plastic seat for his car. He has a constant feeling of pressure in his back, like someone is pushing something hard against it (Tr. 65).
Plaintiff's wife testified that plaintiff would try to help her with things around the house like washing dishes but he could not do it (Tr. 83). He would frequently walk away while they would be talking because he could not sit or stand too long (Tr. 83). She observed that he was in distress. He could only stand for about five minutes and sit for twenty minutes to a half hour (Tr. 84). After that he has to get up and move around (Tr. 85).
Dr. Karn, the vocational expert, testified that assuming that plaintiff has all the limitations, restrictions, and pain as alleged in his testimony, he would not be able to perform any of his previous jobs or any other jobs existing in the national economy (Tr. 71). However, if the judge found that plaintiff was restricted from all heavy lifting but that he could lift up to ten pounds occasionally, could sit up to an hour and a half, had to alternate between sitting and standing, and had some anxiety and depression, then he felt there was a fairly wide range of sedentary jobs plaintiff could perform (Tr. 72). These would include working as a flow set operator, a thermostat inspector, a final tester, a bench inspector, or a general assembler in the manufacture and checking and inspection of thermostatic controls and related devices for gas appliances (Tr. 73). He also felt plaintiff could work in a production job, an assembly job, or an inspection job in the manufacture of electrical contact points. Other jobs would include loading film for developing and processing, preparing orders for mailing, writing up orders at Perfection Photo in Greensburg, working at a semi-clerical job which involved credit checks, packing orders and preparing them for shipment. Plaintiff could also work as an inspector or packer/selector in the glass and china industry. Under examination by plaintiff's attorney Dr. Karn testified that the jobs he had described were usually performed in a seated position although the work did not require the person to sit. However, plaintiff would not be able to walk around or leave his work station. Although the jobs described were not fast paced assembly lines, there were production requirements (Tr. 77).
Judge DiCenzo reviewed the evidence, found that plaintiff's allegation of back discomfort and pressure was credible, but found that it did not restrict his physical ability to perform sedentary work. Therefore, he determined that plaintiff became disabled on October 18, 1977, but that his disability ceased on October 30, 1978 (Tr. 21). The Appeals Council denied plaintiff's request for review, commenting that the report of Dr. Hall of June 8, 1979, and the report of Dr. Searfoss of June 25, 1979, failed to establish, on the basis of laboratory and clinical findings, that plaintiff's back impairment was of greater severity than depicted by the evidence of record which was considered by Judge DiCenzo in reaching his decision of May 10, 1979 (Tr. 4-5).
Review of this decision is extremely difficult. Unfortunately, most of the medical reports are somewhat ambiguous. Although Dr. Rommel, on October 14, 1978, upon whom Judge DiCenzo appears to have relied to a great extent in finding plaintiff's disability ceased in October of 1978, expressed his opinion that plaintiff could not do any heavy lifting, he expressed no opinion as to plaintiff's ability to engage in other activities. Further, although his report discussed in detail his findings as to plaintiff's extent of flexion and extension, neither his report nor any other information contained in the record reveals what is considered normal and the extent of plaintiff's deviation from normal. Further, Dr. Rommel commented that plaintiff was still under the treatment of Dr. Hall. In August of 1978 Dr. Hall had commented that he anticipated plaintiff's disability to be from three to six months following his surgery. However, in March of 1979 Dr. Hall expressed his opinion that plaintiff was still disabled and would be reevaluated for returning to work in May. Dr. Hall's two reports in March of 1979 would appear to supersede his general estimate in August of 1978 of an anticipated disability of three to six months and it would also appear to supersede the opinion of Dr. Rommell in October of 1978 indicating only that plaintiff was not capable of heavy lifting. Although in March of 1979 Dr. Hall had reported that he would reevaluate plaintiff for returning to work in May, in June he reported that plaintiff had been placed in a body jacket cast from April 30 to June 4, 1979. It is hard to imagine how plaintiff would be able to perform the jobs described by Dr. Karn while he was in a body cast. Further, the decision to have plaintiff placed in a body cast would appear to corroborate his testimony of severe pain. It is recognized that the June 8, 1979, report of Dr. Hall, in which he advised of plaintiff's placement in the body cast, was not available to Judge DiCenzo at the time of his decision. However, that report would appear to cast a substantially different light on the extent of plaintiff's impairment. The Appeals Council's finding that the June 8, 1979, report of Dr. Hall failed to establish on the basis of laboratory and clinical findings that plaintiff's impairment was of greater severity than depicted by the evidence of record appears to overlook the fact that Dr. Hall had performed two laminectomies on plaintiff after having myelograms taken and who was plaintiff's primary treating physician. As has already been observed, the placing of plaintiff in a body cast for a period in excess of one month would seem to substantially change the picture concerning plaintiff's impairment.
The report of Dr. Searfoss is somewhat troublesome in that he reported that plaintiff did not experience any significant improvement while in the body cast but he did not feel plaintiff was a suitable candidate for fusion and did not pursue any additional medical follow-up. In light of the reports of Dr. Hall and Dr. Searfoss in June of 1979, the report of Dr. El-Attrache in December of 1979, which was submitted with plaintiff's Motion for Summary Judgment, is important. Dr. El-Attrache found that x-rays revealed plaintiff's impairment and concluded that plaintiff was disabled to work "in commerce and industry." Certainly all the jobs described by Dr. Karn were in commerce or industry. Judge DiCenzo found that plaintiff's testimony concerning his back discomfort and pressure was credible and Dr. Karn expressed his opinion that if plaintiff's testimony were true there was no work he could perform. Judge DiCenzo appears to have accepted plaintiff's testimony that he could not either sit or stand for any length of time but had to periodically walk around. Dr. Karn testified that the jobs he had described would not permit him to walk around. He would have to stay basically at his machine and would have to keep up his production rate. The United States Court of Appeals for the Third Circuit has indicated that a finding of disability by another agency is entitled to substantial weight and that it satisfies plaintiff's burden of proof. See Lewis v. Califano, 616 F.2d 73 at 76 (3d Cir. 1980); Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979). The judge did not discuss the fact that plaintiff was found totally and permanently disabled for purposes of workmen's compensation and was still receiving benefits at the time of the hearing.
Judge DiCenzo carefully and conscientiously reviewed the evidence and testimony. However, the subsequent reports of Dr. Hall, Dr. Searfoss, and Dr. El-Attrache cast a substantially different light on plaintiff's claim. Therefore, it is recommended that the parties' Motions for Summary Judgment be denied and that the action be remanded to the Secretary for reconsideration.
In accordance with the Magistrates Act, 28 U.S.C. Section 636(b)(1)(B) and (C), and Rule 4 of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of service to file objections to this report and recommendation.