and in instances has changed to stand and move about. There is indication that plaintiff has been willing to participate in a rehabilitative program but that he has never been afforded the opportunity to participate in such a program.
In finding that disability had ceased as of July 1968, it is clear that the Hearing Examiner gave less than full weight to plaintiff's symtomatic complaints. Indeed, it was the testimony of the vocational expert that, if plaintiff's testimony were fully accepted, he would be unemployable. In finding that plaintiff's condition had improved, the Hearing Examiner necessarily afforded great weight to the reports of Dr. Silensky subsequent to April of 1966 and to the testimony of Dr. Nugent. Viewing the record as a whole, this evidence cannot be considered as substantial.
In rendering his 1966 decision, the Hearing Examiner discounted the 1965 findings of Dr. Silensky in the light of the findings of four other specialists indicating that plaintiff was disabled. In 1965, Dr. Silensky was of the opinion that plaintiff was "convalescing." Upon examinations of the plaintiff subsequent to the Hearing Examiner's decision of 1966, Dr. Silensky was of the opinion that "maximum improvement" had been attained and that plaintiff was "employable." However, the fact is that Dr. Silensky's objective findings remained essentially the same as those which he made upon his first examination of plaintiff subsequent to the fusion. Because there was no change in Dr. Silensky's objective findings, there is no apparent basis for Dr. Silensky's later opinion that plaintiff's condition had improved.
Futhermore, the opinion of Dr. Ryan basically supported the opinions of the four specialists upon whose judgment the Hearing Examiner relied in his original decision awarding disability. Dr. Nugent's opinion that plaintiff was able to engage in light work was founded, in part, on the absence of objective findings of nerve root involvement. Yet, the very diminution of ankle reflex which he found to be absent was observed by two of the specialists examining plaintiff earlier. Dr. Nugent also stated that if the fusion were found to be unstable within the year subsequent to the fusion, it was unlikely that the fusion would become more solid with the passage of time.
Subjective evidence of pain and incapacity resulting from pain is one of the elements to be considered in reaching a determination of disability, but such evidence must be evaluated with due consideration for credibility, motivation, and medical evidence of impairment. Schmidt v. Secretary of Health, Education and Welfare, 299 F. Supp. 1315, 1318 (D.C.P.R. 1969). In the instant case, there is considerable objective medical evidence supportive of plaintiff's complaints of disabling pain. It is clear that plaintiff's pain results from a residual impairment of plaintiff's back existing subsequent to a spinal fusion. Several specialists have found a possibility of nerve root involvement. It is conceded by Dr. Nugent that muscular atrophy need not exist for plaintiff to experience severe pain. Plaintiff has not been found to be a malingerer.
Although medical evidence was conflicting, there was sufficient medical evidence supportive of plaintiff's subjective complaints of pain to render those complaints credible. In these circumstances, plaintiff's burden of establishing disability has been met and the finding of the Hearing Examiner that plaintiff's disability ceased in June of 1968 is not supported by substantial evidence.
An appropriate order is entered.
Now, this 24th day of September 1970, defendant's Motion for Summary Judgment is denied and the case is remanded to the defendant Secretary with directions that the plaintiff be granted a period of disability and disability benefits for disability continuing subsequent to June of 1968.