Grizzle v. Cohen

297 F. Supp. 790, 1969 U.S. Dist. LEXIS 9126
CourtDistrict Court, W.D. Virginia
DecidedMarch 12, 1969
DocketCiv. A. No. 68-C-72-A
StatusPublished
Cited by4 cases

This text of 297 F. Supp. 790 (Grizzle v. Cohen) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grizzle v. Cohen, 297 F. Supp. 790, 1969 U.S. Dist. LEXIS 9126 (W.D. Va. 1969).

Opinion

OPINION AND JUDGMENT

DALTON, Chief Judge.

This is an action under section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare. The decision holds that Charles M. Grizzle, the claimant, is not entitled to a period of disability or to disability insurance benefits on the basis of his application of September 27, 1966. The decision, rendered by a hearing examiner on April 16, 1968, became final when the Appeals Council denied the claimant’s request for review on July 12, 1968.

The claimant filed his application for disability insurance benefits on September 27, 1966, with an alleged disabling back condition. The application was denied and the claimant was so notified by letter dated September 26, 1967. Upon reconsideration the application was again denied and the claimant was so notified by letter dated November 4, 1967. Being dissatisfied with these adverse determinations, the claimant requested a hearing.

A hearing was conducted in Bristol, Tennessee on March 8, 1968. The claimant, represented by an attorney, appeared and testified at this hearing. Other witnesses who appeared and testified were Mrs. Doris Ann Grizzle, claimant’s wife, Mr. Loren Lee Ervin, claimant’s neighbor and Mr. Clyde R. Smith, a vocational expert. Various records and medical reports were introduced into evidence. On April 16, 1968, the hearing examiner held that in light of the entire evidence of record that the claimant had failed to show by competent medical evidence that he was suffering from an impairment, or impairments, of such severity as to preclude him from engaging in any substantial gainful activity at any time for which his application was effective. Because the claimant meets the special earnings requirements at least through March 31, 1971, the decision is necessarily limited as to the date it was rendered as to a finding of disability or non-disability.

The pertinent facts are these. The claimant was born May 28, 1936. He is married and has four dependent children. Possessor of a fourth grade education, he can barely read or write. Claimant’s work experience has been in the saw-mills, turning logs and carrying lumber from the saw. He has also worked as a laborer in construction work and as an operator of bulldozers and other large earth-moving equipment. The claimant last worked for the Appalachian Construction Company in September, 1966, but had to stop work because he could not walk and because he had extreme pain in his back and legs. The claimant stated that he had been suffering back trouble for about a year [792]*792prior to stopping work, and had worn a brace to relieve the pain in his back.

The claimant’s medical difficulties relate primarily to a back condition. Prior to stopping work, the claimant was treated by Dr. Robert L. Strang who fitted the claimant with a back brace to relieve the pain in the back which was radiating down the left leg. In a letter dated September 27, 1966, Dr. Strang stated that x-rays revealed a spondylolisthesis at L5-S1. The doctor recommended that the claimant be considered for a fusion of his lower back area. Dr. Strang opined that if the surgery was performed, “he [the claimant] will not be able to do heavy work of any type from six to eight months. He would be in the hospital approximately two weeks.”

The claimant was examined by Dr. Merritt B. Shobe, an office associate of Dr. Strang. In a letter dated July 18, 1967, Dr. Shobe stated that x-rays still showed spondylolisthesis and that it was their opinion “that this patient, at his age, should either return to work and if he is unable to do this, then he should have the surgery which, if successful, would relieve him.” Dr. Shobe further stated that prognosis without surgery is poor while the prognosis with successful surgery is good and that the claimant should be able to work doing almost any type of activity without difficulty. The doctor noted that the back brace, having given relief, was an indication that surgery would be helpful.

The claimant was seen for psychiatric evaluation on April 7, 1967. Dr. Marshall D. Hogan, found the claimant to be totally illiterate, only able to sign his name. The claimant is below average intelligence and has a slight speech impediment. The doctor stated that the claimant evidences good judgment, has a memory intact for both recent and remote events and is oriented as to time, place, persons and situation. As to the claimant’s refusal to have surgery performed on his back, the doctor found that the claimant did not evidence any unreasonable or pathological fear of the surgery. The doctor said that he felt that the claimant was not deliberately malingering and that his decision about the operation is not an unhealthy one. The doctor continued that the decision may or may not be correct but that it was arrived at within the -limited mental means at the patient’s disposal and was done so with sincerity and honesty.

A report by Doctor Virginia G. King, a doctor of chiropractic, states that the claimant requested treatment for pains in the lower back and left hip and leg. The claimant also complained of headaches, pain in his neck and arms, a nervous stomach and vomiting. The report notes that the claimant’s last job, operating a bulldozer tractor, was aggravating and worsened his condition. The report states that the claimant was taking chiropractic treatment and although some improvement was noted, the claimant was still unable to work.

On June 26, 1967, the claimant was examined by Doctor Waverly S. Green who offered the following final diagnosis (1) Anxiety state (2) Pathology of the lumbo-sacral spine and (3) Hypertrophic gastritis and probably duodenal ulcer. The following recommendations were made (1) Ulcer diet consisting of bland food with in between feedings (2) Antacids such as Maalox, etc., Antispasmodics such as Donnatal or Probanthine and (3) Orthopedic consultation.

The medical evidence of record was submitted to Dr. Richard A. Montgomery, a surgical consultant to the Bureau of Disability Insurance. After noting that x-rays revealed spondylolisthesis in the lower back area which could be the basis of significant low back pain particularly aggravated by heavy lifting, excessive bending, heavy pushing and pulling or repeated lurching motions such as those occasioned in the operation of a bulldozer, the report states that the evidence does not indicate an impairment that would prevent “light or possibly medium work activity which did not require excessive bending or other excessive strain on the lower back.” The report does state that the applicant’s im[793]*793pairment is one which could preclude his usual work on a sustained basis. It is also stated that with reasonable effort treatment would be expected to restore his ability to resume his usual type work. The word “treatment” is not explained, but it appears to include the recommended surgery which had been suggested by other doctors.

There is also evidence in the record that the claimant, after quitting work as a bulldozer operator because of the pain, attempted to secure lighter work. The claimant testified that he tried to secure a job in a cloth-making factory, but was turned down because of his back condition. The record also contains a statement from the Tennessee Eastman Company stating that the claimant was rejected for employment due to a lumbar spine defect, a defect discovered by x-ray during the medical examination. The claimant testified concerning his attempts to secure lighter work, “I applied for something.

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Cite This Page — Counsel Stack

Bluebook (online)
297 F. Supp. 790, 1969 U.S. Dist. LEXIS 9126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grizzle-v-cohen-vawd-1969.