Gudlis v. Califano, 77 C 2628.

• Decision Date: 26 May 1978
• Docket Number: No. 77 C 2628.,77 C 2628.
• Citation: 452 F. Supp. 401
• Parties: Pauline GUDLIS, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of Illinois

452 F. Supp. 401

Pauline GUDLIS, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

No. 77 C 2628.

United States District Court, N. D. Illinois, E. D.

May 26, 1978.

Joseph Burden, Cook County Legal Assistance Foundation, Inc., Maywood, Ill., for plaintiff.

Thomas P. Sullivan, U. S. Atty., Northern District of Illinois, Narda J. Cisco, Asst. U. S. Atty., Chicago, Ill., for defendant.

OPINION

WILL, District Judge.

This is an action brought pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for judicial review of a final decision of the Secretary of Health, Education and Welfare (Secretary). The decision, dated May 27, 1977, affirmed an Administrative Law Judge's (ALJ) decision of October 22, 1976, denying plaintiff's claim of entitlement to a period of disability and to disability benefits. Before us at this time are cross motions for summary judgment and plaintiff's alternate motion for remand for further administrative action. For the reasons herein stated, we deny the cross motions for summary judgment and order the case remanded to the Secretary for proceedings not inconsistent with this opinion.

I.

Plaintiff is a 60 year old female with a high school education. She had worked in various capacities for Illinois Bell Telephone Co. for a period of 37 years, beginning as a messenger girl and achieving a final position as a tax analyst.

In September 1974, plaintiff was hospitalized after an episode of blurred and marred vision, which was diagnosed as thrombosis of the central retinal vein, left eye, resulting in 20/200 vision, or functional blindness, in that eye. In her applications for relief, plaintiff complained of loss of vision and dizziness. At a hearing held on December 1, 1975, plaintiff complained of the first two symptoms plus extreme hypertension and arthritic pain. She also stated that fluorescent light hurt her good eye, causing blurring and pain, and that she was no longer able to do cooking, shopping, or other housekeeping chores, read or watch television for long periods of time, or leave the house by herself. She further testified that for a time she was "passing out" every morning and that she was taking several types of prescriptive medication, including Hydrochlorothiazide sic with Reserpine, for high blood pressure, Antivert to prevent dizziness, Coumadin, sic an anti-coagulant, Neprobate, a tranquilizer to prevent hypertension, and Vitamin B-12 injections.

Following the hearing, at which plaintiff appeared with her husband, Administrative Law Judge Stillerman issued an opinion dated December 4, 1975, finding that plaintiff was not under a disability. This decision was reversed and remanded by the Appeals Council on April 12, 1976, with instructions to take additional vocational evidence. The Council also stated that "if appropriate, the testimony of a medical adviser should be obtained to assist the administrative law judge in determining whether additional medical documentation is necessary and in evaluating the medical evidence of record."

A second hearing was held before ALJ Warns on October 19, 1976. Plaintiff was again accompanied by her husband and this time represented by a law student. At this hearing, additional testimony was taken from plaintiff but the ALJ refused to allow plaintiff's husband to testify. The ALJ introduced a written statement of a medical adviser who had looked at the previous medical reports but had never personally examined the plaintiff, and asked a vocational expert a hypothetical question based on the presumed condition of plaintiff. On October 22, 1976, ALJ Warns issued a supplemental decision finding that claimant was not under a disability, which was affirmed by the Appeals Council and made the final decision of the Secretary on May 27, 1977. This action followed.

II.

The standard for, and scope of, review by a United States District Court sitting in review of a disability determination is mandated by Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), which provides in relevant part:

. . . the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and the decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . .. The court . . . may, at any time, on good cause shown, order additional evidence to be taken before the Secretary . . ..

The Supreme Court, in a discussion of § 205(g), has defined substantial evidence to mean "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In the instant case, at issue is whether the ALJ's, and subsequently the Secretary's finding of no disability is supported by "substantial evidence." Disability is defined in Section 223(d) of the Social Security Act, 42 U.S.C. § 423(d) as

1(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . can be expected to last for a continuous period of not less than 12 months;

* * * * * *

2(A) an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual) "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

In determining whether or not a claimant qualifies for disability status under 42 U.S.C. § 423(d), the court is directed to four elements of proof:

1) Clinical findings of treating and examining physicians on the existence of medically determinable physical or mental impairment;

2) Opinions of treating or examining physicians on subsidiary questions of fact relating to the severity of the medically determinable impairment;

3) Testimony of the claimant, corroborated by his family and neighbors concerning the effect of the medically determinable impairment;

4) Evidence of the claimant's educational background, work history and present age.

See Johnson v. Weinberger, 525 F.2d 403, 407 (7th Cir. 1975). In addition, the plaintiff may establish a claim to benefits by showing that he or she is unable to perform his or her former job due to the disability. At that point, the burden shifts to the Secretary to produce evidence that will justify a finding that there is available some other kind of substantial gainful employment which the plaintiff is able to perform. Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974).

There is agreement that plaintiff has an impairment which prevents her from returning to her previous job with Illinois Bell, but the Secretary contends that her eye impairment, which does not meet the requirements of statutory blindness, does not constitute the basis of a finding of disability. The Secretary also argues that plaintiff's hypertension does not meet the requirements for disability.

The decision of ALJ Warns apparently rested on three pieces of evidence: 1) the report of the medical adviser; 2) the testimony of the vocational expert; and 3) the ALJ's own observations. He refused the testimony of plaintiff's husband and disallowed any subjective evidence.

The medical adviser, Dr. Abramson, was sent the medical reports previously entered into evidence at the first hearing. These reports included 1) the report of Dr. Nainis, plaintiff's family doctor, who had examined plaintiff on March 10, 1975 and found that plaintiff continued to have loss of vision in her left eye, but that the right eye was normal and the condition stable; 2) the report of Dr. Domanskis, an ophthalmologist, who examined plaintiff on March 31, 1975 and found that plaintiff's right eye was 20/25-4 while the left one was 20/200 with eccentric fixation. He diagnosed arteriosclerosis of the retinal vessels in both eyes, and optic atrophy in the left eye. In response to a questionnaire sent him by ALJ Stillerman, Dr. Domanskis stated that plaintiff's condition was "deteriorating" and that lifting, stretching, pushing, pulling, stooping, or prolonged reading would "probably not" aggravate the condition, presumably meaning that it would not hasten the ongoing deterioration; 3) the report of Dr. Rosi, an internist, based on an examination in September 1974, which found hypertension and marked arteriosclerosis of the retinal vessels.

Dr. Abramson, a specialist in internal medicine and cardiovascular disease, concluded his report with the statement:

Based on the information in the record, I would assume that the cause in the present patient is arteriosclerosis of the retinal vessels. I do not believe that the involvement of the left eye will have any effect upon the prognosis of the right eye. (R. 160)

Dr. Abramson did not, however, personally examine the plaintiff nor consult with the examining physicians. It also appears that he was not given the transcript of the earlier proceeding, which would have revealed the continuing symptoms described by plaintiff concerning her sensitivity to fluorescent light, her inability to read or view for long periods of time, and her continuing dizziness, which may...