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PILARCZYK v. SULLIVAN

August 25, 1992

GERALDINE PILARCZYK, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



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

 Geraldine Pilarczyk ("Pilarczyk") appeals the final decision of Secretary of Health and Human Services Louis Sullivan ("Secretary") denying her claim for disability insurance benefits under the Social Security Act, 42 U.S.C. ยงยง 416(i), 423(d). *fn1" Pilarczyk now moves for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, her motion is denied but this action is remanded to Secretary for the further review described here.

 Factual and Procedural Background

 1. Pilarczyk's testimony

 Pilarczyk was born on March 12, 1933 and went to school through the 12th grade or. 32). She worked at Sears, Roebuck & Co. from 1953 to 1987 (R. 83), when she was forced into early retirement (R. 39). From 1972 until 1987 she served as a "control buyer," keeping merchandise in stock for several mail-order houses. Pilarczyk did that job primarily while sitting, through the use of telephone, computer and paperwork (R. 38-39). No lifting was required (R. 39).

 After leaving Sears Pilarczyk sold real estate in Chicago's western suburbs for about 3-1/2 years (R. 30). In that line of work she spent about 60% of her time driving, standing or walking and the other 40% sitting (R. 35).

 Pilarczyk quit the real estate business in February 1990 and has not worked since. She testified that severe back pain forced her to quit (R. 43-44). Pilarczyk experiences that pain in two distinct areas: (1) the lower back, shooting down into the right leg when she bends over suddenly or "moves the wrong way," and (2) "between the shoulders going up to the neck area," causing severe headaches (R. 44-45).

 Pilarczyk also testified that she suffers from muscle spasms in the back of her neck that induce nausea (R. 64), from arthritis in her hands, hips, knees and left shoulder (R. 51) and from Raynaud's disease, an ailment affecting circulation in the hands and feet (R. 58-59). She said she cannot lift more than five pounds (R. 51). Because of her various ailments she takes seven different kinds of medication, primarily painkillers (R. 47, 155). Relatedly she suffers dizzy spells (R. 63-64) and feels "droggy" *fn2" in the mornings (R. 61), symptoms that she attributes to her medication.

 2. Medical Evidence

 Tests done on Pilarczyk in 1988 showed the presence of arteriosclerotic narrowings in the brain and some narrowing of the carotid artery (R. 121-24). Then after leaving her job in 1990 Pilarczyk underwent an esophagastoduodenoscopy procedure, leading to a diagnosis of superficial antral gastritis, hiatal hernia and short esophagus (R. 125-31).

 On May 10, 1990 Dr. Donald Miezio, Pilarczyk's treating physician, delivered a telephonic report on her condition to the Bureau of Disability Determination Services (R. 132). He diagnosed Pilarczyk as suffering from "degenerative and [sic] osteoarthritis" in her back, hips and knee. Dr. Miezio also noted mild hypertension, superficial antal gastritis and a hiatal hernia. He mentioned that Pilarczyk ambulates without a cane, then summed up:

 There is not a marked limitation of range of motion, there is no evidence of joint difficulties . . . . The neurological exam was negative . . . . The patient has a multitude of problems. All of her problems are non-severe.

 Dr. Allan Bernthal examined Pilarczyk on May 30, 1990 (R. 133). He diagnosed gastritis, with Pepto-Bismol recommended as treatment. Dr. Bernthal found that the gastritis imposed no work-related limitations.

 Another medical report from Dr. Daniel Hirsen, dated September 13, 1990 (R. 138-39), refers to X-rays that showed "mild to moderate disk space narrowing in the C5-6 and C6-7 regions". But Dr. Hirsen added that "the mild degenerative changes in her cervical spine could not account for the severity of her symptoms." He diagnosed fibrositis. *fn3"

 Dr. Royal Reimer, a chiropractor, submitted a Physical Capacities Evaluation Form dated October 11, 1990 (R. 144-46). He found that Pilarczyk could (1) occasionally lift or carry 6 to 10 pounds, (2) use both hands for grasping, pushing and pulling but not for fine manipulation and (3) occasionally bend, squat and reach, but not crawl or climb. Dr. Reimer said that Pilarczyk could not use her feet for repetitive movements such as the pushing and pulling of controls. He marked "N/A" in the portion of the form reserved for describing limitations on a claimant's ability to sit, stand or walk during an eight-hour workday. He left blank the portion of the form reserved for narrative description of functional limitations. Dr. Reimer did not offer any diagnosis, objective findings or description of his examination.

 On October 10, 1990 Pilarczyk underwent magnetic resonance imaging conducted by Dr. Glen Dobben (R. 140). That test showed mild cervical spondylosis *fn4" but no other spinal or thoracic abnormalities. Then Dr. Anthony DiGianfillippo examined Pilarczyk on October 30, 1990 and also diagnosed cervical spondylosis but no other ailments (R. 165). Pilarczyk told Dr. DiGianfillippo that her back and neck pain had worsened in the previous eight months (R. 166).

 Finally, Dr. R. Provus conducted a CT scan of Pilarczyk's spine on January 22, 1991 (R. 147). Dr. Provus reported findings "suggestive of a herniation of the disc extending to the right at L5-S1," including "extensive facet disease." *fn5"

 3. Procedural History

 On June 27, 1991 ALJ Greene issued a written opinion denying Pilarczyk's application. She then sought review by the Appeals Council of HHS. On November 29, 1991 the Appeals Council denied review and adopted ALJ Greene's opinion as Secretary's final decision (R. 4). Pilarczyk then filed her appeal in this District Court.

 Rule 56 Principles

 On summary judgment this Court must rule in favor of Pilarczyk as the moving party if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." For that purpose an issue is "genuine" if the record evidence would permit a reasonable factfinder to adopt the view of the nonmoving party ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986); Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 274 (7th Cir. 1991)), while a fact is ...


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