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November 19, 1984


The opinion of the court was delivered by: Mihm, District Judge.


The Plaintiff Samuel H. Walton filed suit against the Secretary of the United States Department of Health and Human Services ("the Secretary") seeking review under 42 U.S.C. § 405(g) of a final decision by the Secretary which denied Walton entitlement to a disability period and disability insurance benefits.

In order to qualify for a period of disability insurance benefits under the Social Security Act ("Act"), an individual must meet the insured status requirements under the Act, be under the age of sixty-five, file an application for disability insurance benefits and a period of disability, and be under a disability as defined in the Act. 42 U.S.C. § 416(i), 423; Griffin v. Weinberger, 407 F. Supp. 1388, 1392 (N.D.Ill. 1975), aff'd. 539 F.2d 712 (7th Cir. 1976). The determination of a disability which entitles a claimant to benefits under the Act is a two-step process: (1) there must be a medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than twelve months, and (2) there must be a factual determination that the impairment renders the plaintiff unable to engage in any substantial gainful employment. McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980); Lieberman v. Califano, 592 F.2d 986 (7th Cir. 1979); 42 U.S.C. § 423(d)(1)(A).

The burden of proof is on the claimant to establish his or her entitlement to disability insurance benefits. Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971). However, once a showing has been made that the Plaintiff can no longer perform the kind of work in which he or she was previously engaged, the burden shifts to the Secretary to prove that there exists other substantial gainful employment which the claimant could perform. Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974). Judicial review of an Administrative Law Judge's findings pursuant to these standards is limited to a determination of whether the findings are supported by substantial evidence. 42 U.S.C. § 405(g); Lechelt v. Cohen, 428 F.2d 214 (7th Cir. 1970). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

If there is a conflict in the evidence, the burden is upon the claimant to prove that he or she meets the requirements of eligibility. Johnson v. Weinberger, 525 F.2d 403, 407 (7th Cir. 1975). In addition, an Administrative Law Judge's credibility determination regarding subjective evidence should be given considerable weight by the court. Bibbs v. Secretary of Health, Education & Welfare, 626 F.2d 526, 528 (7th Cir. 1980).

The district court must consider four elements of proof in determining whether a claimant is disabled under the Act: (1) objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and as observed by others; and (4) the claimant's age, education, and work history. Johnson v. Weinberger, 525 F.2d at 407.

Plaintiff filed an application for a period of disability and disability insurance benefits on April 21, 1982, alleging that he became unable to work on October 6, 1981, at age 35. His application was denied initially and on reconsideration after the Illinois State Agency, upon evaluation of the evidence by a physician and disability examiner, found that the Plaintiff was not under a disability. The Administrative Law Judge ("ALJ") before whom Plaintiff and his attorney appeared considered the case de novo and found that the Plaintiff was not under a disability. The ALJ's decision became the final decision of the Secretary when the Appeals Council approved it.

Plaintiff was 36 years old at the time of the administrative hearing. He has completed high school and has done some course work beyond the high school level. He has worked primarily as a truck driver and a machinist. He alleges disability due to back problems.

The following facts are taken largely from the Administrative Law Judge's opinion. They will be supplemented by statements and arguments of the Defendant and the Plaintiff.

Plaintiff last worked on October 6, 1981, and claims that he became disabled on that date due to injuries resulting in back surgery, as well as bursitis of the left hip and back. He is 74 inches tall and at the time of the hearing weighed 212 pounds. On October 6, 1981, he lifted a heavy object at work and developed severe pain in his back with radiation down the left leg. He was unable to straighten his leg without severe pain. He was hospitalized for four weeks for evaluation. He was referred to the University of Iowa where x-rays of the cervical and thoracic spines were completely negative and films of the lumbar spine revealed only minimal arthritis at L5. X-rays of the pelvis and left hip revealed no positive findings and a lumbar myelogram showed no abnormality. Physical examination revealed the absence of an ankle jerk on the left with diminished pain perception on the medical aspect of the left foot. At the time of his discharge, a diagnosis was deferred.

The claimant underwent physical therapy on a outpatient basis until early January of 1982 with some improvement and lessening of pain. He was rehospitalized on January 14, 1982, and underwent a laminectomy and removal of herniated disc at L5-S1. His leg pain was gone almost immediately after surgery, but he developed pain over the greater trochanter of the left extremity when attempting to stand. This was relieved by an injection of the extremely tender trochanteric bursa. The claimant recovered except for a slight antalgic list to the left. By the time of discharge, he was ambulatory with a walker and needed no narcotics.

Examination in February of 1982 showed marked improvement and the Plaintiff indicated that his back felt fine. During March and April of 1982, however, Plaintiff presented himself on a number of occasions at the emergency room of his local hospital for treatment of post-laminectomy pain. On each occasion, he was treated with demerol and vistaril. On a couple of occasions, it was noted that malingering could be a problem. It was also noted that functional overlay might be involved in the claimant's symptoms. On April 29, 1982, the emergency room record states that he had been seen on numerous occasions for recurrent back pain and was "always seeking IM (intramuscular) narcotic injection". The physicians otherwise noted no objective evidence of Plaintiff's symptoms. On May 7, 1982, the claimant's treating physician anticipated further surgery.

On May 17, 1982, a state agency reviewing physician examined the medical information in the file and projected that by October of 1982 the claimant would have the ability to engage in a full range of light work activities.

On May 27, 1982, Plaintiff was admitted to the Mayo Clinic for evaluation. He complained of pain and weakness with intermittent episodes of numbness in his left leg. Physical examination revealed some reflex changes of L2-3. X-rays showed partial laminectomies of the lower lumbar spine. Plaintiff was evaluated in the department of psychiatry. There, a reactive depression with no evidence of psychosis was noted. It was believed that there was evidence of drug-induced behavioral changes from the analgesics, and the psychiatrist recommended a reduction or discontinuance of analgesic medication. At the time of his discharge, Plaintiff had improved but still had some muscular weakness and discomfort in his left hip. On July 1, 1982, Dr. Charles Reed of the ...

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