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FARMER v. WEINBERGER

December 14, 1973

Lawrence FARMER
v.
Caspar WEINBERGER, Secretary, Department of Health, Education and Welfare


Gorbey, District Judge.


The opinion of the court was delivered by: GORBEY

Before this court are motions for summary judgment submitted by both parties. The plaintiff, a claimant for disability benefits under the Social Security Act, commenced this action under 42 U.S.C. § 405(g) *fn1" within 60 days after the Appeals Council upheld the Hearing Examiner's denial of benefits. The plaintiff claims to be entitled to benefits by reason of lumbosacral disc damage and its sequela, which the claimant reinjured on May 28, 1968, in the course of his employment as a chemical mixer.

 To qualify for disability insurance benefits under 42 U.S.C. § 423, an individual must meet the insured status requirements of that section, be under age 65, file an application for disability insurance benefits, and be under a "disability" as defined in the Act. The term "disability" is defined in § 423 to mean:

 
(d) (1) The term 'disability' means --
 
(A) inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; . . .
 
(2) For the purposes of paragraph (1) (A) --
 
(A) an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For the purposes of the preceding statement (with respect to any individual) 'work exists in the national economy ' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
 
(3) For the purposes of this subsection, a 'physical or mental impairment ' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

 The plaintiff claims that once he has shown that he cannot return to his prior employment, the burden shifts to the Secretary to show that the claimant cannot engage in any kind of substantial gainful work which exists in a national economy. It is the plaintiff's contention that the Secretary has failed to meet his burden, going forward with evidence to establish the claimant's ability to engage in such work. The plaintiff further contends that the findings of the Hearing Examiner that (1) he is not disabled and (2) jobs for which he is qualified exist in significant numbers within the national economy, are not supported by substantial evidence.

 It is clear that the claimant has the burden of establishing that he is disabled within the meaning of the Act. Dupkunis v. Celebrezze, 323 F.2d 380 (3d Cir. 1963); Franklin v. Secty. H.E.W., 393 F.2d 640 (2d Cir. 1968). This burden, however, is met once it is shown that the plaintiff can no longer perform the work in which he has been experienced or trained. Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966); See Gray v. Finch, 427 F.2d 336 (6th Cir. 1970). The plaintiff's claim that the Secretary failed to meet the burden of going forward with evidence, after such a showing by the plaintiff, is without merit. The Hearing Examiner called Dr. Morris M. Rubin, a rehabilitation counselor and counseling psychologist, who testified as a vocational expert. He testified that there were numerous light and sedentary jobs, which existed in both the area in which the claimant lived, and in several areas of the country, which could be done by the claimant. Specifically, he listed these jobs as: bench assembly work, sorting, labeling, packing, laundromat attendant, retail sales clerk in a dry cleaning or bakery shop, and building watchman. In addition to the preceding jobs, the witness indicated that the claimant was capable of retraining to perform a simple trade such as alteration tailoring. *fn2" Accordingly, it cannot be said that the Secretary has failed to meet his burden of going forward and to show that the plaintiff could engage in any kind of substantial gainful activity which exists in a national economy.

 The plaintiff's next argument is that there is no substantial evidence to show that the claimant could engage in a sedentary-type job. A review of the medical evidence shows no disagreement in the opinions of the three orthopedic surgeons who examined the plaintiff concerning his ability to perform light or sedentary work.

 Dr. Stephen Christides examined the claimant on three occasions between June 11, 1968 (within 2 weeks after the accident) and January 28, 1969. His diagnosis of the plaintiff's condition is "1. chronic recurrent lumbosacral joint sprain; 2. chronic osteorathrosis of the spine; and 3. sequel of an old sciatic syndrome on the right". His report indicates: "Because the patient was found to be considerably improved, he was told to continue to use the brace, and return to his previous occupation on 9/6/68." He further indicates: "My opinion on my examination of 1/28/69 was that the patient was much improved, and able to carry on with his activities." *fn3"

 Dr. Raymond O. Stein, who examined the plaintiff at the request of his attorney, diagnosed the plaintiff's condition as lumbo-sacral disc damage. In his letter of April 21, 1969, *fn4" Dr. Stein indicates that following the May 28, 1968 occurrence, the claimant had "apparently improved sufficiently to be able to return to work providing that it was a light-type work which he was doing." He further indicates that the claimant's symptoms are somewhat controllable by use of a back brace. In response to a request of the claimant's attorney asking whether the claimant is "totally disabled from employment on a 5 day a week, eight hour day basis", Dr. Stein indicated that the patient was disabled from the "type of work that he previously did as of May 14, 1969", and that "such disability" would be permanent unless surgery was performed. Dr. Stein, at no time, indicated that the claimant was not or could not be capable of performing the types of jobs which the vocational expert described. In addition, Dr. Stein has indicated that there is an 80% chance that claimant's condition can be alleviated surgically; it is his belief that removal of the disc and a spinal fusion would enable the patient to resume normal activity. Lastly, the claimant was examined by Dr. Jose H. Auday on two different occasions at the request and expense of the government. Dr. Auday diagnosed the claimant's condition as chronic low back sprain due to disogenic disease. He indicates that the patient is "capable of performing any type of work which does not require excessive bending, lifting or climbing." *fn5"

 There is no conflict in the medical testimony concerning the claimant's ability to carry out the type of activities required for the occupations listed by the vocational expert. Both Dr. Auday and Dr. Christides have indicated that he is capable of performing such activities. Dr. Stein indicates that the symptoms are somewhat controllable. In response to plaintiff's counsel's question on total disability, he is careful to state in this opinion that the plaintiff is ...


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