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MOSS v. HECKLER

May 4, 1983

MARTIN MOSS, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

NEAHER, District Judge.

 This action is again before the Court following judicial remand to the Secretary on September 26, 1980, and subsequent proceedings before an administrative law judge and the Secretary's Appeals Council. Plaintiff originally filed an application on March 29, 1974 for a period of disability and disability insurance benefits by reason of "nervous condition and stomach trouble" as of February 15, 1973. *fn1" That application was initially denied on June 22, 1974 and not further pursued by plaintiff. Tr. II, 245. *fn2" On April 20, 1976 he filed a second application claiming disability as of Nobember 18, 1975 by reason of "Hypoglycemia & Dumping Syndrome," which resulted from a hemigastrectomy and vagotomy performed on him at the Brooklyn Veterans Administration (VA) Hospital in 1969 to relieve his bleeding ulcers. Tr. I, 109-10. There is no question that plaintiff met the insured status requirements through December 31, 1979. Tr. II, 246.

 After initial denials of his 1976 application, plaintiff had a de novo hearing before and ALJ on July 12, 1977, at which he was represented by his present attorney. Tr. I, 23. Plaintiff was then 54 years old, 6 feet 2 inches tall and weighed about 210 pounds. Id., 28. He is a high school graduate, is married and has two grown daughters. He received a medical discharge from the Army in 1944 because of ulcers, and since 1976 or 1977 has been receiving 100% disability benefits of $1,078 per month from the VA. Tr. II, 438, 286, 320. Previously, he had been getting 30 to 40% VA benefits but could not state for how long. Id.

 Following the 1977 de novo hearing, the ALJ found that plaintiff's postgastrectomy and hypoglycemic conditions were not so severe as to prevent him from engaging in substantial gainful work activity and therefore he was not under a disability. The ALJ's decision was later adopted as the Secretary's final decision denying disability benefits. On review of that decision, this Court remanded the case to the Secretary for a hearing on the question of whether there were other occupations plaintiff could undertake in light of his condition.

 Pursuant to the Court's remand, a second hearing before and ALJ was held on August 10, 1981. Plaintiff, represented by his attorney, testified that prior to becoming a cosmetics plant manager in 1966 or 1967 he had worked four or five years as a milkman, one year as route man for a bread company, and six or seven years driving a lunch wagon for a company servicing industrial plants. In performing those jobs he was required to keep records, make drops, order supplies, etc. Tr. II, 284, 287. After his gastrechomy in 1969 he continued working as a plant manager until late 1973. He quit that job because of diarrhea which kept him "running to the toilet" 10 to 12 times a day, "shakes and sweats," "near blackouts" and "dizzy spells," the last two usually occurring at home. Tr. II, 288, 290, 292. Although he took medication, it did not help. Id., 291. In 1974, however, he drove a taxicab for about four months, and he has not looked for work since then. Tr. II, 287.

 The record reveals differently. His earning record reveals that in addition to earnings of $3,664 in 1974, he was credited with earnings of $5,502 in 1975. Tr. I, Exh. 12. And according to a report of Dr. Milford Blackwell, dated March 9, 1979, who examined him on December 19, 1978, plaintiff was driving his taxicab for his own pleasure on November 29, 1977, when he was involved in a motor vehicle accident. In addition to "blackouts for the past year," the report states that plaintiff complained of

 "headaches, blurred vision, spots before the eyes . . ., episodic dizziness, impairment of balance, episodic nausea, weakness, easy fatigability . . . nervousness, irritability, . . . insomnia, fear of riding in cars, and neck pain and stiffness." Tr. II, 377.

 The only treatment prescribed was Tylenol tablets for pain relief. Id., 379.

 Many of the foregoing are the same complaints he attributed to his "dumping syndrome" problem. At the time of Dr. Blackwell's examination, however, plaintiff had increased his weight to 216 pounds, a condition incompatible with his claim of incessant diarrhea. As pointed out in Lebron v. Secretary of Health, Education and Welfare, 370 F. Supp. 403, 406 (D.P.R. 1974), the effect of frequent diarrhea due to dumping syndrome is to substantially decrease weight, not increase it. See also Williams v. Weinberger, 373 F. Supp. 1110 (W.D. Mo. 1974), a case of post-gastrectomy syndrome with hypoglycemia, where evidence that the plaintiff had not only regained pre-operative weight but exceeded it indicated that there was no malabsorption of carbohydrates, fats or proteins. Id. at 1115.

 Neither Dr. Leo I. Erdil, a surgeon and general practitioner who testified at plaintiff's 1977 hearing, nor Dr. Geoffrey M. Berlyne, a professor of medicine and chief of nephrology at the VA hospital and Downstate Medical Center who testified at the 1981 hearing, were treating doctors within the rule of Eiden v. Secretary of Health, Education and Welfare, 616 F.2d 63 (2d Cir. 1980). Dr. Erdil's opinion that plaintiff is 100% disabled was based solely upon his examination of the VA hospital records and his concurrence with the VA evaluation. Tr. I, 42. Moreover, his response to the Bureau of Disability Determinations questionnaire that there was "no" fecal incontinence tends to contradict plaintiff's chief reason for being unable to work. Tr. I, 213. Dr. Berlyne, who examined plaintiff, did so on December 10, 1978, nearly three years prior to his testimony. Tr. II, 305. At that time he found plaintiff to be "a tall, well-nourished man" but, based on VA hospital notes, suffering from a severe dumping syndrome and hypoglycemia which has resulted in his total incapacitation. Tr. II, Exh. 29, at 396. Although this condition may now be surgically corrected, he did not recommend it because of plaintiff's age. Id., 401.

 Also in the record is an affidavit of Dr. Alfred Snyder, an internist specializing in pulmonary disorders. Tr. II, 390. Dr. Snyder saw plaintiff only once, on June 6, 1979. He found plaintiff "well nourished" but appearing "extremely anxious and distressed." Id. He concluded that plaintiff's dumping syndrome, diarrhea, hypoglycemia "and a psychological disorder" prevents him from engaging in employment, and added that he is not taking medication "because it is not accepted medical practice for the combination of his disorders." Id., 394.

 At Dr. Snyder's request, plaintiff was examined on June 17, 1981, by Dr. Irwin Hoffman, a member of a cardiovascular group, after reviewing VA records. Tr. II, Exh. 36, 552. According to Dr. Hoffman those records revealed "multiple coronary artery obstructions" and a stress test "grossly abnormal at State 3." Dr. Hoffman noted, however, that although plaintiff's hypoglycemic condition barred use of propanolol, another drug, Inderal, "would remove most of the symptoms of hypoglycemia, that is the swearing, palpitation and nervousness. . . ." Id. He nonetheless concluded that the combination of ailments with anginal syndrome totally disabled plaintiff "at this point." Id. 553.

 As the Court's remand order noted, in this case "the treating physician was a succession of doctors" at the VA hospital where plaintiff was a frequent visitor as in-patient and out-patient. Their finding that plaintiff was 100% disabled for purposes of veterans' benefits, "while relevant, does not control the issue of eligibility for Social Security benefits." Deyo v. Weinberger, 406 F. ...


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