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PRILL v. SCHWEIKER

September 21, 1982

HERBERT E. PRILL, PLAINTIFF,
v.
RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



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

  MEMORANDUM OPINION

This matter comes before the court on the plaintiff's objections to the magistrate's report and recommendation. For the reasons set forth below, the court adopts the magistrate's report and recommendation and denies both the plaintiff's and defendant's motions for summary judgment and remands this case for a complete development of the record and the taking of additional evidence.

I

In her report and recommendation, the magistrate concluded that substantial evidence does not exist in the administrative record to support the Secretary's denial of the disability benefits. She recommended that the case be remanded to the administrative law judge ("ALJ") for a complete development of the record and the taking of additional evidence. The Secretary filed objections to the magistrate's report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(C). In his objections, the Secretary contends that the evidence presented at the administrative hearing clearly establishes that Prill is not entitled to the benefits. Since objections have been filed, the court is required to make a de novo determination of the magistrate's report pursuant to 28 U.S.C. § 636 (b)(1)(C).*fn2

Prill seeks judicial review under 42 U.S.C. § 405 (g) of a final decision by the Secretary which denied Prill's application for a period of disability and disability benefits under the Social Security Act ("the Act"), 42 U.S.C. § 416 (i)(l), 423, 1382. Prill filed an application for a period of disability and disability insurance benefits on May 25, 1979 in which he claimed that he became unable to work on May 24, 1979 at age fifty-seven because of lung and blood problems and epilepsy. (Administrative Record ("R.") at 62-65). The claim was denied initially and upon reconsideration by the Social Security Administration on September 4, 1979 and October 26, 1979, respectively. (R. 66-69). On December 27, 1979, Prill requested a hearing before an ALJ. (R. 21).

A hearing was held before an ALJ on March 11, 1980 to review the case de novo. Prill appeared with his attorney. In addition, the ALJ received testimony from Prill's wife, Sarah Prill, and Prill's daughter, Kathryn V. Gonzalez. The decision rendered by the ALJ on April 9, 1980 found that Prill was not under a disability and it denied his claim for benefits. (R. 12-13). Prill then requested and received a review of the ALJ's decision by the Appeals Council. The Council affirmed the ALJ's decision on July 9, 1980. (R. 3). Seeking judicial review of the administrative decision, Prill filed his complaint with this court on September 10, 1980.

In July 1979 after Prill filed his disability application, he was examined by Dr. Borzsony and later by a physician appointed by the Disability and Determination Services, Dr. Levine. (R. 99). Dr. Borzsony filed a report on July 7, 1979 in support of Prill's disability application that stated that plaintiff was being treated for epilepsy with high doses of Dilantin and sedatives and that the epilepsy "seems to be under control". (H. 93). The doctor added that Prill is subject to occasional epileptic seizures which would jeopardize his own and other's safety if experienced while driving or working. (R. 93). Dr. Borzsony reported that Prill suffers from emphysema which is aggravated by Prill's smoking and working conditions. (H. 93). Dr. Levine's report is based on an examination of Prill made on July 26, 1979. Based on the medical history and Prill's own statement, Dr. Levine reported that Prill has epilepsy, but it is quite well controlled by medication. (H. 101). No EEG was performed at this time. Dr. Levine also declared that Prill's "emphysema is very mild, presented no real handicap," and Prill would be better off if he quit smoking. (H. 101).

A vocational assessment was made based on Prill's application and Dr. Levine's report and it noted that Prill's epilepsy was under control and that his emphysema was mild. The assessment stated that the only problem presented by Prill's carpet laying job was the dust, chemicals, and contaminated air. (R. 102). The assessment recommended that Prill's skills were transferable to the job of "carpet-cutter" where the work environment is without excessive dust and fumes. (R. 102).

On October 24, 1979, Dr. Borzsony reported by telephone to an adjudicator for the Disability Determination Services that Prill's seizures were under control with medication. (R. 103). Yet on December 1, 1979, Dr. Borzsony wrote a letter to the Disability Determination Services which referred to the October 24, 1979 telephone conversation and stated that Prill's epilepsy was in guarded condition then, and since that time Prill experienced several spells despite an increase in medication. (R. 104). Dr. Borzsony felt it would be irresponsible for Prill to drive a car or to work when he could cause injury to himself or other people. (R. 104). On January 31, 1980, Dr. Borzsony repeated this diagnosis in a letter. (R. 107).

After considering all the evidence, the ALJ concluded that none of Prill's impairments have reached a level of severity which would permit a finding of disability based solely on medical considerations. (R. 11). The ALJ made the following findings: 1) Prill met the special earnings requirements for Title II disability insurance benefits on the alleged date of disability onset and continues to meet said requirements through at least April 9, 1980; 2) Prill has epilepsy and chronic obstructive pulmonary disease; 3) Prill is unable to return to his prior work; 4) Prill has a maximum sustained capacity for medium work; 5) Prill is of advanced age; 6) Prill has a high school education; 7) Prill has a vocational background in skilled work but there is no evidence his skills are transferable; 8) considering Prill's age, education, work experience, maximum sustained work capacity, his nonexertional limitations and using Rule 203.15 of 20 C.F.R. § 404.1513 as a guide, there are jobs existing in the national economy which he can perform, and he is found not disabled"; and 9) Prill was not under a disability as defined in the Act, as amended, at any time through April 9, 1980. (R. 12-13). In determining that Prill was not disabled, the ALJ used the sequential evaluation method detailed in 20 C.F.R. § 404.1503 (now 20 C.F.R. § 404.1520 (1982)). (R. 11). The ALJ additionally determined that neither Prill's epilepsy nor his chronic obstructive pulmonary disease meet the level of severity required by 20 C.F.R. Part 404, Subpart P, App. 1, §§ 11.02 and 11.03.

In her report and recommendation, the magistrate summarized the evidence and concluded that the ALJ failed to state the evidence on which he based his conclusion that Prill's impairment did not meet the level of severity required by 20 C.F.R. Part 404, Subpart P, App. 1, §§ 11.02 or 11.03. (Magistrate's Report ("M.R.") at 7). Furthermore, the magistrate stated that the ALJ improperly relied on the medical-vocational guidelines set out in 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200 et seq. to find that Prill is able to perform "medium work on a sustained basis". (M.R. 11). The magistrate noted that the ALJ's findings of Prill's limitations implied intermittent work capacity rather than sustained capacity. (M.R. 11). It appeared to the magistrate that no weight was accorded the December 1, 1979 and January 31, 1980 statements of Prill's treating physician, Dr. Borzsony, in determining the severity of Prill's impairment. (R. 8). Finally, the magistrate stated that the ALJ erred in ...


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