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PEED v. SULLIVAN

November 22, 1991

HARKLESS PEED, PLAINTIFF,
v.
LOUIS W. SULLIVAN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Glasser, District Judge:

MEMORANDUM AND ORDER

This is an action under 42 U.S.C. § 1383(c)(3) for review of a final decision by the defendant Secretary of Health and Human Services (the "Secretary") which denied the application of Harkless Peed for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act. For the reasons set forth below, this case is remanded for a new administrative hearing.

FACTS

Mr. Peed first applied for SSI benefits in 1988; he claimed disability by reason of high blood pressure, diabetes, and arthritis. His application was denied, and this denial was affirmed by an administrative law judge ("ALJ") after a hearing on March 13, 1989 at which Mr. Peed appeared pro se. After the Office of Hearings and Appeals of the Department of Health and Human Services denied his request for review, the decision of the Secretary became final; Mr. Peed then filed this action in October of 1989. He is now represented by counsel.

1. Evidence of Plaintiff's Disability

The plaintiff, Harkless Peed, is a 64-year-old black male who claims to have been disabled since 1986 by reason of diabetes, hypertension, arthritis, and poor vision. Mr. Peed is a high school graduate, and he worked as a truck driver until he was laid off in April of 1986. That job required Mr. Peed to deliver oil burners and heating supplies that weighed over 100 pounds; he contends that his arthritis eventually prevented him from satisfactory performance of these duties. He has sought employment as a chauffeur since 1986, but he did not have the necessary qualifications.

Mr. Peed complains of arthritis in his back, in his shoulder, and in his hips. He states that, on the advice of his physician, he tries to walk two miles each day, but that shortness of breath and weakness of legs often prevent him from completing the entire distance. He says that he experiences pain in the morning, in the evening, and when the weather is bad. He visits a Veterans Administration clinic every two months for treatment of his several maladies.

Three physicians examined Mr. Peed in conjunction with the processing of his application for SSI benefits. The first, Dr. Kohn of the Brooklyn Hospital, examined Mr. Peed on March 28, 1988. He diagnosed Mr. Peed as having insulin-dependent diabetes "under unknown control," hypertension "presently poorly controlled," "[h]eart problems . . . of unclear nature," "[v]ision problems by history with evidence of a cataract in the left eye . . .," "[a]rthritis of the left shoulder on examination . . .," and "[p]ossible history of alcoholism. . . ." (Tr. 131). The second physician, Dr. Ahrens Palumbo, examined Mr. Peed on April 6, 1988, and he diagnosed "[m]yopia, slight background diabetic retinopathy." (Tr. 142). The final examining physician, Dr. Peter Graham, saw Mr. Peed on August 30, 1988. He diagnosed: "Chest pains. . . . EKG does not indicate the presence of previous myocardial infarction. . . . Diabetes mellitus. . . . Hypertension, poorly controlled with present regimen. . . . Arthritis by history. No functional deficit. . . . Back pains by history. . . . No functional deficit noted." (Tr. 147).

The administrative record also contains approximately two hundred pages of Mr. Peed's medical records obtained by subpoena from the Veterans Administration. These records contain charts, test results, diagnoses, and prognoses of several physicians at the Veterans Administration — including the physicians whom Mr. Peed himself referred to as his primary treating physicians. These entries tend to confirm the existence of the illnesses claimed by Mr. Peed. For example, two entries by Dr. Behr (dated January 23, 1988 and October 24, 1988) refer to Mr. Peed's complaints of pain in his left shoulder. In both entries, Dr. Behr diagnoses "osteoarthritis" and prescribes 400 mg of Motrin (with advice to Mr. Peed to return for another visit in three months). (Tr. 164, 165). Mr. Peed's second treating physician at the Veterans Administration, Dr. Advani, also recorded entries that tend to support Mr. Peed's claims. For example, on August 4, 1988, Dr. Advani noted "HPN & DM"; these abbreviations no doubt refer to hypertension and diabetes mellitus. (Tr. 167). Similar entries by Dr. Advani are found for earlier dates. (Tr. 175).

Despite the volume of medical records from the Veterans Administration, however, most entries are in the form of "raw data" — laboratory reports, test results, and brief notations by various physicians. One of the few entries that presents a comprehensive report of Mr. Peed's status is a "case summary" handwritten by Dr. Robert J. Moran and dated November 14, 1986:

  Harkless Peed is a 60 y/o man treated regularly at
  the VA out-pt clinic Ryerson Street. He has
  insulin-dependent diabetes mellitus for which he
  takes NPH insulin: 35 units a.m. and 7 units p.m.
  He has hypertension requiring treatment with
  Minipress 2 mg. . . . He also has osteoarthritis
  for which he takes Motrin 400 mg. . . . The
  patient complains of weakness of both upper
  extremities. His range of motion at shoulder
  joints seems somewhat limited by pain, especially
  on the left and he has difficulty fully raising
  his arm over his head. I am referring the patient
  to neurology for further evaluation of this
  problem.

(Tr. 295). The records from the Veterans' Administration do not, however, appear to contain any ultimate diagnosis by any of Mr. Peed's treating physicians as to Mr. Peed's disability status.

2. The Administrative Proceedings

Mr. Peed appeared for an administrative hearing on March 13, 1989 before an ALJ. The ALJ advised Mr. Peed, who appeared pro se, that he had a right to representation by counsel, but Mr. Peed agreed to proceed without an attorney. (Tr. 17-18). The ALJ inquired extensively about Mr. Peed's age (Tr. 19), education (Tr. 19-20), present living arrangements (Tr. 20-22), previous employment (Tr. 23-25), and his attempt to obtain a job as a chauffeur (Tr. 26-27). However, the ALJ asked Mr. ...


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