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July 7, 1980

Michael T. JONES
Patricia Roberts HARRIS, Secretary of Health, Education and Welfare

The opinion of the court was delivered by: WEINER

This action was brought under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare denying the plaintiff a period of disability and disability insurance benefits under Section 216(i) and 223, respectively, of the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423. This matter is before us on cross motions of the parties for summary judgment. For the reasons to follow, we grant plaintiff's motion for summary judgment.


 That plaintiff had an accident is undisputed. The record indicates that while at work on June 25, 1974, plaintiff was injured when he was hit on the neck and head by a falling heavy metal bar (Tr. 68, 132). Plaintiff was brought in a dazed, semi-conscious condition, to Methodist Hospital in Philadelphia, Pennsylvania (Tr. 68, 132). X-rays of the cervical spine and skull taken at Methodist were normal and plaintiff was discharged (Tr. 132, 228-29). Plaintiff returned to Methodist on June 30, 1974, complaining of terrible headaches. The diagnosis was muscle sprain (Tr. 231).

 The plaintiff continued to suffer from pain and headaches (Tr. 69, 141). Over the next several weeks he was treated as an outpatient with various analgesics and muscle spasm relaxers, as well as with a plastic collar and home cervical traction (Tr. 132, 232). He did not respond adequately to this treatment, and was admitted to Mercy Catholic Medical Center in Philadelphia on September 23, 1974 for more intensive therapy (Tr. 132). A neurological examination revealed significant reduction in range of movement of his neck with prominent spasm and guarding of both trapezius muscles. The other paraspinal cervical muscles were also somewhat tender and tight (Tr. 132). Physical therapy with heat and traction was administered, and plaintiff was given fairly heavy doses of muscle spasm relaxing drugs, as well as analgesics (Tr. 132). Plaintiff was discharged on October 12, 1974, at which time he was taking Triavil, Valium, and Codeine (Tr. 132). Plaintiff was instructed to continue with his collar and home traction, and to return for further outpatient follow-up (Tr. 133). The final diagnosis by Dr. Lorenzo Runk, a Board certified specialist in neurology (Tr. 220), was: (1) acute and chronic cervical muscle spasm, traumatic; (2) cerebral concussion; (3) post-concussion cephalgia. Plaintiff periodically returned to see Dr. Runk (Tr. 133).

 Still suffering from pain in the neck, shoulder, and left arm, plaintiff was examined on December 16, 1974 by Dr. Raymond O. Stein, a Board certified specialist in orthopedic surgery (Tr. 213), who concluded that "he does not seem to be any better" (Tr. 141). Neck and cervical spine studies taken on December 16, 1974 by Dr. Irving B. Wexlar, and Dr. Arnold H. Levine showed a marginal irregularity along the fifth cervical segment (Tr. 140). Dr. Stein again examined plaintiff on December 23, 1974, and stated in his report that "the x-ray pictures did show a chip fracture and it may be that he has some residual from this, it is only six months and this is not a long time, for a neck injury" (Tr. 143). Dr. Stein further stated that plaintiff was suffering from radicular pain in relationship to a soft tissue injury and "probably" discogenic damage at C-5 and C-6 cervical discs (Tr. 145). Dr. Stein continued to treat plaintiff. His reports indicate that over the next few months plaintiff continued to suffer from residual pain, but that he did experience some improvement (Tr. 146-152).

 After the accident, plaintiff remained out of work until March 17, 1975, with the exception of a period described by the plaintiff as between three weeks and two months, during which time he did work (Tr. 100-102). Plaintiff returned to work on March 17, 1975, and continued working until November 12, 1975, missing 18 to 20 days during that period (Tr. 115).

 X-rays taken by Dr. Wexlar and Dr. Levine on June 6, 1975, revealed a marginal defect along the antero-inferior aspect of the fifth cervical segment, associated with triangular ossification. Their report noted that "this appearance is compatible with the residual of an avulsion fracture at this site" (Tr. 153-54). Dr. Stein's examination of plaintiff on June 13, 1975 noted that the x-rays showed the avulsion fracture at C-5 and C-6, and that plaintiff was still having difficulty with his neck and pain in the area of his left shoulder and arm. Dr. Stein concluded that plaintiff "has not improved" (Tr. 155).

 Dr. Stein's reports over the next several months indicate that plaintiff showed a little improvement (Tr. 157-59), although the possibility of more drastic treatment, in the nature of a fusion was mentioned by Dr. Stein in his reports as early as March 27, 1975 (Tr. 151). These reports indicate that plaintiff first began to consider surgery on June 6, 1975 (Tr. 155), but that he had a religious principle against a transfusion, and Dr. Stein would not be willing to undertake the operation unless plaintiff gave permission for use of transfusions if necessary (Tr. 156). Plaintiff visited Dr. Stein again on October 24, 1975 after experiencing a severe flare-up of pain beginning three days earlier and which had not quieted down (Tr. 160). By November 14, 1975, plaintiff had definitely decided to have surgery performed (Tr. 162), but was advised that Dr. Stein would be unable to perform it until the middle of January (Tr. 162, 163).

 On December 1, 1975, plaintiff was admitted to the Hospital of the University of Pennsylvania in Philadelphia, with a diagnosis of C5-C6 cervical disc disease (Tr. 164). X-rays showed a small fragment along the lower anterior border of the fifth cervical vertebrae probably representing a traumatized osteophyte or an unfused ossification center (Tr. 164-65). A myelogram was performed and was within normal limits (Tr. 165, 168). Plaintiff was discharged on December 9, 1975. An x-ray report done by Dr. Paul S. Friedman on March 4, 1976 showed "reduction in cervical lordosis in the neutral position, such as accompanies cervical muscle spasm", and also an old fracture of the anterior inferior portion of the body of the fifth cervical vertebra (Tr. 169-70).

 On December 1, 1976, plaintiff consulted Dr. Joseph M. Waltz of the Department of Neurologic Surgery of St. Barnabas Hospital, Bronx, New York, complaining of almost constant pain in his neck and left shoulder for the past two and a half years (Tr. 171). The diagnosis was possible degenerative disc C5, C6 (Tr. 180). Plaintiff was admitted to St. Barnabas on January 20, 1977 (Tr. 181). The hospital report noted that he had suffered from an almost constant pain in the cervical area on the left side with radiation onto the left shoulder, and from an occasional heavy feeling or ache in the left hand (Tr. 181). The report further states that plaintiff's left hand tired easily and that plaintiff did not use it as much as he had previously (Tr. 181). There was tenderness in the cervical area over C5 and C6, and definite increase in the pain in the neck with hyperextension or rotation of the head and neck (Tr. 181). An x-ray showed an old teardrop fracture of the lip of C5, and there was mild cervical spondylosis in the region of C5 and C6 (Tr. 181, 243). Electromyography revealed a C6 root problem on the left side, and a cervical analgesic discography was done, which relieved the cervical pain and allowed plaintiff to hyperextend and rotate his head without discomfort (Tr. 181). Based on this an anterior cervical fusion was performed by Dr. Waltz on February 4, 1977 (Tr. 181, 235). There was found to be a "transverse fracture of the lip of C5 which came away quite easily and encompassed the whole anterior lip" (Tr. 235). "The disc was quite degenerative and was removed easily (Tr. 235).

 Plaintiff filed an Application for Disability Insurance Benefits with the Social Security Administration on March 15, 1977 (Tr. 184-97), claiming that he became unable to work because of his disability on November 13, 1975. Plaintiff asserted that he couldn't do any "lifting, pushing, talking too much", could do "nothing to exert myself", and that he tried to do the same things he used to, but could not do as much and tired easily (Tr. 190). Plaintiff further stated that he was in pain constantly, was gradually learning to turn his neck, and had limited arm and shoulder movement (Tr. 193). The Social Security Administration found plaintiff to be not disabled, and denied his claim for disability benefits on April 12, 1977 (Tr. 201-202). A denial notice was sent to plaintiff on April 26, 1977 (Tr. 203-204) and on June 7, 1977 plaintiff filed a Request for Reconsideration (Tr. 205).

 Plaintiff was examined on August 26, 1977, by Dr. Gad G. Guttmann, who noted that there was some improvement in plaintiff's condition, but that plaintiff continued to suffer from occipital temporal headaches, occasional flushes, some pulling sensation along the base of the neck and left shoulder, and some residual stiffness of his neck (Tr. 206). Dr. Guttmann concluded that at that time plaintiff was "disabled from performing the type of work he has done in the past", but that with "further rehabilitation and recuperation ... (he) should be able to return to his previous work, provided he receives the proper physical therapy, observation and treatment" (Tr. 207). Dr. Guttmann also felt that plaintiff "should be re-evaluated in about six months to see how much he has progressed" (Tr. 207).

 Upon reconsideration by the Social Security Administration, plaintiff's claim was again denied on August 30, 1977 (Tr. 209-210). The disability examiner determined that medical evidence did not meet or equal social security disability requirements, and that the plaintiff "had the capacity to engage in numerous light/sedentary jobs, such as car-rental clerk (Auto Ser) assignment clerk (Motor Trans) or grader, meat ...

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