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DRAGUN v. HECKLER

January 30, 1985

Lawrence DRAGUN, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Department of Health and Human Services, Defendant



The opinion of the court was delivered by: ROSENBERG; MITCHELL

 This supplements the opinion of the United States Magistrate in the above entitled case.

 The plaintiff testified before the administrative law judge that he was 61 years of age and was injured on May 2, 1980 when he was struck by a beam; that he had pain in the back of his head where he was struck and becomes light-headed several times during the week; that he has lost interest and is unable to concentrate; that he does not wish to associate with anyone; that he has memory problems and that he takes medication.

 The plaintiff's wife testified that he was unable to perform household repairs; that he had become short tempered and sometimes stayed in his room when there were visitors.

 Medical testimony was to the effect that he was treated at St. Margaret Memorial Hospital emergency room after a shelf hit him on the head; that he was treated after he had passed out; that he had had a CAT scan which was normal, and at the Harmarville Rehabilitation Center the neurological tests and examination were negative and it was determined he could return to work.

 Dr. Allen E. Lebovitz, a psychiatrist, certified he was unable to work because of depression. Dr. David L. Spence reported that the diagnosis was post traumatic neurosis directly attributable to the plaintiff's accident and that the plaintiff's overall mood was one of depression with associated agitation and high anxiety level. Dr. R. J. Bender, a family physician, stated the plaintiff was unable to work due to headaches, dizziness and vertigo. Dr. Lebovitz's diagnosis was depressive reaction and concluded that the plaintiff was totally incapacitated. Dr. Robert Baraff, a psychiatrist and neurologist, reported a normal neurological examination and that the plaintiff suffered from a cerebral concussion, vasovagal syncope, depression and chronic headaches. It was noted that the examination of the skull-X-ray, brain scan, electroencephalogram and back X-rays were normal. No aphasia, dysarthria or dementia were noted by the Secretary, and his daily activities, interests and ability to relate were not constricted.

 The Secretary said, "The severity of these impairments does not meet or equal a listing in the listing of impairments." The Secretary further noted, "Claimant retains the functional capacity for a limited range of light work."

 Where there are contradictions between medical experts, it would seem that the evidence of the plaintiff should be considered by the administrative law judge with great discernment. The plaintiff's evidence should be considered with neutrality but with judicial concern for the plaintiff's capability of performing gainful employment.

 In the Secretary's conclusion she said, ". . . the claimant by virtue of his symptomatology does show evidence of a conversion hysteria reaction, in particular in relation to his fears of significant climbing and fear of falling off a crane or cranes . . .". She, nevertheless, accepts the evidence of the Board-Certified Neurologist and Psychiatrist, Dr. Baraff that "the claimant's conditions are essentially normal". She further recognized that the claimant "has been complaining of dizzy spells and of chronic headaches and depression and of upper back and neck pains . . .".

 She also finds that "Social Security disability purposes warrants a finding within the framework of Section 404.1520(c) that the claimant is not suffering from a sufficiently severe physical, neurological or mental status impairment so as to significantly limit his physical or mental ability to do basic work activities". On this basis the Secretary affirms the finding of the administrative law judge and the Appeals Council.

 In the Report and Recommendation of the Magistrate that this matter be referred back to the Secretary for "further evaluation and consideration", it would seem that the Secretary should recognize the fact that the disease, from which she admits the claimant suffers, is depression.

 Webster's Third New International Dictionary, Unabridged, 1971, at page 606, defines the disease of depression of a human being as: "(4) a mental disorder of psychoneurotic or psychotic proportions characterized by sadness, retardation of motor and certain vegetative processes, feelings of inadequacy and self-depreciation and often by suicidal attempts ".

 Because the claimant's doctors asserted under oath that his condition was of such a character as to prevent him from performing gainful employment, the claimant's complaint should be more thoroughly researched in order to determine the kind and character of depression from which the claimant suffers and what there is that would prevent him from performing any kind of gainful employment.

 While conflicting medical evidence and credibility of the experts rests with the Secretary, Gober v. Matthews, 574 F.2d 772, C.A.3, 1978, this of necessity in large measure must be resolved by subjective evidence, Baerga v. Richardson, 500 F.2d 309, C.A.3, 1974.

 In The Merck Manual, Fourteenth Edition (1982), at page 1448, Chapter 146, Affective Disorders, there is a long and thorough discussion of psychiatric conditions "in which a disturbance of affect or mood is either a primary determinant of the psychopathologic state or constitutes its core manifestations".

 This is not a matter in which a layman can have understanding or make instantaneous conclusions from the testimony of an expert in this field. As for instance, when a person takes alcohol and sedatives in a sufficient amount, it may debilitate that person and make that person incapable of performing any kind of employment. Likewise, it may be that this mental disease of depression may be of such a character as to incapacitate a person not only in varying degrees but totally, and that is a matter which should be set to rest by experts, and from the testimony of the one afflicted by the disease.

 It is therefore, for this reason that I accept the determination of the Magistrate to remand the matter to the Secretary for further inquiry, evaluation and consideration.

 MAGISTRATE'S REPORT AND RECOMMENDATION

 January 8, 1985

 ROBERT C. MITCHELL, United States ...


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