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July 25, 1995

SHIRLEY S. CHATER, Commissioner of Social Security, 1 Defendant.

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

 Howard Hughes ("Hughes") appeals the final decision of Commissioner of Social Security Shirley Chater ("Commissioner") denying Hughes' claims for disability insurance benefits under the Social Security Act ("Act"), 42 U.S.C. §§ 416(i) and 423. *fn2" Fifty-five-year-old Hughes suffers from severe arthritis. At issue is the date upon which his arthritis and other maladies so hindered his activities that they rose to the level of a disability under the Act. Now claiming a February 7, 1991 onset date, *fn3" Hughes argues that he is entitled to disability benefits because he was in fact disabled before his insured status lapsed on March 31, 1991 (see Reg. §§ 404.130-132) (R. 103). *fn4"

 As is usual in such cases, Hughes and Commissioner have filed cross-motions for summary judgment under Rule 56, with Hughes moving alternatively for a remand. For the reasons stated in this memorandum opinion and order, the cross-motions are denied and Hughes' motion for a remand is granted.


 Hughes stands about 6 feet tall and weighed about 137 pounds at the time of the Hearing, though his "original" weight was 160 (R. 43). He has never been married, has no children and rents a room in his aunt's home (R. 44-45). Hughes has no vocational or specialized job training (R. 48)--having quit school after the 11th grade, Hughes completed his GED in 1979 while incarcerated for armed robbery (R. 47-48, 55). During that same term of imprisonment Hughes first hurt his back when he was "lifting some iron" (R. 56). He was hospitalized for 3 days (R. 56-57).

 Though Hughes had earlier employment, the ALJ asked that he focus only on the 15-year period before the Hearing (R. 54). In 1982 Hughes worked on an assembly line for 6 to 8 months (R. 51-54), a job that involved some sitting, walking and standing (R. 52). When he acted as a runner delivering "various objects" to "various places" in the company, those objects ranged from 3 to 30 pounds, though most weighed less than 10 pounds (R. 53). During Hughes' tenure in that position he entered the hospital for a foot operation, but when he returned to work he found that he was fired (R. 51-52).

 From 1984 to 1989 Hughes worked as a porter in the commissary at Chicago Stadium (R. 49-50). There his responsibilities included manually hauling kegs of beer up staircases about 3 days a week (R. 50). He also handled boxes of stock of different weights, but enlisted the aid of a dolly when moving them to storage (R. 51).

 Between jobs Hughes spent much of his time in prison. From 1959 to 1964 he had been imprisoned for possession of cannabis and violation of probation (R. 54). In 1965 he returned to prison to serve 2 more years for possession of cannabis (R. 55). From 1970 to 1974 he was incarcerated for robbery (id.), only to return to prison later in 1974 to serve a 5-year sentence on an armed robbery conviction (id.). Hughes also spent approximately 10 months of 1990 in prison for burglary (R. 56).

 As if to emulate (at least in some respects) the eccentric billionaire of the same name, on a typical day Hughes mostly sleeps, reads or watches television (R. 64). *fn6" He usually stays in his house but takes an occasional 2-block walk on warm days (R. 64, 72).

 Medical Evidence

 Hughes' Testimony

 Hughes complains of a deteriorated right triceps, pain in his spine and swelling in his left hand and shoulder (R. 59). He has arthritic pain in both hips, his neck and both shoulders (id.). His legs, feet and one knee were swollen and numb at the Hearing (id.). He also suffers from a slight nervous disorder that he refers to as muscular sclerosis, which originated when he was hit by a truck a long time ago (id.).

 Hughes' pain from all these maladies has gradually worsened over the years (R. 63) so that he can only sleep about 4-1/2 hours each night (R. 68) and walk with the aid of a cane (R. 65-66). Hughes soaks in the tub about 4 times a week to ease his pain temporarily, but he usually just tries to sleep through it (R. 70). When asked which of his ailments bothered him the most, Hughes responded "all of them" (R. 59). *fn7"

 When asked about the genesis of his pain, Hughes first noted that he had been shot twice, once in his left thigh in 1965 and once in his back in 1980 (R. 60). When doctors mended his leg they "tied up a nerve in there," resulting in discomfort when the leg swells (R. 61). To correct a condition that he referred to as "hammer toes," *fn8" Hughes also underwent surgery that involved the insertion of metal plates in both feet (R. 61-62). His last hospital stay was during 1980, when he received treatment for a blow to the head sustained during a robbery attempt (Hughes was the victim) (R. 62). His speech was slurred for about a month, and he continues to suffer frequent headaches (R. 63).

 During the Hearing the ALJ attempted to establish the point at which Hughes' respective maladies became disabling. Here is what Hughes had to say (R. 63-65):

Q: When did they get real bad?
A: Well, they got real bad last year, after I, I came to, down here the last time, when I talked to this, this doctor, what's his name?
* * *
A: Yeah and it just got worse since then, I got sick, I suffer tremendously....
Q: How bad did your condition get back, get bad after July, '92?
A: It got real bad, it's real, it's hard for me to sleep, you know what I'm saying, sometimes I try to sit up and sometime I can't lay down, sometime I have to stretch across the table like this, lean forward, with seven or eight pillows up there because the pain is tremendous all up in here and in here and I get numb. This is the reason for, for the blood circulation pills, Tritol (phonetic), that they gave me.
Q: Were your activities better before July, '92, could you do more things and get around better and that?
A: Yeah, I could get around a little bit better but now, I don't, I don't hardly get around none, I be in the house most of the time. Weather like this here, if I didn't have to come down here, I would be in right now and I mostly sleep, I may watch television for about a hour or so or try to read, other than that, I be asleep, take a walk every now and then for maybe about two blocks at the most.
Q: Now, we don't have any medical reports from about, I guess about March of '91, that was Dr. Kaplan, to about August of '93, were you doing pretty good during that period, is that why you--
A: When?
Q: March of '91 to August of '93?
A: Well now--
Atty: August of '93? This is Dr.--
ALJ: Yeah, right, I'm sorry, August of '92.
A: '92 I was hurting.
Q: Huh?
A: '92 I was hurting real bad but I, '91 I was hurting but I wasn't hurting in '91 like I was in '92 up to now.
Q: And that's why you didn't see a doctor.
A: Yeah and Dr. Kaplan is no longer at that place no more, Stone Island, in fact he quit the place there, where he was doctor at the medical center.
Q: And then you starting seeing a doctor in August of '92 because your condition was getting real bad.
A: Yeah, worse, worse, it got worse.

 Because of his pain Hughes can only stand for 5 or 10 minutes at a time (R. 74). He is able to take care of his personal needs such as washing, shaving and dressing with some difficulty and pain (R. 70). He is unable to do any housework, cooking, laundry or lawn work, and he can lift only about 10 pounds (R. 71, 75). He smokes about 3 or 4 cigarettes a day but has not used drugs or alcohol since 1991 (R. 57, 71).

 Formal Evaluations

 Physical Impairments

 According to the exhibits presented at the Hearing, Dr. Robert Kaplan treated Hughes from December 12, 1990 until March 6, 1991 (R. 2). *fn9" Dr. Kaplan's records refer to a December 12, 1990 x-ray interpreted this way by Dr. Narain Sawlani (R. 125, 126):


 On January 29, 1991 Dr. Kaplan noted on a "Certificate to Return to School or Work" that Hughes was not able to return to work due to "arthritis in the lumbo-sacral spine, feet, etc." (R. 124). Just over a month later, on March 6, 1991, Dr. Kaplan again examined Hughes and filled out an extensive Arthritic Report, noting that Hughes suffered from "osteo-arthritis *fn12" LS-spine with narrowed disc spaces at L1-2, L2-3, L5-S1," from disc and bone degeneration and from spasms in the paraspinal muscles (R. 126). There was also evidence of "cervical and/or lumbar nerve root compression or peripheral neuropathy" (R. 128). Nevertheless Dr. Kaplan concluded that Hughes' ambulation was normal (R. 127), that he exhibited no abnormal weakness (id.) and that his mental status was "essentially normal" (R. 128).

 When Hughes submitted his application for disability insurance benefits in February 1991, he was interviewed by an SSA interviewer, who noted that the "claimant walks as though he can not stand straight up" but also observed that his "appearance and behavior were normal" (R. 112). On March 19, 1991 Dr. E. C. Bone completed a Residual Physical Functional Capacity ["RFC"] Assessment of Hughes (R. 129-136), finding that Hughes suffered from osteoarthritis, narrowed disc spaces and muscle spasms (R. 130). Nevertheless Dr. Bone concluded that Hughes was capable of (R. 130):

Lifting/carrying 25 lbs: Frequently
Lifting/carrying 50 lbs: Occasionally
Standing/walking in 8 hr. workday: ...

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