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WILSON v. SCHWEIKER

December 15, 1982

WILLIAM E. WILSON, Plaintiff
v.
RICHARD S. SCHWEIKER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: QUACKENBUSH

 STATEMENT OF CASE

 Plaintiff, WILLIAM E. WILSON, brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Secretary of Health & Human Services (HHS). That decision denied plaintiff's entitlement to disability insurance benefits. Both parties moved for summary judgment.

 ADMINISTRATIVE BACKGROUND

 Mr. Wilson filed an application for disability benefits on September 10, 1980, alleging a disability onset date of July 25, 1980. (Tr. 85) In the application he claimed that the disability preventing him from working was: ulcerative colitis, arthritis of the back, aortic aneurysm, emphysema and heart problems. The application was denied initially on December 4, 1980 (Tr. 67) and was denied again upon reconsideration on January 14, 1981 (Tr. 73). A hearing was held on July 10, 1981, in Yakima, Washington, before an Administrative Law Judge (ALJ). The applicant appeared personally, testified and was represented by counsel. (Tr. 27-60).

 On September 18, 1981, the ALJ rendered his decision that Mr. Wilson was not disabled as defined by law. (Tr. 7-12).

 The ALJ made the following findings:

 
1. The claimant filed application for Title II, disability insurance benefits, on September 10, 1980, alleging inability to work from July 24, 1980.
 
2. The claimant met the earnings requirements of the Social Security Act, as amended, on July 24, 1980, the date of alleged "disability", and continues to meet them through the date of this decision.
 
3. The claimant is 58 years of age and has 16 years of education.
 
4. The claimant has worked as an assistant director in college administration.
 
5. The claimant's medical conditions consist of: colitis, arthritis in back, emphysema, aneurysm, and heart problems; none of which either singly or in combination have resulted in any significant degree of loss of function.
 
7. The claimant can return to his former work as an academic administrator.

 (Tr. 11-12).

 The Appeals Council adopted the ALJ's decision as the final decision of the Secretary. (Tr. 3). Mr. Wilson then pursued an appeal to the United States District Court for the Eastern District of Washington.

 STANDARD OF REVIEW

 This court is limited to the question of whether the findings of the Secretary are supported by substantial evidence. Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981). The court must uphold a determination of no disability if the findings are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Id.

 FACTUAL BACKGROUND

 Mr. Wilson was born on April 10, 1923 (Tr. 27) and has a college education. (Tr. 33). He volunteered for the Navy in 1942 and was discharged in 1946. (Tr. 29). While in the Navy he was a motor machinist mate and worked on large diesel engines. (Tr. 30). He enlisted in the Army in 1949 and retired in June 1966. In the Army he worked in heavy equipment engineering maintenance until 1961 (Tr. 31) when he became a recruitment and re-enlistment counselor. (Tr. 32). He worked in recruiting in Texas, France and Washington. (Tr. 32). While in the Army he had a duodenal ulcer on which a vagectomy was performed in January 1965 and complained of back trouble. (Tr. 35). He is not receiving VA benefits. (Tr. 29). After retirement from the Army, he attended Wenatchee Valley College where he studied liberal arts and worked in the Counseling Center with veterans and other students. (Id.) Upon graduating in June 1968, he studied psychology at Central Washington State College and worked in the Counseling Center and the Office of Financial Aid. (Id.). Following graduation in June of 1970, he was employed as Assistant Financial Aid Director at Central Washington State College until granted medical leave without pay in July 1980. (Tr. 33-34). Mr. Wilson had varied early work experience in farm chores, fruit picking, construction, sawmill and fresh fruit and vegetable processing (Tr. 28-30).

 In 1977, during his employment as a Financial Aid Officer, he began to experience numerous conditions for which he sought medical advice. (Tr. 37-41). Claimant testified that in 1977 he had diarrhea 15 -- 20 times a day and his weight dropped from about 195 pounds to about 160 pounds. (Tr. 36-37). He testified that Dr. McKee treated him with Lomotil and diagnosed ulcerative colitis. (Tr. 37). In January 1979, his weight was 173 pounds and he experienced fatigue, stress, lower back pain, and chronic obstructive pulmonary disease (COPD). (Tr. 194-95). In February 1979, he had a bout of diarrhea (resolved by steroids), suffered stress related fatigue, and his weight was 172 pounds. By July 1979, his weight was 164 pounds and he experienced low back pain, stress, breathing problems and cardiac arrythemia. (Tr. 193). In August 1979, a five cm. abdominal aortic aneurysm was diagnosed. During the first months of 1980, he continued to experience heart and breathing problems, loss of weight, low back pain. (Tr. 185-86). He worked until July 24, 1980 when he was hospitalized for about two weeks when a right renal cyst became infected after being aspirated. (Tr. 178). He was granted a medical leave of absence without pay in July 1980. (Tr. 44). In December 1980, he was granted a medical retirement from his position as Financial Aid Director. (Tr. 208)

 According to his testimony, the plaintiff continues to experience low back pain, "rapid heart beat", and loss of breath (Tr. 42-43). He can walk only a block to a block and one-half. (Tr. 45). His wife testified that he can drive a car no more than 25 miles. (Tr. 55) When asked if he thought he could perform his former job as a Financial Aid Officer at Central, he replied that there was no way that he could. Mr. Wilson testified that the job is stressful, requires long sitting, and that because he becomes exhausted, he could not get up and move around. (Tr. 53).

 MEDICAL EVIDENCE

 Dr. McKee, an internist, first treated Mr. Wilson on June 24, 1977, for progressive fatigue, weight loss, low back discomfort, chronic cough, and diarrhea. (Tr. 201-03). Dr. McKee saw him five (5) times from June 24, 1977 to September 22, 1977. During that period claimant's weight dropped from 181 pounds to 176 pounds. He is 6'4" tall. He diagnosed ulcerative colitis and remarked that "his pulmonary function studies showe[d] obstructive disease." (Tr. 201) He prescribed Lomotil for the diarrhea, and Prednisone 10 mg. and Azulfidine 500 mg.

 The record shows no further treatment by Dr. McKee again until January 9, 1979, when he was consulted about the following: fatigue, pain in right lower quadrant, low back pain radiating into the buttocks. (Tr. 194). Dr. McKee's impression was that the plaintiff had: "stress reaction;" ulcerative colitis, "probable arthritis involving sacroiliac joints, perhaps related to the ulcerative colitis or degenerative joint disease;" chronic obstructive pulmonary disease; right lower quadrant discomfort, cause unknown. (Tr. 195).

 During January 1979, plaintiff had several bouts of diarrhea. By February 10, 1979, his weight was 172 pounds. He was recovering from pneumonia. "I urged him to get off cigarettes and reduce the stress on his job which I think was one of the big factors with his recent fatigue . . ." (Tr. 193.)

 Dr. McKee examined Mr. Wilson on July 21, 1979, his weight was 164 pounds. His impression was epigastric distress, cause unknown. He noted that chest x-rays reveal COPD, "no change from February", and "he continues to cough." He also noted that plaintiff was hospitalized in mid-February with cardiac arrythemia. "Stress seems to increase it". "His job continues to give him a lot of trouble emotionally." (Tr. 193). Dr. McKee examined the plaintiff on August 3, 1979. Abdominal ultrasound revealed a 5 cm. abdominal aortic aneurysm. "He has not worked for the last few days and his abdominal pain has markedly improved." "I think that the patient should stay away from work until at least mid-month to see if this won't allow his abdominal situation to settle." Dr. McKee and Dr. Stahler, a surgeon, decided not to resection the aneurysm. (Tr. 192). Lanoxin was prescribed for PAT. (Tr. 192).

 On December 17, 1979, Dr. McKee examined plaintiff and remarked that the aortic aneurysm had increased to 6 cm. He noted that the plaintiff had had "a few bouts of PAT. His heart is a bit irregular today and EKG reveals a few PVC's." (Tr. 190) His weight was up to 181 pounds. (Tr. 191). On March 17, 1980, Dr. McKee noted plaintiff's weight was down to 173 pounds, the aneurysm was stable, plaintiff had had PAT, and had scattered rhonchi. (Tr. 190).

 On April 17, 1980, plaintiff saw Dr. McKee for upper abdominal discomfort. His weight was 171 pounds. He had "somewhat scattered rhonchi and prolonged expiratory phase." "His pulse is 70 with three to four PVC's per minute." (Tr. 190). Dr. McKee saw plaintiff several more times. By July 11, 1980, plaintiff's weight was down ...


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