Tackett v. Heckler

627 F. Supp. 545, 1986 U.S. Dist. LEXIS 30047
CourtDistrict Court, S.D. West Virginia
DecidedJanuary 27, 1986
DocketCiv. A. No. 84-3245
StatusPublished
Cited by1 cases

This text of 627 F. Supp. 545 (Tackett v. Heckler) is published on Counsel Stack Legal Research, covering District Court, S.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tackett v. Heckler, 627 F. Supp. 545, 1986 U.S. Dist. LEXIS 30047 (S.D.W. Va. 1986).

Opinion

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

This is an action under 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health and Human Services denying Plaintiffs application for a period of disability and disability insurance benefits. The case is presently pending before the Court on cross motions of the parties for summary judgment.

Plaintiff was born on December 5, 1946, has a ninth grade education, and has past relevant work experience as a coal miner and assembly line worker in an automobile plant. He first filed an application for a period of disability and disability insurance benefits on July 17,1981, alleging disability commencing August 28, 1980, due to back and right leg impairments. The application was denied on initial consideration on August 28,1981, and Plaintiff failed to pursue it further. He filed a second application on April 20, 1982, again alleging disability commencing August 28, 1980, due to back [547]*547and right leg impairments. The application was denied initially and on reconsideration and Plaintiff then requested a hearing before an administrative law judge (ALJ). The AU considered the case de novo and in a decision dated April 26, 1983, determined that Plaintiff was entitled to a closed period of disability from August 28, 1980, to September 1, 1982. Disagreeing with the finding of the ALJ that his disability ceased on September 1, 1982, Plaintiff requested review by the Appeals Council. The request was granted, however, on April 13,1984, the Appeals Council issued a decision denying benefits altogether. Plaintiff instituted this action on May 10, 1984.

The Court’s function on review is limited to a determination of whether the Secretary’s findings are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is

“evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’ ”

Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir.1972).

Plaintiff alleges disability due to residuals from two back injuries. Briefly, the evidence shows that he injured his back while working in the mines on August 28, 1980. An examination of his back by Francisco C. Valentin, M.D., on October 17, 1980, showed marked paravertebral muscle spasms with some limitation of flexion, pain on hyperextension and rotation, and marked tenderness along the lumbosacral area bilaterally. Straight leg raising was positive at 50° on the right and 60° on the left. An x-ray of the lumbosacral spine was within normal limits. Dr. Valentin’s diagnostic impression was acute lumbar myositis. Plaintiff’s symptoms continued despite conservative treatment by Dr. Valentin and he was hospitalized on January 11, 1981. A lumbar myelogram showed a defect at the L-5, S-l area and a lumbar laminectomy with excision of a huge ruptured disc at the “5-1” level was performed on January 21, 1981.

Plaintiff was seen by Diane E. Shafer, M.D., on March 4, 1981, for worker’s compensation purposes. Dr. Shafer opined that Plaintiff remained disabled and estimated that he would be able to return to work in about two months.

In a letter dated July 27,1981, Dr. Valentin reported that he had continued to see Plaintiff for complaints of back and leg pain following his surgery. An examination on April 6,1981, showed severe muscle spasms along the back area, pain with flex-ion and hyperextension, and positive straight leg raising at 45° bilaterally. When seen on May 18, June 1, and June 17, 1981, Plaintiff had a moderate amount of back and leg pain. He received an intra-thecal injection on June 17, 1981, and was somewhat improved on July 8, 1981. Dr. Valentin stated that Plaintiff remained totally disabled.

On October 15,1981, Dr. Valentin reported that Plaintiff had returned to work on September 11, 1981, but had reinjured his back on October 14, 1981, when attempting to lift some timbers. An examination of his back on the date of the injury showed limited motion with pain on hyperextension, paravertebral muscle spasms, and tenderness along the back area. Straight leg raising was positive at 35 to 40° on the right and 60° on the left with a positive Laseque sign. There was also weakness of the toe extensor and ankle jerk on the right side.

Plaintiff was hospitalized on October 15, 1981, and underwent a second myelogram. The myelogram showed a defect at the L-5, S-l interspace suggesting a rehemiation of the lumbar disc. He was treated with physical therapy and a variety of medications and was discharged on November 5, 1981.

Dr. Shafer saw Plaintiff a second time for worker’s compensation purposes on No[548]*548vember 24, 1981. She again opined that he was disabled.

Plaintiff was hospitalized on January 31, 1982, and underwent another lumbar lami-nectomy with excision of a huge ruptured disc at the “6-1” level. When seen by Dr. Valentin on March 24, 1982, he had less pain but a tingling sensation was noted along the right leg. On May 6, 1982, Dr. Valentin opined that Plaintiff remained totally disabled.

The last medical report in the record concerning Plaintiff’s back impairment is from James C. Owen, M.D., who examined Plaintiff on September 2, 1982, at the request of the Secretary. Dr. Owen’s examination showed a good range of motion with no redness or swelling of the joints. Plaintiff walked with a limp off his left foot and appeared somewhat weaker on his right thigh. He could squat with the help of his arms, had great difficulty toe walking, but could heel walk easily. Sensation was decreased bilaterally in the superior laterial thigh. Straight leg raising was negative bilaterally at 90° in the sitting position but positive at 30° in the supine position. Reflexes were 2+ bilaterally symmetrical at the ankles and knees. X-rays of the lumbo-sacral spine were essentially negative. Dr. Owen’s diagnoses included status post lam-inectomy with continued probable root compression pain.

The evidence shows that Plaintiff also suffers from mild chronic obstructive pulmonary disease and category 1 simple pneumoconiosis. The evidence does not include any ventilatory function studies.

The ALJ found that Plaintiff’s impairments were status post two lumbar lami-nectomies, degenerative changes in the lumbosacral spine, and chronic pulmonary disease. He found that Plaintiff’s work from September 11, 1981, to October 14, 1981, represented an unsuccessful work attempt and was not substantial gainful activity. The AU determined that Plaintiff was disabled from August 28, 1980, through September 1, 1982, but that beginning on September 2, 1982, he had the residual functional capacity to perform light work activity restricted to a clean environment. See 20 C.F.R. § 404.1567(b).

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Cite This Page — Counsel Stack

Bluebook (online)
627 F. Supp. 545, 1986 U.S. Dist. LEXIS 30047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tackett-v-heckler-wvsd-1986.