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April 27, 1992

MURRELL MAXWELL, 429-82-5169, Plaintiff,
LOUIS SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: MILTON I. SHADUR

 Murrell Maxwell ("Maxwell") seeks judicial review of a final decision of secretary of Health and Human Services ("secretary") Louis Sullivan denying Maxwell's claim for disability insurance benefits under Social Security Act ("Act") §§ 216(i) and 223 (42 U.S.C. §§ 416(i) and 423) and for supplemental security income ("SSI") benefits under the corresponding provisions of the Act (42 U.S.C. §§ 1381-1383). *fn1" As is usual in these cases, both sides now move for summary judgment. *fn2" For the reasons stated in this memorandum opinion and order, both motions are denied and this case is remanded to Secretary for further proceedings.


 Maxwell, born on September 23, 1942, is a high school graduate (R. 32). Between 1968 and March 1989 Maxwell was employed as a liquor store cashier, a job that required him to stand for most of his 8-hour shift (R. 50, 52). In addition he was required to perform maintenance duties such as cleaning, mopping, window washing and shoveling snow and was also frequently called upon to lift objects weighing about 35 pounds, with an occasional lifting chore involving objects weighing up to 75 pounds (R. 30-31, 51-52). Maxwell was fired in March 1989 because of his inability to perform those tasks (R. 30-31). He has not been employed since that time.

 Maxwell's Testimony

 Maxwell testified that he can walk for three blocks before experiencing pain in his lower back and right leg (R. 32) and can stand for eight or nine minutes before his right leg "gives way" (R. 32-33). He uses a cane for walking, although he said it was not prescribed by his doctor (R. 35). He is able to sit for 15-20 minutes before his back stiffens and his right leg becomes numb (R. 35), and upon getting up or sitting down he often experiences "muscle spasms" in his back that cause pain to shoot down his leg "like a needle" (R. 46). He can bend over only about one-third of the way to the floor (R. 36).

 Maxwell is right-handed but cannot lift or pick up anything with that hand. For example, he cannot pick up bills or coins with his right hand although he can hold them in that hand, and he cannot hold objects such as dishes or coffee pots with his right hand. He can lift up to eight pounds with his left hand (R. 33-34).

 Every day Maxwell takes 100 milligrams of Ansaid, a prescription that makes him drowsy. Although he is uncrertain, he does not think that the medication helps much with his pain (R. 41). Maxwell says that his pain is usually unbearable and that it is tolerable for only two to three hours each day (R. 42). Maxwell's pain increases in cold weather (R. 41-42).

 Maxwell lives alone in an apartment (R. 36-37). He is able to dress himself only with difficulty (R. 34-35)--he can button his shirt with his left hand but has trouble tying his shoes (R. 34-35). He is able to bathe himself, though he has problems getting in and out of the tub, and can brush his teeth and his hair with his left hand (R. 36-37). Maxwell does not drive because he does not "trust" his right leg (R. 38). He is able to ride the bus, although he has difficulty boarding (R. 48-49). Maxwell's girl friend, who visits about four times a week, does Maxwell's cooking, cleaning, laundry and grocery shopping (R. 37-38). She also helps him bathe and dress when she visits (R. 34-36).

 On a typical day Maxwell watches television and sleeps on and off throughout the day (R. 41). Sometimes he goes with older friends on short walks of up to one block (R. 39). Maxwell also has difficulty sleeping because of his pain. He wakes up every 40 to 50 minutes because of pain in his lower back, then spends 10 to 15 minutes before falling back to sleep. Usually he sleeps in a chair rather than a bed (R. 39-40).

 In addition to his pain Maxwell's "eyes are bad," a problem that he says prevents him from reading and makes it difficult for him to see the television. He often has difficulty concentrating, sometimes losing his thoughts in the middle of conversations (R. 47).

 For the past five months Maxwell has been seeing his treating physician, internist Dr. Chao Chen, once or twice a week (although he had not seen him for two weeks before the hearing and did not know when he would see him again). Before that time Maxwell was not receiving medical care because he did not have insurance. Maxwell was hospitalized in 1964 due to his hernia, which was found to be too large for surgical intervention (R. 44-45).

 Medical Evidence

 Dr. Rana made the following observations (R. 111):

There is a large right inguinal *fn3" hernia which extends into the scrotum. It is nontender and nonreducible. . . . Bones, Joints, and Muscles - there is no swelling, redness or tenderness of any joints. There is no limitation of motion of any joints. Gross and fine manipulation of either hand is normal. Examination of the spine is unremarkable. Extremities - there is no peripheral edema, ulcers or varicosities. Neurological - Gait is satisfactory. Motor power is normal. Reflexes are normoactive. Sensory system is intact.

 Maxwell had "no difficulty in movement during examination," and his vision was essentially normal (R. 110). Dr. Rana's report included the results of several x-rays and laboratory tests, the former showing "mild arthritic changes" in Maxwell's right hand and mild scoliosis in his lumbar spine (R. 114), while the laboratory results were normal (R. 113).

 Maxwell's treating physician, Dr. Chen, then examined him on March 19, 1990 (R. 123-28). Dr. Chen's diagnosis was arthritis (which Maxwell had developed 13 years ago), a right inguinal hernia (which Maxwell had developed at the age of 15) and obesity (Maxwell was 6 feet 1 inch tall and weighed 234 pounds). Dr. Chen noted swelling and tenderness in Maxwell's hand joints and tenderness in Maxwell's lower back and left ankle. He reported that Maxwell experienced "arthritic pain all over" (R. 125).

 R. 124 contained a number of Dr. Chen's findings. There the doctor checked "weakness" as a functional abnormality but did not specify Maxwell's grip strength, nor did he check off any limitation in Maxwell's ability to perform fine or gross manipulation. He did find that Maxwell's range of motion in his lumbar spine was limited to 15 degrees on extension and 45 degrees on flexion. He also reported positive straight leg raising tests--35 degrees for the right leg and 45 degrees for the left leg. Contrary to Maxwell's testimony that his cane was not prescribed by a physician, Dr. Chen found that Maxwell required a cane to maintain his balance. He also noted that Maxwell walked with a limp but did not comment on Maxwell's ability to sit, stand, lift or carry.

 After last examining Maxwell on September 6, 1990 Dr. Chen completed a September 23 "Degenerative Joint Disease (Arthritis) Report" (R. 148-52) and "Physical Capacities Evaluation" (R. 153-56). In the first report Dr. Chen noted pain and tenderness in Maxwell's lower back, knees and left ankle, but he found no structural changes or atrophy. He described the same range of motion and straight leg raising test results that he had earlier reported, and he also said that Maxwell was being treated with Ansaid. In the second report Dr. Chen concluded that Maxwell's abilities to lift, carry, stand, walk and sit were all impacted by his condition, but the doctor did not specify the extent to which Maxwell was limited in those respects. Dr. Chen found that Maxwell could climb, balance, stoop, crouch, kneel, crawl, reach, operate foot controls and perform fine and gross manipulations for less than 1/3 of an 8-hour day. Although Maxwell's ability to reach and handle was affected, Dr. Chen said that Maxwell's ability to feel, see, hear and speak was unaffected.

 Two other consultative physicians, both of whose areas of specialization (if any) are not indicated in the record, also assessed Maxwell's residual functional capacity based solely on the evidence in his file and not on any personal examination. Those added opinions were by Drs. William Conroy and William Curtis.

 Dr. Conroy prepared his report (R. 115-23) on February 9, 1990, when only Dr. Rana's report had been submitted. Dr. Conroy concluded that Maxwell could lift or carry 50 pounds occasionally (for up to 1/3 of an 8-hour day) and 25 pounds frequently (for up to 2/3 of an 8-hour day), and that he could stand, walk or sit for about 6 hours each during an 8-hour day. Dr. Conroy also concluded that Maxwell could climb, balance, stoop, kneel, crouch and crawl for up to 2/3 of an 8-hour day. Dr. Conroy found that Maxwell's ability to push and pull were unaffected and that he had no manipulative, visual, communicative or environmental limitations.

 Dr. Curtis completed his assessment (R. 129-35) on March 27, 1990, after Dr. Chen's first report was in Maxwell's file. Dr. Curtis' conclusions were identical to those of Dr. Conroy, except for his finding that Maxwell's ability to climb, balance, stoop, kneel, crouch, and crawl were all unaffected. Commenting on Dr. Chen's findings, Dr. Conroy wrote (R. 135):

Objective findings do not support marked limitations in ROM [range of motion] and the need of a cane for ambulation as stated by AP [attending physician).

 On November 13, 1990 *fn4" Maxwell underwent a CT scan of his lumbar spine, which showed these conditions (R. 157): *fn5"

There is mild diffuse bulging disc at L3-L4. There is also severe diffuse bulging disc at L4-L5, resulting in extrinsic pressure upon the dural sac. There is also moderate diffuse bulging disc at L5-S1. There is mild facette joint arthritis bilaterally . . . There are also sclerotic *fn6" changes of the body of L4 on the right.

 Finally, on February 14, 1991 Maxwell was examined by Dr. Sheldon Levine, a doctor of osteopathy who was apparently retained by Maxwell's attorney. Dr. Levine made these observations at R. 163 in his April 8, 1991 report (R. 161-64):

The patient is right handed and the hand grip is good. The patient had no difficulty in using his hands to hold, grasp or manipulate objects. . . . The range of motion of all joints were within normal limits except for the lumbar spine which was decreased. No calf tenderness was present. . . . The deep tendon reflexes were bilaterally equal. There was decreased superficial reflexes of the right lower extremity. There was no localized atrophy or wasting of muscles. . . . There was a positive straight leg raising on the right side.

 Dr. Levine also alluded to the already noted November 12 CT scan results as well as to a March 7, 1991 MRI--the results of which are not otherwise in the record--that "revealed bulging of L3-L4, L4-L5 and L5-S1 with possible herniation of L5-S1" (R. 163). He found that those test results were "compatible with clinical examination" (id.). Dr. Levine's clinical impressions were (R. 164):

1. Bulging disc L3-L4
2. Bulging disc L4-L5
3. Herniated disc L5-S1

 Statutory and Regulatory Framework

 Section 423(d)(1)(A) defines disability as:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for ...

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