Russell v. Sullivan

758 F. Supp. 490, 1991 U.S. Dist. LEXIS 2937, 1991 WL 32163
CourtDistrict Court, E.D. Missouri
DecidedJanuary 14, 1991
DocketNo. S89-0164-C
StatusPublished
Cited by3 cases

This text of 758 F. Supp. 490 (Russell v. Sullivan) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. Sullivan, 758 F. Supp. 490, 1991 U.S. Dist. LEXIS 2937, 1991 WL 32163 (E.D. Mo. 1991).

Opinion

ORDER

LIMBAUGH, District Judge.

IT IS HEREBY ORDERED that the review and recommendation of United States Magistrate David D. Noce is SUSTAINED, ADOPTED and INCORPORATED herein.

IT IS FURTHER ORDERED that defendant’s motion for summary judgment is GRANTED, and plaintiff’s motion for summary judgment is DENIED.

IT IS FINALLY ORDERED, ADJUDGED and DECREED that judgment is hereby entered in favor of defendant and against plaintiff in this cause of action.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE

DAVID D. NOCE, United States Magistrate Judge.

This matter is before the Court on the cross-motions of the parties for summary [492]*492judgment pursuant to Rule 56, Federal Rules of Civil Procedure. This cause was referred to the undersigned United States Magistrate for review and a recommended disposition. 28 U.S.C. § 636(b).

On January 25, 1985, plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. § 401 et seq. (Tr. 183-86.) Plaintiff alleged that he became disabled on July 3, 1984 due to a back injury. (Tr. 183.) Plaintiffs applications were denied initially (Tr. 175-79) and upon reconsideration (Tr. 168-72), and by a decision of an Administrative Law Judge (ALJ) dated August 30, 1985. (Tr. 275-81.) On October 3, 1985, the Appeals Council of the Social Security Administration remanded the case because of a change in the rules as a result of the Social Security Disability Benefits Reform Act of 1984. (Tr. 272.)

On December 23 1985, while the disability benefit application was pending, plaintiff filed an application for supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 294-303.) Both applications were denied initially (Tr. 288-93, 335-38) and on reconsideration. (Tr. 282-87, 309-13.)

On July 30, 1986, a hearing was held before an AU. Plaintiff was represented by counsel and testified. (Tr. 76-138.) On November 28, 1986, the AU issued a decision unfavorable to plaintiff, holding that plaintiff was not under a “disability” as defined in the Social Security Act at any time when he met the earnings requirement of the law1, or at any time through the date of the decision. (Tr. 37-48.) On July 22, 1987, the Appeals Council granted plaintiffs request for review, vacated the hearing decision, and remanded the case for further proceedings. (Tr. 22-24.) On remand, the AU was to obtain a psychological consultative examination and a medical assessment describing plaintiffs ability to reason or make occupational, personal, or social adjustments. (Tr. 24.)

On March 8, 1988, another hearing was held before an AU. Plaintiff testified at the hearing but was not represented by counsel. (Tr. 138-61.) On June 13, 1988, the AU issued a decision unfavorable to plaintiff. (Tr. 9-16.) After considering additional medical evidence, the Appeals Council denied plaintiffs request for review. (Tr. 4-5, 457-58.) Thus, the decision of the AU stands as the Secretary’s final decision. 42 U.S.C. § 405(g).

Plaintiff was born on February 29, 1940. (Tr. 151.) He stands five feet eight inches tall and weighs 174 pounds, having lost 70 pounds. (Tr. 152.) Plaintiffs relevant past work experience includes that as a painter, foundry worker, mechanic, and farmer. (Tr. 153-54.) He has completed high school and is now attending college in Columbia, Missouri. (Tr. 152-53.) He lives in the dormitory and is a full-time student, carrying 15 hours. (Tr. 153-54.) Vocational rehabilitation is paying for his education. (Tr. 153.)

Regarding his daily activities, plaintiff testified that he gets up at 6:30 a.m., eats breakfast, and goes to his first class at 8:00 a.m. His first class lasts two hours, and the next two classes are 50 minutes each. He stated he did fairly well during class as long as he could get his shoulder blades over the back of the chair and had time to lie down between classes. He goes to the lunchroom for dinner. In the evening he lies in bed and reads. Plaintiff stated that he has to read on his back and has trouble when he has to get up to draw for his fine arts class because he has trouble holding his arms up. He said he does not do much socializing, but he does lie on the couch in the lounge to watch television. (Tr. 156.)

Regarding his exertional capabilities, plaintiff testified that he can walk one-eighth of a mile, but cannot stand in line. He drove to the hearing, although he stated that he did not drive from Columbia, Missouri. (Tr. 156-57.) He can sit for 50 minutes in a comfortable chair and can lift [493]*493books weighing four or five pounds. He can squat but he cannot bend. (Tr. 158.) He stated that lying on the floor, for 15 minutes, helps the pain. (Tr. 159.) Plaintiff testified that he is now depressed because his wife will not let him see his children, but that if he had a good back, he would not have any problems with depression. (Tr. 159.) He denied suffering disabling depression or any other psychiatric problem. (Tr. 141, 145-46, 159.) When asked why he could not be a self-service gas station attendant, he said he cannot do the sitting or standing required. (Tr. 158— 59.)

The medical evidence includes the reports of various physicians as well as records of hospital and clinic visits. Office notes from Gordon Eller, M.D., an orthopedic surgeon (Tr. 260, 378), reveal that on July 3, 1984, plaintiff suffered a back injury. X-rays showed no fracture, and his discomfort eased with medication. He was told to stay off work for one to two weeks and released with prescriptions for Tylenol # 3 and Soma. He continued to report back pain on July 13, 1984, but he had been actively campaigning for a seat in Congress rather than resting. It was recommended that he use a back corset, and pursue physical therapy. On July 27, 1984, plaintiff indicated that a heating pad improved his condition, and that he was not taking medication. After again reporting pain on August 10, 1984, x-rays of plaintiffs thoracolumbar spine revealed compression fractures of T-10 and T-ll. He was placed in a back brace. When Dr. Eller next saw plaintiff, he suggested plaintiff try a job not requiring bending, stooping, or lifting more than 10 pounds. (Tr. 257-59.)

When plaintiff saw John R. Crockarell, M.D., on August 15, 1984, physical examination was essentially unremarkable. (Tr. 249.) The doctor requested a lumbar spine series which revealed a mild wedge compression deformity of T-ll and T-12. (Tr. 247-48, 250.)

Records from the Campbell Clinic indicate that in September 1984, plaintiff had decreased back motion, but no other significant limitation. The doctor believed that plaintiff suffered muscle tightness, and he recommended physical therapy. (Tr. 223, 251, 407.)

Plaintiff was hospitalized twice in October 1984, for continued investigation of his complaints of back pain. It was noted that his complaints of pain were out of proportion to his medical history.

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Cite This Page — Counsel Stack

Bluebook (online)
758 F. Supp. 490, 1991 U.S. Dist. LEXIS 2937, 1991 WL 32163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-sullivan-moed-1991.