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CLEAVER v. SECRETARY OF HHS

February 29, 1988

Lindsey Cleaver, Plaintiff
v.
Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: ROY

 Elsijane T. Roy, United States District Judge

 Plaintiff, a sixty-six-year-old male, with a good work history, seeks social security disability benefits, relying primarily upon impairments relating to an injured hip. Notwithstanding this fact, the Secretary denied his claim for a period of disability and for disability insurance benefits.

 Plaintiff's application was filed on January 22, 1986, alleging an onset date of April 29, 1985. His record reflected that due to his age, he had filed for retirement insurance benefits. The issue involved herein is whether he is entitled to the benefits by which he had filed for his disability application from April 29, 1985 until his 65th birthday, on November 18, 1986.

 The question before the Court in this review is whether there is substantial evidence on the record as a whole to sustain the Secretary's denial of benefits. 42 U.S.C. § 405(g); Basinger v. Heckler, 725 F.2d 1166 (8th Cir. 1984). The review process is more than a search for the existence of substantial evidence supporting the Secretary's decision, McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983), and requires the Court to "take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951); See also, Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).

 The claimant had a past relevant work experience as a pipe fitter, security guard, labor foreman and assistant maintenance man for the Van Buren County Memorial Hospital.

 In addition to the hip injury, in 1970 plaintiff lost his right thumb and part of his middle and index finger on the left hand and later had his right index finger transplanted to where his right thumb was. Plaintiff testified that he would try anything with his hands.

 The ALJ found that despite plaintiff's impairments, he retains the residual functional capacity to return to his past relevant work as a security guard. Plaintiff's duties as a security guard involved patrolling a plant and warehouse in a patrol car, making sure the alarms were set, and putting stickers on doors to make sure no one broke in. There was no use of machines, tools, or equipment of any kind, a total of four hours a day was spent walking and standing, two hours a day sitting, and occasional bending. No lifting was required.

 In May 1980 the plaintiff injured his back while riding a lawnmower. Impression was acute lumbar spine pain with a probable herniated nucleus pulposus at L4-L5 on the right. He was treated with physical therapy and medication with good response. He was readmitted in June 1980 with signs and symptoms indicative of a herniated nucleus pulposus with limited range of motion, muscle spasm and tenderness in the lumbar spine. Once again he was treated with physical therapy and traction with good response. He was released to return to work with no bending, stooping or lifting.

 In November 1980 the claimant complained of some muscle spasm in his low back and he was given a prescription for Flexeril. He was to go back to his exercise and was to return on an as needed basis. He was next seen in February 1981 reporting some low back pain which had increased in severity. He was placed on isometric exercises for the neck and low back and was given a prescription for Naprosyn. In May 1981 the claimant reinjured his back changing a motor on a lawnmower. Dr. Grimes again recommended bed rest over a period of time with improvement in his condition. Once again Dr. Grimes instructed the claimant not to engage in any heavy bending, stooping and lifting. On April 20, 1982 Dr. Grimes reported the claimant had degenerative disc disease with pain down the right side with sciatic distribution. He also had what appeared to be some paresthetica type symptoms with numbness along the lateral thigh and over the iliac crest which was injected with Marcaine. The claimant was to return if his sciatica persisted. He returned on February 21, 1983 with recurrent back pain. As the claimant did not wish to be hospitalized, he was sent home to go to bed and remain off work for a week to ten days. He was given Norflex and Empirin No. 3. Follow-up in March 1983 revealed the claimant was improving somewhat. He was continued on Meclomen and given a refill of his Darvocet N-100 and Flexeril.

 On April 30, 1985, the claimant was seen after his job requirements had been shifted to a riding lawnmower which aggravated his degenerative disc disease and osteoarthritis of the lumbar spine. X-rays revealed significant changes at L2-L3, L3-L4 and L4-L5 with some interspace narrowing at L5-S1. It was Dr. Grimes' opinion that riding a lawnmower aggravated the claimant's condition and that he was precluded from doing this type of occupation. He recommended that the claimant seek medical retirement if this job requirement was unchangeable.

 The claimant was referred for a general physical consultative examination which was performed on February 14, 1986. Funduscopic examination was normal. The claimant's corrected visual acuity was 20/20 bilaterally. Breath sounds were normal. Heart examination was normal with no murmurs. The claimant had tenderness over the right lumbosacral area with full range of motion in his cervical, thoracic and lumbar spines. There was no kyphosis or scoliosis. The claimant had full range of motion in all of his extremities with no evidence of heat or swelling. The claimant's left second and third fingers were amputated at the proximal interphalangeal joint. The claimant had complete amputation of the right index finger which was implanted at the thumb site. He had 20 percent loss of grip strength in his left hand and 10 percent loss of grip in his right hand. Cranial nerves were intact. There was no muscle weakness, muscle atrophy or sensory abnormalities noted. The claimant's gait and coordination was normal. He could stand and walk without assistive devices, could walk on his heels and toes and could squat and arise from a squatting position. X-ray of the claimant's right hip revealed no abnormalities. Impression was lumbosacral back pain.

 The ALJ concluded that although the plaintiff has severe degenerative disc disease and osteoarthritis of the lumbar spine; amputation of the middle and index fingers on the left at the PIP joint; amputation of the right thumb with transfer of the right index finger to the thumb; and an adjustment disorder with depressed mood; the plaintiff does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. He further found that plaintiff's allegation as to the severity and resulting disability of the combined effects of his multiple subjective complaints are not found to be fully credible due to his findings made on physical examination, statements made by his treating physician, his failure to take any prescriptions and his high daily activity level. The ALJ concluded that plaintiff has the residual functional capacity to perform work-related activities except for work involving heavy lifting, prolonged stooping and bending and riding on a lawnmower, and that his impairments did not prevent him from performing his past relevant work as a security guard.

 The Court finds that there is not substantial evidence to support the Secretary's findings ...


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