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SHARP v. BOWEN

February 1, 1989

ROBERT D. SHARP, Plaintiff,
v.
OTIS R. BOWEN, M.D., Secretary of Health and Human Services, Defendant


Maurice B. Cohill, Jr., Chief United States District Judge.


The opinion of the court was delivered by: COHILL, JR.

MAURICE B. COHILL, JR., CHIEF UNITED STATES DISTRICT JUDGE

 This case is before us on appeal from a final decision by the defendant Secretary of Health and Human Services denying the plaintiff Robert D. Sharp's claim for disability insurance benefits and Supplemental Security Income. The parties have submitted cross motions for summary judgment. For the reasons stated below, we will reverse the decision of the Secretary, and enter judgment in favor of the plaintiff and against the defendant.

 I. PROCEDURAL HISTORY

 On July 24, 1986, the plaintiff applied for disability insurance benefits and Supplemental Security Income alleging that he had been disabled since November 24, 1978, due to uncontrollable diabetes and neurovascular disease. The Secretary denied the plaintiff's applications initially and on reconsideration. After a de novo hearing held on December 15, 1987, the Administrative Law Judge ("ALJ") determined that the plaintiff was not disabled. The Appeals Council declined to review the ALJ's decision on August 12, 1988, and this appeal followed.

 II. FACTS

 The plaintiff was born on January 17, 1954. T.33. Although he did not receive a high school diploma, he did receive a graduate equivalency diploma in 1976, after completing the eighth grade. T.34. The plaintiff's most recent job was as a security guard. T.35-36. His job duties consisted of patrolling the grounds of the facility, and lifting doors which weighed approximately sixty pounds. T.53. The plaintiff last worked as a security guard in 1987 for three weeks T.39. During his employment, he developed an ulcer on his toe which required surgery. Id. Upon discharge, he was instructed to abstain from wearing shoes, and, as a result, the plaintiff terminated his employment. Id. Prior to his job as a security guard, he worked as a baker and a cook. T.37.

 The plaintiff suffers from diabetes with recurrent ketoacidosis T.41, 54, 62. Approximately three or four times a month, he goes into diabetic shock which lasts from a half a day to a day. T.55. The diabetic shocks result in temper outbursts, shakiness, headaches, dehydration, frequent urination, dizziness, weakness, nausea, vomiting and blurry vision. T.41-42, 54. In an attempt to control his diabetes, the plaintiff takes fifty units of NPH human insulin and ten units of regular insulin in the morning, and sixty units of MPH insulin in the evening. T.39.

 In addition, the plaintiff has neuropathy in his legs and stomach, a stomach ulcer, gastritis and duodenitis, stripping of multiple recurrent varicose veins primarily in his right leg, and an ulcer on his right big toe. T.40-43, 62. His stomach ulcer, compounded by his diabetes, causes the plaintiff to vomit blood, and in an attempt to control the ulcer, he takes zantac. T.41. His vomiting spells occur approximately three times per month, and they last for up to fifteen hours at a time. T.42.

 The plaintiff also testified that he has a mental disorder which causes him to ". . . just snap out. I'll just yell at (people) for really no, you know, purpose at all." T.43. Although these temper outbursts occur about six times per month, as of the date of the hearing, the plaintiff was not undergoing psychiatric treatment or counseling. Id.

 The plaintiff's urine retention problems prevent him from sleeping continuously through the night; he sleeps about four hours per night, and often naps during the day. T.44. The plaintiff can walk three blocks and stand for forty minutes before his ankles and legs begin to swell. T.44-45. However, he can sit without difficulty. T.45. The heaviest object that he had lifted within a year of his hearing was his niece, who weighed twenty-six pounds. Id.

 The plaintiff leads an active social life. He occasionally attends church, and the summer preceding the hearing, he went fishing approximately five times for two or three hours at a time. T.49. The plaintiff is a train collector and enjoys playing cards. Id. In addition, he goes camping with his mother and likes to see movies. T.50. The plaintiff is engaged to be married, and he and his fiancee visit his mother, brother and sisters on a regular basis. T.51.

 III. MEDICAL EVIDENCE

 A review of the medical evidence reveals that, since 1978, the plaintiff has been in the hospital approximately thirty times for treatment of his multiple physical and mental impairments. He was first hospitalized on November 24, 1978. T.201. The plaintiff's physician reported that he was in obvious physical distress, and noted that the plaintiff had varicose veins in both lower extremities. Id. Commenting on the plaintiff's high dosage of insulin, the doctor explained that because the plaintiff refused to reduce his caloric intake to 2000 calories, he had to take higher dosages of insulin to control his diabetes. Id. The plaintiff was discharged on December 5, 1978. Id.

 The plaintiff returned to the hospital on January 12, 1979. T.211. He was diagnosed as having uncontrolled diabetes mellitus, varicosities of both legs, irritable bowel syndrome, antisocial personality and reactive depression. Id. The doctor stated that the plaintiff was an irritable and repulsive male who exhibited a resentful attitude towards the medical staff. T.213. The plaintiff was discharged on January 31, 1979, with instructions to maintain an 1800 caloric diabetic diet, and to take forty units of NPH insulin. Id.

 From February 2, 1979, until February 14, 1979, the plaintiff was in the hospital for uncontrolled severe diabetes mellitus and bilateral varicose veins. T.235. He complained of severe abdominal pain, and underwent bilateral vein stripping. T.236. In addition, he saw a psychiatrist who diagnosed him as a marked sociopathic personality. Id. T.235.

 The plaintiff's next hospitalization occurred on June 7, 1979, when the plaintiff complained of weakness and abdominal pain. T.250, 253. After making threats of suicide, the plaintiff was transferred to the psychiatric unit, where he was treated by A. W. Hahn, M.D. T.251. Dr. Hahn diagnosed the plaintiff as a sociopathic personality who had high dependency needs, and who intentionally refused to use his medication and control his diet in order to get attention. T.251. He concluded that the plaintiff's diabetes was out of control because of his uncooperativeness. Id. He linked the plaintiff's mental impairment to his unstable diabetes, indicating that until the plaintiff received psychiatric treatment, his diabetes would remain unstable. Id. However, for unexplained reasons, Dr. Hahn recommended that the plaintiff refrain from immediately seeking mental health care. Id. Dr. Hahn discharged the plaintiff on July 17, 1979, and listed the plaintiff's prognosis for recovery as poor. T.252.

 On March 8, 1980, the plaintiff was hospitalized for out of control diabetes. T.284. S. Zafar, M.D., reported that the plaintiff had varicose veins and urinary incontinence, and he noted that the plaintiff had a history of noncompliance and uncooperativeness in controlling his disease. T.285. The plaintiff left the hospital ten days later.

 On April 22, 1980, the plaintiff had not taken his insulin, nor eaten for two days. He developed diarrhea and vomiting and was admitted to Butler County Memorial Hospital. T.286. The plaintiff's treating physician reported that the plaintiff was extremely uncooperative, and that his mental problem complicated effective management of his physical impairment. Id. The plaintiff was released on May 19, 1980. Id.

 On December 9, 1980, the plaintiff was admitted to St. Francis General Hospital with diabetic ketoacidosis. T.299. Dr. Zafar noted that the plaintiff had a severe compliance problem, and that his prognosis for recovery was fair at best. T.300. In addition, the doctor reported that the plaintiff had a history of peptic ulcer disease. Id. The plaintiff was discharged on December 19, 1980.

 The plaintiff was admitted to Fulton County Medical Center on February 27, 1981, with diabetic ketoacidosis, a peptic ulcer and a small scrotal abscess. T.301. The doctor reported that the plaintiff was in acute respiratory distress and diabetic ketoacidosis. The plaintiff stated that he had been nauseous for two days, and thus had failed to take his insulin. Id. The plaintiff's condition was stabilized with no complications, and on March 6, 1981, the plaintiff was discharged in an improved condition. Id.

 On May 4, 1981, the plaintiff again went to Fulton County Medical Center to receive treatment for his severe diabetic ketoacidosis. T.313. The plaintiff stated that he awoke that morning feeling ill, and ate very little. T.315. However, he took his insulin. Later that day he began vomiting and experiencing abdominal pain. Id. He was diagnosed as having diabetic ketoacidosis, gastritis and an upper respiratory infection. The plaintiff was discharged on May 15, 1981. Id.

 The plaintiff's next hospital admission occurred on June 28, 1981, at which time he underwent varicose vein stripping on the right leg. T.332. He was discharged on July 8, 1981, with instructions to report back to the doctor on July 16, 1981. T.333. The doctor anticipated that the plaintiff would undergo the same treatment on his left leg in four to six weeks. Id.

 On August 15, 1981, the plaintiff was readmitted to the hospital for recurrent varicose veins of the right leg. T.336. He underwent ligation and stripping of the veins on August 17, 1981, at which time an epithelioma of the left groin was excised. T.337. On August 28, 1981, the doctor performed a cystoscopic examination and discovered a hemorrhagic cyst with posterior urethritis and a neurogenic bladder. Id. In addition, the doctor reported that the plaintiff became depressed and suicidal and received psychiatric treatment. Id. On September 9, 1981, the plaintiff was discharged. T.338.

 The plaintiff was next admitted to the hospital on March 2, 1982, at which time he was diagnosed as having uncontrolled diabetes mellitus and streptococcal pharyngitis. T.340. Dr. Zafar noted that the plaintiff was highly noncompliant, and he doubted that the plaintiff would report for his follow-up examination. Id. The plaintiff was discharged on March 8, 1982.

 On March 14, 1982, the plaintiff went to the hospital to have a tonsillectomy performed and on March 17, 1982, he was discharged. T.342.

 After a one year hiatus, the plaintiff returned to the hospital on August 31, 1984, complaining of dizziness, nausea, blurry vision, headaches, vomiting, weakness and fatigue. T.344. The doctor diagnosed the plaintiff as having diabetes mellitus and diabetic neuropathy of the lower extremities. Id. He was discharged on September 6, 1984.

 One week later, on September 14, 1984, the plaintiff went to the hospital emergency room, complaining of abdominal pain and very loose stools. T.346. The doctor noted that the plaintiff was very combative. Id. The plaintiff was discharged on September 18, 1984.

 On August 22, 1985, the plaintiff voluntarily went to St. Francis Hospital for depression, poor impulse control, and threatening behavior. T.348. The plaintiff stated that he had been undergoing treatment for depression for the last seven months at St. Margaret's hospital, and that he was taking norpramin, an antidepressant medication, to control his depression. According to the plaintiff, a violent argument with his wife triggered his admission. Id.


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