Robert B. KING, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
No. 83-3516.
United States Court of Appeals, Sixth Circuit.
Argued May 2, 1984. Decided Aug. 30, 1984.
742 F.2d 968
TIMBERS, Senior Circuit Judge.
We recognize that “the law does not require impossibilities” when it comes to proof of damages, but it does require what-ever “degree of certainty tha[t] the nature of the case admits.” Schankin v. Buskirk, 354 Mich. 490, 497, 93 N.W.2d 293 (1958). A damage award must not be based on “mere speculation, guess, or conjecture.” Zirin Laboratories Int‘l v. Mead-Johnson & Co., 208 F.Supp. 633 (E.D.Mich.1962). In this case, Green certainly had it within its power to provide the court with an account-ing for the number of extra hours caused by change orders for which it was paid. Green also should have been able to pro-vide a breakdown by job activity for the number of hours that would have been required in the absence of malfeasance by Turner in the performance of its construc-tion management duties. Because of its failure to do these things, there was “no basis for allocation of the lump sum [claimed] between those causes which were actionable and those which were not,” mak-ing “it proper to reject the entire claim.” Lichter v. Mellon-Stuart Co., 305 F.2d at 220.
Accordingly, the decision of the district court is affirmed.
Wellford, Circuit Judge, filed a dissent-ing opinion.
Joseph E. Kane, Linda Tucker, argued, Asst. U.S. Atty., Columbus, Ohio, for de-fendant-appellee.
Before JONES and WELLFORD, Circuit Judges, and TIMBERS, Senior Circuit Judge.*
TIMBERS, Senior Circuit Judge.
Appellant Robert B. King commenced this action in the district court pursuant to
I.
At the time of filing his application for disability insurance benefits on November 7, 1980, appellant was thirty years of age. He lived in Cambridge, Ohio, with his wife and two children. He had been born in Ohio. He completed his education through
Appellant‘s claim of disability is based on his assertion of constant and debilitating back pain in the lumbar sacral region re-sulting from what various medical doctors have diagnosed as degenerative disc dis-ease. Appellant claims that he first injured his back in 1972 when he fell from a truck while unloading a lawn mower. His back was X-rayed at that time, but he sustained no injury that prevented him from re-turning to work. He experienced no signif-icant back pain again until June 1974, when he ruptured a disc while digging a grave.
Appellant at that time was hospitalized at Doctor‘s Hospital North, in Columbus, Ohio. His treatment at first consisted of myelography, spinal fluid analysis and trac-tion. Eventually, it was determined that his condition required surgery. Dr. Hawes performed a lumbar laminectomy in July 1974. Appellant did not experience much relief from pain after this first operation.
He underwent a second back operation in March 1975, again performed by Dr. Hawes. This operation did relieve some of his pain.
Appellant continued to receive various treatments during the next two years to relieve the pain he still experienced. Dur-ing this time, he received workmen‘s com-pensation benefits since he was temporarily totally disabled. In June 1977, he com-menced work as a Pinkerton security guard.
In July 1978, appellant slipped and fell on wet grass. This accident aggravated his back condition. After receiving treatment, however, he returned to work. He contin-ued to work until October 20, 1980. At that time, the pain became so acute that he could no longer continue to do the standing and walking that his job required. He was hospitalized on October 24, 1980. He re-ceived treatment consisting of supportive analgesics, muscle relaxants, pelvic trac-tion and physical therapy. He was dis-charged on October 31, 1980.
Appellant‘s claim for disability insurance benefits, filed November 7, 1980, was de-nied without a hearing on January 29, 1981 on the grounds that he retained normal muscle strength, sensation and reflexes; he suffered only minor limitation on range of movement; and he therefore could re-turn to his security guard work. He ap-plied on March 20, 1981 for reconsideration of the disallowance of his application. This was denied on March 26, 1981, again with-out a hearing. On June 19, 1981, appellant requested a de novo hearing before an ad-ministrative law judge (ALJ).
Appellant appeared before an ALJ on November 13, 1981, at 9:00 a.m. The hear-ing lasted for one half hour. During the hearing appellant alternately sat and stood, this being necessary to relieve the pain he felt while in any one position for too long. He was the only person who testified at the hearing.
Appellant testified that he was “never without pain“, that he could not stand up straight, and that the pain frequently shot through his left leg, occasionally to his right leg. At the time he was suffering from three or four headaches a day, which he was able to relieve only by taking pain killers and lying down. He testified that he could walk only about one half block at a time, and that he required a “Canadian Crutch“. He could neither sit nor stand for more than ten to fifteen minutes at a time. He testified that, during the 85 mile drive with his wife to the hearing, they had to stop more than once to allow him to get out of the car. He testified to having difficulty getting in and out of the bathtub without help, tying shoes, and putting on his trousers. He spent between ten and
In addition to appellant‘s own testimony, several medical reports were submitted to the ALJ. The first report was that of appellant‘s treating physician, Dr. W.A. Larrick, of Cambridge. Dr. Larrick, a gen-eral practitioner, had been treating appel-lant since March 3, 1973. On November 24, 1980, when he filled out a Medical Ques-tionaire furnished by the Ohio Bureau of Disability Determination, Dr. Larrick was seeing appellant twice a week. He report-ed that on October 20, 1980 appellant had sustained an acute relapse of his degenera-tive disease of the lumbar spine. Further, he reported that appellant suffered from “severe low back pain with muscle spasms.”
A second, updated report by Dr. Larrick was submitted to the ALJ on November 17, 1981-four days after the hearing. In this report, Dr. Larrick related that he had re-classified appellant as permanently totally disabled for workmen‘s compensation pur-poses in October 1981. He stated that appellant‘s spine was frequently spastic and withdrawn. He noted, however, that his bad headaches had subsided in both frequency and intensity. He reported that any relief of appellant‘s pain could be only temporary. He concluded that
“I have reviewed the listing of impair-ments and it is my opinion that Mr. King‘s disability would be the 105C cate-gory. It is my opinion that he is perma-nently and totally disabled and restricted from performing any gainful employ-ment.”
A third medical report submitted to the ALJ was the Discharge Summary complet-ed by Dr. J. Martz, who reported on appel-lant‘s hospitalization during the last week of October 1980. Dr. Martz found positive leg maneuvers limited by pain to 60 de-grees on the right and 45 degrees on the left. He also found that appellant had limitation of motion in the lumbar spine and tenderness to palpatation in the sacroil-iac and lumbar joints. He further found that muscle testing was “within normal limits“, distal pulses were “intact“, and “no reflex changes were noted“. Dr. Martz treated appellant with analgesics, muscle relaxants, pelvic traction and physical ther-apy. His final diagnosis was acute lumbar nerve root irritation due to nerve root adhe-sions on the left side.
The fourth medical report submitted to the ALJ was that of Dr. M.A. Shahabi of Zanesville, Ohio. He was an electromyog-rapher-physiatrist designated by the Secre-tary to conduct a consultative examination of appellant. Dr. Shahabi saw appellant on January 22, 1981. His report was dated the following day. He noted appellant‘s limping gait, favoring his left leg. He re-ported that the lumbosacral area was tender to palpation, and that the range of motion in that area was limited by pain to 30 degrees flexion, five degrees hyperex-tension, and ten degrees lateral rotation and bending. According to Dr. Shahabi, appellant had sustained no muscle wasting or atrophy. He graded appellant‘s muscle strength in his upper and lower extremi-ties, on a scale of one low and five high, as a five. Appellant‘s deep tendon reflexes were reported to have moderately de-creased, down to two-plus (on the same scale). Sensation in appellant‘s left leg was decreased to pinprick, not related to dermatomes. In the sitting position, appel-lant could raise both of his legs up to 60 degrees. In the supine position, he could raise his left leg to 30 degrees, his right to 60. An X-ray report attached to Dr. Shaha-bi‘s report stated that the heights of the vertebral bodies were normally maintained, and that a transitional vertebral body was located at L5 with the L5-S1 disc nar-rowed. Dr. Shahabi‘s diagnosis, like that of the other physicians, was that appellant was suffering from a degenerative disc dis-ease of the lumbosacral spine. He stated that no ambulatory aids were necessary.
On December 28, 1981, the ALJ filed his eight page decision. After reviewing the
“He can do occasional walking and stand-ing and although he appeared at the hearing with a crutch, Dr. Shahabi indi-cates no ambulation aids are required. The claimant has good muscle strength and the lifting of up to 10 pounds in a seated position would not seem to be contraindicated. Therefore, I conclude that at all relevant times the claimant has had the residual functional capacity for at least sedentary work as defined by Regulations 404.1567. I further find that he does not have any non-exertional limitations resulting from his impair-ment.”
On the final page of his decision, under “Findings of Fact and Conclusions of Law“, the ALJ made the following finding:
“3. The medical evidence shows the claimant has low back pain, how-ever, his complaints of constant, se-vere and disabling pain [are] not found to be credible.”
The ALJ determined, after applying Rule 201.27 of Appendix 2 of the regulations, the so-called “Grid Regulations“, that ap-pellant was not disabled.
On January 5, 1982, appellant requested a review of the ALJ‘s decision before the Appeals Council. His request was denied on March 4, 1982. The ALJ‘s decision thereby became the final decision of the Secretary.
Appellant commenced the instant action in the district court on April 22, 1982. Both parties moved for summary judg-ment. On May 31, 1983, the court ren-dered its decision as stated above. The court stated that the ALJ‘s first conclu-sion-that appellant‘s impairment did not meet the condition found in Listing 1.05(C) -was supported by substantial evidence. As for the ALJ‘s finding regarding appel-lant‘s complaints of pain, the court stated that the ALJ‘s “resolution of the conflict-ing medical evidence, as well as his decision to discount plaintiff‘s subjective complaints of severely disabling pain, are both sup-ported by substantial evidence.” Citing precedent in this Court, the district court added that the ALJ‘s opportunity to ob-serve the demeanor of the complainant should not be discarded lightly.
On this appeal, appellant contends (1) that his impairment meets or equals the impairment in Listing 1.05(C) of the regula-tions and that the ALJ‘s conclusion to the contrary was not supported by substantial evidence; (2) that all the medical evidence supported his complaints of severe pain and that the ALJ‘s conclusion to the con-trary was without support in the evidence; and (3) that the ALJ did not give proper weight to the medical opinion of appellant‘s treating physician.
II.
(A) Medical Opinion of Treating Physi-cian
Turning first to appellant‘s third ar-gument listed immediately above, we be-lieve this is not really an independent argu-ment, but rather is interwoven in the evalu-ation of the first two arguments. To the extent that appellant contends the ALJ was bound by Dr. Larrick‘s opinion that appel-lant was “permanently and totally dis-abled“, appellant is mistaken. A determi-nation of “disability” for the purposes of awarding disability insurance benefits is to
This is not to say, however, that the medical opinions and diagnoses of treating physicians are not entitled to great weight. Indeed, it has long been the law that sub-stantial deference-and, if the opinion is uncontradicted, complete deference-must be given to such opinions and diagnoses. Lashley v. Secretary of Health and Hu-man Services, 708 F.2d 1048, 1054 (6th Cir.1983); Bowie v. Harris, 679 F.2d 654, 656 (6th Cir.1982); Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981). We shall apply this standard in evaluating appellant‘s two substantive arguments on appeal.
(B) Listing At 1.05(C)
The impairment listed at 1.05(C) is as follows:
“C. Other vertebrogenic disorders ... with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and signifi-cant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.”
In Dr. Larrick‘s November 1981 follow-up report, he stated that his opinion that appellant‘s disability “would be the 105C category.” The ALJ did not give this statement full credit because Dr. Larrick had not included in his report the specific findings necessary to support his state-ment. The ALJ found that there was “no evidence of muscle weakness, sensory or significant reflex loss“, which are neces-sary symptoms in 1.05(C)(2).
In reviewing the record to check the ac-curacy of the ALJ‘s finding in this respect, we note that Dr. Larrick, the treating phy-sician, never discussed appellant‘s muscle strength, sensation or reflexes. According to Dr. Martz, who treated appellant during his hospitalization in late October 1980, muscle testing was “within normal limits” and no reflex changes were noted. Dr. Shahabi‘s report in January 1981 stated that no muscle weakness was noted (in-deed, he rated it as highly as he could), but he reported some sensory loss and a moder-ate decrease in reflexes. In short, while the ALJ may not have been entirely accu-rate in finding there was no evidence of sensory loss, he was correct in other re-spects. There was no evidence indicating any muscle weakness, a symptom which is necessary to meet the impairment listed at 1.05(C) of Appendix 1. Accordingly, the ALJ‘s findings that appellant did not meet the impairment at 1.05(C) is supported by substantial evidence.
We find Thompson to be inapposite. The doctors in that case could not agree on a reasonably conclusive diagnosis. In view of that, the district court held that it was error to match that claimant‘s symptoms against those of any single listed impair-ment; rather, the combination of impair-ments was believed to be “equivalent” to the disabling listed impairments “in terms of her ‘total physiological well-being.‘” Id. at 1290.
Even if the generous concept of “equiva-lence” used in Thompson were consistent with the concept outlined in the regula-tions, it does not help appellant in the in-stant case. Here all the doctors essentially agreed that appellant has sustained a ver-tebrogenic disorder. Hence it was not er-ror to require that appellant establish ei-ther the symptoms listed at 1.05(C) or other symptoms that are equally severe. Not having sustained this burden, appellant cannot be said to have an impairment equal to the impairment at Listing 1.05(C).
(C) Pain Alone as Disabling
We now turn to what we consider the critical issue in this case: whether appel-lant‘s pain alone may be considered disa-bling. This issue pits the rule that sub-stantial deference must be given to the uncontradicted opinion of the treating phy-sician, see supra, against the rule that an ALJ‘s findings based on the credibility of the applicant are to be accorded great weight. Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383 (6th Cir.1978).
It is well settled that pain alone, if the result of a medical impairment, may be severe enough to constitute disability. Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 538 (6th Cir.1981), cert. denied, U.S. , 103 S.Ct. 2428 (1983); Beavers, supra, 577 F.2d at 386; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979).
The ALJ concluded that appellant was not disabled because he was capable of performing sedentary work as that is de-fined in the regulations. He reached this conclusion on the basis of his finding that no medical evidence had shown that appel-lant was incapable of sitting for most of an eight hour workday and his finding that appellant‘s complaints of constant, severe and disabling pain were incredible. The district court held that the ALJ was within his power in weighing the conflicting medi-cal evidence and making his decision after considering also the credibility of appellant.
If this were the complete and accu-rate description of appellant‘s case, we would agree with the district court. Signifi-cantly, however, we find no conflicting medical evidence in the record on the issue of pain. See Glass v. Secretary of Health, Education & Welfare, 517 F.2d 224 (6th Cir.1975) (per curiam); Noe v. Weinberger, 512 F.2d 588 (6th Cir.1975). Dr. Larrick reported in November 1980 that appellant suffered from “severe low back pain” and in November 1981 that any relief of appel-lant‘s pain through manipulation or trac-tion is only temporary. While it might be said that, without any other data to support these conclusions, the ALJ was justified in not according much deference to them, see Kirk, supra, 667 F.2d at 538, on this record we find that the reports of the other physi-
Thus, unlike in Kirk and Beavers, there were no conflicts in the medical evidence regarding appellant‘s claim of pain. The expansive lead given to the ALJs in those two cases to rely on their findings of credi-bility is not wholly applicable here. The medical evidence, all consistent with the treating physician‘s opinion of severe and essentially constant pain, fully supported appellant‘s own testimony regarding his sedentary lifestyle, which included lying down for up to 14 hours during the day-time. Here “documented [is] a long history of fruitless treatment for severe headaches and leg and back pain.” Beavers, 577 F.2d at 386. In light of this uncontradicted and overwhelming medical and lay evidence of appellant‘s severe back pain,2 we decline to give substantial deference to the ALJ‘s unexplained credibility finding.3 It was er-ror for the ALJ, without any substantial support, to find appellant not disabled. See Marshall v. Heckler, 731 F.2d 555 (8th Cir.1984) (despite ALJ‘s findings that complaints of pain were incredible, court reversed because of uncontradicted medical evidence of impairments leading to pain).
We hold on this record that there is but one reasonable conclusion: that due to se-vere and constant back pain, resulting from two laminectomies and degenerative disc disease, for which he has been receiving treatment providing only temporary relief for almost ten years, and which has caused substantial restriction of movement and curtailment of regular activities, appellant lacks the residual functional capacity to perform any substantial gainful activity.4 He therefore is disabled.
The judgment is reversed and the case is remanded to the district court with instruc-tions to remand to the Secretary for an award of benefits.
Reversed and remanded.
WELLFORD, Circuit Judge, dissenting.
I believe the ALJ had substantial evi-dence to support a finding that plaintiff is not disabled due to pain alone. The ALJ specifically found that, while the medical evidence indicated that plaintiff “has low back pain ... his complaints of constant, severe and disabling pain is [sic] not found to be credible.” As the majority has noted, when a claimant‘s testimony of subjective
The district court held that the findings of Dr. Shahabi constituted substantial evi-dence in support of the Secretary‘s deci-sion. On January 23, 1981, plaintiff under-went an examination and disability evalua-tion by Dr. Shahabi. This examination re-vealed a well nourished and developed obese man, walking with a limping gait. Range of motion of the lumbosacral was restricted, but the range of motion of the cervical spine was unremarkable in all di-rections. The upper and lower extremities active and passive range of motion and manual muscle testing was good, and no muscle wasting or atrophy was seen. Straight leg raising was restricted to 60 degrees, but unremarkable in a sitting posi-tion. Finally, x-rays reveal the heights of the vertebral bodies to be normally main-tained. Also observed was a transitional vertebral body at the lumbosacral junction. The majority states that Dr. Shahabi “re-ported that appellant‘s pain during the ex-amination was manifest and that the pain significantly restricted appellant‘s move-ment.” Actually, Dr. Shahabi reported only that plaintiff experienced some pain, particularly when squatting, when the lum-bosacral was subjected to palpatation and percussion; straight leg raising (in the right leg only) was restricted by pain to 60 degrees. Dr. Shahabi concluded that plain-tiff had degenerative disc disease, and post lumbar laminectomy disc syndrome, how-ever, plaintiff required no ambulatory aids.1
Dr. Martz, plaintiff‘s treating physician at Doctor‘s Hospital, noted that plaintiff‘s muscle testing of lower extremities was within normal limits, and no reflex changes were noted. The progress notes from Doc-tor‘s Hospital reveal that plaintiff is able to heel and toe walk and no muscle weakness was noted.
Were it our duty to hear this case de novo, this judge may agree with the result reached by my fellow judges. Our task, however, is to determine whether there is substantial evidence to support the find-ings of the Secretary, as affirmatively, sup-ported by the district judge. While there is evidence of significant limitation of motion, on plaintiff‘s part, there is no evidence of muscle weakness, sensory loss, or signifi-cant reflex loss. Therefore, it was proper-ly within the ALJ‘s role as a decision mak-er to hold as he did after personal observa-tion of King. Credibility, especially con-cerning alleged pain, is an important fac-tor, and the ALJ has the best opportunity to make such determinations, which should not be discarded lightly. Beavers v. Califano, 577 F.2d 383, 387 (6th Cir.1978). The ALJ‘s determination here was not based solely on his observations but also on the entire record in the case. It should also be noted that King‘s discomfort may well have been attributed at least in part to his obesity. He conceded that his doctor dis-cussed the advisability of his losing weight, but at the time of hearing he was not dieting. A young man, his weight varied from as much as 325 pounds to 275 pounds. He had a left leg 1/4 inch shorter than his right “with unknown etiology,” according to Dr. Shahabi, who also noted “exogenous obesity” in January, 1981.
Concededly, the opinion of a claimant‘s long-time treating physician is ordinarily entitled to greater weight than other exam-ining physicians. Bowie v. Harris, 679 F.2d 654, 656 (6th Cir.1982). The Secre-tary, however, is not bound by the treating physician‘s opinion when it is not supported by detailed clinical and diagnostice evi-dence. Giddings v. Richardson, 480 F.2d 652, 656 (6th Cir.1973). In this case Dr.
I would AFFIRM the district court.