Delyria v. Shalala

856 F. Supp. 1432, 1994 U.S. Dist. LEXIS 14332, 1994 WL 368514
CourtDistrict Court, D. Oregon
DecidedJune 2, 1994
DocketNo. CV-93-734-ST
StatusPublished
Cited by2 cases

This text of 856 F. Supp. 1432 (Delyria v. Shalala) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delyria v. Shalala, 856 F. Supp. 1432, 1994 U.S. Dist. LEXIS 14332, 1994 WL 368514 (D. Or. 1994).

Opinion

OPINION AND ORDER

STEWART, United States Magistrate Judge:

INTRODUCTION

Claimant, Mildred S. Delyria, brings this action pursuant to the Social Security Act [1434]*1434(“Act”), 42 U.S.C. § 405(g) et seq, to obtain judicial review of a final decision of the Secretary of Health and Human Services (“Secretary”). The Secretary denied claimant’s application for Disability Insurance Benefits (“DIB”). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Secretary’s decision is reversed and remanded with an order to enter a finding of disabled and award benefits to claimant.

PROCEDURAL BACKGROUND

Claimant applied for DIB on June 7, 1988 claiming that she became unable to work on February 14, 1988 because of her disability condition (Tr 77-80).1 The application was denied initially (Tr 82-83) and upon reconsideration (Tr 89-90). Claimant did not seek further review under 20 C.F.R. § 404.933(a) and (b).

Claimant applied for DIB a second time on June 4, 1991, again claiming that she became unable to work on February 19, 19882 (Tr 91-93). The application was apparently denied and claimant requested reconsideration (Tr 94). The record does not indicate what happened to this request (Tr 106).

Claimant applied for DIB a third time on September 13, 1991, again claiming that she became unable to work on February 19,1988 (Tr 97-100). The application was denied initially (Tr 116-117) and upon reconsideration (Tr 130-131). Claimant filed a timely request for a hearing before an Administrative Law Judge (“ALJ”) (Tr 132). Claimant, represented by counsel, appeared and testified before the ALJ on December 7, 1992, as did a vocational expert (“VE”) (Tr 32-76). On December 24, 1992 the ALJ denied claimant’s request for DIB (Tr 14-24). This decision became the final decision of the Secretary when the Appeals Council declined to review the ALJ’s decision (Tr 6-7).

STATEMENT OF THE FACTS

Claimant, a resident of Brookings, Oregon, was born on April 21, 1939 in Yakima, Washington (Tr 36). She has a high school degree (Tr 37-38). Her past relevant work was as a health aide for the elderly (Tr 147). Her most recent work involved in-home service for the elderly which required making beds, washing dishes, doing laundry, vacuuming, carrying heavy bags, carrying firewood, and performing general housework duties (Tr 40-41). No training was required for this job (Tr 40). Claimant developed back and shoulder problems in 1987 (Tr 47) and left her job in February 1988 because of those problems (Tr 41, 234). She obtained workers’ compensation benefits for approximately six months (Tr 42).

Claimant asserts that she cannot return to work due to her back and shoulder problems (Tr 46). In 1987 and 1988 claimant was seen by Dr. Laurence E. Taylor, her treating physician, complaining of back pain radiating from her flanks (Tr 193-194). In 1987 claimant was also seen by Dr. Curtis Adams, an orthopedic surgeon. He diagnosed mild scoliosis and a congenital defect at L1-L2 (Tr 217-218).

In 1988 claimant reported continued shoulder difficulties to Dr. Taylor who referred her back to Dr. Adams (Tr 197-198). In August 1988 Dr. Adams diagnosed adhesive capsulitis (“frozen shoulder”) on the right shoulder (Tr 235) and performed shoulder manipulation and subacromial injection (Tr 239). Claimant reported to Dr. Taylor improvement to the range of motion of her shoulder throughout 1988 and into February 1989 (Tr 225).

In April 1989, Dr. Adams noted that claimant was medically stationary and could do modified work (Tr 259-260). “The only restriction would be the pushing and pulling, which she describes as being bothersome” (Tr 260). In August 1989, Dr. Edmonde [1435]*1435Samuel, D.C. evaluated claimant and stated that she needed to do particular exercises for her shoulder (Tr 265). On August 23, 1989 he reported that claimant had shown improvement “in terms of pain, but no significant improvement in terms of motion,” that she could not perform extended physical activities using her hands and arms, especially her right arm, and that she was not medically stationary (Tr 266). Dr. Samuel completed a residual function capacity form for the state workers’ compensation program releasing claimant for work August 31, 1989. He opined that claimant could walk or stand eight hours a day with breaks, could sit seven to eight hours a day with breaks; could lift up to 10 pounds intermittently; but could not push and pull or reach above shoulder level with her right arm and could not crawl; and could not climb a ladder (Tr 267).

The record reveals that the only medical visits claimant had in 1990 were with Dr. Taylor regarding complaints of abdominal pain, which resolved after a week (Tr 202). Claimant was advised to adjust her diet. At some time in 1991 claimant testified that she was diagnosed with diabetes (Tr 37).

In September 1991 claimant was treated by Dr. William J. Bernstein, a neurologist, for back problems (Tr 275-278). He noted a gradually worsening tightness around her abdomen and difficulty in sleeping which improved when she slept on a wedge (Tr 275). Dr. Bernstein diagnosed that it was most likely claimant had a lower thoracic spinal cord mass, specifically a “congenital lesion” such as a teratoma or lipoma (Tr 277).

In October 1991, claimant again saw Dr. Bernstein (Tr 284). He noted that claimant’s condition had not altered, reporting the same diagnosis of September 1991. In November 1991 Dr. Bernstein reported that claimant had been diagnosed as diabetic (Tr 285). With that information, Dr. Bernstein concluded that claimant “probably had a small vessel infarction of her posterior columns, four years ago secondary to her diabetes, similar to a lacunar brain infarction” (Id). Dr. Bernstein believed this was the cause of claimant’s symptomatology (Id).

Dr. Taylor stated in a letter in January 1992 that claimant could not stand for a long period of time and was limited in lifting, carrying, and handling objects in a repetitive motion (Tr 292). He noted that claimant had been recently diagnosed for Type II adult onset diabetes mellitus (Id.).

Dr. Taylor completed a residual functional capacity form in September 1992 (Tr 303-306). He reported that claimant could stand from one to four hours; sit from one to four hours; occasionally lift up to 10 pounds, but never above that amount; walk a quarter of a mile; and occasionally kneel but not bend. Dr. Taylor concluded that claimant could do “sedentary work” (Tr 306), adding that claimant’s capabilities “may vary depending on how well she is doing with her back pain on that day” (Tr 305). Dr. Taylor also filled out a pain questionnaire, stating that claimant reported experiencing constant daily pain of varying severity (Tr 307). He noted that the only signs of pain he observed were her subjective complaints, but that her complaints were consistent with objective medical findings.

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Bluebook (online)
856 F. Supp. 1432, 1994 U.S. Dist. LEXIS 14332, 1994 WL 368514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delyria-v-shalala-ord-1994.