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KELLAM v. BOWEN

March 10, 1987

Clarence R. Kellam
v.
Otis R. Bowen, M.D., Secretary of Health and Human Services



The opinion of the court was delivered by: POLLAK

 POLLAK, J.

 This action was brought pursuant to 42 U.S.C. ยง 405(g) to review the final decision of the Secretary of Health and Human Services (the Secretary) denying the plaintiff's application for disability benefits under Title II of the Social Security Act. Presently before the court are the parties' cross-motions for summary judgment.

 FACTS

 A. The Hearing Testimony

 Plaintiff was born on April 23, 1943, and at the time of the hearing he was 41 years old. He stopped attending highschool at age 19, after he completed the eleventh grade. He has worked as a laborer at a number of jobs.

 Plaintiff alleges that he has been unable to work since November of 1980 because of gout (Tr. 60-61, 99). He testified that he suffered gout attacks in his ankles, elbows, toes and fingers, and, more recently, in his back (Tr. 60, 64-67). According to plaintiff's testimony, his illness is extremely debilitating. Plaintiff stated that he was incapable of doing even small household chores, and had to rely on his friend and apartment-mate, Miss Bynum, and a neighbor to do those chores and to shop for him (Tr. 67). Since the onset of the gout, plaintiff testified, he has engaged in no regular activities (Tr. 67). He spends most of his days lying down watching television (Tr. 67). Plaintiff stated that he frequently could not walk without the aid of crutches or Miss Bynum's arm -- even from his bedroom to the bathroom -- and that he sometimes had to crawl to the bathroom or use a makeshift bedpan. (Tr. 69-73) Plaintiff is apprehensive about falling and worsening his injuries (Tr. 68).

 Plaintiff described his pain as "throbbing" and worse than a toothache (Tr. 69-70). According to plaintiff, he is often in intense pain when merely sitting or lying down (Tr. 69-70). He distinguished between "hard attacks," when both of his legs stiffen and he is unable to bend and he must go to the hospital (Tr. 74), and the more routine pain he feels almost every day (Tr. 61). He told the ALJ that he was taking Indosin, Motrin, Tylenol and Mylanta, and that these drugs sometimes stop the pain for a couple of hours (Tr. 63).

 Miss Bynum corroborated much of plaintiff's testimony. She testified that she cooked, cleaned and shopped for plaintiff and put hot and cold compresses on his legs when they were bothering him (Tr. 76). She described plaintiff's ankles, in their worst shape, as "grotesque," as if plaintiff were suffering from elephantiasis, and stated that plaintiff was in constant pain and moaned frequently (Tr. 77). Miss Bynum suggested that plaintiff's condition had worsened considerably since September of 1983, though she was aware that he had suffered some attacks before that time.

 B. The Medical Evidence

 Plaintiff first sought medical treatment for his "painfully swollen ankle," which he had fractured in 1969 and sprained several times thereafter, from Dr. DeGovann on October 11, 1978 (Tr. 168). Dr. DeGovann took x-rays which revealed "a significant amount of Osteoarthritis" (Tr. 168) (emphasis in original).

 On November 22, 1982, the Disability Department contacted Dr. DeGovann as plaintiff's treating physician. The Department's Report of Contact (Tr. 125-27) reveals that Dr. DeGovann diagnosed plaintiff as having generalized arthritis in both legs which afflicted him most severely in his right ankle (Tr. 126). The doctor reported that "a range of motion," weather changes, and ambulation caused plaintiff pain, but that he had not required surgery or hospitalization and walked, with difficulty, without assistance devices (Tr. 125-26). Dr. DeGovann noted that plaintiff's condition had progressively worsened and he predicted that that trend would continue (Tr. 125-26). Dr. DeGovann, who saw plaintiff periodically after the initial visit, concluded the following in a report dated August 1, 1983:

 
the fracture, subsequent healing, and arthritic changes have permanently damaged the ankle to the point where excessive standing and walking has and always will cause severe pain and swelling. Prognosis: As the ...

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