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OYEN v. SHALALA

October 11, 1994

ROBIN OYEN, SSN 319-48-3986, Plaintiff,
v.
DONNA SHALALA, Secretary of Health and Human Services, Defendant.



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

 Robin Oyen ("Oyen") appeals the final decision of Department of Health and Human Services ("HHS") Secretary Donna Shalala ("Secretary") denying Oyen's claim for supplemental security income ("SSI") and disability insurance benefits under the Social Security Act ("Act"), 42 U.S.C. ยงยง 416(i), 423, 1382 and 1382(c). *fn1" As is usual in these cases, both Oyen and Secretary have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, *fn2" with Oyen alternatively moving for the remand of Secretary's determination. For the reasons stated in this memorandum opinion and order, Oyen's motion for remand is granted (so that her motion for summary judgment is denied, and Secretary's cross-motion is of course denied as well).

 Facts

 Oyen, a 39-year-old high school graduate who has also completed a six-week course in airline ticketing and reservations (R. 43), claims that as a result of a broken vertebra suffered in a May 15, 1991 motorcycle accident she became disabled until April 1993. At that point she resumed the US Air baggage handling job that she had held before the accident, so that her claim is limited to a period of just under two years. Oyen's Hearing Representative

 Oyen attended the Hearing before ALJ Greene without legal counsel but accompanied by a friend, Alice Byrne ("Byrne"). After a bit of discussion between Oyen and Byrne they agreed that Byrne would be Oyen's representative at the Hearing (R. 36). ALJ Greene then questioned Byrne as to her "experience with Social Security matters," to which Byrne responded (1) that she had "experience with recipients" of Social Security Disability Insurance and (2) that as to Social Security law and regulations she had not taken any formal classes but had looked at library books (R. 36-37). That led to this exchange (R. 37):

 
ALJ: Okay. All I, all I'm trying to do, ma'am, is to show that you're qualified to represent the claimant.
 
Representative: If she thinks I'm qualified then that's--I feel--
 
ALJ: Okay. You, do you feel your representative is qualified, ma'am?
 
Claimant: Yes.
 
ALJ: Okay. I'll go on with your wishes then and I'll allow your representative to proceed in your behalf.

 Oven's Testimony3

 On May 21, 1991 Oyen's broken vertebra was operated on, involving a bone graft from her hip and the insertion of metal rods (including metal screws) in her back (R. 60, 61, 134). For three months afterwards she wore a brace over her torso (R. 60). After the brace was removed, in an effort to improve sufficiently to return to her prior job as a baggage handler (R. 45-46) she went to a work hardening program until March or April 1992, when she broke a toe (R. 60, 62, 67, 73). Once that injury was healed she did not resume the program because she was "scared to go back" due to a $ 6,000 outstanding bill that her insurance had not paid and that she did not know how to pay (R. 67).

 Oyen's treating physician Dr. Paul Meyer told her to swim to aid the recovery process, so for 12 hours a week (about an hour at a time) Oyen would go to a pool and "mostly hold on to the side and just paddle my legs" (R. 64, 73-74). Though Oyen had felt pain in her back ever since the accident, some time after May 1992 she noticed a "different" pain in the small of her back (R. 68-70, 73). X-rays taken on August 26, 1992 disclosed that two screws in her back had broken. That necessitated additional surgery to remove the screws, a procedure that had not been performed as of the date of the Hearing (R. 61, 72, 249).

 Oyen can "probably walk for maybe two hours if I could sit for like a few minutes in between" and can also sit for "I'd say two hours. But I'm constantly like switching, switching sides" (R. 66). She did not know if she could work an entire eight-hour day even if able to sit and stand alternately, but she had gotten up to "four or five" hours at her work hardening program (R. 66-67 ). She could lift "without a problem maybe 10, 15 pounds," but could not do so over her head with the broken screws in her back (R. 66).

 Oyen intended to return to her prior job with US Air once the broken screws were removed from her back and she had time to recuperate (R. 72). After she said that, ALJ Greene asked Oyen whether she could handle a job, if "today" US Air offered one, where "you don't have to lift any baggage, at most you might have to lift 20 pounds once in a while, you know, maybe you might have to lift 10 pounds at a more frequent level . . . and you would be standing maybe 6 out of 8 hours a day" (R. 74). Oyen responded "I believe I could" (id.). But she then said she did not know if she could stand for six hours because of her back pain (R. 74-75 ). And later she testified that because of her back pain she could not return to her US Air job (R.80)--a job that involved lifting 20 to 40 pounds frequently and 50 pounds occasionally, and standing most of the day (R. 46-48).

 Testimony of the Vocational Expert ("VE")

 VE Thomas Dunleavy ("Dunleavy") also testified at the Hearing (R. 83-91). ALJ Greene first posed a hypothetical question as to what jobs could be performed by a person with Oyen's age, education and work history who was able to do a full range of light work, but with only occasional stooping, kneeling, crouching and crawling (R. 86-87). Dunleavy responded that these are the relevant unskilled jobs in the "six county area of Chicago" (R. 87):

 
1. 8 to 10 thousand as assemblers in manufacturing,
 
2. 8 to 10 thousand in packing operations,
 
3. 10 to 15 thousand as cashiers and
 
4. 200 as reservation agents.

 When next presented with the same hypothetical except for assuming a sedentary rather than a light work level (R. 87), the VE listed these relevant unskilled jobs (R. 88):

 
1. 6 to 7 thousand as assemblers,
 
2. 4 to 5 thousand as packagers,
 
3. 8 thousand as cashiers and
 
4. 6 to 7 thousand in customer service, sitting at a desk and answering questions.

 If a sit-stand option were required, with the hypothetical person not having to change position more often than every 20 minutes, VE Dunleavy said that the same jobs other than those in customer service would still be available (R. 88-89).

 Finally, the VE was asked how his testimony would be affected if he were to credit Oyen's testimony as to her pain and functional limitations (R. 89). On that score VE Dunleavy's testimony was somewhat fuzzy. First he focused on Oyen's need for additional surgery to remove the broken screws and stated that "if a person is medically unstable that would have vocational impact," (id.) "possibly interfer[ing] with her ability to work" (R. 90). Then on further questioning by the ALJ, the VE said that "if a person could perform a job on a short, short basis but in fact was considered by (sic) for whatever reasons to be medically unstable, . . . then I would certainly not [be] too inclined to assist a person in finding a job" (R. 90).

 After her surgery Oyen was under the care of Dr. Meyer, whose August 21, 1991 examination noted that the incision in her back "does not cause her discomfort," that she suffers from "No Pain" (R. 220), that "Spine fracture healed[,] Hardware intact" (R. 185), but that she was (R. 184):

 
Restricted from heavy lifting. Has not yet been medically released to work yet.

 Just over a month later (on September 25, 1991) another examination by Dr. Meyer disclosed "satisfactory spinal healing and alignment with solid internal fixation" (R. 214). "Because a light duty position is not available" at US Air, Dr. Meyer then "recommended that she remain off work for an additional eight weeks" (id.). On December 2, 1991 Dr. Meyer observed that Oyen's x-rays continued to disclose "intact internal fixation" (R. 212), and he referred her to a work hardening program at STEPS Industrial Rehabilitation Clinic ("STEPS") (id., R. 207) so that she would be able to meet the physical demands of her baggage handler job.

 STEPS' March 20, 1992 progress note (R. 200) said that Oyen "is tolerating up to 4 hours of work hardening daily," rated her pain at a level 5 or "moderate" ("she rates . . . her back pain as better, (foot pain is worse)") and predicted that after two more weeks of the program she would be able to tolerate a full eight-hour day at the "medium work level" required by her prior job (id.).5 But the note went on to say that a possible hairline fracture in her left foot "has prevented client from participating fully in the program over the past week" (R. 200). One month later (on April 20, 1992) STEPS reported (R. 236) that Oyen had been "on hold from participating in the program" since March 20 due to a metatarsal fracture, so that the March 20 progress note only "indicates her level of work tolerated prior to her foot injury." Oyen was then discharged from the program because of that foot injury (R. 236).

 On March 23, 1992 Dr. Meyer had opined that Oyen's fracture had "healed" with "Spinal Fusion - stable," that she was "full weight bearing" but could do "No heavy lifting" (R. 196-97). In handwritten notes of the same date Dr. Meyer noted that Oyen "is now operating at a Light-Med level of activity for 4 [hours]/day" (R. 199). On June 23, 1992 Dr. Meyer's office attempted to reach Oyen to explain her need "to follow up with Dr. Meyer as part of her continued postoperative care" (R. 238). Then during an August 26, 1992 examination at which Oyen complained of "back pain" (R. 239), Dr. Meyer determined that two of the screws inserted in her back had broken and needed to be removed (R. 239, 251).

 Dr. Meyer's Post-Hearing Evidence

 Before receiving the VE's testimony at the Hearing, ALJ Greene said that based on Oyen's testimony and Dr. Meyer's September 25, 1991 examination "it sounds like as of that point in time she could perform light work" and that, coupled with Oyen's age, such a condition called for a finding of "not disabled" under Secretary's regulations ("the grid") (R. 78). However, "to give [Oyen] every chance" (id.) and "every option and every favorable way of interpreting the medical evidence" (R. 81), ALJ Greene said he wanted Byrne as Oyen's representative to get Dr. Meyer to submit a "longitudinal RFC" giving both a diagnosis and a prognosis of Oyen (R. 93). After the hearing ALJ Greene apparently supplied Oyen and Byrne with an RFC form to be sent to Dr. Meyer together with a return envelope addressed to ALJ Greene, leaving the record open for 30 days to receive that information (R. 98).

 
Ms. Oyen is capable of returning to some type of gainful employment with some restrictions. She was capable of some light duty type of work in December of 1991. The reason she was not returned to work at that time was because she felt she wanted to return to her former job and that would require some work hardening. Ms. Oyen was in therapy for approximately four months and then was terminated.

 In the RFC assessment form attached to the letter (R. 257-64), Dr. Meyer checked boxes reflecting that Oyen can lift up to 50 pounds occasionally and up to 25 pounds frequently, *fn6" can stand and walk for at least two hours in an eight-hour day, can "sit (with normal breaks)" for less than six hours in an eight-hour day and has an unlimited capacity to push and pull with hands and feet (R. 258). Dr. Meyer wrote that those conclusions were "based on history of spine fracture" (id.). He also checked boxes stating that Oyen can kneel frequently, can balance, stoop, crouch and crawl occasionally and can never climb (R. 259). Dr. Meyer noted only one other limitation: Oyen was to avoid concentrated exposure to vibration (R. 261).

 On December 1, 1992 ALJ Greene sent this letter addressed to Byrne and listing Oyen's address (R. 265):

 
Subsequent to the hearing, I have obtained some additional evidence which you have not had the opportunity to examine. Copies of this evidence are enclosed for your review.
 
Please study the additional documentation and submit in writing to me any objections you may have. If I do not hear from you by December 11, 1992, the new material will be entered as evidence, and I will begin working on a decision in this case.

 Byrne appears to have disappeared from the case, because Oyen wrote her own response. Her comments on Dr. Meyer's cover letter simply reiterated that it was not one screw but two that were broken, that the reason for discontinuing therapy was her unpaid bill of $ 6,000 and that "I didn't know how I was going to pay this alone running up more of a bill" (Ex. 34 at 2 *fn7" ). As ...


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