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BROWN v. CHATER

January 29, 1996

FRANCES BROWN, Plaintiff,
v.
SHIRLEY CHATER, Commissioner of the Social Security Administration, Defendant.



The opinion of the court was delivered by: BUCKLO

 Plaintiff, Frances Brown, applied for a period of disability and Disability Insurance Benefits on April 1, 1992. Her claims were denied by state agency personnel. After a hearing, Administrative Law Judge ("ALJ") Donald C. Niersbach ruled that Ms. Brewer had a residual functional capacity for sedentary work not requiring use of her right arm enabling her to perform work existing in the economy. The Appeals Council denied Ms. Brewer's request for review. *fn1" On March 23, 1995, Ms. Brown brought the present action pursuant to 42 U.S.C. ยง 405(g) seeking judicial review of the final decision of the Commissioner of Health and Human Services ("Commissioner"). Ms. Brown has filed a motion for summary judgment or, in the alternative, remand for consideration of new and material evidence. The Commissioner has filed a motion for summary judgment. For the reasons set forth below, Ms. Brown's motion for summary judgment is denied, her request for remand is granted, and the Commissioner's motion is denied.

 A. Facts

 At the hearing before the ALJ, *fn2" Ms. Brown testified that she was born on April 12, 1952, is 5' 4 1/2" inches tall, and weighs 153 pounds. Tr. 267, 269. Ms. Brown has a sixteen year old daughter with a learning disability who lives with her and receives Social Security Income. Tr. 217, 235, 270. She has a high school education and worked as a cashier at a grocery store from 1983 to March 27, 1992. Tr. 267, 272. Ms. Brown has not applied for a job since that date. Tr. 298.

 Ms. Brown testified that she suffers persistent, stabbing pain in the joints of her right hand and wrist, and she is not able to use her right hand due to pain and numbness. Tr. 228-29, 233, 293-94. Ms. Brown stated that she also feels pain in her right shoulder, left hand and both knees. Tr. 229-31. To relieve the pain, Ms. Brown takes ibuprofen and applies heat to her right hand only. Tr. 229-31.

 Although Ms. Brown is right-handed, she cannot write, turn a door knob, hold a hair brush, or open a jar with her right hand. Tr. 233, 269. She is able to use her left hand for simple grasping, picking up a pill off the table top, and, when she does not feel pain, turning a door knob to pull open a door but not opening a jar or writing very well. Tr. 234, 293. Ms. Brown testified to being able to lift five to six pounds once per day. Tr. 291-92.

 Ms. Brown testified that she could sit only for an hour before her knees would hurt. Tr. 288-89. Then, she has to stand for a few minutes before sitting again. Tr. 289. She can stand for fifteen minutes and experiences pains in her legs and knees after walking one and one-half blocks. Tr. 289-90. Because Ms. Brown's knees bother her, she cannot squat and is able to climb a single flight of stairs only occasionally. Tr. 295.

 Ms. Brown has difficulty falling asleep at night. Tr. 299. At 6:00 a.m. each day she awakens her daughter and makes sure she gets to school. Tr. 300-014. Ms. Brown watches television a few hours a day, reads, sometimes dusts and makes her bed, seldom cooks or sweeps, and does not do laundry, mop, vacuum, or shop for groceries. Tr. 302-04. Ms. Brown last drove five years ago and does not have a current Illinois driver's license. Tr. 268, 305. She does not date or visit friends and is visited only by family. Tr. 306-07. Ms. Brown does not attend church and is not active in any social groups. Tr. 307. Each day Ms. Brown smokes one package of cigarettes. Tr. 307.

 Dr. Juan Lasa was Ms. Brown's treating physician until May, 1993. Tr. 221. In a report dated May 8, 1992, Dr. Lasa stated that his most recent examination of Ms. Brown was May 7, 1992. He reported Ms. Brown's height as 5'4" and weight as 150 pounds. Dr. Lasa diagnosed Ms. Brown as having rheumatoid arthritis with an onset date or August, 1985. Dr. Lasa found that Ms. Brown had anatomical deformity, bone destruction, and bone hypertrophy in her right fingers, wrist, and shoulder. The report observed that

 
[the] joints of [right] hand and wrist . . . are swollen, red, tender to pressure [with] 60% dysfunction, deformed [right] shoulder cannot be elevated to head level . . . [the] fingers of the right hand showed atrophic changes.

 Dr. Lasa further reported that Ms. Brown suffers from weakness and impairment in gross and fine manipulation in her right hand as well as loss of grip strength in her right hand. He concluded that "because of the (chronic) ongoing pain of [right] upper extremity, [patient's] ability to do activities of daily living is poor." Tr. 100-102.

 Records from the City of Chicago Department of Health show that on March 19, 1992, Ms. Brown complained of pain in her hands -- she felt more pain in her right hand than in her left -- and decreased strength. The report observed "[right] wrist tender on deep pressure." The diagnosis was "[right] hand strain/sprain. [Rule out] carpal Tunnel Syndrome." Ms. Brown was treated with Motrin. Tr. 140, 151. Ms. Brown again complained of pain in both hands on April 9, 1992 and in her right arm and hand on June 18, 1992. Tr. 149, 151.

 On August 24, 1993, Dr. Scott Kale examined Ms. Brown at the request of the ALJ. Tr. 215-16, 312. *fn3" Dr. Kale reported:

 
Her physical examination reveals her to be well-developed, well-nourished and in no distress with normal vital signs. Remarkable is the reduction in the range of motion of her right shoulder which abducts to 60 [degrees]/90 [degrees] passively and actively, however, the motion as to her limit is normal, more suggestive of a rotator cuff srain than true arthritis. Her right shoulder internal rotation is reduced to ten [degrees]/40 [degrees] as is the external rotation of the right upper extremity. Her right wrist lacks twenty [degrees] of flexion and ten [degrees] of extension. Her right MCP's are kept in a flexed position, can be opened with difficulty and interestingly, show no signs of synovitis. Neither is there any evidence of atrophy, fasciculations or tremor in the right upper extremity. Her left upper extremity, low back, hips, knees and ankles are normal.

 Tr. 163-64. Dr. Kale's impression was as follows:

 
Based upon this examination, it is my opinion that Ms. Brown does not have rheumatoid arthritis or lupus. She may be suffering from a shoulder/hand syndrome or causalgia of the right upper extremity of approximately one year's duration. The information obtained from x-rays and from our laboratory is as follows: normal right shoulder, left ankle and questionable Keinboch's disease of the right wrist (see reports). This results in a reduction in carrying capacity to 10 lbs. and 1/3 of a day with no sitting or standing impairment. She can climb, balance, stoop, crawl and kneel. Her limits are confined to her right upper extremity. Her ANA is negative (as evidence for an inflammatory disease).

 Tr. 164. Dr. Kale further reported that Ms. Brown's right arm impairment affects her ability to reach, handle, feel, push, and pull. Tr. 169. The report from Radiological Physicians, Ltd. ordered by Dr. Kale and attached to his report states that Ms. Brown has pain in her right shoulder and wrist and left ankle. Tr. 166.

 After Dr. Lasa left the area in May, 1993, Ms. Brown began seeing Dr. R. Rawoof. Tr. 221. On December 14, 1993, Dr. Rawoof examined Ms. Brown and completed a physical capacities evaluation and arthritis report. *fn4" Tr. 180-87. In a physical capacities report, Dr. Rawoof stated that Ms. Brown suffers from severe arthritis in her right arm, right knee, and lower back (or right side of her body) and that Ms. Brown is able neither to reach above the right shoulder level nor use her right hand for pushing, pulling, or gross or fine manipulations. Tr. 181. Dr. Rawoof's arthritis report states the current diagnosis as possible rheumatoid arthritis, diagnosed ten years earlier, in Ms. Brown's right shoulder, elbow, and knee, and hands, feet, and lower back. Tr. 183. X-rays show periarticular osteoporosis in Ms. Brown's right hand and wrist. Tr. 186. Ms. Brown's range of motion in her right shoulder, elbow ...


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