Wander v. Schweiker

• Decision Date: 25 September 1981
• Docket Number: Civ. A. No. M-78-2314.
• Citation: 523 F. Supp. 1086
• Parties: Sonia A. WANDER v. Richard S. SCHWEIKER, Secretary of the Department of Health and Human Services.
• Court: U.S. District Court — District of Maryland

523 F. Supp. 1086

Sonia A. WANDER v. Richard S. SCHWEIKER,¹ Secretary of the Department of Health and Human Services.

Civ. A. No. M-78-2314.

United States District Court, D. Maryland.

September 25, 1981.

COPYRIGHT MATERIAL OMITTED

David E. Furrer, Baltimore, Md., for plaintiff.

J. Frederick Motz, U. S. Atty. D. Md., and Glenda G. Gordon, Asst. U. S. Atty., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The plaintiff, Sonia A. Wander, brought this action on November 20, 1978, to obtain judicial review of a final decision of the Secretary of the Department of Health and Human Services (Secretary) denying her claim for disability insurance benefits. 42 U.S.C. § 405(g).

The plaintiff filed an application for disability insurance benefits on August 18, 1976, alleging that she became unable to work on January 2, 1976 (Tr. 58-61).² The plaintiff's application was denied initially (Tr. 64-65), and again denied upon reconsideration (Tr. 69-70). The plaintiff waived an oral hearing, and her case was considered de novo by an administrative law judge (ALJ). On June 16, 1978, the ALJ issued a decision recommending that benefits be denied (Tr. 21-33). The ALJ was of the opinion that the plaintiff's impairments could not be expected to last at least twelve months, and that she was able to perform her prior work (Tr. 32-33).

On July 18, 1979, this court remanded the plaintiff's case to the Secretary for the taking of additional evidence.³ On September 28, 1979, the Appeals Council remanded the case to a new ALJ for a supplemental hearing. After the hearing, at which the plaintiff testified and was represented by counsel, the ALJ rendered a decision recommending a finding that the plaintiff was not disabled within the meaning of the Act. (Tr. 190-201). The ALJ's decision was approved by the Appeals Council on August 20, 1980, and became the final decision of the Secretary (Tr. 188-89). On April 30, 1981, the court granted the plaintiff's motion to reopen this case,⁴ and both parties have now moved for summary judgment.⁵

I. Summary of the Evidence

The plaintiff was born on August 23, 1928, and has completed the twelfth grade (Tr. 232, 234). She alleges a disability as of January 2, 1976, at age 47, due to back problems and an inability to sit for long periods of time (Tr. 58-61).

Prior to January of 1976, the plaintiff had worked for some 22 years as a manicurist. She had received special training for this type of work (Tr. 234). Although she was often self-employed, the plaintiff always worked out of a beauty shop, which handled her appointments (Tr. 234-35). The plaintiff did handle her own financial records but did not employ or supervise other persons (Tr. 235-36). The plaintiff also assisted her husband, on a part-time basis, in running a teen counseling program under the auspices of the Baltimore County Department of Recreation (Tr. 236-41). Although the plaintiff had no formal training for such work, she counseled teens about drug abuse, arranged for dances and skating trips, and other similar recreational activities (Tr. 238-39). She and her husband also filled out reports for the county authorities (Tr. 240).

On January 9, 1976, the plaintiff was admitted to the Baltimore County General Hospital because of increasingly severe pain in her lower back and right leg, which did not respond to analgesics (Tr. 90). In addition to treatment by pelvic traction and valium (Tr. 91, 93-94), the plaintiff underwent the excision of breast masses due to bilateral fibrocystic disease (Tr. 99). A lumbar mylogram revealed moderate hypertrophic degenerative arthritic changes in the lower lumbar spine and a narrowing of the disc space of the L4-L5 and L5-S1 areas (Tr. 89, 91). Other studies were within normal limits (Tr. 90-91, 93). The discharge diagnosis indicated atypical radicular pain, possible lumbar disc herniation, exogenous obesity, and a probable personality disorder (Tr. 92). The consulting physician felt that the plaintiff was not a candidate for surgical intervention (Tr. 94), and she was discharged, at her request, on January 28, 1976 (Tr. 91).

On February 3, 1976, the plaintiff was examined by Dr. Chhabi Bhushan, a neurologist. According to Dr. Bhushan, "because of extreme degree of pain, quite excruciating in nature, the examination was somewhat limited in certain aspects." (Tr. 101). While some of the plaintiff's movement functions were within normal limits, the straight leg raising test was positive bilaterally approximately 45° off of the table. In addition, the plaintiff walked with a marked limp bilaterally, and could not sit even for a moment because of pain (Tr. 101). There was also a significant tenderness in the L5 spine and lumbosacral junction, although she could stand on both her toes and heels (Tr. 101).

On February 5, 1976, the plaintiff was admitted to the Sinai Hospital of Baltimore (Tr. 103-14). She underwent a bilateral lumbar laminotomy, a right lumbar laminotomy, exploration and excision of a herniated disc, and a bilateral rhizotomy (Tr. 108-09, 112). She was also treated for an allergic rash (Tr. 115, 117), and was discharged on February 14, 1976.

The plaintiff was examined by Dr. Bhushan on March 4, 1976, who reported that she was recovering well from the surgical procedure, although experiencing some pain and movement restrictions. Regular and intensive physical therapy was prescribed (Tr. 122-23).

The plaintiff was reexamined by Dr. Bhushan on April 13, 1976. Although her back condition was improving, she had been experiencing pain, numbness, and parathesias in her left hand. The pain frequently awakened her during the night, and often involved the upper left extremity as well. Various studies were ordered (Tr. 120-21, 168).

The plaintiff was again examined by Dr. Bhushan on June 15, 1976. He reported that the plaintiff had been following his instructions regarding therapy, had movement within normal limits, and was making an excellent recovery. She had developed neurodermatitis, however, due to stress from family problems. Dr. Bhushan concluded by stating "as far as her cervical spine is concerned we know now that she does have degenerative changes and disc disease at two levels but as long as it is asymptomatic I am not going to do anything about it." (Tr. 119).

During May, June and July of 1976, the plaintiff was treated for eczematoid dermatitis of the face, breast, buttocks, back, and extremities. The condition improved gradually with medication, and the treating physician did not feel that the plaintiff's allergic condition would last twelve months (Tr. 126-31).

The plaintiff returned to Dr. Bhushan on September 30, 1976, complaining of pain across the lower back region. Dr. Bhushan was of the opinion that because of the plaintiff's extensive surgery she would never be able to sit for any length of time, notwithstanding her good surgical recovery. He considered the plaintiff to be totally disabled from performing manicuring work, and to be 35 to 40% disabled on a regular basis (Tr. 132-33).

The plaintiff was readmitted to the Sinai Hospital on March 1, 1977, because of problems with her left hand. These difficulties were first diagnosed by Dr. Bhushan in April of 1976. She underwent a carpal tunnel decompression and neurolysis of the median nerve. The plaintiff was also treated with cervical traction for her back condition. She was discharged on March 18, 1977 (Tr. 168).

The plaintiff was hospitalized at the Baltimore County Hospital from October 16, 1977, to November 5, 1977, complaining of recurrent pain in the left side of her chest radiating down her upper left arm (Tr. 157-58). After controlling her pain with intra-muscular Demerol, the plaintiff was moved from the coronary care unit to a regular bed. Severe left precordial pain continued, however, requiring treatment with intra-muscular Demerol and Nitrol paste (Tr. 155). The plaintiff was diagnosed as having arteriosclerotic cardiovascular disease with acute myocardial infarction (Tr. 156). Upon her discharge on November 5, 1977, the plaintiff was taking Inderol, Nitrol paste and Nitrostat.

The plaintiff was admitted to the Sinai Hospital on November 16, 1977, for Heparin therapy for left popliteal vein phlebitis, and treatment of pulmonary emboli and acute cardiovascular disease (Tr. 138-42). After studies and treatment for pain, the plaintiff was discharged on November 29, 1977.

The plaintiff came under the care of Dr. Stanley Steinbach, an internist, on September 23, 1977. In a report dated February 10, 1978, Dr. Steinbach stated that after consultation with a cardiologist and a vascular surgeon, it was determined that the plaintiff had a single vessel coronary artery disease with a high grade proximal left anterior descending stenosis. If the plaintiff's pain continued despite drug and symptomatic therapy, it was recommended that she undergo coronary bypass surgery (Tr. 165-66).

On February 15, 1977, Dr. Bhushan reported that the plaintiff had at least a thirty-percent disability of the lumbar spine (Tr. 168).

The plaintiff was hospitalized at the Johns Hopkins Hospital from March 1, 1978 to March 14, 1978, where she underwent a coronary bypass procedure (Tr. 183). Dr. Vincent Gott, Cardiac Surgeon-in-Charge, reported that the plaintiff had experienced increasing angina over the past year, and that a cardiac catheterization demonstrated a 95% block in the proximal portion of the left anterior descending artery (Tr. 172). After surgery, the plaintiff was continued on heart medication, although her coronary outlook was good (Tr. 173). Dr. Gott was of the opinion that the plaintiff should be able to engage in her normal activities by August 1, 1978 (Tr. 185).

The plaintiff was again hospitalized at Sinai from November 1, 1978 to November 9, 1978, with "crushing retrosternal left precordial chest pain with radiation to the shoulder and down to the left arm." (...