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ROSS v. SHALALA

September 8, 1994

SANDRA L. ROSS, Plaintiff,
v.
DONNA SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.


Francis X. Caiazza, U. S. Magistrate Judge. JUDGE SMITH


The opinion of the court was delivered by: FRANCIS X. CAIAZZA

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

 I. RECOMMENDATION

 It is recommended that defendant's motion for summary judgment (doc. no. 9) be denied. It is further recommended that plaintiff's motion for summary judgment (doc. no. 7) be denied. It is further recommended that this action be remanded to the Secretary for further consideration for the reasons stated herein.

 II. REPORT

 This is an action pursuant to 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health and Human Services (Secretary). The Secretary denied the application of Sandra Ross (claimant) for Supplemental Security Income (SSI) benefits.

 I. Procedural History

 Claimant applied for SSI benefits on July 24, 1990, asserting that she was disabled since March 1, 1987 by diabetes, asthma and stomach problems. (R. 103-06.) Her claim was initially denied on October 16, 1990. (R. 107-09.) Claimant filed a request for reconsideration on October 25, 1990, and her claim was again denied on December 4, 1990. (R. 110-14.) Claimant filed a request for a hearing before an Administrative Law Judge (ALJ) on December 20, 1990, and a hearing took place before ALJ Frank D. DiCenzo on June 19, 1991. (R. 115-16, 31-44.) On October 16, 1991, ALJ DiCenzo denied SSI benefits to the claimant. (R. 286-93.) On December 11, 1991, claimant filed a request for reconsideration and on August 7, 1992, the Appeals Council remanded the case to ALJ DiCenzo for further consideration of claimant's pain medication, diabetic and respiratory impairments, and alcohol consumption. (R. 294-98.) On August 27, 1993, ALJ DiCenzo held a supplemental hearing at which claimant and vocational expert Samuel E. Edelmann testified. (R. 50-75.) On October 7, 1993, ALJ DiCenzo again denied SSI benefits. (R. 9-23.) On October 15, 1993, claimant filed a request for reconsideration and on December 3, 1993, the Appeals Council denied the request and affirmed the decision of ALJ DiCenzo. (R. 6-8, 4-5.) Therefore, the decision of the ALJ now stands as the final decision of the Secretary. On December 13, 1993, claimant filed the instant action for review of the Secretary's decision. On April 15, 1994, claimant filed a motion for summary judgment and on May 13, 1994, the Secretary filed her motion for summary judgment.

 II. Facts

 Claimant was born on October 2, 1948, making her 42 years old as of the date of the first administrative hearing and 44 as of the second administrative hearing. (R. 34.) She has a tenth grade education with a GED. (R. 35.) She has no history of past work. (R. 35.)

 On September 1, 1989, Milton D. Bosse, M.D. stated that he had first seen claimant in November 1975 and last in August 1989. (R. 180-89.) Claimant was diabetic and took Micronase for this condition. (R. 181.) On September 20, 1989, he also stated that claimant had no history of psychiatric impairment or treatment, was able to ask pertinent questions and related appropriately to the doctor. (R. 190.) She had not shown overt psychotic or neurotic behavior, memory loss or any confusion while in his office; there was also no evidence of diabetic retinopathy, history of acidosis or neuropathy. (R. 190.)

 Between April 20 and April 24, 1990, claimant was hospitalized for chest pain diagnosed as alcoholic gastritis, alcoholism and diabetes. (R. 191-214.) Serial enzymes and EKGs demonstrated no myocardial damage; telemetry showed stable rhythm. (R. 192.) An endoscopy was performed which demonstrated severe gastritis, which was treated with Zantac, and her blood sugar was stabilized with Micronase. (R. 192.) She was also prescribed Nitroglycerin. (R. 193.) A May 1, 1990 treadmill test was negative for ischemia, angina pectoris and chest pain. (R. 215-24.) Claimant visited the Forbes Health System on various occasions between February 1987 and June 1990. (R. 225-41.) A June 30, 1989 chest x-ray was normal, and an upper GI examination in February 1987 showed a small hiatal hernia and no gastroesophogeal reflux with normal gallbladder. (R. 232, 240-41.)

 Claimant was hospitalized between June 23 and July 1, 1990 for chest pain, but the diagnosis was gastritis brought on by resumption of alcohol. (R. 242-62.) Serial EKGs and enzymes showed no evidence of myocardial infarction. (R. 242.) A sonogram of the upper right quadrant and an IVP were normal. A urinary tract infection was treated. She was started on insulin, and Dr. Castiglione indicated that the key to outpatient treatment was weight loss and compliance with a good diet. (R. 243.)

 On September 25, 1990, Dr. Bosse stated that diabetes could be better controlled if claimant followed the prescribed diet. (R. 263-71.) There was no evidence of any end organ damage. (R. 270.) Claimant did smoke which caused some chronic obstructive pulmonary disease, but the lungs were clear on examination. (R. 270.) She had not been referred to a mental health facility. Appearance and hygiene were good, she related appropriately to Dr. Bosse and his staff, she was able to care for personal needs independently, there was no evidence of dementia or psychotic behavior, and she could understand directions for the use of medications. (R. 270-71.) On October 1, 1990, a report of contact with the Pittsburgh Cardiovascular Institute indicated that claimant was seen be Dr. Caminos on May 1, 1990 for a stress test, which was negative for ischemia, angina, arrhythmia, or chest pain; there was good aerobic function. (R. 272.)

 On November 9, 1990, Dr. Bosse stated that he had seen claimant on October 23, 1990. (R. 273-83.) He said that he prescribed Valium on occasion for nerves and that claimant had shortness of breath accompanied by wheezing. (R. 276-77, 274.) On January 23, 1991, Dr. Bosse stated that claimant had complained of intermittent nervous tension, and complained of shortness of breath when seen in October. She had a history of diabetes. (R. 285.)

 On September 17, 1992, Jose B. Caballe, M.D. conducted a consultative examination. (R. 299-301.) Claimant reported that she had quit drinking and smoking. (R. 300.) Examination revealed no abnormal findings; the lungs were clear, there were no wheezes, pulmonary status appeared to be stable and there was no evidence of bronchospasm. (R. 300-01.) Claimant stated that she could walk the entire length of a shopping mall before having to rest. His impression was diabetes treated with insulin, history of bronchial asthma and chronic bronchitis, history of chest pain and gastritis, and obesity. (R. 301.)

 On October 12, 1992, Dr. Caballe estimated that claimant was able to lift and carry up to ten pounds occasionally, stand and walk three hours a day. (R. 303.) She was limited in pushing and pulling by shortness of breath, but could balance frequently, climb, stoop, crouch, kneel and crawl occasionally. (R. 304.) She had environmental limitations of temperature extremes, dust, fumes and humidity, but no limitations in the ability to reach, handle, feel, see, hear or speak. (R. 304.) On May 10, 1993, Dr. Bosse stated that because he had seen claimant only irregularly, he could express no opinion on her disability. (R. 332.)

 On August 4, 1993, Frank Meacci, Jr., Ph.D. interviewed claimant at the request of her attorney and administered the Minnesota Multiphasic Personality Inventory (MMPI). (R. 340-45.) Claimant stated that she heard and saw a brother who had died of diabetes, had feelings of hopelessness about her physical condition, and had episodes of irritability with her adult children. (R. 341.) Dr. Meacci stated that the test results, combined with the interview information, indicated a "mentally disordered" condition; he classified it as major depression, recurrent, with psychotic features. (R. 343.) Claimant reported the following symptoms: shortness of breath when she walked up ten steps, fatigue if she walked over two to three blocks, sleep disturbance in one-hour intervals, disruption of her daily diet which resulted in the loss of twenty pounds in two months, feelings of hopelessness and helplessness that her condition would ever improve, episodes of agitation and irritability usually focused on the children, isolation and withdrawal, flat affect, ...


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