Marvin BROOKS, Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services, Appellee

882 F.2d 1375, 1989 WL 97442
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 24, 1989
Docket88-5252
StatusPublished
Cited by5 cases

This text of 882 F.2d 1375 (Marvin BROOKS, Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services, Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marvin BROOKS, Appellant, v. Louis SULLIVAN, Secretary of Health and Human Services, Appellee, 882 F.2d 1375, 1989 WL 97442 (8th Cir. 1989).

Opinion

WOLLMAN, Circuit Judge.

Marvin Brooks appeals his denial of disability insurance benefits, under 42 U.S.C. § 416(i), 423, and supplemental security income benefits, under 42 U.S.C. § 1382. We reverse and remand.

Brooks is a 48 year-old man with a ninth grade education. He has worked in construction and as a radiator repairman, but has had no formal training of any sort. In 1962, a construction crane boom broke *1377 loose and hit Brooks from behind, breaking his back, left leg, and left hip. The injury to Brooks’ back was severe. Three of his vertebrae were crushed, causing temporary paralysis and requiring surgical removal of the vertebrae. Surgery was also performed on his hip and leg, with a pin being inserted into the hip and a plate affixed to the femur. Brooks applied for disability benefits and apparently was declared disabled. Nevertheless, Brooks returned to work after he recovered from his accident. In 1978, Brooks suffered another fracture of his left leg. Two surgeries were performed, the first to remove the old plate and to install a new one, and the second to replate and fill in the fracture defect. After recovery, Brooks returned to work.

In 1983, Dr. Timothy Gill examined Brooks to investigate burning pain in Brooks’ left thigh. Dr. Gill believed Brooks had “[s]tatus post plating of the left femur with pain probably secondary to irritation from plate and screws.” Dr. Gill informed Brooks that if the burning sensation continued, he could remove the plate. Brooks never requested this surgery.

On September 21, 1986, Brooks’ employer, Ed Reber, terminated Brooks’ employment because of Brooks’ inability to perform his required tasks.

On September 23, 1986, Brooks applied for disability and supplemental security income benefits. Subsequent to this application, Dr. Gill again examined Brooks. In a report dated November 25, 1986, Dr. Gill concluded the following:

Status post severe injury to the lower back with a painful pseudoarthrosis 1 and some loss of structural integrity. Additionally, he has irritation of nerve roots in the left lower extremity, and persistent weakness. * * * I feel that the patient has done remarkably over the last 20 years, doing any kind of work at all. He worked in a radiator shop that required a lot of stooping, bending and lifting. I feel at this point, that the pain and instability in his back, contraindicates this type of work. I think he should be restricted to a situation where he does no lifting or bending. He could be in a sitting type of situation with getting up for occasional short stands and walking.

In a second medical report, dated March 9, 1987, Dr. Gill wrote:

[I]t is unlikely that [Brooks would] be able to hold down any job that requires a continued effort at either a sitting or standing job. The only type of employment he could do would be something that would tolerate * * * a need to change positions frequently and for somewhat extended periods of time.
As far as his working in his radiator repair or even as a parts clerk, I think that i[t] would not be possible at this time. Therefore I would recommend that he be off of work.

The Social Security Administration denied Brooks’ application for disability benefits initially and upon reconsideration. Thereafter, a hearing was held before an Administrative Law Judge (ALJ).

Brooks testified at the hearing that in June of 1985 the burning sensations in his left leg started getting worse. He did not seek any medical attention or treatment at the time because he was unable to afford to go to a doctor and because he believed that the leg problems were being caused by being on his feet too much. Brooks testified that his physical condition deteriorated to the point where, as of the time of the hearing, he had a burning sensation in his left leg and had lost control over the three smaller toes on his left foot. He also testified that his left leg falls asleep if he stands on it for more than thirty minutes. He testified that he experiences pain in his lower back if he sits or stands for any length of time. As a result of these physical problems, Brooks slowed down at work. He could no longer do the lifting that was required in the radiator repair shop, and he was forced to take more frequent and longer breaks on the job. As indicated above, *1378 Brooks’ inability to perform the duties of his job resulted in his being terminated by his employer.

Brooks’ daily activities consist primarily of watching television, playing cards, visiting friends, and occasionally going fishing. He testified that he is unable to mow the lawn. He testified that he can walk for about two blocks at a time and that he can drive a car on short trips. He takes extra-strength Tylenol to ease his leg pain.

Brooks’ testimony regarding his impairments and pain was corroborated by the testimony of his wife, Connie Brooks, and his former employer, Ed Reber.

Connie Brooks testified that her husband cannot sit for very long and that he has to get up and move around when his back starts bothering him. She testified that Brooks is unable to do much walking and that he suffers pain in his left leg when he stands. As an example of this, she testified that “he’s tried cooking and he’ll have to go sit down, his leg will just give out on him.” She also testified that Brooks becomes exhausted after even light exertion and that in her opinion Brooks “can’t do anything.”

Ed Reber testified that Brooks had worked for him in his radiator repair shop from 1973 to October of 1986, when Reber found it necessary to terminate him. Re-ber testified that he had terminated Brooks because “he couldn’t do the work. He’d have to go sit down. Lot’s of time he’d — I seen were he work [sic] until his leg would flop off from under him and then he’d have to go sit down a lot. A lot of coffee breaks. A lot of people besides me noticed it too. He was taking a lot more breaks than he would ever have before.” Reber testified that he had given Brooks some of his own Darvon pain pills that he, Reber, had obtained at the VA hospital. In response to the AU’s question whether Re-ber had observed that Brooks had problems with his back, Reber responded that “Yes, he couldn’t do the lifting and he couldn’t stand. I would say his lower back and legs

* * * it

The AU found that although Brooks was incapable of performing his past relevant work, he was capable of doing a full range of sedentary work. He discounted Brooks' descriptions of his limitations, finding that Brooks’ testimony was contradicted by the physician’s report and therefore not credible. The AU found Brooks capable of performing a full range of sedentary work. Then, because he found no nonexer-tional impairments, the AU applied the Medical-Vocational Guidelines set forth in 20 C.F.R. Part 404, Subpart P, App. 2 and concluded that Brooks was not disabled.

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882 F.2d 1375, 1989 WL 97442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marvin-brooks-appellant-v-louis-sullivan-secretary-of-health-and-human-ca8-1989.