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PULLIAM v. SULLIVAN

July 9, 1991

ROBERT PULLIAM, Plaintiff,
v.
LOUIS SULLIVAN, M.D., Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Robert Pulliam ("Pulliam") seeks judicial review of a final decision of Secretary of Health and Human Services Louis Sullivan ("Secretary") denying Pulliam's claim for supplemental security income ("SSI") under the Social Security Act ("Act"), 42 U.S.C. §§ 1381a and 1382(a). *fn1" Both parties have filed motions for summary judgment pursuant to Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Pulliam's motion is denied and Secretary's is granted.

 Personal History

 Pulliam, born on March 6, 1936, has an eleventh grade education and completed two years of music school. Although he has held various jobs, his past relevant work for the purposes of this case was as a saxophonist.

 Pulliam stopped working in 1982 at the age of 46 after he was hospitalized for a cerebrovascular accident -- a stroke that left his right arm and hand weak. Right-handed before his stroke, Pulliam thereafter learned to use his left hand for most activities. Pulliam testified that his right hand becomes functional after three to four hours each morning, but even then it remains weak and uncoordinated. He can use his right hand to eat and sign his name but needs the assistance of his left hand to grip other than small objects.

 Pulliam further testified that he can sit for about two hours, stand for about 20 minutes and lift only 5 pounds with his right hand. He takes care of his own apartment and most of his personal needs.

 Medical Evidence

 Pulliam was hospitalized on November 27, 1982 with complaints of weakness on the right side of his body. Findings from a brain scan suggested a recent acute left cerebral infarct *fn3" that left him with difficulties in the use of his right upper extremity. His discharge diagnosis was electrolyte imbalance and essential hypertension. In December 1985 Pulliam was hospitalized again due to a cerebral concussion and laceration of the right side of the head. *fn4"

 Off and on Dr. Henry Tabe has treated Pulliam for various ailments. On April 15, 1988 Dr. Tabe diagnosed Pulliam as having hypertension as well as an inactive peptic ulcer disease. He noted that Pulliam did not complain of joint pain on that visit, and Dr. Tabe's physical examination of Pulliam did not disclose a current arthritic condition of a significantly restrictive nature. Dr. Tabe reported that Pulliam was able to "walk independently as well as use arms, hands, and legs in an adequate manner" (R. 255).

 On October 12, 1988 Pulliam was evaluated by Dr. Leonard Weiss, a consultative internist. Dr. Weiss' clinical impressions were (R. 249):

 
1. Cerebrovascular Accident by History with only Sequela Mild Weakness in Right Hand.
 
2. Abdominal Pain by History.
 
3. Multiple Arthralgias. Normal musculoskeletal exam today.

 As for the third impression, Dr. Weiss stated that there was a full range of motion in all joints examined and normal motor strength in all joints except for the right hand, which was 4/5. Dr. Weiss added (id.):

 
The patient walked well. His ability to bear weight is good and he does not need a cane. He can grasp, finger and manipulate with each hand. He is right hand dominant. Black-outs . . . were secondary to alcoholism historically without neurological deficit. There are no focal neurological deficits today except for right hand problem secondary to cerebrovascular accident in 1982. He was oriented, had good memory, appearance and behavior and he related well during the exam. He is capable of handling his funds in his own interest.

 Dr. Sherman refused to opine about Pulliam's arthritis because he has no expertise on that subject, but he concluded (R. 282)(1) that the loss of dexterity in Pulliam's right hand because of the left cerebral infarct was serious and meant he was unable to make a living as he had in the past and (2) that the occasional blackouts were more difficult to assess and did not appear to represent seizures. Dr. Sherman believed that Pulliam's current neurological disability would never improve.

 More specifically, Dr. Sherman examined Pulliam's right upper extremity and noted in detail (R. 281):

 
The right forearm was thinner than the left. He couldn't supinate the right forearm completely. There was a loss of 50% extent of dorsiflexion to the right wrist. The elbow and shoulder were normal. Some of this may be the residue of the fracture he had at the age of 11. In undressing and dressing he used the left hand as the dominant one. He only used the right hand to hold things in a crude way. Strength at the right shoulder was good enough to overcome resistance. This was true at the elbow and wrist. Spreading the right fingers and making a cone out of the right fingers was obviously weak on the right. His grip was quite weak. He was able to pick up three coins with either hand but it was obviously slow and clumsy with the right hand. There was no doubt that he had serious dexterity problems in that hand. There was no ataxia or tremor in the upper extremities.

 Examination of Pulliam's lower extremities revealed no evidence of weakness, and examination of his back revealed no evidence of spasm or restricted motion. Pulliam's gait was reasonably good except for the limited swinging of the right arm.

 Dr. Sherman assessed Pulliam's functional capabilities and found (R. 283) that Pulliam could lift 5 pounds in his right hand and 20 in his left and that he could grasp with his left hand but not with his right. He believed Pulliam could sit for 6 hours out of a work day and for 2 hours at a time, and stand and walk for 3 hours in a work day and for 1/2 hour at a time.

 Statutory and Regulatory Framework

 All SSI claimants are put through a five-step sequential inquiry (Reg. § 1520). As Marcus v. Sullivan, 926 F.2d 604, 606 (7th Cir. 1991) outlines it:

 
Step one eliminates those who are still in the workforce. 20 CFR §§ 404.1520(b), 416.920(b). Step two disqualifies claimants who do not have a "severe" impairment. §§ 404.1520(c), 416.920(c). In the third step, the impairments of the claimant are compared to a listing ("Listing") of about 120 medical conditions which the Secretary concedes are severe enough to prevent a person from engaging in any gainful activity.
 
§§ 404.1520(d), 416.920(d), 416.925(a). If the wage earner's impairments meet or equal a listed impairment, the wage earner is conclusively determined to be disabled. §§ 404.1520(d), 416.920(d). If the wage earner fails to establish equivalence, however, the inquiry is not over. In step four, the Secretary considers whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant can, he is disqualified. §§ 404.1520(e), 416.920(e). Finally, in step five the Secretary asks whether the claimant is able to perform other work in the national economy in view of his age, education and work experience. The claimant is entitled to benefits only if he cannot perform other work. §§ 404.1520(f), 416.920(f).

 If the assessment of an individual reaches step five -- in other words, if a claimant has a severe impairment that does not meet one of the Listings, and if he or she is not engaged in substantial gainful activity and if his or her impairment prevents the claimant from performing his or her vocationally relevant past work -- then the rules in the Medical Vocational Guidelines of Reg. Subpart P, Appendix 2 (the "grid," cited "App. para. --") may come into play. Those grid rules reflect the analysis of the ...


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