Bluvband v. Heckler, 433

• Citation: 730 F.2d 886
• Decision Date: 23 March 1984
• Docket Number: No. 433,D,433
• Parties: , Unempl.Ins.Rep. CCH 15,246 Paulina BLUVBAND, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant-Appellee. ocket 83-6238.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 886

730 F.2d 886

4 Soc.Sec.Rep.Ser. 299, Unempl.Ins.Rep. CCH 15,246

Paulina BLUVBAND, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health and Human Services,

Defendant-Appellee.

No. 433, Docket 83-6238.

United States Court of Appeals, Second Circuit.

Argued Dec. 15, 1983.

Decided March 23, 1984.

Sylvia Wertheimer, New York City (Orans, Elsen & Lupert, New York City, of counsel), for plaintiff-appellant.

Kiyo A. Matsumoto, Asst. U.S. Atty., E.D. New York, Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D. New York, Miles M. Tepper, Asst. U.S. Atty., E.D. New York, Brooklyn, N.Y., of counsel), for defendant-appellee.

Before MESKILL, CARDAMONE and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Plaintiff appeals from judgment of the United States District Court for the Eastern District of New York, Thomas C. Platt, Jr., Judge, filed July 18, 1983, granting the Secretary's motion for judgment on the pleadings and dismissing the complaint.

Reversed and remanded.

I. BACKGROUND

Plaintiff Bluvband is a 52-year-old female who lives with her husband and two grown children in a two-bedroom apartment in Forest Hills, New York. Bluvband was born in Russia, where she graduated from college with a degree in library studies and worked as a librarian until 1970. In 1974, Bluvband emigrated to the United States. From January to September, 1975, she worked as an order picker and assembler in Jacksonville, Florida, for a plumbing company. Beginning in February, 1977, she worked as a quality control inspector. In May, 1978, she moved to New York, where she began working as a housekeeper at Hillside Manor, a nursing home located in Jamaica, New York.

Starting in October, 1979, she was hospitalized for three months due to hypoglycemia. Because of her severe low blood sugar level, half of her pancreas was removed. Her gall bladder and spleen were also taken out. Unfortunately, these surgeries, in the words of her treating physician, Dr. Nash, were "followed by a variety of serious complications including infection of the peritoneum with localized abscesses which in turn led to perforation of the intestines." These complications required her doctors to perform a colostomy. According to her treating physician, Bluvband developed large hernias after the colostomy was closed in March, 1980.

The removal of half of her pancreas apparently did not correct the hypoglycemia. As the Administrative Law Judge (ALJ) noted in his decision, "[t]he surgeries were unable to correct a chronic low blood sugar reportedly due to residioblastosis [sic] and diffused proliferation of islet cells of the pancreas." To combat her low blood sugar level, she continued to take Diazoxide (Proglycem) and to eat every two or three hours. The medicine and the prescribed constant eating in turn caused her to gain a considerable amount of weight (she testified at the disability hearing that her weight had risen from 155 pounds to 179 pounds). The increased weight contributed to her hernias and further affected her mobility.

Bluvband was hospitalized again on March 5, 1981, for repair of one of her hernias. The attending physician, Dr. Hadda, stated that Bluvband had an "established diagnosis of nesidioblastoma, [and] blood sugar running usually between 50 and 80." He noted her "[b]lood sugar on admission 59- the other factors in SMA-12 were all within normal." He also stated that Bluvband's recovery from the hernia operation "was smooth with the exception of a marked allergic reaction to adhesive tape." According to Dr. Hadda, on March 14, 1981, Bluvband "was discharged home fully ambulatory."

On May 13, 1981, Bluvband applied for social security supplemental security income based on her inability to work since October, 1979, due to hypoglycemia and hernias. She stated in her application that she was taking antibiotics and that she had to eat six times each day to keep her blood sugar level up. She also asserted that she could not perform any recreational activities other than walking her dog and that Dr. Hadda had told her not to work. She stated that she could do light housework but could not carry bags from the supermarket or exert herself in any other way.

On June 30, 1981, Dr. Strassberg, a specialist in internal medicine, examined Bluvband on behalf of the Secretary. He noted her history of hypoglycemia and the related surgery. He confirmed that she continued to suffer from a hernia, noted that her weight continued to increase, and reported that she complained of pain. His report did not comment, however, on the conclusions of Dr. Nash and Dr. Hadda that Bluvband suffered from nesidioblastosis, an organic type of hypoglycemia.

In his evaluation of Bluvband's residual functional capacity, Dr. Strassberg concluded that Bluvband could sit six hours, stand four hours, and walk four hours in an eight-hour day. He also noted that she could lift and carry up to twenty pounds and could bend, squat, crawl and climb occasionally. He added that she could use her hands for repetitive grasping, pushing, pulling and fine manipulations. He also noted that she did not exhibit any mental disorders or sensory, environmental or other limitations.

The Secretary initially denied Bluvband's claim for benefits in July, 1981. On August 13, 1981, Bluvband filed a request for reconsideration. She reasserted that she had hypoglycemia, low blood sugar and a post-operative hernia and that she had to take medicine and eat six times a day. She added that she suffered from loss of memory and blackouts. In her reconsideration disability report, she stated the following:

The condition is basically the same if I keep to medication & diet. Otherwise, it gets out of control.

....

I can't do any physical work due to hernia which is the 3rd one and also due to hypoglycemia. I get tired very fast. It is not like [a] normal person.

....

Dr. Nash will not let me do any types of hard physical labor.

....

My feet swell up often. I can't stand up for long.

The Secretary referred Bluvband to Dr. Wilchfort, an internal medicine specialist who examined Bluvband on September 16, 1981. Dr. Wilchfort noted that Bluvband had been complaining since her initial operation "of episodes of dizziness, passing out and tremulousness." He noted her history of hypoglycemia and the related surgery and that she was taking Proglycen. He stated that she complained of arthritis, particularly in the left shoulder and in the knees bilaterally and he confirmed that she suffered from a post-operative hernia in her right side. Though he was aware of her hypoglycemia history, he reached his conclusions without conducting a blood sugar test. In connection with her complaints of hypoglycemia, blackouts and dizziness, he specifically stated that "[f]or further evaluation she should have a blood sugar."

In his evaluation of Bluvband's residual functional capacity, Dr. Wilchfort stated that she could sit, stand and walk eight hours, occasionally lift and carry up to twenty pounds, occasionally bend, squat, crawl and climb, and use her hands for repetitive grasping, pushing, pulling and fine manipulations. Like Dr. Strassberg, Dr. Wilchfort stated that Bluvband had no mental disorders or sensory, environmental or other limitations.

In a report dated September 14, 1981, Bluvband's treating physician, Dr. Nash, traced Bluvband's history of operations, hypoglycemia, resultant obesity, and hernias. He indicated that she was "dependent" on Diazoxide and that due to her medical condition "she is at present and for the next future totally disabled."

On October 1, 1981, the Secretary reaffirmed the denial of disability benefits. Bluvband then requested and received a hearing before an ALJ of the Social Security Administration's Office of Hearings and Appeals.

The record indicates that pending the hearing, Bluvband had to return to the hospital on October 18, 1981, for emergency treatment. It is difficult, however, to discern the type of treatment she may have required at that time because the emergency treatment report is largely illegible.

At the hearing, held on January 20, 1982, Bluvband appeared pro se, accompanied by her 25-year-old son and by an interpreter. She testified as to her recurring hospitalizations and surgeries relating to her hypoglycemia and hernia. She stated that her illness required her to visit Dr. Nash, whose office is next door to her apartment, every two weeks for blood tests and examinations. She again indicated that as a result of her hypoglycemia, she experienced dizziness, loss of memory and blackouts. Moreover, she cited her dizziness as a factor that made her fearful of travelling alone on public transportation. She also complained that the medicine and the constant eating, which she stated were essential to keep her low blood sugar from getting out of control, caused her to become obese.

She testified that she often suffered from swollen feet and hands. She stated that although the doctor had told her to take water pills to reduce the swelling, she disliked doing so because the pills contributed to her dizziness.

She also referred to other physical problems, including a burning sensation in her legs, particularly when she stands on her feet, and a back pain which prevents her from sitting for very long. She stated that her leg and back pains prevent her from climbing steps (her building has an elevator) or from lifting anything other than very light objects. She also noted that her daily activity was restricted to watching television, doing light cleaning and other light work (her daughter does the heavier work), reading, and walking the dog one or two blocks. She stated that she had difficulty kneeling and dressing herself. She testified, for example, that she was unable to put on her socks because her hernia prevented her from bending down.

On April 21, 1982, the ALJ issued a decision finding that Bluvband was not eligible for supplementary security income....