Baughman v. Sullivan

743 F. Supp. 761, 1990 U.S. Dist. LEXIS 10653, 1990 WL 118233
CourtDistrict Court, D. Kansas
DecidedJuly 17, 1990
DocketCiv. A. No. 88-1344-T
StatusPublished

This text of 743 F. Supp. 761 (Baughman v. Sullivan) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baughman v. Sullivan, 743 F. Supp. 761, 1990 U.S. Dist. LEXIS 10653, 1990 WL 118233 (D. Kan. 1990).

Opinion

MEMORANDUM AND ORDER

THEIS, District Judge.

This matter is before the court upon defendant’s motion to affirm the Secretary’s denial of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401-33 (1982 & Supp. IV 1986), and also to affirm the denial of supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1381-83c (1982 & Supp. IV 1986). Plaintiff filed his applications for disability benefits on November 10, 1986. These applications were denied initially and upon reconsideration. Following a hearing, the administrative law judge (“ALJ”) determined that plaintiff was not “disabled” within the meaning of the Social Security Act. 42 U.S.C. § 423(d)(1)(A). The Appeals Counsel affirmed this determination, which therefore stands as a final decision of the Secretary. Review by this court is authorized under 42 U.S.C. §§ 405(g) and 1383(c)(3).

The standard of review in this case is established by 42 U.S.C. § 405(g), which provides that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive....” Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.1989). It is not the duty of the court to reweigh the evidence, or substitute its decision for that of the ALJ. Talbot v. Heckler, 814 F.2d 1456, 1461 (10th Cir.1987). Substantial evidence, however, must be more than a mere scintilla. Perales, 402 U.S. at 403, 91 S.Ct. at 1428. This court’s determination entails a review of “the record as a whole, and ‘the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight.’ ” Talbot, 814 F.2d at 1461. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). In applying these standards, the court must keep in mind that the purpose of the Social Security Act is to ameliorate some of the rigors of life for those who are disabled or impoverished. Dvorak v. Celebrezze, 345 F.2d 894, 897 (10th Cir.1965).

The nature of plaintiff’s claimed disability is a back condition consisting of a defect in the lumbosacral spine known as “spon-dylolisthesis.” Plaintiff claims to have first experienced pain from this condition on April 9, 1986, after a job related injury to his back. Plaintiff saw his family physician, Dr. Nellis, the day following his accident, but did not tell her of his accident. At his disability hearing, plaintiff testified that he did not inform his family physician of the accident out of fear for his job. Tr. at 36. Plaintiff also began physical therapy shortly after the injury. Tr. at 138-39. During this period of time, plaintiff occasionally had to remain in bed for one to two days at a time. Tr. at 83. He continued working, however, until August 8, 1986, at which time he was laid off due to a reduction in force. Tr. at 27.

On November 6, 1986 plaintiff returned to Dr. Nellis, who referred him to an orthopedist, Dr. Toohey. Dr. Toohey took note of plaintiff’s complaint of persistent low back pain dating to the job related injury, but he opined that the condition certainly predated plaintiff’s injury and that his job had probably aggravated this problem. Tr. at 118. Dr. Toohey explained the options available to plaintiff, including surgery, but recommended a trial with a spica cast before proceeding with surgery. Tr. at 104, 106, 118. After two weeks in the cast, plaintiff reported a “complete loss of pain,” and Dr. Toohey diagnosed him as “completely asymptomatic.” Tr. at 106. Dr. Toohey again discussed the options with plaintiff, who elected to proceed with “lum-bosacral fusion” surgery.

[763]*763Between the time of plaintiffs diagnosis and his surgery he attempted to find work, but apparently was repeatedly rejected because of his back condition. Tr. 100-01. Plaintiff was also examined by several consulting physicians for the Social Security Administration, and by a Dr. Mills who confirmed Dr. Toohey’s diagnosis of first degree spondylolisthesis. Tr. at 116. In the opinion of Dr. Mills, fusion surgery was not immediately mandatory, but would be sooner ar later. During this period of time plaintiff also took Flexerill, prescribed by Dr. Toohey for pain, and Extra Strength Tylenol. Tr. at 98.

On April 7, 1987 Dr. Toohey again examined plaintiff, who still reported back pain, “particularly with activity.” Tr. at 131. Plaintiff underwent surgery on May 20, 1987. After plaintiff’s surgery, Dr. Toohey noted improvement on May 29 and on July 10. Tr. at 127. At his hearing in September 1987, plaintiff testified that Dr. Toohey would not release plaintiff to work until July 1988. Tr. at 31, 38. According to plaintiff, Dr. Toohey also advised that plaintiff was not “to bend, lift, stoop, or do anything at all.” Tr. at 33. Dr. Toohey confirmed this testimony in a letter dated October 1, 1987. In this letter, Dr. Toohey states:

[Plaintiff] appears to be relatively improved, at least insofar as his back complaint symptoms ar concerned.
Certainly Mr. Baughman is unable to perform significant manual labor at this point in time and may well be in the future. I would expect limitation of repeated lifting over 20-30 pounds in the future. Certainly at this point I do not want him to lift at all until he is medically stable. I would consider the onset of his restrictions to coincide with the date I initially saw him [on November 6, 1986]. I certainly think he will be unable to do any sort of work through July 1988.

Tr. at 123 (emphasis added).

The procedure for determining a claimant’s disability in a social security hearing is firmly established:

[T]he claimant bears the burden of proving a disability, as defined by the Social Security Act, that prevents him from engaging in his prior work activity. Once the claimant has established a disability, the burden shifts to the Secretary to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989) (citations omitted).

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743 F. Supp. 761, 1990 U.S. Dist. LEXIS 10653, 1990 WL 118233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baughman-v-sullivan-ksd-1990.