Tr. at 288-89. Also on July 7, Mr. Walker was examined by Dr. K.R. Manning. Dr. Manning concluded: "This man would be a poor candidate to do bending, lifting, pushing and pulling or heavy type work, but certainly could do a seated type of occupation or intermittently seated and walking." Ex. B-35, Tr. at 260. Finally, on August 6, 1983, Dr. K. Bradley, a medical consultant for the Division of Vocational Rehabilitation, examined Mr. Walker. Dr. Bradley concluded that he should avoid lifting, bending, stooping, pushing or pulling heavy objects, and walking or standing for more than one hour. Ex. B-37, Tr. at 286. Dr. Bradley also opined that Mr. Walker's pain might result, in part, from "psychosomatic 'overlay' " and that he might have a "chronic pain syndrome." Ex. B-37, Tr. at 287. Mr. Walker also saw a psychologist, Dr. Paul Martin, who noted that he suffered from neurotic depression. Dr. Martin also believed that "psychic stress" contributed to Mr. Walker's physical discomfort, but that Mr. Walker nonetheless "should hold his own easily at jobs calling for good manual dexterity." Ex. B-36, Tr. at 263-64.

At his hearing before the Administrative Law Judge (ALJ), he testified that he took two or three Darvocets three or four times a day and wears an electronic nerve stimulator to control his pain. He also wears a back brace some of the time. Tr. at 39-40. In September 1983, Mr. Walker attempted a vocational evaluation program with Goodwill Industries, but he missed four of ten days because of back pain. During the evaluation, Mr. Walker was unable to remain in one position, even seated, for more than an hour. His evaluator recommended further medical care before the evaluation...