Freddie E. MILAM, Plaintiff-Appellant, v. Otis W. BOWEN, Secretary of Health and Human Services, Defendant-Appellee

782 F.2d 1284, 1986 U.S. App. LEXIS 22318, 12 Soc. Serv. Rev. 222

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 18, 1986
• Docket: 85-4395
• Status: Published

Opinions

CLARK, Chief Judge:

On May 17, 1983, appellant Freddie E. Milam filed for disability benefits under the Social Security Act, alleging that he was unable to work because of injuries sustained in two automobile accidents. He was denied benefits administratively at three levels.

Milam then obtained a de novo hearing before an Administrative Law Judge. The AU also denied benefits, finding that appellant was not disabled within the meaning of the Social Security Act. The Appeals Council did not grant Milam’s request for review, and the AU’s decision thus became the final decision of the Secretary.

Pursuant to 42 U.S.C. § 405(g), Milam sought review of the Secretary’s final decision in United States District Court. The United States Magistrate recommended that the Secretary’s motion for summary judgment be granted and the district court, accepting this recommendation, granted summary judgment for the Secretary. Timely appeal to this Court was filed. Finding substantial evidence to support the Secretary’s decision, we affirm.

I

Appellant was forty-one years old at the time of the hearing before the ALJ. He is a high school graduate but has had no subsequent training or education. Appellant’s past relevant work consists of being a co-owner in an import production business, an owner and supervisor in a building and painting business and a truck driver for a transport company.

Milam received disability benefits from February 24, 1978 through March 31, 1983 for an unrelated disability (a severe herniated disc), but his present claim arose as a result of two automobile accidents which occurred on January 25,1983 and February 25, 1983. As a result of these accidents, the AU found, Milam now has a severe spinal impairment, which renders him unable to perform past relevant work.

Appellant was hospitalized twice after his first accident. His chief complaint was of headaches. Although extensive testing was done, there were no significant findings. After his second accident, Milam experienced pain in the neck, right shoulder, and head. He returned to the hospital, where he stated that he had been feeling much improved until the second accident. Again, testing produced no significant results. Analgesics, muscle relaxants, and application of moist heat to the neck resulted in some improvement of Milam’s condition.

On April 20, 1983, appellant had an orthopedic consultation with Dr. Rifat M. Na-was, M.D. Dr. Nawas found early degenerative changes in the cervical spine. There was no evidence of nerve root compression or disc herniation. Milam was advised to use a soft neck collar for a few hours a day and to take Naprosyn for pain. Dr. Nawas was of the opinion that Milam’s recovery could take up to a year. Dr. Nawas saw Milam again in May. At that time EMG nerve conduction tests showed no impairment of the nerve functions in appellant’s neck.

On May 1, 1983, appellant was admitted to Doctor’s Hospital in Shreveport, Louisiana under the care of Dr. H.K. Faludi, M.D., a neurosurgeon. During this hospitalization, a bilateral occipital neurectomy was performed to relieve his persistent severe cervico-occipital pains. His postoperative course was uneventful and he indicated that he was free from his previous severe headaches.

On May 31, 1983, Milam was hospitalized again for treatment of post-traumatic depression. Laboratory results were essentially negative. There were findings of psychosomatic problems and depression. There were no gross neurological defects found. It was recommended that Milam go to a chronic pain center for treatment and appellant did this.

On July 12, 1983, Milam was admitted to Riverside Community Hospital under the care of Dr. James A. Albright, M.D. for evaluation of acute low back symptoms developed after Milam slipped in a pool. Exploratory surgery of the L3-S1 spine was done and a considerable amount of scarring was removed, but no significant disc material was found. Milam’s back pain improved, but his neck pain returned and did not respond to treatment.

Dr. Albright continued to follow appellant’s condition. Milam continued to suffer headaches and therefore exploratory surgery of the greater occipital nerves was performed on January 20,1984. Neuromas were found alongside the nerves and were removed along with substantial segments of the nerves. Following this procedure, Dr. Albright rendered this opinion:

Mr. Milam was totally disabled on March 31, 1983, apparently the date in question. At the present time, he is significantly better than he was prior to the last two operative procedures. Nevertheless, he is still totally disabled for any type of productive activity. I feel that his disability is permanent and do not feel that he will ever reach the point where he will be able to work in the future.

At the February 3, 1984 hearing before the AU, appellant testified that he suffered unbearable pain in his head, although it had been reduced quite a bit by the January 20 surgery. He also stated that he had constant back and leg pain which prevented him from sitting normally or driving any distance by himself.

Milam also stated that he usually goes to church. He is active on church committees and sometimes attends their meetings. He works a little bit in the yard, does some fishing and walks about a quarter of a mile every day.

After considering the evidence summarized above, the AU determined that Mi-lam had a severe cervical impairment and was unable to perform his past relevant work as a builder or truck driver. However, the AU found that Milam’s complaints of disabling pain were not medically substantiated and were not credible. He determined that appellant had the residual functional capacity to perform the full range of “light work” as defined by the regulations. 20 C.F.R. § 404.1567(b) (1985). Applying the standards set out in the regulations to this finding, along with Milam's age, experience and education, the AU was required to find that Milam was not disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, No. 202.20 (1985). These standards may be used in lieu of calling a vocational expert to testify. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

II

Under the applicable standard of review, the Secretary’s final decision must be upheld if it is supported by substantial evidence. 42 U.S.C. § 405(g); see Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983). In determining whether substantial evidence exists, we must consider objective medical facts, diagnoses and opinions of treating and examining physicians, subjective evidence of pain, and claimant’s age, education and work experience. See De-Paepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972). We must also be mindful that once a claimant proves that he is unable to engage in past relevant work (as Milam did here) the burden of proof shifts to the Secretary to show that the claimant is able to perform some other type of substantial work in the economy. Ferguson v. Schweiker, 641 F.2d 243, 246 (5th Cir.1981).

It is also important to note that Milam last met the special earnings requirement of the Social Security Act on March 81, 1983. 42 U.S.C. § 416(i)(3) and § 423(c)(1). Therefore, Milam is only eligible for disability benefits if he became disabled on or before March 81. See Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.), cert. denied, 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323 (1979). An impairment which arose or became disabling after March 31 (e.g., an impairment resulting from the slip in the pool or the subsequent surgical procedures) cannot be the basis for a finding of disability. Owens v. Heckler, 770 F.2d 1276, 1280 (5th Cir.1985).

Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 416(i)(l)(A) and § 423(d)(1)(A). The fact Milam suffered some impairment does not establish disability. Milam was disabled only if he was incapable of engaging in any substantial gainful activity. Owens, supra, 770 F.2d at 1280. The AU’s conclusion that Mi-lam’s impairment would not prevent him from performing “light work” was supported by substantial evidence.

First, the objective medical evidence on appellant’s condition supports the conclusion that he was not disabled. X-ray studies of Milam’s cervical spine showed no significant abnormalities. His EEG was normal. Dr. Greer’s physical examination showed only “some limitation to range of motion” in the neck area. Dr. Nawas found “moderate limitation of motion in the cervical spine in all directions.” He also noted “full range of motion in the shoulders and upper extremities.” Dr. Nawas concluded that Milam had early degenerative arthritis in the cervical spine but found no evidence of nerve root compression or disc herniation.

Dr. Nawas expected that Milam would recover within a year. Dr. Faludi also indicated that Milam’s response to treatment was good. Dr. Faludi noted that the occipital neurectomy had relieved appellant of his severe headaches. Dr. Albright also stated that appellant’s response to the January 20,1984 exploratory surgery was “excellent.” In short, the bulk of the medical evidence and opinions supports the conclusion that Milam was able to engage in substantial gainful activity.

In addition, the AU’s decision is supported by Milam’s own testimony that he was able to attend church, work in the yard, fish and walk a quarter of a mile each day. In Owens, for example, we found that the AU’s conclusion that the claimant could perform light work was supported by claimant’s own testimony that:

[H]e could stand 15-20 minutes at a time, sit for one hour, walk about one mile, and drive an automobile short distances. His daily activities were limited, but included attending church, doing light yard work, going to the grocery store and caring for his personal needs. He believed he could carry 10 pounds, but not without pain; he had never tried to lift 20 pounds.

Owens, supra, 770 F.2d at 1282.

Milam argues that Smith v. Schweiker, 646 F.2d 1075 (5th Cir.1981), mandates reversal of the AU’s decision in this case. Smith does not support Milam’s position. In Smith we reversed the ALJ’s finding of no disability and remanded the case to the Secretary for three reasons. One reason was the Appeal Council’s failure to consider additional evidence. This issue is not presented here. A second reason was the ALJ’s failure to give any weight to the claimant’s subjective testimony of pain. By contrast, in the instant case the AU considered Milam’s complaints of disabling pain and concluded that they were not credible in light of the medical evidence.

The final reason for our reversal in Smith was that the only evidence supporting the AU’s decision was the testimony of a “consulting ‘one-shot’ physician selected by the Administration;” this testimony contradicted the opinion of the claimant’s treating physician. Smith, supra, 646 F.2d at 1080-81. On the other hand, the AU’s decision in the case at bar was supported by objective medical evidence and the opinions of several physicians, chosen by appellant himself. Furthermore, Mi-lam’s own testimony establishes that he can perform substantial physical activities. Compare id. at 1079 (claimant testified that the “pain was so disabling that he could not engage in house or yard work, shopping, hunting, fishing or any physical activity outside of church attendance or short trips to pick up his children from school”).

Milam’s treating physician, Dr. Al-bright, did state that he believed Milam to be disabled. A treating physician’s opinion is normally entitled to considerable weight. Fruge v. Harris, 631 F.2d 1244, 1246 (5th Cir.1980). However, in this case there were contrary opinions of other treating physicians. These opinions, along with the objective medical evidence, constituted “good cause” for the AU to reject Dr. Albright’s opinion.¹

In addition, it should be noted that Dr. Albright is not an expert on the Social Security Act. Based on the objective medical evidence in the record the AU could have concluded that Dr. Albright’s opinion as to Milam’s “disability” reflected not a medical disagreement with the other physicians, but a misunderstanding of the meaning of “disability” as used in the Social Security Act. See Barajas v. Heckler, 738 F.2d 641, 645 (5th Cir.1984).

For the foregoing reasons the finding of the ALJ that Milam was capable of performing light work was supported by substantial evidence. Application of this finding, along with Milam’s other attributes, to the vocational regulations required a determination that appellant was not disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, No. 202.20 (1985).

Ill

Since the ALJ’s decision was supported by substantial evidence, the judgment of the district court is

AFFIRMED.

1 . It is incorrect to suggest that simply because Dr. Albright’s opinion was the only one rendered after Milam’s last two instances of surgery that it is somehow "unrebutted” by the earlier medical evidence and opinions. The issue before the AU was Milam’s condition as of March 31, 1983 and the earlier physicians were in at least as good a position as Dr. Albright to shed light on that matter.