Leslie A. Tuohy v. Secretary of Health and Human Services

34 F.3d 1068, 1994 U.S. App. LEXIS 31820, 1994 WL 454880
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 22, 1994
Docket93-1814
StatusUnpublished
Cited by3 cases

This text of 34 F.3d 1068 (Leslie A. Tuohy v. Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leslie A. Tuohy v. Secretary of Health and Human Services, 34 F.3d 1068, 1994 U.S. App. LEXIS 31820, 1994 WL 454880 (6th Cir. 1994).

Opinion

34 F.3d 1068

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Leslie A. TUOHY, Plaintiff-Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 93-1814.

United States Court of Appeals, Sixth Circuit.

Aug. 22, 1994.

Before: KEITH, BOGGS and BATCHELDER, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Leslie Tuohy appeals the district court's order affirming the Secretary of Health and Human Services' denial of social security benefits. Ms. Tuohy asserts that there is not substantial evidence in the record to support the Secretary's determination that she is not entitled to benefits. For the reasons that follow, we reverse.

I.

A.

Ms. Tuohy was born on July 6, 1946, and was forty-two years old at the time her insured status expired on December 31, 1988.1 Ms. Tuohy completed three years of college, and worked as an order clerk and material control clerk for General Motors until December 1982.

Ms. Tuohy filed an application for social security disability insurance benefits on March 23, 1989, alleging that she had become disabled and unable to work on December 11, 1982, at age thirty-six, as a result of multiple sclerosis. Benefits were denied initially and upon reconsideration by the Social Security Administration. Ms. Tuohy requested an administrative hearing, and on December 18, 1989, a hearing was held before an Administrative Law Judge (ALJ), at which testimony was obtained from Ms. Tuohy, vocational expert Ann Tremblay, and Ms. Tuohy's husband. On December 28, 1989, the ALJ issued a decision denying Ms. Tuohy's claim. Ms. Tuohy made a request for review of this decision, and the Appeals Council, in an Order issued December 11, 1990, remanded the matter to the ALJ for a new hearing.

A second hearing was held on May 10, 1991, before the same ALJ, with testimony being presented by witnesses from the first hearing, with the addition of testimony from Dr. Raymond Engelman, a medical advisor. On August 28, 1991, the ALJ issued a Decision again denying benefits to Ms. Tuohy. Ms. Tuohy requested review by the Appeals Council, but on May 28, 1992, the Appeals Council denied her request. The ALJ's decision thereby became the final decision of the Secretary in this matter.

Pursuant to 42 U.S.C. Sec. 405(g), Ms. Tuohy filed an action for judicial review of the Secretary's determination on July 30, 1992. The matter was referred to a magistrate judge, and on December 4, 1992, the magistrate judge issued a Report and Recommendation finding that substantial evidence supported the Secretary's decision. The district court adopted the magistrate judge's Report and Recommendation.

B.

Multiple sclerosis (MS) is a chronic, slowly progressive disease of the central nervous system. The etiology of the disease is still unknown, and treatment varies according to the symptoms experienced by the victim. The disease is characterized by periods of exacerbation, in which the victim experiences acute aggravation of her symptoms, and periods of remission, in which the victim may be able to function almost normally.

Ms. Tuohy was first diagnosed as suffering from MS in 1978. In August of 1978, Ms. Tuohy experienced shock-like sensations upon bending her neck (Lhermitte's sign), followed by numbness in both legs and her right arm and loss of vision in her right eye. Also in 1978, though it is unclear from the record exactly when, Ms. Tuohy had an episode of retrobulbar neuritis with blindness, lasting about three weeks. In June of 1979, Ms. Tuohy experienced another exacerbation of her MS involving numbness over her entire right side. In December of 1979, one of Ms. Tuohy's physicians noted that Ms. Tuohy continued to have problems with her right arm, and that she was having problems with frequent urination and incontinence.

On December 18, 1982, Ms. Tuohy experienced a major exacerbation of her MS, requiring her to be hospitalized from December 18 to December 31. The medical records indicate that Ms. Tuohy was unable to do more than just barely move her legs, that she suffered from a complete lack of coordination, and that she was unable to feed herself. After this exacerbation, Ms. Tuohy ceased working in her position as a control clerk for General Motors. When discharged from the hospital, Ms. Tuohy's doctors considered her prognosis to be poor to fair.

On April 11, 1983, Ms. Tuohy saw Dr. P.R. Causin, after having suffered another exacerbation of her condition that caused a deterioration in her ability to walk. Dr. Causin observed that Ms. Tuohy's left leg went into severe internal rotations when she put her attention to walking; however, Dr. Causin also noted she was able to walk without an assistive device, though she did hold onto the furniture to support herself. Dr. Causin referred Ms. Tuohy for physical therapy, and on May 20, 1983, Henry Pit-og, a registered physical therapist, opined that twelve sessions of physical therapy had improved her strength, coordination, and gait. However, Mr. Pit-og also noted that Ms. Tuohy still inverted her left leg, and that her hips still hurt and her left leg sometimes buckled when walking.

On June 24, 1983 Dr. MacKenzie examined Ms. Tuohy and noted that she was in remission and was able to walk with weakness and a slight internal rotation of the left leg. Over the next several months, Ms. Tuohy suffered from a number of other symptoms which were ameliorated to varying degrees by medication. On September 29, 1984, Ms. Tuohy talked to Dr. Gumpper about going back to work. Dr. Gumpper advised against returning to work because her symptoms had not completely disappeared and he thought the stress of returning to work might exacerbate Ms. Tuohy's symptoms.

On March 6, 1985, at the direction of the Disability Determination Service, Ms. Tuohy underwent a neurological examination performed by Dr. Robert H. Sturman, a consultative examiner. Despite largely unremarkable clinical findings, Dr. Sturman concluded that Ms. Tuohy was permanently disabled.

On January 22, 1987, Dr. MacKenzie reported that Ms. Tuohy's last very severe exacerbation occurred in 1984 and that she seemed to be doing well, although she easily became fatigued. In response to an inquiry from Ms. Tuohy's former employer, GM, Dr. MacKenzie responded that "she is totally disabled for any permanent occupation."

On July 16, 1987, Dr. Nicholas N. Velarde examined Ms. Tuohy. Dr. Velarde noted that up until a few months prior to his examination of her, Ms. Tuohy had been physically active. He also noted that her most bothersome symptom at that time was progressive numbness and paresthesia in both feet, gradually ascending to her legs. In addition, Ms. Tuohy's station and gait were unremarkable and she was able to tandem walk without any difficulty. It was Dr. Velarde's conclusion that Ms. Tuohy suffers from "chronic multiple sclerosis with periodic exacerbations and progressive disability."

In September 1988, Ms. Tuohy discussed dietary concerns with R.

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