Thompson v. Schweiker, 82-0451-CV-W-1.

• Court: U.S. District Court — Western District of Missouri
• Writing for the Court: Robert G. Ulrich, U.S. Atty., F.O. Griffin, Jr., Asst. U.S. Atty., Kansas City, Mo., for defendant
• Citation: Thompson v. Schweiker, 555 F.Supp. 1282 (W.D. Mo. 1983)
• Decision Date: 31 January 1983
• Docket Number: No. 82-0451-CV-W-1.,82-0451-CV-W-1.
• Parties: Betty L. THOMPSON, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

555 F. Supp. 1282

Betty L. THOMPSON, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

No. 82-0451-CV-W-1.

United States District Court, W.D. Missouri, W.D.

January 31, 1983.

W. Dudley Leonard, Independence, Mo., for plaintiff.

Robert G. Ulrich, U.S. Atty., F.O. Griffin, Jr., Asst. U.S. Atty., Kansas City, Mo., for defendant.

MEMORANDUM AND ORDERS REVERSING FINAL DECISION OF SECRETARY AND DIRECTING PAYMENT OF BENEFITS

JOHN W. OLIVER, Senior District Judge.

This Social Security case again requires the Court to review the Secretary's application of its regulatory framework for the finding of total disability to the facts of an individual case. See the "Listing of Impairments" codified in Appendix I to Subpart P of Part 404, 20 C.F.R. §§ 404.1501 et seq. (1981). The principles stated in McCoy v. Schweiker, 683 F.2d 1138, 1149 (8th Cir. 1982) (en banc) are applicable to this case.

We conclude, for reasons to be stated in detail, that the Secretary's final decision does not reflect the "large measure of individualized adjudication" necessary for proper application of its regulations and is not supported by substantial evidence in the record as a whole. The decision will therefore be reversed and the case remanded with directions to distribute widow's insurance benefits to plaintiff.

I.

Plaintiff filed her application for widow's insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., on May 18, 1981. It was considered and denied on July 24, 1981. Reconsideration resulted in affirmance on August 27, 1981. Plaintiff requested a hearing, which was held on October 28, 1981. She was not represented by counsel at the hearing.¹ On November 20, 1981, the Administrative Law Judge (ALJ) rendered his finding that the claimant was not disabled within the meaning of the Social Security Act. On March 19, 1982, the Appeals Council affirmed the ALJ's decision, which thus stands as the final decision of the Secretary under 42 U.S.C. § 405(g).

Plaintiff was born on March 30, 1930. Her application for widow's insurance benefits stated that her husband died of a heart attack in June, 1975 and that she became totally disabled on March 30, 1980. Tr. at 44, 46. In a "disability report" filed by plaintiff concurrently with her application for benefits on May 18, 1981, plaintiff described her condition as "muscle pain and weakness pain in joints, disease localized in shoulders, elbows & wrists and left knee, right hip moves to different parts of skeletal system, feet, rib cage, back, neck." Tr. at 63. She stated that her condition began to bother her in 1977 but she finally quit work on March 30, 1980 because "muscle became weaker. Couldn't move arms and lift weight. Condition gets worse as it progresses."²

Plaintiff was the only witness at her administrative hearing. She testified that she worked as a hairstylist some sixteen years ago, afterwards served as a receptionist for her husband, a general surgeon, until his death in 1975 and most recently worked as "a tester in electronics" for a year, but had to quit because "I just couldn't get the arms and legs to function. And the pain was so severe." Tr. at 23. She testified that she takes demerol, up to two or three a day, for pain and "Then, I'll take them because they make me sick." Tr. at 26. She further testified that she takes 12 bufferin a day and periodically receives cortisone shots in her shoulder; that her hands and feet swell; and that she takes nitroglycerin for chest pain which sometimes interferes with her breathing and numbs her left arm. Plaintiff testified that Dr. Irwin Leider is her treating physician for hypertension and angina pectoris and that he examines her every six months and administers EKGs, but without the stress test. Tr. at 29.³ She testified that she has been examined by several doctors for joint pain and swelling, but they disagreed on a diagnosis.

Plaintiff's medical records from Halifax Hospital indicate that plaintiff was initially admitted on January 14, 1980 and discharged on January 19, 1980. Her treating physician, Dr. Michael Kohen, diagnosed her condition as follows:

# 1. Acute episode of chest pain.

# 2. Probable rheumatoid arthritis.

# 3. Asthma, exercise induced, allergic and infectious.

# 4. Perennial and seasonal allergic rhinitis and conjunctivitis.

# 5. Sinus headaches with post nasal drainage.

# 6. Hiatal hernia.

# 7. Hypertension.

# 8. Allergies to Indocin, Chlor-Trimeton, sulfa, IVP dye, and penicillin. Tr. at 85

Plaintiff's "brief history" was summarized as:

# 1. Mixed connective tissue disease.

# 2. Exercise induced allergic and infectious asthma.

# 3. Perennial and seasonal allergic rhinitis and conjunctivitis.

# 4. Sinus headaches with post nasal drainage.

# 5. Hiatal hernia.

# 6. Hypertension.

# 7. Allergies to Indocin, Chlor-Trimeton, sulfa, IVP dye, and penicillin. Id.

Dr. Kohen reported that "Pulmonary function study showed her to have moderate small airways obstructive lung disease." Tr. at 86. He noted that "The patient was continuing to have pain while in the hospital as her evaluation proceeded, but she then did better on Prednisone just prior to discharge." On discharge, he prescribed "Prednisone 40 mg. every other morning. The patient was ambulatory and was told to return to work. She will be followed in the office." Id.

Plaintiff was readmitted to Halifax Hospital on January 22, 1980. Her diagnosis at that time was the same as stated earlier with the exception that it now stated "Rule out acute cholecystitis or pancreatitis." Tr. at 81. The "history sheet" filled out by Dr. Kohen recited that plaintiff had been previously admitted and discharged, and that: "She was then started on Prednisone, 40 m.g. every other day, which she took for the first time this morning. She has used Prednisone in the past without any adverse reactions. Then, last night, after a fried chicken dinner she began to develop severe abdominal pain which necessitated an Emergency room visit at about 3 A.M. The doctor in the Emergency Room was impressed enough by her abdominal pain to admit her to the hospital. The abdominal pain was dull, steady, to the right of the costal margin and radiated between both shoulder blades." Id. Dr. Kohen observed that plaintiff's joints were shown to be tender, but "all joints show full range of motion and good muscle strength is noted throughout." Id. at 82. That observation was consistent with Dr. Kohen's original evaluation of plaintiff on January 14, 1980. Tr. at 88.

Dr. Kohen referred plaintiff to Dr. Leider who also examined the plaintiff on January 14, 1980. Dr. Leider completed an "attending physician's statement," tr. at 89, in which he recounted that since 1978 plaintiff had been under his care for hypertension and chest pain. "She was scheduled to be admitted to the hospital by Dr. Kohen for investigation of the causes of her arthritis and allergy, however, on the night prior to her scheduled admission she developed a 25-minute episode of pain in the left chest, radiating to the left side of the neck, left shoulder, and left arm." Id. Dr. Leider continued: "The patient's description of the pain which she had prior to admission sounds like chest wall pain. She had a treadmill test done in my office 6-79 with equivocal or borderline results and it is difficult to ascertain for certain whether or not her chest pain is cardiac in origin and she may eventually have to have coronary angiography. I am keeping the patient on Inderal, Dyazide, and Slow K and will follow her with you." Tr. at 89-90.

More than three months later, on May 5, 1980, Dr. Kohen wrote a letter as follows:

Re. Betty Thompson

To whom it may concern:

Betty Thompson has mixed connective tissue disease that produces a great deal of weakness and muscular pain. This has been poorly controlled with medications to the present time and she has been referred to a Medical Center up North. I am awaiting their appointment for an evaluation. Until she is evaluated and controlled on appropriate therapy she should be considered totally disabled.

Thank you for your consideration in this matter.

Very truly yours,

/S/ Michael Kohen

Michael D. Kohen, M.D. Tr. at 103

Dr. Kohen apparently referred to the Shands Teaching Hospital and Clinic at the University of Florida in Gainesville (Halifax is in Daytona Beach). Plaintiff was admitted to Shands on December 10, 1980 and discharged on December 12, 1980. In a letter dated December 14, 1980 from James W. Wynne, M.D., Associate Professor, Department of Medicine, to Dr. Cohen (sic), Dr. Wynne began by stating "We must apologize that we were unable at this visit to be of much benefit to Betty Thompson." He noted that "At the time of her admission here, none of her old records are available or any records of her admission in Daytona or in New York." Dr. Wynne continued:

The patient's complaints at the time of her admission here center around joint and muscle aching without any true swelling or erythema with stiffness and limitations of the range of movement. She has been tried on nonsteroidal antiinflammatory agents, as well as Aspirin, Gold, and Prednisone. At one point we are aware that she had a positive ANA and a positive ENA, however, was later told that these were negative on repeat. She has been given the diagnoses of rheumatoid arthritis, mixed connective tissue disease and lupus erythematosis. She had seen Dr. Richard Panush, Department of Rheumatology at the Shands Teaching Hospital, however, he is out of town at the time of this admission. She has also been seen in Cornell University by Dr. Christiansen, the results of this visit are unknown to us. The patient seems to have no predilection for large versus small joints, nor peripheral versus central. She actually can not describe any true arthritis, nor can she describe any true signs of weakness, although she complains of such. The patient has had no associated fevers,

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