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SINGLETON v. SCHWEIKER

June 23, 1982

Earl SINGLETON
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services



The opinion of the court was delivered by: LORD, III

 JOSEPH S. LORD, III, District Judge.

 1. The Report and Recommendation is Approved and Adopted as the Opinion of the Court.

 2. The plaintiff's motion for summary judgment is DENIED.

 3. The defendant's motion for summary judgment is DENIED.

 4. The case is REMANDED to the defendant, Secretary of Health and Human Services for proceedings not inconsistent with this Opinion.

 REPORT -- RECOMMENDATION

 June 8, 1982.

 RICHARD A. POWERS, III, United States Magistrate.

 This is an action brought pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c) (3), to review the final decision of the Secretary denying the plaintiff's claim for disability benefits under Title II and Title XVI of the Social Security Act.

 The plaintiff, who is forty-three (43) years old, has an eleventh grade education (tr. 79), and work experience as a truck driver (tr. 35), was found disabled as of March 31, 1977 due to atypical pulmonary tuberculosis, diabetes mellitus and essential hypertension. (tr. 56).

 Upon re-evaluation of the plaintiff's case in January of 1980, the Secretary determined that the plaintiff had again become able to perform his usual occupation and was no longer disabled. (tr. 58, 60). Accordingly, the plaintiff was notified on March 5, 1980 that his Disability Insurance Benefits and Supplemental Security Income benefits would be terminated because of his improved condition. (tr. 61-64).

 The plaintiff appealed this determination (tr. 24), and the case was considered de novo by an Administrative Law Judge (ALJ), before whom the plaintiff appeared without an attorney on December 2, 1980. (tr. 25). Medical evidence at the hearing consisted of various medical reports which were made part of the record.

 The plaintiff was admitted to Misericordia Hospital from March to April, 1975, suffering from acute pancreatitis, pulmonary embolism, diabetes mellitus, acute and chronic alcohol abuse, and a urinary tract infection. (tr. 110-112). The plaintiff was admitted complaining of acute epigastric pain accompanied by nausea and vomiting. (tr. 110). At the time of his discharge it was noted that the plaintiff's symptoms had almost completely resolved and his condition was one of marked improvement. (tr. 111).

 Also included in the record are reports of the plaintiff's treatments as an outpatient at Misericordia Hospital from May of 1975 until April of 1977. (tr. 113-130). A lung scan taken May 27, 1975 was compared with one taken April 10, 1975 and stated that there was:

 
. . . still some decreased perfusion in the right lower lobe of the lung corresponding to the previously noted decreased perfusion in this area and to the haziness noted in the previous chest x-ray. The appearance of the scan, however, is markedly improved since the previous study. The area of decreased perfusion in the right apex is no longer seen in this examination. (tr. 128).

 An examination of the plaintiff's chest was conducted on November 24, 1976 and was again compared with the study of April 11, 1975. (tr. 120). The impression of W. Bichara, M.D. was that "the heart is borderline in size. There is patchy infiltrate in the right base with minimal blunting of the right costophrenic angle. The left costophrenic sinus is clear." (tr. 120). A third examination of the plaintiff's chest was conducted on March 9, 1977 and compared with that of November 24, 1976. (tr. 116). It was reported that:

 
. . . the heart is top limits of normal. The costophrenic sulci are clear. There is some residual fibrotic scarring seen in the right lower lobe. This was seen as well as an active infiltrate was seen on the previous study of 1/26/76 (sic). I do not see any evidence of an active infiltrate at this time. The lungs appear free of active inflammatory lung disease or pleural disease. (tr. 116).

 The plaintiff was treated at the Hospital of the University of Pennsylvania from February 9, 1978 until June 30, 1978. (tr. 131-134). A report of the plaintiff's chest dated June 30, 1978 states that its appearance is generally similar to prior films dating to January of 1978 in that:

 
. . . there are some cystic and somewhat nodular changes at the right base which improve (sic) very slightly over the earlier films. This patient reportedly has had atypical micro bacterium in his sputum and it seems quite likely that these changes represent atypical micro bacterium infection. There probably is (sic) one or several small cavities in the area as well. (tr. 131).

 The plaintiff was examined at the Thomas Jefferson University Hospital on September 10, 1978 and the diagnosis given was the following:

 
Curvilinear density, right lower lung field, which may represent residual parenchymal abscess or parenchymal scarring. Nodular densities of uncertain significance. (tr. 137).

 A pulmonary laboratory report from Thomas Jefferson University taken September 27, 1978 indicates "mild obstructive lung disease." (tr. 138). Specifically, the following interpretation was made: "FVC is slightly decreased. FEV [1]/FVC, FEV [3]/FVC are normal. MMEFR is moderately decreased. MMIFR is moderately decreased. MVV is slightly decreased. . . . The decreased MMIFR may be due to poor patient effort or upper airways obstruction." (tr. 138).

 The plaintiff was examined on December 4, 1978 by Harold Israel, M.D. whose report states that the plaintiff's chief complaints were weakness of the right leg and nerves. (tr. 151). The past medical history of the plaintiff revealed the following:

 
He admitted to having been a heavy drinker in the past. In 1974 he was hospitalized at Misericordia and found to have hepatitis, hypertension and diabetes. In 1978 he was in the hospital of the University of Pennsylvania with an acute lung abscess. After discharge, he noticed increased weakness of his right foot which had been injured by a bullet wound in 1973 and his family physician made a diagnosis of diabetic neuropathy. He was reexamined at the University of Pennsylvania Hospital and a brace was prescribed for his ...

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