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AQUINO v. HARRIS

April 17, 1981

Anna E. AQUINO
v.
Patricia Roberts HARRIS, Secretary of Health and Human Services



The opinion of the court was delivered by: GILES

MEMORANDUM AND ORDER

Anna Aquino, a widow and claimant, asserts entitlement to widow's insurance benefits under 42 U.S.C. ยง 402(e)(1)(B) (1976). *fn1" Claimant contends that she is above the age of fifty, but not yet 60, and the disabled widow of an individual who died fully insured. *fn2" This court has jurisdiction under 42 U.S.C. 405(g) (1976).

 Plaintiff has demonstrated by competent medical evidence, a report of Marvin E. Sultz, D.O., a treating doctor, that she cannot engage in her former employment as a waitress. (Record, Exhibit 16). In denying her claim, the Administrative Law Judge ("ALJ") relied upon a report of a consultative examination conducted by Thomas P. Obade, M.D., an orthopedic surgery specialist. (Record, Exhibit 12). Dr. Obade opined that plaintiff is a candidate only for a sedentary type of employment, if such is available to her within her level of education and training. Tr. 90. His examination by x-ray revealed pointing of the tibial spines of the knees and mild to moderate degenerative changes in the thoracic and lumbosacral spine manifested by spurring of the lumbar vertebral and dorsal vertebral bodies. He diagnosed dorsal and lumbar spondylosis and arthralgias of the knees and possible early degenerative joint disease of the knees. Based on his physical findings, Dr. Obade concluded that plaintiff is disabled from performing work that requires vigorous physical activity. Although the ALJ relied completely upon Dr. Obade's report, it is apparent upon reading it that he saw her only once and did not discount plaintiff's complaints of disabling pain in rendering his opinion. He noted at the beginning of his report that:

 
The patient has a several year history of pain in the low back and dorsal spine area. She has no neurological symptoms of the extremities. She does have chronic pain diffusely about both knees. She is being treated by her family physician, Dr. Pellegrino, apparently with Ascripton. This seems to relieve her symptoms somewhat.

 Tr. 89. This statement must be read as deferring to the treating physician's, diagnosis and treatment of the pain symptomatology. At no point in his report does Dr. Obade conclude that his physical findings by x-ray are not consistent with disabling pain.

 Plaintiff was hospitalized in May, 1977, being admitted through the emergency room of West Jersey Hospital, where she had gone on her own, after complaints of two months of chronic severe right flank and right upper quadrant pain. (Record, Exhibit 8). All possible explanations for the pain were objectively excluded except that marked degenerative changes in her dorsal and lumbar spine were clearly implicated. She had persistent pain throughout the ten days hospitalization period and was discharged before she recovered because she had received the maximum hospital course of treatment. Chronic pain on discharge is corroborated by Dr. Pellegrino's prescription of Tylenol # 3, a very strong pain-killer.

 Incomprehensibly, and improperly, the ALJ attempts to discredit Dr. Pellegrino's report of his hospital diagnosis of severe degenerative arthritis of D8 through D12 and L1 (Record, Exhibit 17) by stating:

 
While he implies her admission as due to severe degenerative arthritis from T8 down to L1 (Exhibit 11), the hospital record (Exhibit 8) shows her stay, which was from May 31, 1977 to June 10, 1977, was due to "severe right flank pain.' The examinations did reveal severe (or marked) degenerative changes of the dorsal spine at L-1. X-rays also showed minimal changes at L4. She was discharged by Dr. Pellegrino on Tylenol # 3 after treatment which included a thorough examination, compresses and muscle relaxants (Exhibit 8, page 1). The attorney brought to the hearing a letter he secured from the physician stating "At that time a diagnosis of severe degenerative arthritis of D8 through D12 and L1 was made' for which he prescribed Ascripton (Exhibit 17). It is noted that Dr. Pellegrino's diagnosis does not agree with that of Dr. Steel who read the x-ray films nor his own discharge diagnosis (Exhibit 8 pages 1 and 6).

 Tr. at 10.

 First, this discussion overlooks the fact that Dr. Pellegrino did not admit her. She went to the hospital emergency service on her own and only thereafter came onto his service. (Tr. 76). While the ALJ states that Dr. Pellegrino's diagnosis does not agree with that of the West Jersey Hospital radiologist, R. C. Steel, M.D., however, the ALJ fails to state in what respect the x-ray readings differ. Dr. Steel concluded:

 
AP and lateral views of the dorsal lumbosacral spine shows no change since the previous study done on 5/11/77. Again there is evidence of moderately severe hypertrophic changes in the mid to lower dorsal spine although more extensive in the lower dorsal spine. There are also some hypertrophic changes involving L1 and a minimal amount involving L4. The intervertebral spaces are well maintained and there is no evidence of any spondylolysis or spondylolisthesis. There are no destructive changes. No other significant findings were noted.
 
CONCLUSION: MODERATELY SEVERE DEGENERATIVE CHANGES INVOLVING THE LOWER DORSAL SPINE INCLUDING L1. MINIMAL DEGENERATIVE CHANGE INVOLVING L4. (Emphasis added).

 (Tr. 82).

 The record is void of the radiologist's qualifications such that he should be credited over the treating physician, Dr. Pellegrino. For example, it is not known if Dr. Steel is an orthopedic specialist. It is noted that while Dr. Steel concluded there was no radiologic evidence of spondyloysis, Dr. Obade, who was credited by the ALJ, did diagnose that very condition from x-rays he took. Dr. Steel's report refers to x-rays previously taken for which a report is not included in this record, namely the study done on May 11, 1977.

 A close reading of Dr. Steel's report fails to disclose any significant inconsistency with Dr. Pellegrino's diagnosis upon discharge. The discharge summary reflects the conclusion of severe degenerative changes of the dorsal spine including L1. (Record, Exhibit 8).

 Incomprehensively, the ALJ concluded that Dr. Pellegrino's letter of July 10, 1979 (Record, Exhibit 17) was inconsistent with his discharge diagnosis of November 26, 1977. Dr. Steel found "moderately severe hypertrophic changes in the mid to lower dorsal spine although more extensive in the lower dorsal spine. This would include L1. Dr. Pellegrino's discharge summary necessarily incorporated by reference the x-rays studies by Dr. Steel.

 On July 10, 1979, Dr. Pellegrino was continuing to treat plaintiff on a post-hospitalization basis. That he then may have given a more detailed explanation of the hospital x-ray findings is not a rational basis for a finding or inference by the ALJ either that Dr. Pellegrino was not credible or that his letter was inconsistent with his prior discharge summary or Dr. Steel's report. In fact, Dr. Pellegrino's x-ray readings would appear to agree with Dr. Obade's who also found mild to moderate degenerative changes of the thoracic and lumbosacral spine manifested by spurring of lumbar vertebral and dorsal vertebral bodies. (Record, Exhibit 12, dated March 14, 1979). Dr. Pellegrino's diagnosis was severe or marked degenerative arthritic changes through L1. If the ALJ credited Dr. Obade's x-ray findings over Dr. Pellegrino's it was incumbent upon him to state in what particulars and why the difference was objectively significant. This was not done in this case.


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