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ORTIZ v. SHALALA

June 16, 1994

NISAEL ORTIZ
v.
DONNA E. SHALALA, M.D., Secretary of Health and Human Services



The opinion of the court was delivered by: JAMES T. GILES

 GILES, J.

 Nisael Ortiz brings this action pursuant to 42 U.S.C. § 405(g), for review of the final decision of the Secretary of Health and Human Services ("Secretary") denying his claim for supplemental security income benefits under Title XVI of the Social Security Act ("Act"). The parties have filed cross motions for summary judgment. For the following reasons, the plaintiff's motion is GRANTED and the defendant's motion is DENIED. Judgment is entered for the plaintiff and the decision of the Secretary is REVERSED.

 PROCEDURAL BACKGROUND

 On March 22, 1991, Ortiz filed a claim with the Social Security Administration for Social Security Disability Benefits under the provisions of 20 C.F.R. Sections 404.900-404.906, alleging disability as of April 25, 1990 because of pain and complications following six surgical procedures performed on his bladder. After denials of his application, he filed a timely Request for Reconsideration, which was denied on or about July 23, 1991.

 On July 30, 1991, Ortiz filed a timely request for a hearing before an Administrative Law Judge. On December 9, 1991, a preliminary hearing was held before the Honorable Robert S. Steiner. After hearing testimony from Ortiz and his wife, Onelia Ortiz, Judge Steiner vacated the prior adverse reconsideration determination and remanded the case for evaluation of a possible mental impairment.

 On May 20, 1992, a Revised Reconsideration Determination was issued that denied Ortiz's application for benefits. Ortiz filed a timely Request for a Hearing, and appeared before the Honorable George C. Yatron on October 5, 1992. Judge Yatron determined that Ortiz was not disabled within the meaning of the Social Security Act. On October 21, 1993, the Appeals Council denied Ortiz's timely Request for Review of the ALJ's determination. Ortiz filed an appeal in the district court pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1383(c)(3).

 FACTS

 Nisael Ortiz was born in Puerto Rico on April 11, 1963. At the time of his administrative hearing he was 29 years old, making him a "younger person" under the Social Security Regulations, 20 C.F.R. Sections 404.1563(b), 416. 964(b). He has a high school education and vocational training as a welder. The record indicates that he is unable to read and write in English and does not speak it proficiently (R. 11).

 Until January of 1991, when Ortiz had his first surgical procedure, he was employed in a variety of positions at the medium to heavy exertional levels, including jobs as an industrial laundry machine operator, a loading dock worker for the U.S. Postal Service, a welder, a pipe caster and a fruit picker. (R. 111-27, 132). Ortiz experienced failing health during much of his employment history and was forced to stop working on January 18, 1991. Ortiz testified that he became disabled due to constant pain in his waist, bleeding upon urination, impotence, swelling of the legs and testicles, diarrhea, constipation, urinary incontinence, pain with sitting, standing, and walking and hemorrhoids. Ortiz also suffers from depression, allegedly related to his medical problems. (R. 11-13, 128).

 Due to the pain he was experiencing, Ortiz was admitted to St. Luke's Hospital for a "cystoscopy," a surgical procedure for examining the bladder and urethra. Suspecting a tumor in his bladder because of the type and location of Ortiz's extreme pain, the surgeons also performed a biopsy. In an April 14, 1991 letter, Dr. Gadbois, a urologist at St. Luke's, stated that the cystoscopy "revealed an angry, apparently malignant bladder tumor occupying the hemi-trigone of the bladder extending posteriorly up along the bladder wall." He stated that Ortiz's symptoms were "almost incapacitating in nature" and referred him to Dr. Allen Wein, Chairman of Urology at the Hospital of the University of Pennsylvania.

 On October 16, 1990 Ortiz was again admitted to the hospital because of continuing cystitis and voiding dysfunction. He underwent a second cystoscopy and bladder biopsy and a postoperative "endoscopy," which revealed inflammation. Additionally, his urine was red, indicative of clot retention. Ortiz underwent some corrective procedures and was released on October 21. Three months later, a third cystoscopy was performed along with multiple biopsies and bladder washings. After being released on January 31, he continued to experience void dysfunction, pain and constipation. A fourth cystoscopy was performed at the Hospital of the University of Pennsylvania and Ortiz was diagnosed with "cystitis glandularis."

 In correspondence dated April 23, 1991, Dr. Wein, Ortiz's treating physician, stated that Ortiz had been "disabled because of a voiding dysfunction secondary to cystitis glandularis since approximately January 18, 1991" and that since he was "voiding up to 3-4X in an hour . . . he [would have] great difficulty holding down any sort of job." In a May 2 note he repeated his belief that Ortiz was disabled. In correspondence dated June 18, 1991, Dr. Gadbois noted that according to Dr. Wein the "appearance of his bladder was considerably better," and asserted that "it is difficult for me to comment on whether he is still disabled." (R. 179). However, he acknowledged that he had not personally examined Ortiz since April 4. He also stated that Ortiz was still experiencing "considerable bilateral inguinal discomfort."

 Still experiencing great discomfort, Ortiz was examined by Dr. Dale Weisman on July 1, 1991. Dr. Weisman noted that the nature of his medical problems was complicated and had been ongoing, including "constant lower abdominal pain, pain with voiding, hematuria, difficulty with erection, painful intercourse, frequent bladder infections and constant pain in the testicles especially when standing or walking." (R. 180-81). It appeared that Ortiz suffered from "benign proliferative cystitis," a form of benign tumor. Dr. Weisman's assessment was "chronic cystitis etiology unknown, anxiety and depression." (R. 181).

 In correspondence dated July 10, 1991, Dr. Wein stated that Ortiz's conditions were virtually unchanged since his April 23 letter, except that he was now voiding two times an hour and four or five times at night. He added that "he is therefore, in my opinion, still disabled and I do not [know] whether he is temporarily disabled or whether this is a permanent condition." (R. 183).

 After his release from the hospital, Ortiz continued to suffer from pain in his groin, testicles, legs and lower back, although the urinary incontinence and bloody urine had improved. A November 6, 1992 report by Dr. Bruce Malkowicz, an associate of Dr. Wein's, indicated no specific limitations on Ortiz's ability to sit, stand or walk, but noted that he continued to suffer from residual perineal pain that was present preoperatively. Ortiz was referred to Wilhelmina C. Korevaar, M.D., a chronic pain specialist who examined Ortiz on January 27 and February 22, 1993. Dr. Korevaar noted that Ortiz "suffers from groin and leg pain due to a previous traumatic event with anterior functional unit spine disease at L5-S1." (R. 285). She also discovered "minimal disc bulging" at various point that ...


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