Harbour v. Bowen

659 F. Supp. 732, 1987 U.S. Dist. LEXIS 5691, 17 Soc. Serv. Rev. 881
CourtDistrict Court, W.D. Missouri
DecidedApril 30, 1987
DocketNo. 86-4456-CV-C-5
StatusPublished

This text of 659 F. Supp. 732 (Harbour v. Bowen) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harbour v. Bowen, 659 F. Supp. 732, 1987 U.S. Dist. LEXIS 5691, 17 Soc. Serv. Rev. 881 (W.D. Mo. 1987).

Opinion

ORDER

SCOTT O. WRIGHT, Chief Judge.

Before the Court are cross-motions for summary judgment. This suit involves two applications for benefits under the Social Security Act. The first is an application for disability insurance benefits under Title II of the Act, 42 U.S.C. §§ 401 et seq. The [733]*733second is an application for Supplemental Security Income (SSI) benefits based on disability under Title XVI of the Act, 42 U.S.C. § 1381 et seq.

On December 31, 1985, following a hearing, an Administrative Law Judge (AU) rendered a decision unfavorable to plaintiff. The AU found that plaintiff was not under a “disability” as defined in the Social Security Act. On May 29, 1986, the Appeals Council of the Social Security Administration denied plaintiff’s request for review. Thus, the decision of the AU stands as the final decision of the Secretary. It is the conclusion of the Court that the Secretary’s denial of benefits must be affirmed.

Factual Background

Plaintiff, 25 years old at the time of the administrative hearing, filed his application for Social Security Disability Benefits on February 12, 1985, alleging disability due to a seizure disorder and back pain.

According to the medical evidence in the record, plaintiff was examined on March 10, 1981, by Dante O. Garrido, M.D. Dr. Garrido stated that plaintiff had a seizure disorder, grand mal, and mild right hemiparesis. Plaintiff had averaged seizures once every two years but had gone without a seizure for five years prior to the date of the examination.

On October 15,1983, plaintiff was admitted to St. Mary’s Health Center in Jefferson City, Missouri, after developing recurrent seizures. Plaintiff was treated with IV Dilantin and IV Valium and observed overnight in Intensive Care. Plaintiff had not had seizures for a number of years and his physician, Dr. Hooshmond, had attempted to reduce his Dilantin level. Plaintiff was feeling well on discharge and had no other problems.

On April 3, 1985, plaintiff was admitted to Columbia Regional Hospital after suffering a seizure. Physical examination revealed that plaintiff’s extremities, joints, peripheral pulses, back and spine were within normal limits. Plaintiff exhibited a very mild wide-based gait with mild to minimal impairment of tandem gait. There was mild right hemiparesis and mild to minimal right hemiatrophy. Plaintiff was admitted to neurologic evaluation and observation. An EEG was compatible with a clinical diagnosis of seizure disorder. While plaintiff’s Phenobarbital blood level was therapeutic, his Dilantin level was virtually undetectable. The final diagnosis was congenital encephalopathy, seizure disorder secondary to encephalopathy, and seizure occurrence secondary to alcohol consumption and probable failure to take medication as prescribed.

On July 22, 1985, plaintiff underwent psychological testing by Stanley P. Hutson, Ph.D. His scores on the WAIS-R intelligence test were as follows: Verbal I.Q.— 88, Performance I.Q. — 71, Full Scale I.Q.— 79. Dr. Hutson attributed the 17-point difference between verbal and performance to difficulty with manual manipulation. Dr. Hutson noted that although plaintiff used his left hand well, his right hand was uncoordinated. Dr. Hutson also believed that the test indicated problems other than intelligence deficiency, such as learning disability. He further noted that plaintiff had graduated from high school, thus indicating that he was able to compensate. Dr. Hutson concluded that plaintiff’s intellectual and physical problems would limit his vocational ability.

On March 1,1985, plaintiff was examined by J.D. Morris, D.O. Plaintiff related that he was on Phenobarbital and Dilantin and that he had an occasional alcoholic beverage. He stated that he graduated from high school and that his average grades were approximately C — . He stated that he had seizures since approximately age 5 and that he had had a total of ten seizures over his lifetime. Dr. Morris’ examination revealed that plaintiff’s extremities had a full range of motion, with atrophy and smallness of the right hand and foot. Plaintiff could not walk on his heels as a result of prior surgery, and had difficulty walking on his toes. Dr. Morris’ impression was that plaintiff had: generalized tonic/clonic seizures; spastic type of right hemiparesis, most likely secondary to cerebral palsy; and a possible Dyke-Davidoff-Masson syndrome.

[734]*734Plaintiff was treated by Ahmad Hooshmond, M.D., from June, 1983 until September, 1983. His diagnosis was grand mal seizure and right hemiparesis most likely secondary to perinatal brain injury. Dr. Hooshmond stated that the frequency of plaintiffs seizures was under good control while plaintiff was under his care.

On February 15, 1985, Peter Boyer, M.D., stated that he last treated plaintiff in November, 1983, for his seizure disorder. Dr. Boyer stated that he was hospitalized at that time because he had a seizure following a reduction of his medications. Dr. Boyer was not aware of any other medical problem which would significantly reduce plaintiff’s ability to work.

On March 17, 1986, plaintiff underwent a psychological evaluation by Karen S. Yopp, M.Ed., a psychological examiner. She noted that plaintiff drove himself into Columbia and arrived on time. Plaintiff told Ms. Yopp that he had worked as a truck loader for three years until he quit because his family moved. Since that time, he worked as a dishwasher in area restaurants. He related to Ms. Yopp that he experienced pain in his leg and back. Plaintiff was administered the Minnesota Multiphasic Personality Inventory (MMPI). The results of this test revealed that plaintiff was experiencing an acute disturbance which had taken a toll on his self-esteem. Ms. Yopp concluded that plaintiff’s clinical interview and MMPI results were consistent with a Schizotypal Personality Disorder and she further believed that he met the criteria of Section 12.08 of the Mental Impairment Listings.

Plaintiff testified at the hearing held on November 20, 1985. He stated that he had his last grand mal seizure in April, 1985. Following a grand mal seizure, plaintiff testified that he felt bad for 10 to 14 days. Prior to April, 1985, plaintiff’s last seizure had been in October, 1983. Plaintiff also testified that his right leg would swell if he sat or stood for any length of time. Plaintiff complained of dizziness once a week and lower back pain. He said that he must lay down six hours a day to relieve his back and leg pain. Plaintiff drove a car and lived by himself in a trailer. He did half of his own cooking, laundry, and grocery shopping. He bowled every six months and went hunting every three months. Plaintiff stated that he last worked for three months at a country club washing dishes. Prior to that, plaintiff had worked at another restaurant for approximately two years busing tables and washing dishes. His duties also included running an electric sheer and grinder, cleaning the floors and carrying garbage, preparing salads, and supervising two busboys. Plaintiff stated that he stopped working at the restaurant because it closed down.

Plaintiff’s mother, Wilma Harbour, also testified at the hearing. She stated that her son was sometimes uncoordinated and unresponsive, but that she did not know if he suffered small seizures in addition to the grand mal seizures.

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659 F. Supp. 732, 1987 U.S. Dist. LEXIS 5691, 17 Soc. Serv. Rev. 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harbour-v-bowen-mowd-1987.