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ROY v. SECRETARY OF HEALTH & SERV.

May 1, 1981

ANTHONY W. ROY, PLAINTIFF,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



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

    MEMORANDUM OPINION

BACKGROUND

HISTORY OF THE CASE

This is an action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health and Human Services. The Secretary denied the claimant's application for the establishment of a period of disability under Section 216(i) of the Social Security Act, 42 U.S.C. § 416(i), and for disability insurance benefits as provided in Section 223 of the Social Security Act, 42 U.S.C. § 423. In an administrative review hearing, the Administrative Law Judge (ALJ) also denied the claimant's application. The Appeals Council summarily denied the plaintiff's request for review of the ALJ's decision. The claimant and the Secretary have filed cross motions for summary judgment.

I conclude that the ALJ failed both to develop an adequate record and to apply proper legal standards when weighing the evidence and making his decision. Therefore, the ALJ's decision to deny disability benefits to the claimant is not supported by substantial evidence, and summary judgment must be denied and the cause remanded for further development of the record and the taking of additional evidence.

FACTS

The claimant, Anthony Roy, was born on March 21, 1927. He is a literate man, having completed 6 years of school. His only other formal education consists of a two week arc and acetylene welding course taken in 1974. Roy performed a variety of jobs for General Cable in Monticello, Illinois. The claimant's testimony at the administrative hearing indicates that he worked as a lead man and supervisor for 6 years, as a cabler for approximately 2 years and as a maintenance mechanic for an estimated 2 years.*fn1 From 1976 to 1978 the claimant operated a gas station and repaired cars in Kentucky. In 1978, the claimant returned to Illinois and went to work for Rite-Way in Rantoul, Illinois as a car mechanic. In 1978 or 1979 the claimant became a truck mechanic for Lincoln Land Moving and Storage in Champaign, Illinois.

On November 26, 1979, an appeal hearing was held by an administrative law judge (ALJ) to review the Social Security Administration's denial of disability benefits based on the Administration's finding that the claimant was not currently under a disability. Mr. Roy and his wife testified at the hearing. Mr. Roy was not represented by counsel.

Mr. Roy testified as to his work experience. As lead man and supervisor, the claimant loaded and unloaded reels of cables and supervised others. His most recent work as a truck mechanic he described as active, involving much bending, lifting, and moving around. His earlier work, 2 years as a maintenance repairman, the claimant and the ALJ categorized as light work, with maximum lifting of 25 pounds; his duties as an operator of a gas station included "pumping gas, changing oil, repairing cars, ordering supplies, and keeping records (R. 9, ALJ's Summary and Evaluation of the Evidence.) The ALJ did not otherwise categorize the claimant's former work.

The claimant also testified as to his physical condition. He stated that he has arthritis in his neck, spine, lower back, elbows and shoulders, causing increasing pain in his shoulders, right arm and hand, and back. He also suffers pain when bending or reaching. He is unable to lift his arms above his head and is able to lift only to just below shoulder level. Although he has swelling and pain in his right hand, Mr. Roy states that he "wouldn't want to try [to lift] any more than 15 to 20 pounds at the most." (R. 43). He can stand or sit 30 minutes to one hour before changing positions. The claimant feels he can walk one-quarter mile.

The claimant also complained in the hearing about recent stomach pains and heartburn which are aggravated by greasy or spicy foods. Maalox tablets are taken daily to alleviate the problem. The claimant testified to no other maladies. The claimant has not been hospitalized in the last 10 years.

No vocational expert testified at the trial. None of the doctors, neither the claimant's physician nor the Social Security Administration's (SSA) physicians, testified at the hearing. The record does, however, include the clinical evaluation of each of these doctors with the exception of Dr. Jones, one of the SSA's examining physicians who practices at the Veterans Hospital (VA) in Danville, Illinois. Dr. Mundt, the treating physician, diagnosed the claimant as having severe degenerative arthritis of the spine. Dr. Mundt recommended that Roy restrict his activities, not do any stooping, prolonged standing or lifting, or lifting more than 10 pounds. Dr. Mundt also recommended that Roy quit his job as a mechanic. Dr. Mundt prescribed treatment for pain which consisted of medication, Indocin, and an occasional Excedrin, accompanied by the application of wet heat. Dr. Nauman, the physician to whom Dr. Mundt referred the claimant, made a similar diagnosis of severe degenerative changes of the spine and suggested avoidance of heavy lifting, lifting not more than 20 pounds.

The SSA recommended that Mr. Roy be examined by Dr. Sukkar and Dr. Jones at the VA in Danville, Illinois. Dr. Sukkar's diagnosis differed from that of Drs. Mundt and Nauman. Dr. Sukkar found a mild scoliosis and moderate or advanced degenerative arthritis of the spine. Here the record is unclear. Dr. Sukkar's diagnosis states "advanced degenerative osteoarthritis of the spine". (R. 123) The x-ray impression states "moderate degenerative changes." (R. 124). Dr. Sukkar suggested only occasional lifting of a maximum of 20 pounds and 6 hours of standing, walking or sitting with rest periods. Dr. Jones' diagnosis is not in the record, although in the hearing the claimant offered to procure that diagnosis. All three doctors, Mundt, Nauman, and Sukkar, recommended light work rather than work as a truck mechanic.

Two other doctors, Dr. "Dirkenmanp" (illegible signature) and Dr. Phillips, after reviewing the information in the claimant's Social Security file also found the claimant capable of performing light work. Both these doctors felt the claimant was capable of performing his past jobs as a factory worker and lead man. The SSA vocational assessment specialist also found the claimant capable of performing light work and, specifically, his prior jobs as factory worker and lead man. The claimant, however, has applied with his former employer, General Cable Co., for janitorial work, and has been rejected for an unspecified reason.

THE ALJ'S DECISION

The ALJ narrowed the issue to "whether the claimant's impairments prevent him from performing his usual or other work." The ALJ's final conclusion was that the claimant's osteoarthritis and arthritic pain were not so severe as to "prevent him from performing light work within his occupational qualifications, such as his former work as a lead man and supervisor, general maintenance repairman or gas station manager":

  Based upon the weight of the evidence the
  following findings are made:
  1.  The claimant continues to meet the special
      disability earnings requirement of the Social
      Security Act through December 31, 1982.
  2.  The claimant was born on March 21, 1926 and
      completed six years of formal education. He
      is fully literate.
  3.  The claimant has had prior work experience as
      a cable company lead man and supervisor,
      cable operator, general maintenance
      repairman, gas station manager, auto
      mechanic, and truck mechanic.
  4.  The evidence shows that the claimant is
      afflicted with moderate degenerative
      osteoarthritis of the spine.
  5.  The evidence of record fails to show that the
      claimant is afflicted with a severe stomach
      disorder.
  6.  The claimant has some complaints of pain but
      the evidence as a whole, including medical
      findings, is not consistent with the
      existence of intractable, incapacitating
      pain.
  7.  The claimant's arthritic impairment does not
      prevent him from performing light work not
      involving frequent bending and stooping, such
      as his former jobs as a lead man and
      supervisor, general maintenance repairman or
      service station manager.
  8.  In accordance with Regulations 404.1503(e)
      and 416.903(e) of the Social Security
      Administration the claimant has not been
      under a "disability," as defined in sections
      216(i), 223 and 1614(a)(3) of the Social
      Security Act, as amended, at any time through
      the date of this decision.
  It is the finding and decision of the undersigned
  Administrative Law Judge that the claimant, based
  on his applications filed on March 5, 1979, is
  not entitled to a period of disability or to
  disability insurance benefits under the
  provisions of sections 216(i) and 223 of the
  Social Security Act, as amended, nor is he
  eligible for supplemental security income under
  the provisions of section 1614(a)(3) of the
  Social Security Act, as amended.
                         S/    Irwin I. Blumberg
                         -----------------------
                            Irwin I. Blumberg
                            Administrative Law Judge

Date: February ...


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