Dean v. Califano, 77-2030.

• Decision Date: 02 November 1977
• Docket Number: No. 77-2030.,77-2030.
• Citation: 439 F. Supp. 730
• Parties: Julia J. DEAN, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Arkansas

439 F. Supp. 730

Julia J. DEAN, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

No. 77-2030.

United States District Court, W. D. Arkansas, Fort Smith Division.

November 2, 1977.

Westmoreland & Westmoreland, Fort Smith, Ark., for plaintiff.

Robert E. Johnson, U. S. Atty., J. Michael Fitzhugh, Asst. U. S. Atty., Fort Smith, Ark., for defendant.

OPINION

JOHN E. MILLER, Senior District Judge.

On July 22, 1975, plaintiff, Julia J. Dean, filed application for disability insurance benefits and alleged that she became unable to work on June 28, 1975 because of disability. The disability was listed in her application as arthritis. On October 14, 1975, the Bureau of Disability Insurance, Division of Initial Claims, advised plaintiff that it had decided that she was not entitled to disability insurance benefits because she did not meet the disability requirement of the law. On October 21, 1975, plaintiff requested reconsideration of her application and on December 8, 1975, she was advised that the previous determination denying her claim was proper under the law.

On February 18, 1976, plaintiff requested a hearing on the ground that the decision is contrary to and is not supported by evidence. A hearing before the Administrative Law Judge was granted and was conducted on June 24, 1976. The proceedings at the hearing are incorporated in the transcript at pages 24 through 50, inclusive.

On August 30, 1976, the Administrative Law Judge held that plaintiff has failed to establish the existence of a disability as that term is defined in Sections 216(i) and 223 respectively of the Social Security Act, as amended. And that she is not entitled to the establishment of a period of disability or disability insurance benefits.

The plaintiff requested a review of the hearing decision and on February 22, 1977 the Appeals Council advised that it had decided that the decision of the hearing examiner is correct and said decision stands as a final decision of the Secretary.

On March 8, 1977, the Chief Judge of this court entered an order granting plaintiff leave to proceed in Forma Pauperis without the prepayment of fees or costs or the giving of security. On the same date, the plaintiff filed her complaint for Special Judicial Review of Administration determination and for Remand of this case to the Secretary of Health, Education and Welfare for further action by the Secretary, in which she alleged that the court has jurisdiction under Section 205(g) of the Social Security Act, as amended (42 U.S.C. § 405(g)) and Section 422.210 of the Social Security Administration Regulations No. 22 (20 C.F.R. 422.210).

Plaintiff alleged her various grounds for relief and in paragraph IX stated that she contemplated filing a motion to remand and requested permission to file new and material documentary evidence in support thereof.

The defendant was granted until July 8, 1977 to file answer to the complaint. The answer was filed July 6, 1977 in which it prayed for the entry of judgment dismissing the complaint.

On July 18, 1977, the court extended the time of plaintiff to file motion to remand and brief in support thereof to September 18, 1977. The motion was filed on September 19, 1977. Attached to the motion is a medical report dated September 8, 1977 of Dr. Earl M. Woodson, M.D., 206 Beard Ave., Woodson Clinic, Poteau, Oklahoma, which the plaintiff alleged constituted new and material evidence showing "good cause", that said evidence was not before the Administrative Law Judge and was not considered by the defendant.

Further reference to the report has been made and set forth herein for consideration by the court.

In the hearing before the Administrative Law Judge, plaintiff testified that in addition to her home work, she had served as nurse's aid, motel maid, packed bottles and chickens and worked in the fields. She quit work on June 28, 1975 because of her disabilities, while working in Motel 6 as a maid. Prior to that date, she had undergone apparently her first surgery on March 17, 1974. She testified to various complaints she had from the date she quit work. She persistently contended and testified that her various ailments resulted in her disability. She saw many doctors over a period of years from 1970 to the present time. She was inarticulate and unable to clearly and definitely describe her various ailments. The ailments are fully described in the reports of various doctors which the court has examined in considering whether "good cause" exists for remanding the case to the Secretary.

At the hearing, exhibits one through sixteen were introduced on behalf of defendant. Exhibit No. 7 introduced by plaintiff, lists the names of medicines or at least some of them that had been prescribed to her by the various doctors. Also, the various types of work done by her were shown.

Exhibit No. 13 is a report dated October 3, 1975 of Dr. Cohen of Walnut Creek, California, in which he diagnosed her physical condition as:

"1. Exogenous obesity.

2. S/p intestinal bypass surgery.

3. S/p excision thyroid nodule (clinically euthyroid).

4. No definitive diagnosis of arthritis."

Exhibit No. 14 is a letter dated November 21, 1975 submitted by Surgical Associates, P.A., Harold H. Mings, M.D., in which it is stated:

"The patient does have complaints of multiple arthritic type pains, involving the knees, ankles, hips, wrists and left hand. She states that these joints are so painful that she is unable to work at a common labor type job. Apparently this is the only job this lady is qualified to do. She was seen in consultation by Dr. McMinimy, an Internist, who felt that she might be having some symptoms of gout and placed her on Xyloprim, 100 mgs., three times a day. We have not seen her in the clinic since 11-7-75 and do not know how she is responding.

"It would be our opinion, however, that if she has not improved that she would be unable to carry out public employment."

Exhibit No. 15 is a report by Dr. D. J. McMinimy, M.D., of Holt-Krock Clinic, in which he refers to certain tests that were made and relative thereto states:

"Despite these negative tests, it was suspected that this patient might have gout by in view of the type of pain that she had. She was started on medication for this, including Xyloprim and some Butaxolidin Alka. She was seen again on November 7, 1975. At that time she was still having quite a bit of pain and it was actually at this time that she was placed on medication. When seen last on December 10, 1975 she was still having pain and so far had not received much relief from her medication for gout. I placed her on Co1BENEMID at that time and also Motrin three times a day and asked her to return in thirty days which she failed to do.

"It was my impression that the patient had joint pain, muscle pain which may be secondary to gout, although this could not be proven, but certainly seems to be some form of an arthralgia."

There are other medical reports that were introduced at the hearing which are set forth in the transcript but are illegible. However, enough is legible and does reveal that the plaintiff has been a consistent worker at jobs for which she was qualified. She contracted the various ailments and has suffered intermittently for years, which suffering has prevented her from continuing to work.

The latest report is that of Dr. Earl M. Woodson, M.D., heretofore mentioned and is as follows:

"The above named person has come to me on this date complaining of multiple arthritis, principally, which effects all the limbs of the upper and lower extremities. She also suffers osteoarthritis of the lumbar spine.

"This lady is 5'2" in height, weight, 175 lbs., B/P 190/94.

"History indicates this person underwent an operation for a jejuno-ileal bypass in order to help her reduce her weight which at the time was over two hundred pounds. The operation procedure was a success and the patient has responded favorably to weight reduction type diet.

"PHYSICAL EXAMINATION: Examination of the above named person indicates she is obese, well developed with height, weight and blood pressure as indicated. By history, Mrs. Dean relates that she began having arthritis pain some fifteen to twenty years ago but did not recognize the problem. Historically, the patient has been employed as a nurse's aid both in the state of California and also in Arkansas. In Arkansas she worked for West-Ark for about two years. She has worked in a laundry and motels for six to nine months. She has not worked since that time.

"In March of 1974, she had an intestinal by-pass by Dr. Harold Mings. She states that she weighed 265 pounds and lost down to 165 pounds.

"On examination of the head, neck are negative. The heart and lungs are negative. The abdomen shows a transverse incisional scar which is in evidence of an operation for the intestinal by-pass which is for the purpose of the weight reduction. The operative process was apparently successful.

"The abdomen is negative with the exception of the transverse abdomen scar and a lower abdominal scar. There are no abdominal masses was palpable. The breast are negative, the uterus appears to be normal in size and contour.

"The patient states she had (hang up) in the knees and the left elbow. By hang up the patient means the knee will not move and she does not have use of the knees or elbow. It appears there is a deficiency in the thyroid gland action and she is forced to take thyroid gland tablets daily.

"This patient has had two babies which was born by cesarean section.

"Mrs. Dean is now taking anti hypertension drugs for the relief of hypertension. She is suffering from multiple arthritis which involves the upper and lower extremities. She has osteo arthritis of the lumbar spine.

"The hypertension this person has is disabling because it brings about dizziness and frequent headaches. Mrs. Dean is obese but not so much as before the intestinal operation

...