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MILLS v. SULLIVAN

August 31, 1992

ROGER MILLS, 429-82-5169, Plaintiff,
v.
LOUIS SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



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

 Roger Mills ("Mills") seeks judicial review of a final decision of Secretary of Health and Human Services Louis Sullivan ("Secretary") denying Mills' claim for disability insurance benefits under the Social Security Act ("Act") §§ 216(i) and 223, 42 U.S.C. §§ 416(i) and 423. *fn1" As is usual in these cases, both sides now move for summary judgment under Fed. R. Civ. P. ("Rule") 56. *fn2" For the reasons stated in this memorandum opinion and order, both motions are denied and this action is remanded to Secretary for further proceedings.

 Facts

 Mills was born on April 2, 1938 and left school after completing part of the eleventh grade (R. 31, 114). He is married and lives with his wife in the second floor apartment of a building that he owns (R. 31, 64).

 Between February 1968 and January 1987 Mills was employed by Bell and Howell Company. There he began as a stockroom boy, was later promoted to dispatcher and ultimately moved to the mailroom, where he later became a supervisor in charge of seven people (R. 32-34). *fn3" In that last position Mills ran the copy center as well as the mailroom, and he also worked in stationery supplies, record storage and security.

 Thus Mills' job involved much active physical labor despite his supervisory status. It required "constant" standing, walking and lifting of various items weighing an average of 55 to 60 pounds and a maximum of 90 pounds (R. 33-34, 78, 95-98).

 Mills stopped working after undergoing quadruple coronary artery by-pass surgery in January 1987 (R. 34, 196). He has not been employed since that time.

 Mills' Testimony

 Although his surgery was initially successful, Mills' symptoms began to recur about eight months later (R. 40, 90-91). Two to three times a day he experiences chest pain that lasts for two or three minutes until it subsides when Mills takes nitroglycerin. Mills is usually free of such pain for no more than two days. He also experiences pressure in his chest and shortness of breath when he moves around, and he suffers from tingling in his fingers and from numbness and pain in his arms (R. 40-43).

 Mills also described numerous musculoskeletal ailments: *fn4"

 1. To begin with, he has disk problems and pinched nerves in his back, which cause pain in his back, chest, shoulders, arms and fingers. Mills described the pain as "a tearing, twisting, pulling pain" that is constant and would rate at "8, 9, plus" on a scale of 1 to 10 (R. 44, 46-47, 50). Although he has tried numerous treatments, none have helped relieve that pain (R. 48).

 3. Finally, Mills believes that he may have a torn rotator cuff in his left shoulder, which causes an occasional loss of motor control in his left arm (R. 53-54, 56, 79, 87).

 In addition to those problems, Mills has been blind in his left eye since birth and has deteriorating vision in his right eye (R. 54-55, 105-06).

 As for his functional limitations, Mills testified that he can bend but cannot squat or stoop, and that he can reach, but doing so causes pain in his shoulders (R. 55-56, 106). Mills can lift 5 to 10 pounds, but he could not do so repeatedly over an extended period of time (R. 59). Although Mills walks 1-1/2 blocks three to five times a day for cardiovascular exercise, doing so causes pain in his ankle and in his shoulders if he swings his arms (R. 55). He also cannot stand comfortably (id.). Mills does drive, but that causes soreness in his shoulders and pain when he turns to look in either direction (R. 60).

 Mills has difficulty moving in the morning, and he rises from bed slowly (R. 67). He then dresses himself, which takes about 30 to 45 minutes because of his sore shoulders and back (R. 67). Mills showers and shaves only when his wife is available to help him (R. 68). He typically goes for breakfast each day to a restaurant that is three blocks from his home (R. 68). He descends the 17 steps from his apartment to the ground floor with difficulty because of his morning stiffness, and upon returning he has to ascend "one step at a time" (R. 68, 107). After coming home he watches television or reads the newspaper, but he can sit in a chair comfortably for only 10 to 20 minutes, and his arm gets numb from holding the newspaper (R. 68-69). Mills sometimes naps during the day but is awakened by pain after 10 to 15 minutes (R. 103).

 Mills' health problems have caused him to give up his former hobbies of bowling, hunting and fishing (R. 61-62). He has also stopped doing repair and maintenance work around the apartment building (R. 64), and his wife does all the yard work and household chores (R. 67, 99). Mills is unable to sleep for more than 3 to 4 hours a night because of his pain, and he is uncomfortable no matter what position he assumes (R. 47, 51, 67, 102). He also has problems concentrating (R. 56-59, 81-83), and he sometimes experiences depression because of his chronic pain (R. 69, 72, 80-81).

 Medical Evidence

 On January 31, 1990 Mills was hospitalized at St. Elizabeth's Hospital after complaining of pain and pressure in his chest, pain in his left arm and paresthesia on his left ring finger (R. 151-52). Mills' chest x-ray showed borderline cardiac enlargement but was otherwise normal (R. 155), and his myocardial scan showed a "mild" decrease in the ejection fraction to 55% and was also otherwise normal (R. 156). Mills' stress thallium cardiac scan was "essentially normal" (R. 158), but his EKG was initially abnormal. It revealed "sinus bradycardia *fn5" with 1st degree A-V block," left atrial enlargement and T-wave abnormality (R. 159-60, 205). X-rays of Mills' left shoulder and elbow revealed mild arthritic changes in the shoulder and post-traumatic osteoarthritis in the elbow that was related to an old injury there (R. 157). Mills' range of motion was within normal limits (R. 153). He was discharged on February 6, 1990 with a diagnosis of angina and arthritis of the left shoulder (R. 151).

 Between February 6 and February 7, 1990 Mills was hospitalized at Saint Mary of Nazareth Hospital Center (R. 185), where he underwent a cardiac catheterization. That procedure revealed a "mild hypokinesia *fn6" of the anterolateral wall," "severe coronary atherosclerosis" *fn7" and "posteromedial scalloping of the posterior leaflet of the mitral valve" (R. 189-90).

 Dr. R. Dizon, who had been Mills' attending physician at St. Elizabeth's, completed a cardiac report on March 29, 1990 based on an examination three weeks earlier (R. 196-97). Dr. Dizon reported that Mills' diagnosis was angina pectoris, coronary artery disease, hypertension, blindness in his left eye and osteoarthritis. Dr. Dizon also reported that Mills' chest pain was "crushing," "burning," "squeezing" and "sharp," lasted for less than 15 minutes, was brought on by walking, emotional upset and eating, and was relieved by rest and nitroglycerin. Dr. Dizon concluded that Mills could not engage in gainful employment because of his angina and arthritis.

 Dr. Dizon also completed an arthritic report (R. 198-99). He stated that Mills had osteoarthritis in the shoulder, elbow, knees, ankles and spine and had suffered from arthritis since 1980. Dr. Dizon did not identify any anatomical deformity or bone destruction, but he did note bone hypertrophy *fn8" in Mills' spine. Dr. Dizon reported that Mills had pain and stiffness, slight manipulative limitations and loss of motion in his ankle, shoulder and elbow, but that he walked normally and did not require a cane.

 Dr. John P. Monteverde, a cardiologist who had performed Mills' catheterization, examined Mills and completed a cardiac report on April 11, 1990 (R. 207-08). Dr. Monteverde stated that Mills' diagnosis was coronary atherosclerosis and that Mills had substernal chest pain that occurred daily, lasted for less than 15 minutes, was precipitated by walking and was relieved by rest and nitroglycerin.

 On April 26, 1990 Mills underwent an exercise stress test. He was able to exercise for 6-1/2 minutes before he had to stop because of dizziness. Dr. Karen A. Leone (another cardiologist) concluded that the test was submaximal and inconclusive for ischemia *fn9" and that Mills had achieved 70% of his maximum target heart rate (R. 213).

 On June 26, 1990 Dr. Robert S. Katz (a rheumatologist) wrote a letter in support of Mills' DIB application (R. 216). He stated:

 Mr. Roger Mills has fibromyalgia. He experiences diffuse pain, including his back, shoulders, arms, ankles, and knees. This pain has been quite severe. He sleeps poorly, his energy is low. Because of his pain and poor energy, he is unable to work effectively and is therefore applying for disability.

 * * *

 Fibromyalgia can cause quite severe symptoms, especially pain and fatigue, and it may be incapacitating despite the lack of objective findings on exam.

 Dr. Katz reported that Mills' joint examination was normal but that "he is tender over multiple muscles, including trapezius muscles, neck, thoracic spine, lumbosacral spine, and chest wall." Dr. Katz also observed that Mills had tried numerous medications but that none had relieved his pain, and that Mills had been unable to work for the past eight months because of his pain and fatigue.

 On July 13, 1990 Mills had a CT scan of his cervical spine and left shoulder (R. 217-18). That scan revealed:

 Moderately advanced degenerative changes are noted at the C3-4 level. The disc space is narrowed and there is encroachment on the corresponding right and left neural foramina. *fn10" There is slight narrowing of the C5-6 intervertebral disc and encroachment on the C5-6 left neural foramen.

 Dr. J. P. Petasnick (a radiologist) included the following impressions on the CT scan report:

 1. Degenerative changes are present in the cervical spine involving the C3-4 and C5-6 level as described above.

 2. Changes are present in the left shoulder hightly [sic] suggestive of a rotator cuff tear.

 3. C4-5: Mild right neural foraminal stenosis *fn11" secondary to end plate osteophytes *fn12" ...


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