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DEUTER v. SCHWEIKER

July 28, 1983

DOROTHY DEUTER, PLAINTIFF,
v.
RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



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

MEMORANDUM OPINION

This is an action pursuant to 42 U.S.C. § 405(g) for review of a final decision of the Secretary of the Department of Health and Human Services (the Secretary) denying plaintiff Dorothy Deuter's (Deuter) applications for disability and disability insurance benefits, 42 U.S.C. § 416(i), 423, and for Supplemental Security Income (SSI), 42 U.S.C. § 1381 et seq. The parties have filed cross motions for summary judgment: the Secretary urges affirmance of the denial of benefits and Deuter seeks award of her claim. For the reasons hereinafter stated, both motions are denied. The Secretary's finding that Deuter does not have a "severe impairment" is reversed and the action is remanded to the Secretary for further proceedings consistent with this opinion.

Deuter applied for disability insurance benefits on January 4, 1980 and for SSI on May 14, 1980. On her applications, she stated that, because of her hypertension and "fainting spells", she became unable to work on December 3, 1979. Deuter's disability benefits claim was initially denied on March 17, 1980. She requested reconsideration and in September 1980 she was again denied all assistance. Thereafter, upon her request, an Administrative Law Judge (ALJ) considered the claim de novo.

After a hearing, at which Deuter appeared and was represented by an attorney, the ALJ issued an opinion in which he held that Deuter had not demonstrated that she had a "severe impairment" and therefore was not disabled as that term is defined in the Social Security Act, 42 U.S.C. § 416(i) and 423(d)(1) and 42 U.S.C. § 1382c(a), as implemented by the Secretary's regulations, 20 C.F.R. § 404.1501 et seq. and 20 C.F.R. § 416.901 et seq.*fn1 The Appeals Council of

the Secretary's Bureau of Hearings and Appeals adopted the ALJ's conclusion, thereby making it the final decision of the Secretary. The Appeals Council decision was mailed on July 14, 1982 and this action was commenced within six months thereafter.

Deuter is a 50 year old former expeditor or general office worker who apparently has not been gainfully employed at any time since the filing of this application. Her complaints are many and varied. As noted, at the time of her disability application she listed hypertension and fainting spells as the cause of her inability to work. A severe upper respiratory infection was apparently also present at that time. (R. 54, 113) Dizzy spells and poor eyesight are complained of in Deuter's May 14, 1980 "Reconsideration Disability Report". (R. 97-100) And at the hearing before the ALJ, on April 8, 1981, Deuter indicated that she was unable to move or use her arms. (R. 49)

Under the ALJ's questioning at the hearing, Deuter described blackout spells which, she said, were occurring on a daily basis and which resulted in either total loss of consciousness or in loss of vision and inability to speak. (R. 56-57) She indicated that her ability to move her arms was severely restricted (R. 59) and described in detail the limitations on her activities and housework as a result of the blackout spells and the difficulty with her arms. (R. 60-63)

Several doctors have examined Deuter and their observations, findings and diagnoses constitute the bulk of the administrative record. Possibly because of her respiratory difficulties, Deuter was initially examined, on February 7, 1980, by Dr. P. de Silva, M.D., a cardiologist who submitted a form "cardiac report" provided to him by "Disability Determination Services". Dr. de Silva listed Deuter's blood pressure, taken on three occasions, and her pulse rate; he noted, in response to questions printed on the form, an absence of syncopy, myocardial infarction, congestive heart failure or chest pain; and he indicated that an EKG taken of Deuter showed "nonspecific changes". His diagnosis was "essential hypertension" and "exogenous obesity". (R. 114-115) Attached to the cardiac report is a "Physical Capacities Evaluation" form on which Dr. de Silva noted his finding that Deuter is capable of "medium" work that would involve frequent climbing, bending and stooping. (R. 116)

Dr. John E. Roche, M.D., who treated Deuter between May and August 1980, submitted a similar form "epilepsy report". He stated that Deuter was having 30 major motor seizures per month. The seizures were described as primarily nocturnal, focal seizures usually starting in one hand, moving to both hands and then rapidly extending to the whole body. On most occasions, the seizures were accompanied by loss of consciousness. Dr. Roche indicated that his description of Deuter's seizures was not based on his own observations but was "as stated by pt's husband."*fn2

Dr. Roche diagnosed Deuter as an epileptic and prescribed Dilantin and phenobarbital. He stated that Deuter took her medicine as prescribed, based on a test of her serum levels, but that she was "still not under control having an average of one seizure a day." (R. 123)

Dr. Roche also referred Deuter to a neurological specialist, Dr. Jack Antel, M.D., who examined Deuter and reported as follows:

    On examination she was markedly anxious today
  and indeed was doing some hyperventilating and
  felt somewhat light headed and dizzy. This mental
  state somewhat precluded a complete neurologic
  exam. The optic fundi appeared normal. There was
  no cranial or carotid bruits. She seemed to show
  tunnel vision today rather than a hemianopsia or
  more specifically a bitemporal hemianopsia. I

  did not detect other focal cranial nerve signs.
  She did not seem to have focal weakness although
  there was a tremor of the outstretched hands,
  more on the right than on the left. Reflexes
  seemed to be symmetric. The toe response was
  mainly withdrawal and I could not be sure of this
  response. Sensory examination was most difficult
  as she did not respond adequately to pin or
  position sense on either side.
    I would tend to concur with your opinion that
  there may be an underlying seizure disorder and
  would certainly begin with the Dilantin therapy.

(R. 125) An electroencephalogram (EEG) accompanying the Roche report was normal. (R. 127)

Dr. Antel wrote again to Dr. Roche on September 16, 1980 to report that he had examined Deuter on that date. He noted that Deuter's EEG was normal and that he was "unable to find focal neurologic signs". Deuter's tremor of the outstretched hand was still present; she reported diurnal spells in which she felt light headed and shaky and then lost consciousness and fell to the ground; Deuter also reported nighttime spells where she started to shake and was unresponsive to attempts to rouse her. Dr. Antel concluded:

  Overall, one is somewhat impressed that there is
  an anxiety component definitely intermixed with
  her spells, whether there are true seizures also
  present is difficult to be certain . . . It may
  well be that if the higher Phenobarb dose does
  not do the job that a more intense ...

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