Sandy v. Bowen

725 F. Supp. 1124, 1989 U.S. Dist. LEXIS 13475, 1989 WL 143486
CourtDistrict Court, D. Kansas
DecidedNovember 13, 1989
DocketNo. 87-4133
StatusPublished

This text of 725 F. Supp. 1124 (Sandy v. Bowen) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sandy v. Bowen, 725 F. Supp. 1124, 1989 U.S. Dist. LEXIS 13475, 1989 WL 143486 (D. Kan. 1989).

Opinion

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is an action to review a final decision by the Secretary of Health and Human Services regarding plaintiff’s entitlement to supplemental security income benefits under the Social Security Act. This matter is presently before the court upon defendant’s motion for an order affirming the Secretary’s decision. Having carefully reviewed the record, the court is now prepared to rule.

Plaintiff filed an application for supplemental security income benefits on August 28,1985. Plaintiff indicated on the application that she was disabled due to “back and disc injury.” The disability was alleged to have begun in November, 1982. The application was denied initially and on reconsideration by the Social Security Administration. At plaintiff’s request, a hearing before an administrative law judge (AU) was held on June 19, 1986. On November 14, 1986, the AU found that plaintiff was not disabled and thus not entitled to supplemental security income benefits. On February 13, 1987, the Appeals Council of the Social Security Administration denied plaintiff’s request for review. Thus, the decision of the AU stands as the final decision of the Secretary.

The legal standards applicable in this case were recently set forth in Gossett v. Bowen, 862 F.2d 802, 804-05 (10th Cir.1988) as follows:

Under the Social Security Act the claimant bears the burden of proving a disability, as defined by the Act, which prevents him from engaging in his prior work activity. Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir.1988); 42 U.S.C.A.
[1126]*1126§ 423(d)(5) (1983). Once the claimant has established such a disability, the burden shifts to the Secretary to show that the claimant retains the ability to do other work activity and that jobs the claimant could perform exist in the national economy. Reyes, 845 F.2d at 243; Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.1988); Harris v. Secretary of Health and Human Services, 821 F.2d 541, 544-45 (10th Cir.1987). The Secretary meets this burden if the decision is supported by substantial evidence. See Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987); Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.1986). “Substantial evidence” requires “more than a scintilla, but less than a preponderance,” and is satisfied by such relevant “evidence that a reasonable mind might accept to support the conclusion.” Campbell v. Bowen, 822 F.2d at 1521; Brown, 801 F.2d at 362. The determination of whether substantial evidence supports the Secretary’s decision, however,
“is not merely a quantitative exercise. Evidence is not substantial ‘if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians)— or if it really constitutes not evidence but mere conclusion.’ ”
Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir.1985) (quoting Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.1985)).

The record in this case is extensive. The record consists of voluminous medical reports and the testimony presented at the hearing before the AU. Plaintiff was born on January 17, 1953. She has a twelfth grade education. Her previous work experience is limited. She has previously been employed as a forklift operator, a sewing machine operator, an assembly line worker, and as a shelf stocker in a grocery store. Plaintiff worked for only a short period of time in each of these positions. She has not engaged in any substantial gainful activity since January, 1982.

On January 25, 1982, plaintiff was seen by Dr. Philip C. Lehman. Plaintiff told Dr. Lehman that she hurt her back while lifting a drum of pills onto a pallet at her place of employment. She complained of low back pain and headache pain. She stood erect and could heel and toe walk without difficulty but had little motion of the lumbar spine or thoracic spine. Dr. Lehman also noted thoracic tenderness upon deep palpation. The x-rays of plaintiff’s thoracic and lumbar spine showed no bony abnormalities. Dr. Lehman diagnosed muscle strain and prescribed medication and bed rest for a few days. Plaintiff returned to Dr. Lehman three times during the next two months, each time reporting no improvement in her condition. On February 22, 1982, she reported that her symptoms were much worse, but a straight leg raising test was negative.

Dr. Roger P. Jackson conducted a comprehensive physical examination of plaintiff for her insurance company on March 17, 1982. Plaintiff complained of persistent back pain and pain in the upper posterior portion of her thighs. She indicated that bending, lifting, coughing, sneezing and prolonged standing aggravated her back pain, while resting gave her some relief. Dr. Jackson’s examination revealed “a healthy woman in no acute distress.” He noted tenderness at the L5-S1 interspinous space but no paralumbar muscle spasm. Flexion and extension were restricted and painful, while right and left lateral bending were “slightly decreased” and painful. Neurological examination was “completely normal.” Plaintiff’s x-rays showed a very slight narrowing of the L5-S1 disc space, but there were no other degenerative lumbar disc disease changes. Dr. Jackson reached the following conclusion:

This patient is complaining of persisting pain in her lower back since a reported lifting strain some 2 months ago. Her complaints appear to be mechanical in nature, and there is no evidence of a significant disc herniation or nerve root entrapment problem at this time. Her leg pain complaints appear to be on a referral basis. Again, the patient’s neurological examination is completely normal. At this time I am recommending diagnostic and hopefully therapeutic facet joint injections at L4-5 and L5-S1 [1127]*1127bilaterally. The patient is to remain off of work at this time until re-evaluated again by us after the results of this test are known.

Dr. Jackson saw plaintiff on several occasions over the next few months. Plaintiff continued to complain of back pain. He recommended various types of treatment, but none seemed to help. He continued to note that plaintiffs neurological examination remained normal. He further noted that plaintiff appeared poorly motivated.

On August 18, 1982, plaintiff was again seen by Dr. Jackson. At that time, she continued to complain of daily, severe pain which interfered with her social and recreational functioning. Dr.

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Bluebook (online)
725 F. Supp. 1124, 1989 U.S. Dist. LEXIS 13475, 1989 WL 143486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sandy-v-bowen-ksd-1989.