Wroblewski v. Califano, 79-1147

• Decision Date: 21 November 1979
• Docket Number: No. 79-1147,79-1147
• Citation: 609 F.2d 908
• Parties: Virginia B. WROBLEWSKI, Appellant, v. Joseph CALIFANO, Jr., Secretary of Health, Education and Welfare of United States, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 908

609 F.2d 908

Virginia B. WROBLEWSKI, Appellant, v. Joseph CALIFANO, Jr., Secretary of Health, Education and Welfare of United States, Appellee.

No. 79-1147.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1979.

Decided Nov. 21, 1979.

Robert J. Albair (argued), Sullivan & Watkins, Clayton, Mo., for appellant; A. Michael Sullivan, Clayton, Mo., on brief.

Bruce D. White, Asst. U. S. Atty., St. Louis, Mo., for appellee; Robert D. Kingsland, U. S. Atty., Joseph B. Moore, Asst. U. S. Atty., St. Louis, Mo., Paul P. Cacioppo, Regional Atty., Region VI, and Caroline McB. French, Deputy Regional Atty., Dept. of Health, Education and Welfare, Kansas City, Mo., on brief.

Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.

GIBSON, Chief Judge.

Mrs. Virginia Wroblewski (claimant) appeals from an order of the United States District Court for the Eastern District of Missouri upholding the decision of the Secretary of the Department of Health, Education and Welfare to deny her disability benefits. We reverse and remand for further evidentiary hearings.

On February 28, 1977, claimant filed an application with the Social Security Administration to establish a period of disability under 42 U.S.C. § 416(i)(2) (1976) and to obtain disability insurance benefits as provided in 42 U.S.C. § 423 (1976). The application was denied by the Administration after initial consideration and again following reconsideration. Upon claimant's request, an evidentiary hearing was held on October 18, 1977. The administrative law judge (ALJ) concluded that the claimant was not under a "disability" at any time prior to June 30, 1976, the last date that she was under the coverage of the Social Security Act. This decision was affirmed by the Appeals Council. This determination constituted a final decision under 42 U.S.C. § 405(g) (1976) which provides for judicial review by the district court. Pursuant to this provision, the claimant filed a complaint in the United States District Court for the Eastern District of Missouri. On December 14, 1978, the court granted the Secretary's motion for summary judgment based upon the magistrate's recommendation, to whom the motion had been referred. On appeal, claimant argues that the district court erred in finding the decision of the Secretary to deny her benefits was supported by substantial evidence on the record as a whole.

I

Claimant presented the following relevant evidence to the ALJ. Claimant testified that she was born on July 18, 1924, has a high school education, and has had vocational training in cosmetology. Her work record reveals no evidence that she was a malingerer. Claimant's prior employment experience includes working a punch press, being a waitress, and working as an apartment manager and payroll clerk. For approximately ten years claimant worked in Florida as a cosmetologist prior to moving to Missouri in 1973. From 1973 until April 9, 1974, claimant did billing and bookkeeping work for her husband, an auto mechanic. On the latter date, claimant was involved in a traffic accident.

On April 9, 1974, claimant's vehicle was struck from the rear by another automobile. Immediately after the collision, she was hospitalized from April 9 to April 30, 1974. Dr. James T. Farrell, D.O., diagnosed her injuries as ligamentous strain and vertebral trauma, especially in the low back, and radiating down the left and right legs. Doctors W. F. Luebbert, D.O., and B. C. Vermilyea, D.O., also examined the claimant during her stay at the hospital. Both found her to be suffering from lumbrosacral sprain. Dr. Vermilyea also noted some demineralization throughout the osseous structure and recommended traction and other therapy. According to Dr. Vermilyea, the claimant recovered satisfactorily from the accident.

In the latter part of 1974, claimant visited Dr. Udaya N. Dash, M.D., a board-certified orthopaedic surgeon, complaining of low back pain and left sciatica. Dr. Dash performed a laminectomy and spinal fusion between L-5, S-1, with removal of a disc from the L-5, S-1 interspace. According to Dr. Dash's written report of March 16, 1977, claimant "took a long time to recover from surgery but still had persistent pain in the back and lower extremities." About eight months later, claimant fell and broke her left wrist, which was treated by Dr. Dash on July 28, 1975.

On July 6, 1975, claimant was again hospitalized this time for an elective biopsy for lesion of the right breast and for excision of a ganglion on the right wrist. Dr. Rodriguez, M.D., performed the excision of the breast lesion, subsequently found to be non-malignant. Dr. Dash excised the wrist ganglion.

Claimant was again admitted to the hospital on June 25, 1976, with complaints of diffuse chest pains with questionable radiation to the neck and left arm. Dr. Rodriguez had the hospital perform a full panoply of tests, including an electrocardiogram, X-rays of the thoracic spine and skull, and an esophogram. The results of these tests were essentially negative, although Dr. Rodriguez diagnosed musculoskeletal and chest pain, mild hyperglycemia and acute sinusitis. The X-ray findings also demonstrated that the cervical spine had "no evidence of fracture, subluxation, or bone destruction."

On the date of claimant's discharge, July 3, 1976, Dr. Rodriguez summed up her condition as follows:

This patient has a history of previous orthopedic problems in the neck and back and hands and she was seen in consultation by Dr. Dash who did not advise any specific treatment. The general condition of the patient has been improved. She continued with vague generalized muscular pain and she was instructed that this pain is going to be there for awhile and should be treated symptomatically.

On January 30, 1977, over six months past claimant's last eligible date of disability coverage, claimant was readmitted to the hospital with urinary tract complaints, in addition to complaints of chest, neck and shoulder pain. Dr. Robert M. Maloney, M.D., had numerous tests performed, including chest X-rays, a pyelogram, nephrotomogram and renal arteriogram. Dr. Maloney, in consultation with Dr. Dash, concluded that the patient suffered from cervical radiculitis and partial ankylosis of the left wrist.

Less than a week later, on March 11, 1977, Dr. Dash again examined the claimant. Dr. Dash found that: "Neurological examination of both lower extremities did not reveal any motor, sensory or reflex deficit. X-rays of her cervical spine revealed nothing abnormal except osteoporosis. X-rays of the lumbar spine revealed that the spinal fusion between L-5, S-1 appeared solid." Despite these findings, Dr. Dash concluded that the claimant "is disabled because of (the) extensive nature of her pain in the back, neck, left wrist and both lower extremities." ¹

Finally, the claimant was hospitalized between October 20, 1977, and November 9, 1977, complaining of persistent chest pain, neck pain, pain in both upper extremities, and bladder problems. Upon Dr. Rodriguez's approval, a urethroplasty and urethropexy were performed by a urological surgeon as a result of a cystoscopic test which revealed urethral stenosis. The urologist concluded that the "(p)ost operative course was smooth * * * patient was discharged voiding well with good urinary stream and control." Also upon Dr. Rodriguez's recommendation, a neurologist examined the claimant and concluded that "(t)his patient has a possible cervical radiculitis" and recommended cervical traction. Upon Mrs. Wroblewski's discharge from the hospital on November 9, 1977, Dr. Rodriguez made the following final diagnosis: (1) stress incontinence; (2) chronic cervical radiculitis; (3) cervical strain; and (4) anxiety reaction with depression.

The claimant presented no expert medical witnesses at the administrative hearing. She and her attorney relied upon the written medical reports, summarized above, and her own testimony to establish her disability. See Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The claimant testified at the administrative hearing that she could no longer take care of a house, drive a car, participate in sporting activities, or engage in any other physical activities of any kind due to her inability to stand or sit for more than five minutes without the onslaught of great pain. Claimant further testified that her condition forced her to wear a back brace and remain in bed for at least half of each day.

Following the claimant's testimony, the Government presented an independent vocational expert, Dr. Arthur Smith. The ALJ asked the following hypothetical questions of Dr. Smith:

Q. Under the assumption that I will find from the medical evidence in this case, that there is no medical impediment to Mrs. Wroblewski performing light work activity, the same as described by you, do you know of any jobs that would exist in this region for which you feel that she is vocationally qualified to perform, based on her age, education, training, and background?

A. Well, the most obvious ones are those that she has already performed. She had functioned as a waitress * * *. And then her primary area, or occupational pursuit, that of cosmetologist, is classified light.

Q. Using the same assumption, only substituting the sedentary work activity for light work activity, what is your answer?

A. Again, going back to the types of work that she has done previously, which have sedentary classifications, that of payroll clerk, billing clerk * * *. These jobs fall into the category of sedentary occupations which would be within the range of her vocational capacity.

The claimant's attorney then cross-examined Dr. Smith:

Q. Physically, do you think that, from the testimony that you've heard, and any opinion you might have from the evidence as presented here today, do you think that she can gainfully perform any one of those jobs?

A. Cumulatively, if you pose a...