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ATKINS v. BOWEN

June 28, 1988

Nancy Atkins
v.
Otis R. Bowen, M.D., Secretary of Health and Human Services



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE.

 I have before me cross-motions for summary judgment in a Social Security disability case. For the following reasons, the plaintiff's motion will be granted and the Secretary of Health and Human Services' (Secretary) motion will be denied.

 I. FACTUAL BACKGROUND

 A. MEDICAL HISTORY

 The plaintiff was born on June 5, 1938 and was 47 years old at the time of the administrative hearing. Plaintiff has a tenth grade education and has past relevant work experience as a procurement clerk in the garment industry (R. 40-43). The plaintiff claims that three infirmities render her disabled as defined in the Social Security Act ("Act"), 42 U.S.C. §§ 301-1382 (1982).

 On March 27, 1985, plaintiff underwent an audiologic analysis with Dr. Alan Berger. The hearing test showed negative pure tone stingers at 500, 1k and 2k: 8 to 2, left profound sensory-neural hearing loss, and no response to sound in the left ear. (R. 111-12). In lay terms, the plaintiff is completely deaf in the left ear, but has hearing in the right ear. *fn1" This condition has caused vertigo, disequalibrium, and tinnitus (R. 111) which leave the plaintiff constantly dizzy and has caused her to fall. (R. 52).

 In a report dated March 19, 1985, Dr. John Duda stated that the plaintiff was under his care for moderately advanced arthritis of the right knee. Dr. Duda further reported that plaintiff's condition was sufficiently severe to limit her ability to stoop, bend, kneel, and climb stairs, but that "she should certainly be able to be employed in a sedentary position where requirements do not necessitate lifting over 10-15 lbs., or the above noted restrictions." (R. 110). On April 3, 1985, the plaintiff's condition apparently became so severe that Dr. Duda was required to perform an arthroscopy, lavage and synovial biopsy of the right knee which revealed diffuse degenerative changes in all three compartments and synovitis. Degenerative changes were also noted in both menisci. (R. 144).

 Plaintiff was then examined by Dr. Bruce Hoffman on July 8, 1985. In his report dated July 24, 1985, Dr. Hoffman states that X-rays showed "mild to moderate osteoarthritis of the knees, with medial joint space narrowing and osteophyte formations." (R. 136). Further tests revealed that her right knee was slightly swollen, with minimal warmth and mild tenderness, but that she was otherwise stable with no swelling in other joints. (R. 136).

 On August 23, 1985, plaintiff's condition had apparently degenerated to the point that Dr. Duda was required to perform an uncemented total knee arthroplasty on the right knee (surgical replacement of the knee). (R. 145-46). On October 8, 1985, Dr. George McLaughlin examined the plaintiff and reported that she looked much better overall, and on January 21, 1986, he reported that she looked good and walked well. (R. 166).

 The Secretary's consultative physician, Dr. Donald Lieberman, then examined the plaintiff on January 28, 1986. In his summary, Dr. Lieberman observed that:

 
This patient complains of severe pain in multiple joints. In truth, I can find very little synovitis of her joints although the range of motion is extremely painful from the shoulders and wrists. She did show evidence of carpal tunnel syndrome bilaterally with the right being greater than the left as evidenced by a positive Tinnel's sign.
 
I was unable to move her joints especially the knees, without severe pain. The right knee was much more painful than the left.
 
It is uncommon to have a patient with severe rheumatoid arthritis without marked synovitis, however, occasionally the disease is limited to one or two joints. She does have a positive rheumatoid factor. Her synovium did show synovitis on biopsy. She did have an elevated sed rate and I believe this patient does in fact, have rheumatoid arthritis.
 
She is on Plaquenil. She has been on gold and she is on Prednisone as well. I do believe that her inability to ambulate is quite severe and that the patient was not performing unduly for me.

 (R. 172) (emphasis added).

 The plaintiff then underwent an arthroscopy of her left knee on September 10, 1986, which indicated rheumatoid arthritis and has forced the plaintiff to wear a rubber knee brace on her left knee and an air cast on her left ankle. (R. 189). Finally, Dr. Duda stated in a letter dated December 29, 1986 that, because of probable loosening at the bone prosthetic interface of ...


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