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HOLLIDAY v. SCHWEIKER

May 17, 1983

JOE HOLLIDAY, PLAINTIFF,
v.
RICHARD SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



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

  MEMORANDUM OPINION

Joe Holliday and the Secretary of Health and Human Services (the Secretary) have filed cross motions for summary judgment, seeking review of the denial, by an Administrative Law Judge (the ALJ), of Holliday's applications for a period of disability and disability insurance benefits and Supplemental Security Income (SSI) benefits under the Social Security Act, 42 U.S.C. § 416(i), 423 and 1381. Our jurisdiction and Holliday's cause of action arise under 42 U.S.C. § 405(g) and 1383(c)(3). For the reasons stated below, we deny the Secretary's motion and we grant Holliday's motion to the extent that he asks us to reverse the ALJ's decision and to remand his case for rehearing.

Holliday filed an application for a period of disability and disability insurance benefits on October 7, 1980, and an application for SSI benefits on December 30, 1980, alleging that on September 30, 1980, he became disabled and unable to work because of a "back problem" and varicose veins in both legs (R. 40). The applications were denied initially (R. 79-90) and on reconsideration (R. 49-51) by the Office of Disability Operations upon the evaluation by a physician and by a disability examiner from the Illinois Bureau of Disability Adjudication Services of a medical report (to that state agency) by another physician. (See R. 81) On December 18, 1981, the ALJ held a de novo hearing, at which Holliday was represented by counsel. The ALJ found that Holliday was not under a disability (R. 5-11). The ALJ's decision became the final decision of the Secretary when the Appeals Council approved it on April 6, 1982 (R. 2).

Holliday was born in Mississippi on July 27, 1936. He was therefore forty-five years old both at the time of the ALJ's decision and at the time that that decision became the Secretary's final decision. Holliday attended a rural Mississippi school to the eighth grade (R. 20, 29), but describes his ability to read and write as "rather poor" (R. 29). He can sign his own name (see, e.g., R. 12, which appears to contain a copy of Holliday's signature), but does not write anything else (R. 29). He could not read the notices which he received from the Social Security Administration, and had his sister read them to him. He does not read the daily newspaper or do any other reading (R. 29). According to Holliday, there is "not much" that he can read (R. 29).

Most of Holliday's past employment consisted of repairing and recapping truck tires (R. 29, 70). Tire repair required him to lift tires, some of which weighed up to 250 pounds, required him to stand or walk during nearly all of his work day, and required constant bending and reaching (R. 30, 71). Apparently, whatever reading and judgment that this job might otherwise call for was exercised by Holliday's boss rather than by Holliday. According to Holliday, his boss would instruct him as to the proper size of the rims to be placed inside the tires which Holliday recapped (R. 30). Holliday's other past employment consisted of driving a tow truck, scrubbing floors, washing cars, and being a janitor (R. 58, 70).

On September 30, 1980, Holliday stopped working because "my legs would swell and I'd give out. I was having dizzy, dizzy spells" (R. 22). He has not worked since that time.

In October of 1980, Holliday was examined by Dr. Henry T. Pimental, whose "Peripheral Vascular Report" to the (Illinois) Bureau of Disability Adjudication Services notes that Holliday had varicose veins in both legs and lumbar disc syndrome (R. 81). This report indicates that Holliday had "distortion of veins and sacculation" and stassis dermatitis,*fn1 but had no temperature changes, atrophy, or intermittent claudication.*fn2 Dr. Pimental's report also notes that Holliday was "unable to stand for long periods of time," and that Holliday's pain was "moderate" but "increases with standing long periods" (R. 81-82). Dr. Pimental also noted that Holliday had a "slightly stiff" gait, but that ambulation was "normal" and not dependent upon the use of a cane or crutch. No decalcification, compression fraction, vertebral dislocation, or spinal ankylosis*fn3 were evident. The report indicates that Holliday's response to treatment was "fair," but that his condition was "deteriorating" (R. 81). Dr. Pimental declined to recommend surgery, but wrote no reason for that decision (R. 83).

Dr. Mila Bacalla, a physician retained by the Social Security Administration, examined Holliday on June 10, 1981 (R. 84). Holliday complained of low back pain, hypertension, pain in the legs, and nervousness (R. 84). Dr. Bacalla noted that Holliday's "general appearance" was that of a well developed, slightly obese, cooperative patient in no acute distress (R. 85). There was no evidence of joint swelling, but Dr. Bacalla reported severe varicosities bilaterally, appearing in cords in both legs. There were nodules along the veins, particularly on the left side, and severe dermatitis, especially on the left leg, but no edema (R. 86-87). The left calf also appeared tender, and there was a positive Homan's sign*fn4 and a positive Trendelenburg's test*fn5 for the left leg (R. 86). Dr. Bacalla noted that Holliday "elevates his legs most of the time to relieve the discomfort" (R. 84). He concluded that "[t]hese clinical findings impose restriction as far as the patient's prolonged ambulation is concerned" (R. 87).

Dr. Bacalla noted that Holliday had normal posture, with some tenderness in the lumbosacral region with some paravertebral muscle spasm (R. 86). X-rays of the lumbosacral spine showed lipping*fn6 at L3, L4, and L5 (R. 88). Dr. Bacalla noted that Holliday walked with a limp towards the left side with a poor ability to walk on his heels and toes, but observed that Holliday had no difficulty dressing or undressing, getting on or off the examining table, or rising from a sitting position (R. 85).

Holliday informed Dr. Bacalla that he is able to walk about one block and climb one flight of stairs, and that bending, stooping, lifting, and prolonged walking aggravate his pain (R. 84, 87). Holliday described his pain as aching and constant, and radiating from his lower back through his legs, and also told Dr. Bacalla that he has occasional headaches and frequent dizziness (R. 84).

Dr. Bacalla stated that with regard to Holliday's nervousness, there was no evidence of any acute psychotic symptoms or any previous mental or emotional treatment (R. 87). Dr. Bacalla noted that Holliday had been taking medication for pain and for high blood pressure, but that his supply of medicines had run out (R. 84).

At his hearing, Holliday stated that due to lack of money he was no longer under a physician's care and no longer took any medication (R. 22). He complained of pain in his back and in his legs (R. 23). Holliday stated that his legs swell and that he "sit[s] around and elevate[s]" his legs to relieve the swelling (R. 24). Holliday estimated that he could sit "around [without elevating his legs] about 20, maybe about 20, 25 minutes" at one time (R. 23), and could stand "maybe about half an hour" (R. 24). According to Holliday, Dr. Pimental told him that his varicose veins were "too bad to operate on" (R. 32).

Holliday stated that he has frequent dizzy spells, and had had such a spell "on the elevator there a few minutes ago" (R. 23). He claimed to be able to walk "about a block" without stopping to rest (R. 24), but stated that he is able to lift "groceries or something like that . . . [m]aybe 20 or 25 pounds" (R. 25).

Holliday also claimed that he experiences pain in his chest and in his right hand (R. 23). The pain in his hand interferes with his grip (R. 23). Holliday is right handed (R. 20).

Holliday lives with his sister at her house (R. 20). His sister does all the shopping (R. 25); as Holliday puts it, there "[a]in't much I can do around the house" (R. 24). Holliday has a driver's license, but no longer drives (R. 25).

The ALJ concluded on the basis of this evidence that although Holliday's varicose veins did not match the degree of severity sufficient for a per se finding of disability under 20 C.F.R. § 404.1520(d) and Rule 4.12 of Appendix 1 to Subpart P of the social security regulations, his varicose veins prevent his return to his past work, all of which required substantial periods of walking or standing (R. 9-10). However, the ALJ concluded that Holliday retains the capacity for "sedentary work" within the meaning of that term of art as defined by 20 C.F.R. §§ 404.1567 and 416.967. The ALJ relied upon Holliday's statement that he could lift objects weighing 20 to 25 pounds. The ALJ also noted that although

  [t]he claimant testified to discomfort above the
  ankles after prolonged sitting . . . the
  attending physician mentioned no limitation on
  the claimant's capacity for sitting nor any
  necessity for him to elevate his legs. The
  Administrative Law Judge finds that the claimant
  retains the capacity ...

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