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DYSON v. MASSANARI

July 9, 2001

KATRINA DYSON, SOCIAL SECURITY NO. 360-60-6568, PLAINTIFF,
v.
LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur, District Judge

MEMORANDUM OPINION AND ORDER

Katrina Dyson ("Dyson") seeks judicial review pursuant to the Social Security Act (the "Act", more specifically 42 U.S.C. § 405 (g) and 1383(c)(3)*fn1) of the final decision of Commissioner of Social Security Larry Massanari ("Commissioner") denying Dyson's claim for supplemental security income ("SSI") disability benefits under Sections 1381a and 1382c(a)(3)(A). As is usual in these cases, both sides have moved for summary judgment under Fed.R.Civ.P. ("Rule") 56. In the alternative, Dyson has moved for a remand for further proceedings. For the reasons stated in this memorandum opinion and order, both parties' Rule 56 motions for summary judgment are denied and Dyson's motion to remand is granted.

Procedural Background*fn2

On June 17, 1997 Dyson filed an application for SSI disability benefits due to obesity and breathing problems from asthma, the onset of which allegedly occurred on June 10. 1994 (R. 67, 93). That application was denied both initially and upon reconsideration (R. 26, 32). Dyson then requested and received a hearing (the "Hearing"), which took place before Administrative Law Judge ("ALJ") Robert Asbille on December 16, 1998 (R. 171).

On May 28, 1999 ALJ Asbille issued a decision denying Dyson's request for disability benefits (R. 17). ALJ Asbille found that although Dyson was incapable of performing her past relevant work, she was able to perform a significant number of jobs in the national economy, so that she was not disabled (R. 15-16)

On July 3, 1999 Dyson filed a request for review with the Appeals Council (see R. 5). Dyson claims to have submitted, as part of that request, new evidence in the form of x-rays of her knees that had been taken on June 23, 1999, about a month after ALJ Asbille's decision (see Attachments to Addendum to Dyson's Memorandum in Support of Her Motion for Summary Judgment). On July 28, 2000 the Appeals Council denied Dyson's request for review, making Commissioner's decision final (R. 5-6). Because that denial did not acknowledge receipt of the x-rays, Dyson asked the Appeals Council to reopen its decision on September 5, 2000. There is no indication that the Appeals Council ever responded to that request. On September 28, 2000 Dyson filed this action pursuant to Section 405(g).

Dyson's Impairments

At the time she filed her initial application for disability benefits, Dyson, who is 5'5" tall, weighed about 365 pounds (R. 67). Dyson's application asserted that her obesity and asthmatic condition prevented her from working (R. 67, 93). Dyson provided few details about her asthmatic condition, saying only that it very often caused her shortness of breath (R. 93).

Although Dyson's initial application referred only to her obesity and asthma, through the course of her disability proceedings she has claimed to suffer from other impairments, and she has gradually gained weight during that time. Dyson's September 27, 1999 request for reconsideration said that in addition to the originally mentioned impairments, she also suffered from nose bleeds, chest pain, back pain due to her obesity and migraine headaches (R. 101-02). By the time Dyson appeared at the Hearing, she weighed 390 pounds, and for the first time she also complained of knee problems (R. 178, 184)

Medical Evidence as to Impairments

Well before the Hearing Dyson had visited two doctors who diagnosed her condition. First was Dyson's family doctor, Dr. Philip Maskall, while the second was Dr. Edith Panopio, who performed a consultative examination of Dyson at the request of the Social Security Administration ("SSA").

Dr. Maskall's August 1, 1997 report had diagnosed Dyson as having morbid obesity and mild bronchial asthma (R. 125) and said she could be well on her way to Pickwickian syndrome.*fn3 (R. 126). Dyson then weighed 360 pounds and had experienced asthma attacks once every four to six months, each lasting one to two days, followed by mild expiratory wheezing between attacks (R. 125). At that time Dyson used two inhalers and also took oral medication and a nose spray (R. 126). As to Dyson's ability to perform work-related activities, Dr. Maskall said she was "limited to low impact sedentary activities as a result of her morbid obesity," but her ability to travel was "unlimited" (R. 126). Although Dr. Maskall also mentioned that Dyson's morbid obesity might be compromising her pulmonary function (R. 126), a pulmonary function study conducted on July 30, 1997 proved normal (R. 127)

Next, on August 7, 1997 Dr. Panopio had described Dyson as severely obese and had observed that she was mouth-breathing (R. 130). Despite that, the doctor's examination of Dyson's chest and lungs revealed no respiratory distress or prolonged expiratory phase (R. 131). Dr. Panopio found there was no evidence of neurological impairment relative to Dyson's claim of migraine headaches (R. 132-133). Notably in light of later developments, although Dyson then denied encountering any problems with her knees Dr. Panopio also diagnosed her as suffering from "mild knocked knee deformity" (R. 131-32). Finally, Dr. Panopio found Dyson had a limited range of motion in her lumbar spine and knees (R. 133).

To assist in Dr. Panopio's consultative examination, on August 6, 1997 x-rays had been taken of Dyson's lumbar spine. Those x-rays showed normal vertebral alignment, normal disc spaces and no significant arthritic changes (R. 134).

Several months later (on April 30, 1998) Dyson visited the University of Illinois Hospital emergency room for asthma exacerbation (R. 153). Although the record contains little detail with respect to that visit, she was apparently discharged on the same day and was instructed to return to see a doctor within the next day or two (id.).

Those had been the only items of prior medical evidence available for ALJ Asbille's consideration. But board-certified internist and endocrinologist Dr. Bernard Stevens appeared at the Hearing at ALJ Asbille's request to testify about Dyson's medical situation (R. 175). Although Dr. Stevens provided little testimony, he did tell the ALJ that x-rays of Dyson's knees should be taken to complete the record (R. 184-85, reproduced verbatim):

Those x-rays would be relevant, Judge, because the only thing they did, they took an x-ray of her lumbar spine and it didn't show any, any pathologic changes during a ferensic (Phonetic) examination that, that she had recently. She had her ferensic examine, well not that recent, it was August 7th of 1997. It was done at Consultative Examinations, Incorporated. The examiner, the — Dr. Pohnokian (Phonetic) said that she denied any problems with her knees at that time. And I guess that's, per that denial, why they didn't do any x-rays of her knees but Dr. Pohnokian noted there was some deformity of her knees present. So I think to give her, her the full benefit of the process and due to the fact that her weight is — greatly exceeds 909A tables for her height, it probably would not be a bad idea to get x-rays on her knees.

After the Hearing and pursuant to Dr. Stevens' recommendation, ALJ Asbille asked that Dr. Eric Tchaptchet perform a consultative examination, including the taking of knee x-rays and making a consequent diagnosis. Tchaptchet conducted that examination on January 12, 1999 (R. 155), when Dyson was seven months pregnant (id.). Dr. Tchaptchet made findings as to Dyson's asthma (no acute findings during the examination), her migraine headaches (no acute findings) and her back problems (Dyson would benefit from losing weight, and she was able to walk 50 feet without an assistive device) (R. 158). His report found "no limitation of motion of any joint," but he did not specifically address her knees (R. 157), nor because of her pregnancy did he take any x-rays (R. 158).

Dyson's Hearing Testimony

During the December 16, 1998 Hearing Dyson appeared before the ALJ without representation. ALJ Asbille questioned Dyson briefly about herself and as to how her impairments affected her ability to work. Dyson testified that she was 25 years old and (as stated earlier) was 5'5" and weighed 390 pounds (R. 177). She said she had two children (ages 7 and 4) and had a tenth-grade education (R. 178-79). She further told ALJ Asbille that she had last worked in 1987, acting as a cook and cashier at a pizzeria for a period of about six months ...


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