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July 1, 1977.

Shelly MARBURY, Plaintiff,
F. David MATTHEWS, Secretary of Health, Education and Welfare, Defendant.

The opinion of the court was delivered by: ELFVIN


ELFVIN, District Judge.

 Plaintiff instituted this action pursuant to section 205(g) of the Social Security Act ("the Act") as amended, 42 U.S.C. § 405(g), to obtain judicial review of an administrative decision of the Secretary of Health, Education and Welfare ("the Secretary") which denied plaintiff's claim for disability insurance benefits. The Secretary has answered and has moved for summary judgment or for dismissal pursuant to Fed.R.Civ.P. rule 12(b)(6).

 On September 6, 1974 plaintiff applied for a period of disability and for disability insurance benefits, alleging that he had been unable to engage in any substantial gainful work since June 16, 1974. The Social Security Administration ("the Administration") denied this application October 12, 1974 and, following plaintiff's request for reconsideration, such findings were affirmed by the Administration's Bureau of Disability Insurance. On January 16, 1975 plaintiff requested a hearing which was held April 10, 1975. At the hearing, plaintiff appeared pro se, testified on his own behalf, and did not call any witnesses to support his position. Dr. Oliver Bateman, an internist, and Roy H. Fabry, a vocational expert, testified in advisory capacities. Both were under contract with the Administration. It should be noted at this juncture that the plaintiff was never examined by either Dr. Bateman or any other Administration doctor. The Administrative Law Judge denied plaintiff's application in a decision rendered May 28, 1975. This determination became the final decision of the Secretary when it was affirmed by the Appeals Council September 23, 1975.

 Plaintiff's claim for disability insurance benefits is based primarily upon his diagnosed condition of pseudotumor cerebri (benign intracranial hypertension) and its accompanying symptoms of papilledema (swelling of the retina at the optic disc), headaches, dizziness and brief memory lapses. Plaintiff complained also of high blood pressure, backache and vision problems.

 The record indicates that plaintiff was hospitalized on six occasions since the onset of his medical problems. He was admitted to Edward J. Meyer Memorial Hospital May 31, 1970 for vision deterioration, headaches, ear discharge and dizziness, and remained as a patient until June 19, 1970. Dr. Bernard Smith, head of Meyer's neurology department, diagnosed the plaintiff's medical problems as pseudotumor cerebri, mild proptosis of the left eye and thrombosis of the right transverse sinus. Plaintiff returned to Meyer Hospital July 22, 1970 for the surgical removal of a dermoid cyst from the left orbit and apparently made a complete recovery from the operation.

 On October 9, 1973, plaintiff was examined at Meyer's eye clinic for complaints of headaches, blurring of vision and spots before his eyes. Neurological examination revealed bilateral papilledema and it was recommended that plaintiff be admitted for re-evaluation as soon as possible. Consequently, plaintiff was again hospitalized at Meyer for the period between November 4 and 20, 1973. Plaintiff's then medical condition was diagnosed as pseudotumor cerebri and chronic otitus media which caused a discharge from the left ear. Progress notes from Meyer show that plaintiff made occasional visits between June 24, 1970 and October 23, 1974, mainly because of problems he was experiencing with his vision and recurring headaches.

 Plaintiff was admitted to the Buffalo Veteran's Administration Hospital from January 14 to January 22, 1974 with complaints of lower back pain. The physical examination revealed that the plaintiff was able to walk, stand on both feet, walk on his toes and heels, sit with ease and move around in bed. The diagnosis was that he suffered from acute and chronic low back strain. Although at the time of his discharge, the plaintiff had markedly improved, the examining physician considered him not then employable.

 Plaintiff was again admitted to the Buffalo Veteran's Administration Hospital from February 12 to February 22, 1974 because of severe persistent frontal headaches, accompanied by bilateral papilledema and hypertension. His stay at the hospital was uncomplicated and his headaches resolved on taking APC tablets. A consultant in neurology, who had extensive knowledge of plaintiff's personal life, suggested that the headaches could be psychosomatic in nature. The examining physician concluded that a psychosomatic etiology was likely because plaintiff was a somewhat anxious individual dissatisfied with his job and his headaches resolved during his hospital stay but had been severe and persistent while he was working.

 After his last day of employment plaintiff was admitted to Deaconess Hospital from June 22 to June 28, 1974 with complaints of chronic headache, occasional instability while walking, brief memory lapses, and sensations in his legs after long periods of standing. His condition was again diagnosed as bilateral papilledema and hypertension.

 Dr. Robert Lee, Jr., an internist who has treated the plaintiff from March 24, 1974 to the present, submitted a medical report subsequent to the hearing at the request of the Administrative Law Judge. He diagnosed plaintiff's medical problems as hypertensive vascular disease, pseudotumor cerebri, bilateral papilledema and low back syndrome. As of November 15, 1974, he estimated that the plaintiff could walk for two to three hours, stand in a stationary position for one to two hours, sit in one spot for one to two hours, and lift and carry 25 to 30 pounds.

 Dr. Robert H. Zahm, a psychiatrist and medical director of Monsignor Carr Institute, reported that plaintiff underwent a psychiatric evaluation March 15, 1974. Dr. Zahm evaluated plaintiff's medical problems as caused by physical conditions, specifically neurological abnormalities, rather than psychological deficiencies. It was also noted by Dr. Zahm that certain life stresses, including demands at work, aggravated plaintiff's existing condition and caused increased pain.

 Plaintiff testified at the hearing that his symptoms persist, that he receives regular, periodic medical examinations, and that he currently takes a variety of drugs to relieve such symptoms. He stated he had been unable to take certain medication for his severe headaches because of accompanying side effects and that the effectiveness of the medication he continued to use was substantially less than it had been. Moreover, plaintiff testified that since he left his job at Ford Motor Corporation his headaches were more severe, occurred more frequently and were of greater duration, with some lasting for days even when he took his medication, but he noted that the flickering in his eye and the memory lapses have subsided and occur only occasionally.

 In order to assist the Administrative Law Judge in ascertaining the functional impact of the plaintiff's diagnosed conditions, Dr. Bateman was called as a medical advisor at the hearing. Based upon a review of the medical records and taking into account the plaintiff's testimony, Dr. Bateman assessed plaintiff's various impairments in terms of their character, symtomatology and functional limitations. He testified that pseudotumor cerebri was a condition which involved swelling of the brain due to infiltration by lymphocytes. It was his opinion that such condition generally runs its course and is asymptomatic in six to eight months. He noted that because of the extended period of plaintiff's condition, there was a possibility of arachnoiditis, which involves an inflammation of the covering of the ...

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