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November 22, 1978

Carol STORYK, Plaintiff,

The opinion of the court was delivered by: TENNEY

Plaintiff Carol Storyk brought this action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (as amended) (the "Act"), for a review of a denial of a period of disability and disability insurance benefits. Storyk moved for summary judgment, and defendant Secretary of Health, Education, and Welfare (the "Secretary") cross-moved for a judgment on the pleadings. For the reasons given below, Storyk's motion for summary judgment is granted. Accordingly, the decision of the Secretary is reversed and remanded for calculation of a period of disability and award of benefits to Storyk.

On April 16, 1976, Storyk applied for the establishment of a period of disability under Section 216 of the Act, 42 U.S.C. § 416, and the payment of disability insurance benefits under Section 223 of the Act, 42 U.S.C. § 423. On April 19, 1976, she applied for Supplemental Security Income disability benefits under Title XVI of the Act. *fn1" The Secretary denied these applications both initially and on reconsideration. On March 31, 1977, at Storyk's request, the Secretary held an evidentiary hearing. The specific issues before the administrative law judge concerned Storyk's claim of "disability" within the meaning of the Act. Considering the case De novo, the administrative law judge decided that Storyk was not under a disability prior to the expiration of her insured status on March 31, 1970 and thus was not entitled to disability benefits under Title II of the Act. In a separate decision, he held Storyk entitled to Supplemental Income benefits under Title XVI. When approved by the Appeals Council on June 22, 1977, these decisions became the final decisions of the Secretary.

 Elements of Proof

 In determining whether a person is disabled within the meaning of the Act, four elements of proof must be considered. They are (1) subjective evidence of pain and disability; (2) the claimant's age, education, and employment history; (3) diagnoses of examining physicians; and (4) objective medical facts or clinical findings. DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972); Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962).

 Subjective Evidence of Disability

 Subjective evidence of Storyk's pain and disability may be found in her complaints to examining physicians and in her testimony at the hearing. She complains primarily of headaches, but also of pains in her neck and back and of a limited range of motion. The pain she describes is constant, extremely severe, and often crippling. It is especially sharp when she takes a deep breath, sending a pain up to the top of her head. The pain frequently brings her to a state of exhaustion and collapse, two days in bed compensating for one relatively active day. She rarely sees friends and never goes out at night because the pain is so exhausting. She is able to sleep at night, but has trouble falling asleep, and she wakes up with the headache. She has lived with these pains for twenty years.

 Vocational and Related Evidence

 Vocational and related evidence may also be gathered from the record. Storyk was forty-eight-years old at the time of the hearing. She is a graduate of Cooper Union School of Fine Arts. She is married, and she and her husband now live with his parents, subsisting largely on money his father gives them for food. Her husband is permanently unemployed.

 Storyk's last regular job ended in 1964; until then she worked for five years as a "girl friday" for a society jeweler, a job requiring her to do little in addition to being there and opening the door when necessary. She spent three-quarters of the time lying on the floor because of the pain. She continued to suffer from headaches while she and her husband lived in Italy from 1964 to 1966, as she did during the eight years while they lived in England, where her husband studied in the British Museum. While in England, she used her art skills enough in free-lance work to earn money for food. In 1969 she returned to the United States without her husband because of a family emergency. While in New York, she worked for seven months in an art gallery, but was laid off in March 1970. She then received unemployment benefits until June 1970 when she returned to England to be with her husband. In 1975 she returned to the United States where, from May until October 1975, she worked for Reader's Digest as a free-lance picture researcher four days a week, six hours a day, during which period she earned $ 2,980.00. She testified that she was unable to meet even the demands of this part-time job, that she collapsed from unbearable pain and had to quit. She also found it necessary to refuse two offers of full-time employment because she would not be able to meet the demands of the jobs.

 Medical Evidence

 The third and fourth elements of proof, diagnoses of examining physicians and objective medical facts or clinical findings, will be presented together. Storyk's medical history is extensive. Storyk testified that from about age fourteen to age twenty she attended special exercise classes at the Hospital for Special Surgery. In 1958 (or approximately then) she went to Montefiore Hospital to get relief from her headaches. Her more intensive treatment started, though, while she lived in England. There, Dr. A. E. Davies, physician to the Queen's children, began seeing Storyk as a pet project, the latter testified. Dr. Davies reported that she had been treating the plaintiff since 1967 for spinal scoliosis. At one point she had Storyk hospitalized for observation; at that time dorso-lumbar scoliosis and cervical spandylosis were diagnosed. Dr. Guy Beauchamp, apparently one of the doctors to whom Dr. Davies referred her patient, reported in March 1969 that X-rays suggested a stress in the lower cervical discs. T. 114. Dr. Davies further reported that a specialist in psychosomatic disorders considered the plaintiff's pain to be of organic origin with a mild secondary depression. In one letter to the patient, also in the record, Dr. Davies wrote that she believed that Storyk was suffering from the effects of chronic hypocarbia *fn2" because of persistent bad breathing, which makes her more sensitive to pain than other people. Finally, Dr. Davies reported that treatments, drugs and physiotherapy included, helped little. She concluded that Storyk's spinal problems are not likely to become fewer, that at no time had the patient been strong enough to sustain a job requiring more than twenty hours a week, and that she believed her patient to be permanently incapable of employment because of the severe pains she suffers from her skeletal problems. T. 115, 128-29, 131-32.

 Further examinations of Storyk were made in the United States. Medical records from the Hospital for Special Surgery, dated between February and May of 1976, disclosed continuing complaints in the nature of those reported above. The screening clinic of that hospital found a spinal curvature malformation, but found no limit on the range of motion. Dr. Doherty of the hospital's neck and shoulder clinic found a relatively good range of motion, no tenderness or palpation of the spine and no muscle spasm or guarding. He reported that the X-rays revealed minimal osteoarthritic changes in the cervical spine, no disc narrowing, and no osteophyte formations. Dr. Moneim of the same clinic later reported that the recommended treatment of hot packs and cervical traction did not improve the patient's condition. He further reported that, as far as he could determine, she has no neurologic disturbance. He found her flexion and extension good. T. 116-17.

 In June 1976, Dr. Stanley Dillenberg made a neurologic examination of Storyk. He reported the complaints of limited head rotation and constant, debilitating headaches. He found that Storyk's gait and station were normal, that the equilibratory and nonequilibratory tests were well performed, that she had no atrophies, "paraces" (sic) or fibrillations. He found her deep reflexes normal, her "sensory . . . normal to all modalities," her cranial nerves normal. He concluded that she had no disease of the central nervous system. Upon reviewing her cervical spine X-rays, he found no discogenic syndrome. He did note, as had the doctors above, a loss of the normal curvature of the spine; he determined that it might be a mechanical problem, but concluded that the central nervous system is not involved. T. 126-27.

 Finally, the record contains a report by Dr. Simeon O. Chlenoff, a psychoanalyst. Dr. Chlenoff, after an extensive review of Storyk's history, diagnosed the plaintiff as having an anxiety neurosis and as being passive-dependent with mild depressive features. He concluded that the prognosis was guarded and recommended an attempt at brief psychotherapy aimed at helping her ...

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