Shavers v. Secretary of Health & Human Services

839 F.2d 232, 1987 U.S. App. LEXIS 14185, 1987 WL 39664
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 22, 1987
DocketNo. 86-2059
StatusPublished
Cited by17 cases

This text of 839 F.2d 232 (Shavers v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shavers v. Secretary of Health & Human Services, 839 F.2d 232, 1987 U.S. App. LEXIS 14185, 1987 WL 39664 (6th Cir. 1987).

Opinion

PER CURIAM:

Plaintiff, Kay M. Shavers (“Shavers”), appeals from the district court’s order granting summary judgment in favor of the Secretary. For the reasons set forth below, we AFFIRM.

Shavers filed an application for disability benefits pursuant to the Social Security Act, 42 U.S.C. §§ 416(i), 423, alleging disability dating from 1976. This application was denied originally by the Social Security Administration on May 25, 1984, and on reconsideration on June 8, 1984.

A hearing was requested and held before an Administrative Law Judge (“AU”) on April 15, 1985. On June 28, 1985, the AU again denied disability benefits. This decision was affirmed by the Appeals Council on September 11, 1985, and became the final decision of the Secretary.

Shavers then filed suit in the United States District Court for the Eastern District of Michigan, seeking judicial review of the Secretary’s decision pursuant to 42 U.S. C. § 405(g). The action was assigned to a Magistrate, who recommended that the district court grant appellee’s motion for summary judgment in her Report and Recommendation dated May 22, 1986. The district court, DeMascio, J., entered an order accepting the Magistrate’s Report and Recommendation on October 16, 1986. This appeal followed.

Shavers, whose employment history has consisted primarily of work as a general clerk typist, worked from 1970 through 1973 as a stenographer for General Motors (“GM”). After working for GM, Shavers was employed by Inner City Business Improvement Forum from 1976 to 1977 as a secretary; a position which, according to her testimony, she left because of her pain. Most recently, Shavers was employed in May of 1983 until February, 1984, by Kelly Services as a temporary secretary working on an assignment basis.

Shavers testified before the AU that she suffered her first injury to her back in an automobile accident in 1970. In 1973, while employed by GM, Shavers again hurt her back in an attempt to catch a falling file drawer.

Shavers was admitted to Mt. Carmel Mercy Hospital on September 30, 1977, complaining of low back pain and spasms. The admitting diagnoses were chronic lum-bosacral strain and possible radiculopathy. X-rays revealed a normal spine with no fracture, dislocation or degeneration. Straight leg raising was essentially negative at ninety degrees; however, Shavers complained of low back pain during Gan-slen’s test. Shavers exhibited no reflex, sensory or motor deficits in her lower extremities.

Shavers was treated for her pain and spasms from 1977 forward under the care of Dr. Bout, her family physician, and Dr. Pornetta, her orthopedic surgeon. In 1980, [234]*234she was hospitalized at Providence Hospital, when she complained of low back pain over the preceding one and one-half weeks. Although there was pain on straight leg raising, there were no neurological or motor deficits noted, and an X-ray revealed a normal lumbosacral spine.

Dr. Pornetta, who treated Shavers from the time of the accident at GM in 1973 through 1984, was contacted in May and June of 1984 and was asked to describe Shaver’s condition and his care of her. His diagnosis was chronic strain, marked by persistent neck and constant lower back pain since 1973 with acute exacerbation in spite of conservative treatment, and radiation into the posterior left thigh. Dr. Por-netta noted that the range of motion of the lumbar spinal area was limited to 0-45 degrees; however, there were no sensory, motor or reflex nerve root abnormalities noted. When asked to report dates and results of any nerve root irritation tests, Dr. Poretta noted that a 1974 EMG and 1974 mylogram were normal; however, he also noted that straight leg raising was limited on both legs. When contacted in June of 1984, he noted that a 1984 CT scan was normal.

After the date of expiration of her insured status, June 30, 1980, Shavers was hospitalized on three additional occasions with back spasms and pain. On one occasion, straight leg raising produced pain at thirty-five degrees bilaterally. Shavers was treated with physical therapy and dismissed. In May of 1984, an increasing lumbar lordosis, as well as some limitation of lumbar spine motion and limited straight leg raising, was noted by Dr. Bout.

At the administrative hearing, Shavers testified as to her pain, spasms, and weakness in her left leg. She stated that she uses analgesics, a special mattress, a whirlpool device, heat pads, a special corset, and that she attends physical therapy.

The medical advisor at the hearing was Dr. Richard Hall. He identified Shavers’ impairments as lumbrosacral strain, cervical strain, a past drug dependency, and a depression, which he noted was not confirmed by any medical evidence. He concluded that Shavers’ condition was not a listed impairment, 20 C.F.R. Part 404, Sub-part P, Appendix 1, and that she should be able to perform sedentary work.

Dr. Irwin Schultz, a vocational expert, testified that Shavers could return to a portion of her past work if found to be capable of performing sedentry work, and that she could return to all of her past work if found capable of performing light work.

The AU and the Secretary found that Shavers was not disabled because her impairments did not deprive her of the residual functional capacity to return to her past work. The district court found substantial evidence to support the Secretary’s decision. We agree.

The standard of review of a decision of the Secretary is whether or not the decision is supported by substantial evidence. E.g., Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 535 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). Substantial evidence means more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. E.g., Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 851 (6th Cir.1986). In determining whether substantial evidence exists, we review the evidence in the record taken as a whole. Duncan, 801 F.2d at 852.

Initially, Shavers argues that the Secretary erred in limiting his consideration of the evidence to that preceding June 30, 1980, the last date of insured status. However, we do not reach that issue, for we conclude that even if post-June 30, 1980 evidence is considered, the decision of the Secretary is supported by substantial evidence.

It is well settled that pain alone may be so severe that it constitutes a disability. E.g., Kirk, 667 F.2d at 538. However, subjective complaints of pain alone cannot themselves establish the existence of a disability. Rather, objective medical evidence which confirms the exist[235]*235ence of the pain is required. Duncan, 801 F.2d at 852-53.

The requirement that objective medical evidence exist is defined by statute for determinations made prior to January 1, 1987:

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