Wilson v. Heckler

• Decision Date: 29 May 1984
• Docket Number: No. 83-3454,83-3454
• Citation: 734 F.2d 513
• Parties: , Unempl.Ins.Rep. CCH 15,363 Larry J. WILSON, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 513

734 F.2d 513

5 Soc.Sec.Rep.Ser. 199, Unempl.Ins.Rep. CCH 15,363

Larry J. WILSON, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services,

Defendant-Appellee.

No. 83-3454

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 29, 1984.

Robert P. Byelick, St. Petersburg, Fla., for plaintiff-appellant.

Virginia Covington, Asst. U.S. Atty., Tampa, Fla., Elyse Sharfman, Dept. of HHS, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, RONEY and TJOFLAT, Circuit Judges.

PER CURIAM:

In this appeal we review the denial of disability insurance benefits to a 38 year-old claimant who suffers from pain and stiffness in numerous joints, including his hands, back, knees, and ankles. Because the ALJ improperly engaged in "sit and squirm" jurisprudence as well as applied an improper standard, we vacate and remand for further proceedings consistent with this opinion.

At some time in the mid-1970's Wilson began to experience pain and stiffness in his joints. The earliest medical report in the record comes from Dr. Soshea who saw Wilson from June 1976 to February 1977. The doctor determined that Wilson's examination was essentially normal but diagnosed "secondary fibrositis." 2 Rec. at 151-52. Dr. Soshea prescribed a program of extra rest and medication. Id. Various combinations of medications were tried but none with great success. Id.

Because Wilson was not improving, he was unable to perform his usual job as a mechanic for Florida Power. The company sent him to a rheumatologist, Dr. Espinoza, for evaluation. Dr. Espinoza found the "[p]hysical examination except for obesity and obvious stiffness around the shoulder girdle was unremarkable." Id. at 153. He diagnosed "Fibrositis, an ill-defined entity with a poor prognosis from a rehabilitation point of view." Id. The doctor prescribed an anti-inflammatory medication.

Florida Power created a new position for Wilson as storekeeper in the parts department. He continued to have physical problems, however. On July 10, 1980, Wilson tripped and fell while at work. He was taken to an emergency room, where he was referred to Dr. Hobby, an orthopedic surgeon. Hobby diagnosed a lumbar sprain. Id. at 123. At this point Hobby became Wilson's treating physician.

Wilson continued to experience pain in his back, shoulders, and knees, although his neck pain was alleviated to a great extent. Id. at 124. Because of the lack of general improvement, Dr. Hobby recommended a stay in the hospital for "intensive conservative treatment including bedrest, therapy, pelvic traction and possibly neurological consultation." Id. at 125. Wilson was hospitalized for two weeks. The traction was not helpful. Id. He had a bone scan that was negative and a cat scan that was negative for spinal stenosis. Id.

During this hospitalization, Dr. Bridgeford served as a consulting physician. He recommended a myelogram, but Wilson refused on the ground that, whatever the test showed, he would refuse surgery. Id. at 69-70. The doctor diagnosed possible midline lumbar disc, possible cervical strain, and cervical osteoarthritis. Id. at 136. He continued to advise evaluation for disc surgery in both the neck and back. Id. at 127.

Hobby released Wilson from the hospital "not improved" and with a recommendation for conservative treatment at home. Id. at 125. The doctor continued to see Wilson every few months, with essentially no improvement in his condition. Id. at 127-31. The last date of evaluation is June 11, 1981. On January 14, 1982 Hobby wrote a letter to Wilson's attorney stating:

Mr. Wilson suffered an injury to his back on the 10th of July 1980. He has been totally disabled since that time. His disability is still complete and his disability will continue for an indefinite time.

Any additional information that I can give would be a pleasure.

Id. at 163.

Dr. Ricca, a rheumatologist, examined Wilson in February 1981. He concluded that Wilson "had perhaps some degenerative arthritis and possibly a fibrositis syndrome, but most importantly I felt that he had sciatica and a probable herniated disc at the L-4, L-5 level." Id. at 145. Because Wilson refused to have a myelogram, Ricca did not "have much to offer him." Id.

Dr. Osher, an orthopedist, evaluated Wilson in September 1981 for SSA. The doctor determined that:

[t]here is no evidence of focal neurological deficit, but he does have changes consistent with an arthritic process in his back. He may have congenital myotonia that is becoming manifest in his middle age. This would cause him the trouble moving and the limited motion and be unresponsive to all of the entire arthritic therapy that he has had. Such a diagnosis would have to be based on an electromyographic study to be certain.

Id. at 148.

At the request of Wilson's attorney, Dr. Osher saw Wilson again in October 1981. He suggested that a myelogram and an electromyogram might "find the root of the problem." Id. at 156. The doctor reported that Wilson must be suffering from "some sort of a myotonia which is an abnormality in the muscles, in which the muscles contract and have troubling [sic] relaxing and releasing their tension." Id. He indicated that an electromyogram would show whether Wilson suffered from myotonia. Id. at 157. However, the record does not show that such a test was given.

When contacted by Wilson's attorney, Dr. Osher reported that:

I do think he was disabled as of my seeing him in the fall of 1981. I would expect that he would still be disabled unless there has been a change in his status. I would think his previous doctors would be better able to say exactly when he became disabled.

It is within the realm of reasonable medical probability that disability commenced with the injury at work in 1980.

Id. at 155.

The SSA also sent Wilson to a radiologist, Dr. Sherman. He found no abnormalities in his examination of the entire spine and both knees. Id. at 150.

Wilson applied for disability insurance benefits in March 1981. The SSA denied his application initially and on reconsideration, both times on the lack of severity of his condition. Id. at 104, 106.

Wilson then requested and received a hearing before an Administrative Law Judge. He testified generally as to his pain and limitation of his activities. His wife testified and basically corroborated her husband's statements. Id. at 40-80. Wilson was represented by an attorney at the hearing.

After the hearing, the ALJ determined that additional information was needed to evaluate the claim, and Wilson was sent to Dr. Leber, a neurologist, for an evaluation. Dr. Leber apparently did not have the reports of the other doctors, although he knew some of the information contained in them. Id. at 165. Dr. Leber concluded that there was:

no evidence of any neurological disease in this gentleman and [I] really suspect he does not have a neurological or an orthopedic problem. It seems that he has seen several physicians in the past concerning various aches and pains, but I don't really know if anything definitive has been found. I suspect not. I do not think this gentleman is disabled from any medical reason. I ... did not offer any medication to him at this time.

Id. at 166.

After receiving Dr. Leber's report, the ALJ contacted Wilson's attorney and gave him ten days to respond and/or submit additional evidence. No response was made. The ALJ denied benefits. He stated:

In view of the findings and conclusion of this physician [Dr. Leber] as well as the prior gross discrepancy between the claimant's subjective complaints and the objective findings upon multiple examinations, the undersigned is not convinced that the claimant's physical impairment and resulting discomfort have been so severe as to substantially interfere with his ability to engage in all forms of work activity for a continuous period of at least 12 months. Admittedly, the claimant may have had difficulty as a result of fibrositis primarily affecting the knees, a lumbar sprain sustained in a fall on July 10, 1980, and moderate degenerative osteoarthritis of the spine which has interfered with his ability to engage in strenuous forms of work activity involving significantly heavy lifting, carrying, pushing or pulling, climbing or crawling, or prolonged standing or walking. However, the preponderance of the evidence of record fails to demonstrate the existence of an impairment serious enough to further restrict the claimant's activity for any prolonged period which lasted or could be expected to last for at least 12 continuous months.

The Administrative Law Judge has not ignored the claimant's complaints of pain in making this decision and is aware that pain alone may warrant a finding of total disability where it is found to be so severe as to substantially interfere with the claimant's ability to perform work-related tasks. The Administrative Law Judge closely observed the claimant at the hearing and observed no physical signs which would be related to constant and severe pain. Although the claimant did use a cane at the hearing and stood at times during the hearing, he answered questions alertly and his thoughts did not wander. No significant impairment of memory or concentration was noted. Further, there are insufficient clinical findings of record to substantiate the claimant's complaints of constant and severe pain. Although he has been prescribed and apparently takes, frequently, pain medications including Tylenol # 3 and Robaxin, the undersigned is not convinced, based upon the evidence of record, of a frequent need for such medication. While the claimant did indeed experience some chronic degree of pain associated with degenerative osteoarthritis and fibrositis, it has not been shown to be so serious as to interfere with his ability to engage in work activity at least within the restrictions noted...