Smith v. Secretary of Health and Human Services, Civ. A. No. 6:91-0993.

• Decision Date: 22 July 1992
• Docket Number: Civ. A. No. 6:91-0993.
• Citation: 794 F. Supp. 591
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Dean W. SMITH, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

794 F. Supp. 591

Dean W. SMITH, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

Civ. A. No. 6:91-0993.

United States District Court, S.D. West Virginia, Parkersburg Division.

July 22, 1992.

Roger D. Forman, Forman, Kanner & Crane, Charleston, W.Va., for plaintiff.

Beverly Dennis, III, Chief Counsel, Region III, Office of Regional Director, Philadelphia, Pa., Steven M. Horn, Asst. U.S. Atty., Charleston, W.Va., for defendant.

CORRECTED MEMORANDUM OPINION

HADEN, Chief Judge.

Pending is the Plaintiff's motion to remand and the Defendant's motion for summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Previously this action was referred to the Honorable Jerry D. Hogg, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) for submission to this Court of his proposed findings of fact and recommendation for disposition.

Magistrate Judge Hogg recommended that the Plaintiff's motion for remand be denied; that the Defendant's motion for summary judgment be granted, and that the Secretary's final decision be affirmed. The Plaintiff made timely objections to the Report-Recommendation of the Magistrate Judge and the Defendant filed a response. This matter is now ripe for the Court's de novo consideration of the portions to which objections were made.

The Plaintiff, Dean W. Smith, filed an application for a period of disability and disability insurance benefits on August 23, 1989, alleging disability since January 1, 1980, due to diabetes, headaches, back, breathing and right leg problems. On June 1, 1990, an administrative law judge determined that the Plaintiff was not under a disability as defined in the Social Security Act at any time during the claimant's insured status period. On May 26, 1991, this decision became final when the appeals council refused the Plaintiff's request for review.

The issue before this Court is whether the final decision of the Secretary denying the Plaintiff's claim is supported by substantial evidence. Initially, the Plaintiff claims that his treating physician's opinion was not afforded proper weight. Specifically, he notes a letter from Dr. Danny R. Westmoreland dated April 26, 1991, in which Dr. Westmoreland opined that, upon review of records dating to December 7, 1964, the Plaintiff was disabled since that date. This opinion, although rendered well after the administrative law judge's review, will nevertheless be considered by the Court.

Plaintiff relies upon Wooldridge v. Bowen, 816 F.2d 157 (4th Cir.1987) for the proposition that a physician's opinion based upon review of evidence and finding an earlier onset of disability is acceptable as relevant evidence on the issue. In Wooldridge the physician who reviewed the claimant's medical records was on the staff of a clinic where claimant had been treated for many years and in essence, he was claimant's treating physician. Contrary to the facts in Wooldridge, Dr. Westmoreland did not examine or treat Plaintiff prior to April, 1991. Accordingly, Dr. Westmoreland cannot be classified as Plaintiff's treating physician. He is no more and no less than a medical expert retained for this litigation. Further, the record, including Plaintiff's testimony, indicates that Plaintiff maintained substantial gainful employment at least until 1980. Consequently, Dr. Westmoreland's opinion that Plaintiff has been disabled since 1964 is rejected because it finds no support in the empirical evidence reviewed by the Secretary.

The record also includes a letter from Joseph P. Zawadsky, M.D., Plaintiff's actual treating physician from the time of his injury in 1964 until 1985. Dated May 23, 1991, the letter post-dates the administrative law judge's review and notes the nature of Plaintiff's injury to his right knee and the treatment he received. Dr. Zawadsky opined the condition was permanent and represented a severe disability as a result. The administrative law judge also found that the Plaintiff has a...