The opinion of the court was delivered by: LUONGO
This case is before me on cross-motions for summary judgment filed pursuant to 42 U.S.C. § 405(g).
On September 24, 1981, plaintiff filed an application for Widow's Insurance Benefits because of disability caused by a radical mastectomy, migraine headaches, and spinal arthritis. This application was denied after a hearing before an Administrative Law Judge (ALJ). Both parties filed motions seeking summary judgment which I referred to Magistrate Powers. His Report and Recommendation is attached. I adopt that report with the modifications made by this memorandum.
I agree fully with Magistrate Powers' evaluation of the record and of the ALJ's decision. Magistrate Powers found, contrary to the ALJ, that plaintiff did meet the standard of disability for widows in that she was incapable of performing any gainful activity. 20 C.F.R. §§ 404.1577-.1578. In evaluating plaintiff's impairments in accordance with 20 C.F.R. § 404.1526 (1983), Magistrate Powers reviewed the symptoms, signs and laboratory findings of plaintiff's impairments and found plaintiff disabled under Section 12.04, Functional Nonpsychotic Disorders,
in the Listing of Impairments, 20 C.F.R. § 404.1598. While plaintiff may qualify as disabled under this listing, I believe a more relevant listing exists under which plaintiff is clearly disabled. The listings under Section 13.00 enumerate the criteria for disability associated with various types of malignancy. As the ALJ found, plaintiff does not meet the criteria under Section 13.09 for carcinoma of the breast since she is currently free of this disease. The ALJ, however, did not consider the portion of Section 13.00 which deals with the residual effects of the treatment of malignancies.
D. Effects of Therapy. Significant post-therapeutic residuals, not specifically included in the category of impairments for malignant neoplasms, should be evaluated according to the affected body system.
Where the impairment is not listed in the Listing of Impairments and is not medically equivalent to a listed impairment, the impact of any residual impairment including that caused by therapy must be considered. The therapeutic regimen and consequent adverse response to therapy may vary widely; therefore, each case must be considered on an individual basis. It is essential to obtain a specific description of the therapeutic regimen, including the drugs given, dosage, frequency of drug administration, and plans for continued drug administration. It is necessary to obtain a description of the complications or any other adverse response to therapy such as nausea, vomiting, diarrhea, weakness, dermatologic disorders, or reactive mental disorders. Since the severity of the adverse effects of anticancer chemotherapy may change during the period of drug administration, the decision regarding the impact of drug therapy should be based on a sufficient period of therapy to permit proper consideration.
Plaintiff suffers from several problems caused by the treatment of her breast cancer by surgery, radiation and chemotherapy. Lymphedema of the right arm produces constant discomfort or pain and this condition, plus the Jobst sleeve worn to ameliorate it, significantly restricts plaintiff's use of this arm. In addition, because of the removal of the lymph glands, plaintiff's arm becomes easily infected. Plaintiff is also required to continue receiving chemotherapy once every four weeks and will continue to do so for the remainder of her life. These treatments result in nausea, vomiting and weakness for 2-3 days. Plaintiff also suffers from a reactive depression, with its related symptomology, at least partially in response to the continued chemotherapy and the anxiety about the reoccurrence of a malignancy that it engenders.
In addition to these problems, plaintiff's problems include frequent migraine headaches and osteoarthritis of the spine. These conditions add to plaintiff's pain, the restrictions of her activities and her depression. In determining disability, all of plaintiff's impairments are to be considered together. 20 C.F.R. § 404.1522 (1983).
It is clear that plaintiff is incapable of performing any gainful activity. Because there is no evidence to the contrary sufficient to raise an issue of fact,
I will enter summary judgment for plaintiff. The case will be remanded for the entry of an award of disability benefits. Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979).
This 12th day of March, 1984, after careful and independent consideration of the cross-motions for summary judgment, and after review of the entire administrative record and the Report and Recommendation of the United States Magistrate, to which no objections have been filed, it is
1. The Report and Recommendation is APPROVED and ADOPTED, as modified in the ...