Funderburg v. Bowen

666 F. Supp. 1291, 1987 U.S. Dist. LEXIS 7304, 19 Soc. Serv. Rev. 147
CourtDistrict Court, W.D. Arkansas
DecidedAugust 11, 1987
Docket82-1147
StatusPublished
Cited by3 cases

This text of 666 F. Supp. 1291 (Funderburg v. Bowen) is published on Counsel Stack Legal Research, covering District Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Funderburg v. Bowen, 666 F. Supp. 1291, 1987 U.S. Dist. LEXIS 7304, 19 Soc. Serv. Rev. 147 (W.D. Ark. 1987).

Opinion

HANSON, Senior District Judge.

This is a proceeding for judicial review of the decision of the Secretary of Health and Human Services denying Johnny L. Fun-derburg, the plaintiff, social security disability benefits for the period of April 1, 1981 through November 1, 1983. Judicial review of the Secretary's decision is provided by 42 U.S.C. § 405(g). For the reasons discussed below this court reverses the decision of the Secretary and remands the case for further proceedings consistent with this opinion.

PROCEDURAL BACKGROUND

Funderburg applied for disability benefits in April of 1981, alleging he was disabled as of April 20, 1981, due to severe pain, back problems, arthritis and hearing loss. A hearing on his claim was held in February, 1982, before an Administrative Law Judge (ALJ). The plaintiff appeared pro se. The AU subsequently issued a decision denying plaintiff’s claims. This decision was adopted as the final decision of the Secretary and properly appealed to this court.

On February 14th, 1984, this court issued an order reversing the Secretary’s decision and remanding it for further proceedings. The reversal was necessitated, in part, because the AU failed to carefully weigh the subjective evidence of pain, and because of the conclusory nature of the AU’s credibility finding. A rehearing was held in October of 1984 before the same AU. The AU issued a decision, subsequently adopted as the final decision of the Secretary, reaffirming its prior decision of non-disability for the period of April 1, 1981 to November 1, 1983, but finding that the plaintiff was disabled as of November 1, 1983. The portion of the decision denying disability is now properly before this court.

FACTS

Funderburg was fifty years old at the time he applied for benefits. He had a strong earnings record for thirty years, during which time he worked primarily as a heavy equipment operator, truck driver and crane rigger. Funderburg reported his job activities as including: the daily lifting and carrying of objects weighing between ten pounds and one hundred pounds; constant bending; frequent reaching; up to two hours of walking daily; and up to eight hours of sitting daily. His work record includes letters from his co-employers of the past fifteen years stating that he is a willing, trustworthy, and dependable worker. He last worked on April 10, 1981. Funderburg has a 10th grade education.

*1293 Funderburg and his wife Ann testified at both hearings before the ALJ. They were represented by counsel only at the second hearing. At the first hearing Funderburg testified that he was unable to continue working because he suffered from: severe and constant upper and lower back pain; arthritis in his joints, including his knees, feet, hands, shoulders, wrists and ankels; a strong roaring sensation in his head caused by either the arthritis or calcium deposits; an inability to grip things with his hands; and hearing loss. He also testified that: he could sit only for short periods of time; he could walk only a few blocks; he slept three to four hours a night; and that his body swelled. (According to his Reconsideration Disability Report filed 6/15/81 his feet would swell so large that the skin burst open.) Funderburg also testified: that he no longer drove, that he couldn’t mop a floor, and that he could not mow the lawn. He said he did walk across the street to his father’s and down the block to his sister’s, that he went to church about twice a month, and took several medications daily for the pain.

Ann Funderburg’s testimony largely mirrored her husband’s, although she added: that he could not work for more than half an hour without getting severely sick or passing out; that he couldn’t remember much; that he could not drive; and that she was advised by a Dr. Salb not to leave him alone because of his depression. She also testified that her husband was a hard worker who never took off work except to go to the hospital, and stated that he had used his vacation time, rather than sick time, when he did go to the hospital.

At the second hearing Funderburg basically repeated his testimony, specifying that he could mow the lawn for three to four minutes, that he had difficulty getting out of bed, that exerting himself in any way caused the pain to override the painkillers, that he would be in bed for two days recovering from the 30 mile drive to the hearing, that he quit hunting because it hurt too much to lift up a gun, and that his fingers also burst open due to the swelling.

At the second hearing Ann Funderburg testified that her husband’s condition had continued to worsen. She also testified that her husband was actually worse than he had described, explaining that he could not admit to himself how helpless he was and that he could not accurately remember what he did or did not do. She said he could not walk two blocks, and stated that he would be in bed for a week because of the 30 mile drive to the hearing. She also testified that their two sons worked with her husband and had “covered” for him during the last year and a half that he did work by performing jobs assigned to him which he could no longer perform.

Funderburg’s medical record is long and complex, including sixteen reports. The first is from Dr. Cothern, who first treated the plaintiff in 1973 for ear problems and continued to treat him into 1981. Coth-ern’s report records a continuous series of visits from Funderburg related to pain and arthritis. These records reveal the prescription of numerous medications to help Funderburg deal with his pain, although notations show they produced serious side effects and were often ineffective. On March 15,1976, Cothern diagnosed plaintiff as having “generalized rheumatoid arthritis involving most of his joints”. Cothern reaffirmed this diagnosis on December 2, 1981 reporting that he also found Funder-burg to be totally and permanently disabled and unable to perform any type of employment. These records also show that plaintiff was hospitalized from March 4 to March 18 in 1977 for “shortness of breath, chronic fatigue and principal joints”, and hospitalized again from September 29 to October 3 in 1978.

The second report is from Dr. L.M. Wilson, the physician that treated plaintiff during the second hospital stay. This report indicates that Funderburg was admitted complaining of increasing pain and swelling in his knees, feet, hands, shoulders and neck, with this condition accompanied by headaches and aggravated by weight bearing. Wilson observed thickening and swelling of the fingers, wrists, knees and toes, and a limitation of bilateral rotation in the neck. His impression was *1294 that Funderburg suffered from inflam-atory rheumatoid arthritis and an intollerance to medications. He reported that Gold injections, Indocin, Naprosyn and Aspirin had all been tried on plaintiff, but with either no effects or side effects.

The third report is from Dr. Chenoweth, a chiropractor. The report shows Funder-burg was treated with manipulation, traction and ultrasound from January 15, 1980 to January 24,1980. Chenoweth diagnosed Funderburg as having acute cervical myal-gia due to subluxation at C7 and C2.

The fourth report is Dr. Salb’s, a treating physician at Ashley Memorial Hospital (AMH).

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666 F. Supp. 1291, 1987 U.S. Dist. LEXIS 7304, 19 Soc. Serv. Rev. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/funderburg-v-bowen-arwd-1987.