Sumler v. Bowen

• Decision Date: 26 March 1987
• Docket Number: No. 84-1045.,84-1045.
• Citation: 656 F. Supp. 1322
• Parties: Ravell SUMLER, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Western District of Arkansas

656 F. Supp. 1322

Ravell SUMLER, Plaintiff, v. Otis R. BOWEN,^* Secretary of Health and Human Services, Defendant.

No. 84-1045.

United States District Court, W.D. Arkansas, El Dorado Division.

February 19, 1987.

Supplemental Memorandum Opinion March 26, 1987.

Denver L. Thornton, El Dorado, Ark., for plaintiff.

Larry R. McCord, Asst. U.S. Atty., Ft. Smith, Ark., for defendant.

MEMORANDUM AND ORDERS

JOHN W. OLIVER, Senior District Judge.

Plaintiff filed her complaint in the Western District of Arkansas on April 3, 1984, appealing the ALJ's denial of Social Security benefits. The ALJ's denial of benefits was affirmed by the Appeals Council of the Social Security Administration on March 28, 1984, and it is therefore a final decision of the Secretary of Health and Human Services (Secretary). The case is decided by the undersigned Senior United States District Judge pursuant to Chief Judge Lay's January 30, 1987 designation to sit in the Western District of Arkansas. Federal jurisdiction is exercised pursuant to 42 U.S.C. § 405(g).

We have reviewed the pleadings and the transcript of the administrative hearing and we find and conclude that the final decision of the Secretary denying Social Security benefits to the claimant must be reversed outright.¹

I.

The record establishes that on November 23, 1982, claimant applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. (Tr. 64-67). Claimant's application was denied on January 10, 1983. (Tr. 68). Claimant filed a request for reconsideration on January 20, 1983. (Tr. 70). Her request for reconsideration was denied on January 25, 1983. (Tr. 71).

Claimant requested a hearing before an Administrative Law Judge (ALJ) on February 28, 1983. (Tr. 33). A hearing was held on April 19, 1983. Claimant was represented at that hearing by James J. Callaway, an attorney who practices in El Dorado, Arkansas. On October 19, 1983, the ALJ issued his decision denying benefits and so advised the claimant and Mr. Callaway. (Tr. 12-17). On December 20, 1983, Denver L. Thornton, another attorney who practices in El Dorado, noticed an appeal on behalf of the claimant for "a hearing at the next level."² (Tr. 10). The Appeals Council denied the request for review on March 28, 1984. (Tr. 3).

Claimant's complaint was filed by Mr. Thornton on April 3, 1984. On May 1, 1984, Mr. Thornton filed the motion to remand which we will discuss in part IV, infra. The Secretary thereafter filed an answer on June 20, 1984, together with a certified copy of the hearing transcript.

The case pends on the Secretary's motion for summary judgment filed August 26, 1985. Claimant's counsel failed to file either a brief in opposition to the Secretary's motion for summary judgment, a cross-motion for summary judgment, or any other pleading in support of claimant's position.

We have carefully considered whether an order should be entered that would require claimant's counsel to fully discharge the professional responsibilities to his client and to this Court which he assumed when he filed the complaint in this case. We have concluded that such order should not be entered in light of the inordinate delay that the claimant has already suffered in receiving the benefits to which she is clearly entitled.

For the Eighth Circuit's settled rules of decision in this area of the law are well established.³ Accordingly, and in order to prevent further delay, we will rule the merits of this case without requiring further filings.

II.

The final decision of the Secretary must be affirmed if it is supported by substantial evidence. 42 U.S.C. § 405(g); Cook v. Bowen, supra, 797 F.2d at 690; Clark v. Heckler, 733 F.2d 65, 68 (8th Cir.1984); Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir.1984). Substantial evidence means 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). The applicable standard of review provides for more than a rubber stamp of the Secretary's decision and is more than a mere search for the existence of some evidence supporting the Secretary's decision. Sharrah v. Secretary of Health and Human Services, 747 F.2d 457, 459 (8th Cir.1984); McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir.1983).

Claimant has the burden of showing that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d). Claimant must establish that a disability precludes her from performing her former work. If so established, the burden shifts to the Secretary to prove that there is some other type of substantial gainful activity that the claimant can perform. Lewis v. Heckler, 808 F.2d 1293 (8th Cir.1987); Martin v. Harris, 666 F.2d 1153, 1155 (8th Cir.1981); Clark v. Heckler, supra, 733 F.2d at 68.

A. Hearing Testimony

The only persons to testify at the administrative hearing were the claimant and her daughter. Claimant testified that she was born on February 12, 1938, and that she had completed the ninth grade. (Tr. 39, 42). She testified that her most recent employment was for a lumber company where she worked with various heavy machinery which cut, graded or laminated wood. She worked for that lumber company from 1968 until July 6, 1982. (Tr. 42-43).

Claimant testified that she could not continue her previous employment because of her frequent blackout spells. On July 6, 1982, claimant had been at her previous job "catching lumber" off of a conveyor belt when she blacked out. She was out for more than an hour and a half. (Tr. 57). She was taken to the hospital for that blackout spell. (Tr. 49, 57).

Claimant testified that she suffers from severe headaches which occur just before the blackout spells. (Tr. 50, 51). She also stated she suffers from headaches which may not result in blackout spells but which may last as long as a week. (Tr. 54). These headaches incapacitate claimant. (Tr. 54, 55). She further testified that she suffers from weakness in her left hand: "well, this hand fades, dead like ... and I don't have no grip in it." (Tr. 46, 51). Claimant also testified that she suffers from a heart condition (Tr. 50, 51), and shortness of breath. (Tr. 51, 52). She stated that her shortness of breath requires her to sit down and rest after walking a block and a half or when doing household activities (Tr. 52, 53), and that "a lot of nights I wake up struggling for my breath." (Tr. 52). She has to sleep in a sitting up position to alleviate that problem. (Id.)

Claimant further testified that she had a tumor removed after she started working for the lumber company, and that she has developed a bowel and stomach problem related to that tumor. (Tr. 52-53, 54). She testified that she suffers from high blood pressure. (Tr. 56). She also testified that she has problems with her back so that sometimes she "can't get up I have to have somebody help me get up or else I get down on my knees and catch hold of something and pull myself up and when I get down I can't hardly walk." (Tr. 56).

Claimant further testified that she is often tired and sleeps much of the day: "sometime I get up, eat and go right back to sleep. Can't get enough sleep.... When I take that medicine it don't even bother me. I just get tired like and then I don't want to do nothing but sleep." (Tr. 58).

Claimant testified that she does what housework she can, but she can only "work awhile and then quit." (Tr. 46). Her son does most of the cooking and her sister helps with the household chores. (Tr. 40, 46). Claimant drives occasionally, but is afraid to do so because of her blackout spells. (Tr. 44).

Claimant's daughter testified that claimant has been hospitalized for two or three week periods following blackout spells, and that claimant cannot work or sweep the yard for any substantial period of time. She stated that claimant is not able to do the cooking and there are frequent times "where claimant just has to lay down for a while." (Tr. 61).

No vocational or other expert was called to testify.

B. Documentary Evidence

Dr. Rick Lewis completed a discharge summary upon claimant's release from a three-day hospital stay in August, 1982. Claimant was admitted to the hospital after being found passed out in the street. He summarized her symptoms as "a 2 year history of `Falling out spells.' These appear to average approximately one to two a month and occasionally occur in clusters.... Claimant describes it as a total body weakness that comes on quite suddenly." Dr. Lewis found she had an enlarged heart and a hiatus hernia. His final diagnosis was syncope episode. Because of claimant's complaints of orthopnea and exertional dyspenia, as well as the S4 gallop heard on examination, Dr. Lewis prescribed daily dosages of Lanoxin and a diuretic. (Tr. 104-105).

Claimant's treating physician, Dr. George F. Wynne, concluded that "due to heart trouble, shortness of breath and blackout spells, the claimant is totally and permanently disabled to work." (Tr. 122). Dr. Wynne diagnosed claimant as suffering from syncope, etiology unknown, (Tr. 121), headaches, anxiety neurosis, hypertension and nervous palpitations of the heart. (Tr. 120).

The Secretary referred the claimant to an internal medicine specialist, Dr. Allen Pirnique, for an examination on June 7, 1983. He estimated from discussions with claimant that the blacking out spells occur at one- to two-week intervals and that they "can occur in any position and at any time of day." (Tr. 124). His impression was that she was suffering from syncopal episodes of unknown etiology, dyspnea of unknown etiology, and cardiac enlargement of unknown etiology. (Tr. 125). In conclusion, Dr. Pirnique stated:

I cannot

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