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January 23, 1975

Perry GOOD, Plaintiff,
Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant

John L. Miller, District Judge.

The opinion of the court was delivered by: MILLER

JOHN L. MILLER, District Judge.

 This is a continuation of an action filed in 1972 pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g) wherein Perry Good seeks judicial review of the decision of the Administrative Law Judge (ALJ) of the Bureau of Hearings and Appeals, Social Security Administration. Earlier we had denied defendant Secretary's motion for summary judgment by ordering the case remanded for further hearing pursuant to this Court's opinion of July 31, 1973. The matter having been reheard and further developed with the resultant denial of disability benefits, this case is now before the Court again on the Secretary's motion to reopen. The Secretary accordingly filed a supplemental trial record. Oral argument having been waived, counsel filed supplemental briefs wherein the Secretary respectively renewed his motion for summary judgment. Thus it is with the aid of additional evidence and new developments that this Court reviews the entire record.


 Perry Good is a male, forty-six years of age, with a wife and four children. He possesses a fifth grade education with primary work history in wood cutting and general sawmill work. He was a cook's helper while temporarily serving in the military forces. He also worked for about three years in the coal mines.

 Plaintiff claims disability by virtue of a back injury sustained in 1963, while working for a lumber company when a falling tree struck him. The medical evidence up until the time of the first hearing indicates that he suffered a compression fracture of the twelfth dorsal vertebrae which, after nine months in a body cast, necessitated a spinal fusion of the eleventh dorsal, twelfth dorsal, and first lumbar vertebrae. The surgery was performed in February 1965. *fn1"

 Additional prior medical evidence showed that plaintiff's spine is limited in flexion and somewhat in extension with X-rays showing minimal lipping of some of the segments of the lumbar spine. His back condition was diagnosed as old compression fracture of the twelfth dorsal vertebra due to wedging and early arthritic changes as well as sore back due to post-traumatic surgery. Plaintiff, who has not worked since August 1969, has a documented history of complaints of chronic or severe low back pain.

 Because of remand, a further hearing in this matter discloses the following additional evidence. Claimant was reexamined after the second hearing by Dr. Lawrence Casale upon the recommendation of the medical advisor who testified at that hearing, Dr. William Davison. The medical advisor also suggested that stress X-rays be taken which required laminograms being done in the flexion and extension positions for proper evaluation of plaintiff's condition. The consultative physical examination revealed normal range of motion in the cervical spine, full range of motion in shoulders with good muscle tone, active reflexes; flexion of lumbar spine was approximately 60 degrees, hyperextension was 10 degrees. Straight leg raising was 90 degrees bilaterally with some low back pain. The reflexes were active and muscle atrophy was not clinically observable. The stress X-ray report revealed a solid fusion. Diagnoses listed were a compression fracture of D-12, spinal fusion dorsal lumbar region, and persistent back pain secondary to the fracture.

 The medical advisor's testimony was that, from a medical standpoint, the claimant was capable of performing activities of a light and sedentary nature, but heavy lifting and related uses of the spine should be avoided. The medical advisor also responded to post-hearing interrogatories after review of the stress X-rays whereupon he stated the following:

 (1) the fusion was solid;

 (2) no medical evidence of either pseudoarthrosis or neurological involvement;

 (3) back pain on flexion and straight leg raising could be caused by tight ham string musculature;

 (4) opinion unchanged with regard to claimant's ability to engage in light or sedentary work.

 The principal issue is whether the Secretary's decision to deny plaintiff disability insurance or a period of disability is supported by substantial evidence

 So as to properly delineate the asserted errors represented by this appeal, it seems necessary for the Court to briefly summarize its prior action in this case. The Court had previously remanded for further hearing in conformity with its opinion of July 31, 1973, for the following reasons:

 (1) The ALJ neglected to evaluate the non-medical evidence adduced at the first hearing and virtually disregarded the subjective complaints of the claimant contrary to the law of this Circuit. ...

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