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September 30, 1985


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


Edilberto Aviles ("Aviles") seeks judicial review of a final decision by Secretary of Health and Human Services Margaret Heckler ("Secretary") denying Aviles disability insurance and supplemental security income benefits. Aviles initially applied for benefits under the Social Security Act ("Act") §§ 216(i), 223 and 1602, 42 U.S.C. § 416(i), 423 and 1381a. After a November 14, 1984 evidentiary hearing (the "Hearing"), Administrative Law Judge Peter Scalise ("ALJ Scalise" or simply the "ALJ") denied Aviles' application December 10, 1984. Aviles then exhausted his 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).

As invariably occurs in these actions, which come to this Court on the administrative record and a decision by Secretary, the parties have filed what they have labeled cross-motions for summary judgment. In fact, however, Aviles' motion is "to remand his case to the Secretary of [sic — should be `for'] further administrative review," and Secretary Mem. 13 n. 2 essentially concedes the propriety of a remand. For the reasons stated in this memorandum opinion and order, this case is remanded to Secretary for further proceedings consistent with this opinion.


Aviles, who was 43 years old at the time of the Hearing, was born in Puerto Rico. He has an eighth-grade education and is literate in Spanish, but his English is apparently poor (the Hearing was conducted through an interpreter). Since 1967 he has held jobs with five firms in the Chicago area, most recently as a line assembler with Stern Electronics ("Stern") from February 1978 to June 1982. On June 17, 1982 Stern laid him off because he was missing work two or three days a week.

Aviles claims disability because he suffers from hypertension, gout and arthritis, which produce disabling headaches, dizziness and an inability to walk. He testified he was regularly missing work at Stern because he was "sick on [his] feet and [he] could not work a full week" (R. 33). Aviles submitted a handwritten note (R. 110) from his physician, Dr. Rumilla*fn1:

TO Whom it may concern:

  that Mr. EDILBERTO AVILES Treated by me since
  1/6/78 for HYPERTENSION & polyarthritis. BP up
  sometimes to 180/115[.] [L]ast time seen on
  12/8/83 his BP was 150/100[.] Taking MODURETIC
  one a day and INDOCIN. . . .

Dr. Bacalla's October 7, 1983 consultative examination (R. 97-100) also found Aviles' blood pressure was 150/100 (it is worth noting Aviles, 5'5 1/4" tall, then weighed in at 197 pounds). Dr. Bacalla went on to find:

  1. Aviles was "without any significant evidence of
  end-organ damage."
  2. Aviles' history of chest pain was "not typical of
  angina pectoris," and a chest x-ray showed "normal
  heart size without any evidence of pulmonary
  3. Aviles gave a history of gout attacks occurring
  once or twice per month, involving the knees and feet
  and occasionally the right upper extremity.
  4. "On examination of this patient, he is able to
  ambulate with minimal limp towards the right side but
  independently. There was tenderness over the dorsum of
  the right foot. There were no signs of acute
  inflammation during the examination. The rest of the
  joints in both upper and lower extremities revealed no
  significant bony deformity or restriction of movement
  of the joint. The SM4-12 revealed an elevated uric
  acid of 9.4 mgs."

Dr. Panitch's shorter report of a February 21, 1984 consultative examination (R. 111-12) is consistent with Dr. Bacalla's results, except that Dr. Panitch measured Aviles' blood pressure at 180/120 (Aviles then tipped the scales at 192 pounds). Dr. Panitch's diagnosis read:

Hypertension, uncontrolled.

Heavy alcohol abuse.

Gout by history with possible gouty arthritis.

On July 25, 1984 Dr. Rumilla examined Aviles (R. 136-40) and found his gout was "getting better" and "will be better" with diet and medication. His weight was 209 pounds and his blood pressure was 160/100, but his EKG, urinalysis and heart were normal.

On August 27, 1984 Aviles received emergency room treatment at Cook County Hospital. His blood pressure was 164/130, his left knee was swollen and very painful to the touch and there was slight edema in the left ankle (R. 132). Aviles was advised to take colchicine and Aldomet, follow a low-salt diet and return in three days for another examination (R. 133). Aviles did not return until November 1, 1984,*fn2 when his blood pressure was 160/110 and the diagnosis reflected uncontrolled hypertension, lower back strain and a history of gout (the work-up for gout was not completed due to Aviles' noncompliance) (R. 134-35).

At the Hearing Aviles testified he could not exercise, could walk only half a block at a time (R. 38), had a lot of headaches on top of his head, could not bend over and had to use crutches in the morning because of pain in his feet (R. 40). He said in his present condition he could not sit or stand for an eight-hour work day (R. 41).

Applying the Statutory Framework

To establish entitlement to disability benefits, a claimant must show he or she is "disabled." Act § 216(i)(1), 42 U.S.C. § ...

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