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KINDRED v. HECKLER

September 24, 1984

EMMALINE KINDRED, PLAINTIFF,
v.
MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Emmaline Kindred ("Kindred") has sued for judicial review of a final decision of the Secretary of Health and Human Services ("Secretary") (1) reversing the denial of disability insurance benefits to Kindred for a closed period beginning April 29, 1981 but (2) finding that as of December 29, 1982 she was no longer disabled in the terms of Social Security Act ("Act") § 223, 42 U.S.C. § 423 and therefore no longer entitled to receive benefits.*fn1 Administrative Law Judge Irving Stillerman ("ALJ Stillerman" or simply the "ALJ") issued his decision March 7, 1983. Kindred then exhausted her administrative remedies in proper sequence (a process that resulted in the ALJ's decision becoming Secretary's) and brought this action against Secretary pursuant to Act § 205(g), 42 U.S.C. § 405(g).

Following the almost unvarying pattern in these cases, which come to this Court on the administrative record and a decision by Secretary, the parties have filed cross-motions for summary judgment. In a less frequent variation of the customary sequence of events, Kindred has moved alternatively for remand of her case to Secretary for the purpose of taking additional evidence. Kindred's alternative attack rests on alternative premises:

    1. No substantial evidence supports the ALJ's
  finding that Kindred was no longer disabled as of
  December 29, 1982 and could resume her past
  relevant work (this of course is the claimed
  predicate for summary judgment).
    2. New evidence requires additional
  consideration at the administrative level (this
  is the reason asserted for remand).*fn2

Kindred's first contention cannot be sustained on a careful review of the record as a whole. But the new evidence offered by Kindred, especially when viewed in combination with record evidence suggesting the chronic nature of her impairment, necessitates remand to Secretary for further consideration. Accordingly the parties' cross-motions for summary judgment are denied and Kindred's alternative motion for remand is granted.

Facts

Kindred, who was 28 years old at the time of the ALJ hearing, is a divorced woman with two years of college education. She was forced to leave her job as a payroll clerk in April 1981 because of severe back pain. In June 1981 and again in September 1981 she was admitted to Evanston Hospital for back surgery. Since then she has continued to undergo treatment for recurrent back pain.

On the question whether Kindred was no longer disabled as of December 29, 1982 ALJ Stillerman had before him Kindred's testimony and several medical opinions:

    1. Dr. Jack L. Robbins examined Kindred on
  March 31, 1982 and filed a report (R. 185) in
  which he stated her flexibility and mobility were
  essentially within normal limits. Dr. Robbins
  went on to say lumbosacral spine x-rays showed
  "no bony abnormality or disc narrowing at all at
  this time, no sclerosis is associated with
  reactive bone formation and in themselves they
  offer a very good prognosis" (R. 186). But Dr.
  Robbins also observed (R. 186) that despite the
  favorable prognosis Kindred:
    is one of those people with more than one disc
    problem who has really disc disease as an
    ongoing phenomenon. . . . She will have some
    recurrent mild symptomatology interspersed with
    periods of more discomfort, but like the
    dictator, himself, there is no real reason for
    her to be disabled for more than the real acute
    periods of her illness.
    2. Dr. Tomasz Helenowski examined Kindred in
  the course of treatment at the Evanston Hospital
  neurology clinic on July 23, 1982. He filed a
  Spinal Disorders report (R. 188), in which he
  indicated Kindred had low back pain radiating to
  the right leg as well as some corresponding
  sensory loss. He noted she was capable of
  unassisted ambulation for about two hours.
    3. Dr. Helenowski also examined Kindred on
  August 27 and September 3, 1982. On November 3,
  1982 he described the course of her treatment and
  observed she continued to suffer back pain. At
  that time her most recent x-rays showed

  "mild" disc narrowing and some calcification of
  soft tissues in the area of Kindred's prior
  surgery. Dr. Helenowski concluded (R. 193):
    Due to the long course of continued pain and
    since the patient has had two lumbar
    laminectomies in the past, her prognosis for
    ...

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