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WARGOWSKY v. SHALALA

March 20, 1995

RICHARD E. WARGOWSKY, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 Plaintiff, Richard Wargowsky ("Mr. Wargowsky"), applied for a period of disability and Disability Insurance Benefits ("DIB") on December 2, 1991. His claim was denied initially and upon reconsideration by State agency personnel. After a hearing, Administrative Law Judge ("ALJ") John L. Mondi found that Mr. Wargowsky retained the residual functional capacity for light work not involving unprotected heights or dangerous machinery. The Appeals Council denied Mr. Wargowsky's request for review. Consequently, the ALJ's decision became the final decision of the Secretary of Health and Human Services ("Secretary"). 20 C.F.R. § 404.981; Herron v. Shalala, 19 F.3d 329, 332-33 (7th Cir. 1994) (citation omitted). On March 30, 1994, Mr. Wargowsky brought the present action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Secretary. Both parties have filed motions for summary judgment. For the reasons set forth below, the Secretary's motion is granted, and Mr. Wargowsky's motion is denied.

 Facts

 At the time of the hearing before the ALJ, Mr. Wargowsky was forty-six years old. He is married and has one eighteen year old son who lives at home. Mr. Wargowsky's education consists of high school and on the job training for various specialties in fire fighting. From 1968 to 1991, Mr. Wargowsky was a fire fighter for the Village of Bedford Park, a job requiring a large amount of heavy lifting. On May 29, 1991, Mr. Wargowsky was involved in a motor vehicle accident. He has not been employed since that date.

 At the hearing before the ALJ, Mr. Wargowsky testified that due to the accident, he suffers from a back injury consisting of a herniated disc, sciatic nerve problems down his left leg causing his leg to occasionally jump, dizziness, nausea, lack of concentration and ringing in the ears. He testified that he has difficulty walking, standing or sitting for prolonged time periods. He says he can do a limited amount of climbing stairs, bending or stooping. He said he is nervous, depressed and often does not sleep well, sometimes sleeping only every other night. Mr. Wargowsky testified that he takes allergy medicine and a dozen aspirin a day.

 The medical records produced at the hearing indicate that following the automobile accident on May 29, 1991, Mr. Wargowsky received emergency room treatment and then left the hospital. Mr. Wargowsky began seeing a physical therapist in June, 1991 who recorded that he appeared to have severe lumbar muscle strain resulting in pain and spasms. When discharging Mr. Wargowsky from physical therapy in July, 1991, the therapist noted that he had only a mild ache in his back which would work itself out with time.

 An MRI of Mr. Wargowsky's lumbar spine taken around this time revealed a mild disc bulge at the L4-5 disc level, and an EMG of his lower extremities and low back suggested mild left L5 root irritation. A myelogram *fn1" and CT scan done in October, 1991 were normal.

 In November, 1991, Mr. Wargowsky began treatment with Dr. Eilers. Dr. Eilers' impression was that Mr. Wargowsky's symptoms were most consistent with a myofascial pain syndrome secondary to his strain/sprain injury in the motor vehicle collision and with possible labyrinthine dysfunction. *fn2" An MRI of Mr. Wargowsky's brain conducted in January, 1992 was normal.

 In February and March, 1992, Dr. Denise Gehrling ("Dr. Gehrling"), a clinical psychologist, examined Mr. Wargowsky. Mr. Wargowsky's performance was normal for perceiving speech and sounds, sensory motor integration and complex problem solving; his performance was mildly impaired for maintaining attention and concentration, cognitive flexibility and sensory perceptual functions for the left hand; and his performance was seriously impaired for psychomotor speed. Mr. Wargowsky's performance on tasks measuring learning and memory indicated significant impairment in concentration, long term recall and recall of verbally presented passages. His reading, spelling and arithmetic skills were in the high average range. Dr. Gehrling concluded that overall, Mr. Wargowsky's intellectual functioning and academic achievement were in the high average range but that he suffered from a cerebral dysfunction consistent with a closed head injury.

 Dr. H. G. Frank ("Dr. Frank"), a neurologist, reported on March 5, 1992 that MRI scans of Mr. Wargowsky's lower back showed some bulging of the discs and perhaps a small herniated disc. An ENG revealed some mild left canal paresis, and MRI scans of the head and an EEG were unremarkable. Dr. Frank's neurological examination indicated that Mr. Wargowsky was intact to routine testing of memory, orientation, judgment, affect, thought processes and fund of knowledge. Dr. Frank's impression was possible post-traumatic labyrinthine dysfunction with ENG suggesting left canal paresis, subjective tinnitus (ringing in the ears), mechanical low back pain and a history of sciatica with no objective evidence of myelopathy, radiculopathy or neuropathy. Dr. Frank noted:

 
I don't think any further neurologic testing is indicated at this time. It seems that this patient is really quite healthy overall. I don't see any limitations at this point in time that would restrict him from returning to work in any capacity whatsoever. The injury, if related to the accident, in the left labyrinthe should not get worse with time. More likely it will improve with time.

 Around this same time, Mr. Wargowsky had a functional capacity assessment administered by an occupational therapist and a physical therapist which indicated that he was capable of performing light-medium work.

 In May, 1992, Dr. Anne Morgan ("Dr. Morgan"), a psychologist, conducted a mental residual functional capacity assessment in which she concluded that Mr. Wargowsky had a psychological or behavioral abnormality associated with a dysfunction of the brain as evidenced by memory impairment, change in personality and disturbance in mood. Dr. Morgan reported that Mr. Wargowsky was moderately limited in his ability to understand and remember detailed instructions, maintain attention and concentration for extended periods, carry out detailed instructions, ask simple questions or request assistance, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without distracting them or exhibiting ...


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