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SHIELDS v. SULLIVAN

September 14, 1992

ARLIN SHIELDS, 499-40-2131, Plaintiff,
v.
LOUIS SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



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

MEMORANDUM OPINION AND ORDER

 Arlin Shields ("Shields") seeks judicial review of a final decision of Secretary of Health and Human Services Louis Sullivan ("Secretary") denying Shields' 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"

 Under ordinary circumstances the reasons stated in this memorandum opinion and order would call for the denial of both motions. But given the command of Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157, 2163-65 (1991) and its progeny, it is necessary to enter a final order at this time. Accordingly Secretary's decision is reversed and this action is remanded to Secretary for further proceedings.

 Facts

 Shields was born on March 25, 1937 and completed school through the eighth grade (R. 28). He has been employed by Oscar Mayer Foods Corporation ("Oscar Mayer") since 1956. Although still employed by Oscar Mayer at the time of his administrative hearing (the "Hearing"), Shields has been on sick leave since March 1989. *fn3" Before that he had worked as a machine mechanic in charge of "high speed closers," which had required him to lift objects weighing up to 150 pounds (R. 28-29, 32). Shields took sick leave because of problems related to high blood pressure (R. 32) and has not worked since that time.

 Shields' Testimony

 Shields had been having trouble with his blood pressure for about a year before he stopped working. While vacationing in Tennessee in March 1989 he "passed out" due to high blood pressure. He was hospitalized and was unable to return home to Chicago for eight weeks (R. 32-33).

 Currently Shields also suffers from dizzy spells, which he described in this way (R. 38):

 I don't fall, it's just, like, I don't usually--I don't keep this cane all the time but if I'm going to be standing very much, you know, or anything, you know, I have to have it like to balance myself because if you get dizzy--like two weeks ago I started down the steps and I had a dizzy spell, there's only about five steps, and rather than fall, I grabbed the, the railing and pulled the tendons in my arm. So, the thing of that is I don't ever know when this is going to happen.

 In addition Shields has pain in his back, neck, right shoulder and right arm (R. 35, 60). As he described it, "the pain starts in my neck and then eventually gets down in my back and my right arm" (R. 35). Occasionally the pain is accompanied by numbness in his right hand (R. 43, 61). Shields is always stiff and his neck pain is constant, but only sometimes severe (R. 52, 56). In those instances of severe pain, Shields takes his medication (Robaxin), which helps "a lot" but also makes him "slow" (R. 53, 56-57). Shields also has swelling in his legs (R. 43, 61), asthma (R. 47) and high cholesterol (R. 36), and he is a borderline diabetic (R. 39).

 On a typical day Shields takes a bath first thing in the morning to relieve his pain and stiffness (R. 52). He helps around the house by vacuuming and cooking, but he is unable to carry groceries because of his back and neck pain and cannot drive because his medication dulls his reactions (R. 52-53). He watches a lot of television but needs to change positions and stand up often to relieve his pain (R. 53).

 As for his functional limitations, Shields has difficulty climbing stairs because it makes him dizzy and lightheaded (R. 45), and he cannot bend because of dizziness (R 58). Because of his neck and back pain, Shields cannot tilt his head up or down more than briefly (R. 45), cannot do any lifting (R. 38, 58) and cannot sit up straight for long periods (R. 54). During the Hearing Shields stood up twice and shifted positions often to relieve his pain (R. 35, 49, 56). On the advice of his physician, Shields limits his exercise to 2 to 3 daily walks to and from a park that is a block from his house (R. 44-45). Too much walking causes pain in his lower back and neck and numbness in his right hand (R. 46). Shields can stand for one hour without resting (R 57). He tires easily (R. 44) and needs to lie down for about an hour each afternoon (R. 55).

 Medical Evidence

 During 1989 Shields underwent numerous diagnostic tests. Among them, these yielded negative results:

 1. a skull x-ray on June 15 (R. 168);

 2. a CT scan of his brain on June 21 (R. 109);

 3. an electronystagmography (ENG) on June 27 (R. 110-11);

 4. an electromyography (EMG) study of the arms and cervical-paraspinal muscles on July 18 (R. 130-31); and

 5. an extracranial Doppler on August 1 (R. 112-16).

 X-rays taken on March 16 were normal for the chest and right wrist but revealed some abnormalities in Shields' cervical spine (R. 168):

 CERVICAL SPINE shows moderate degenerative changes with anterior osteophytes *fn4" involving C4-C5 & C6. Some mild to moderate posterior arthrosis is seen at the C4-C5, C6, and C7 levels. Soft tissues appear within normal limits.

 IMPRESSION: Degenerative changes.

 Finally, a Holter monitor revealed some AV blockage on August 23 (R. 117-26).

 Shields' treating physician Dr. E. Lacuesta referred him to an orthopedic consultant, who saw Shields on September 11, 1989 and provided this report (R. 150):

 The patient has chronic pain in his neck and right shoulder. He has seen many physicians and has had multiple tests including MR Scans, CT, EMG, etc. All have included that he has Osteoarthritis of the Cervical Spine. On examination he has tenderness over the C-7 and a slight decrease in spine range of motion. He has a slightly positive impingement test of the right shoulder with a painful arc above 100 degrees. Diagnosis of Osteoarthritis of the Cervical Spine and perhaps, mild Rotator Cuff Tendinitis. Recommendation is continue with anti-inflammatory management.

 Then on October 6 Dr. Lacuesta completed a cardiac report and an arthritic report (R. 136-39). There Dr. Lacuesta said that Shields' diagnosis was syncopal *fn5" episode, hypoglycemia and osteoarthritis of the cervical spine with radiculopathy. Dr. Lacuesta also reported anatomical deformities including bone destruction and hypertrophy, and she also noted "resistent pain in shoulders and arms" and "unexplained vertigo with complete workup."

 On November 6 a consulting physician whose signature is indecipherable completed a "Residual Physical Functional Capacity Assessment" based on the evidence then of record (R. 140-47). Boxes checked on that document said that Shields can lift up to 50 pounds occasionally and up to 25 pounds frequently, *fn6" can stand, walk and sit for up to 6 hours of an 8-hour day, and has an unlimited capacity to push and pull with his hands and feet. It also reflected that Shields had no postural, manipulative, visual, communicative or environmental limitations, except that he should avoid "extremely hazardous working conditions" because of his vertigo and syncope.

 On February 15, 1990 Dr. Banerjee, another treating physician, completed arthritic and neurological reports (R. 178-81). *fn7" He diagnosed Shields' ailments as asthma, hypertension, degenerative joint disease, bronchitis, vertigo and syncope. Dr. Banerjee found that Shields had swelling and tenderness in his right knee and some loss of motion in his right knee and spine. He also observed that Shields had limited ability to handle and finger with both hands, that Shields needed a cane for balance when he is dizzy and that "due to excessive vertigo and multiple problems [Shields] is unable to work in dangerous places or lift weights." Shields' neurological exam revealed slight motor changes in all four extremities and a tremor when Shields extended his hands, but was otherwise normal.

 On February 28, 1990 another consulting physician, Dr. William J. Conroy, completed a residual functional capacity ("RFC") assessment (R. 183-90). His conclusions were identical to those of the previous consultant. He also observed that due to dizziness, Shields should "avoid concentrated exposure" to hazards such as machinery and heights.

 On June 25, 1990 Dr. M. Moustafa, another treating physician, completed an "illness and accident report" for purposes of Shields' sick leave from Oscar Mayer (R. 207) *fn8" He stated that Shields' diagnosis was "depression state" and recommended that Shields have a psychiatric evaluation and consider taking antidepressant medication.


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