Plaintiff has submitted to the court a letter, dated April 14, 1980, from Dr. Stein, stating that Pantopaque, the dye used in myleograms, has been trapped in plaintiff's cervical spine and that can be irritating the area. Dr. Stein further states that plaintiff "has not been recovered sufficiently to be able to return to work certainly from the date of the operation down to and including the present time" (Exhibit A attached to plaintiff's Motion and Supporting Brief for Summary Judgment).
Plaintiff was born on May 7, 1950, and has a high school education. At the time the injury occurred plaintiff worked as a meat packer for Bluebird Food Products Co. in Philadelphia (Tr. 51, 282). Bluebird's records show that plaintiff was originally hired in October, 1970, and was terminated on July 2, 1976, as he was not physically able to work (Tr. 282). Prior to this he had worked as an automobile repairman (Tr. 285) and as a professional boxer (Tr. 60-61). Plaintiff was absent from Bluebird a total of 114 days in 1974, 98 days in 1975, and 141 days in 1976 (Tr. 282). Plaintiff's job consisted of lifting 50 and 75 pound slabs of meat off of conveyor belts and into boxes (Tr. 51-52). After the accident he returned to work on March 17, 1975, until November 12, 1975 (Tr. 100), during which time he was given light duties to perform, although he did do some lifting (Tr. 105-107). The light duty consisted of scale work, which involved no lifting (Tr. 107). Plaintiff had to stand still and weigh meat which others lifted onto the scale (Tr. 107). Plaintiff left work in November, 1975 because "The pain got so bad I couldn't even do the light work." (Tr. 108).
Plaintiff again attempted to return to work in the latter part of 1976, this time with an inventory research company identified by him as Intersearch, located in Jenkintown, Pennsylvania (Tr. 56). Plaintiff's work consisted of sitting at a desk, making telephone calls (Tr. 56, 113). Plaintiff was fired after three weeks because he was unable to do the job (Tr. 56-60, 113-14). He experienced headaches, and pain in the neck, left side, and back (Tr. 114).
At the hearing before the Administrative Law Judge on March 31, 1978, plaintiff testified that because of tiredness, aches and pains in his neck, side and back, the furthest distance he is able to walk is four or five blocks (Tr. 92), and the longest period he can stand is for approximately fifteen minutes (Tr. 93). Plaintiff also has problems sitting as he suffers from tightness and pain in the neck, left side of the shoulder blade and left side near the spine (Tr. 93-94). The length of time for which plaintiff can sit before this occurs varies from five to ten or twenty minutes (Tr. 94). Plaintiff has difficulty bending and stooping and going up and down stairs, and the pain "gets very unbearable" (Tr. 96-97).
A vocational report on plaintiff was prepared by Mr. Bernard Orr on April 18, 1979 (Tr. 284-87). Mr. Orr interviewed plaintiff on January 29, 1979, and reviewed plaintiff's medical record (Tr. 284). During the interview plaintiff described the pain in his neck, left shoulder and back as "feeling like a "knife was cutting' " (Tr. 285). The pain can attack anytime during day or night and can occur twice in one day (Tr. 285). Plaintiff must take medication (Percodan, Valium, or Codeine), and get into bed (Tr. 285). The pain is unbearable until he falls asleep for two or three hours; when he awakens the pain is still there, but not so severe as to prevent him from sitting up (Tr. 285).
As a result of his vocational evaluation Mr. Orr concluded that "Mr. Jones remains completely and totally incapable of sustained job effort. If he should conceal his condition and manage to get himself hired, he would not last two days, even on the easiest sedentary job. Once the pain attacked him he would have to go home, take the medication, lie down, apply heat and try to sleep. Mr. Jones is now totally unemployable in any job whatsoever." (Tr. 286-87).
Title 42 U.S.C. § 405(g) provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Consequently, in a suit for judicial review of a final decision by the Secretary, the sole question for the Court is whether the finding of the Secretary that the plaintiff was not entitled to receive disability insurance benefits is supported by substantial evidence. Substantial evidence is such relevant "evidence which a reasoning mind would accept as sufficient to support a conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance of the evidence." Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3rd Cir.), cert. denied, 402 U.S. 976, 91 S. Ct. 1680, 29 L. Ed. 2d 142 (1971).
After careful review of the record, we find that the Secretary's decision that plaintiff is not entitled to a period of disability or disability insurance benefits is not supported by substantial evidence.
In order to establish a disability within the meaning of the Social Security Act, a claimant must prove, first, that he has 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 twelve months, and, second, that the impairment renders him unable to engage in substantial gainful activity. 42 U.S.C. §§ 416(i)(1) and 423(d)(1). Hargenrader v. Califano, 575 F.2d 434 (3rd Cir. 1978). 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 other 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". 42 U.S.C. § 423(d) (2)(A). A claimant has the initial burden of proving that due to his disability he is unable to perform his former work. Brooks v. Califano, 440 F. Supp. 1341, 1343 (D.Del.1977). Once the claimant has established his inability to perform his former work, the burden shifts to the Secretary to show that the claimant is capable of performing alternate gainful employment. Id.
In determining whether a person is able to engage in any substantial gainful activity, there are four elements of proof which the Secretary must consider: (1) objective medical data and findings; (2) expert medical opinions; (3) subjective complaints; and (4) claimant's age, educational background and work history. De Paepe v. Richardson, 464 F.2d 92 (5th Cir. 1972); Davila v. Weinberger, 408 F. Supp. 738, 741 (E.D.Pa.1976); Barats v. Weinberger, 383 F. Supp. 276, 282-83 (E.D.Pa.1974).
After reviewing the medical evidence and the testimony, the Administrative Law Judge found that plaintiff's subjective symptomology was not supported by clinical findings or laboratory data; that substantial medical documentation of record established that plaintiff had no significant physical abnormalities or functional limitations; and that plaintiff's assertions of disabling pain were not credible. The Administrative Law Judge concluded that plaintiff was not precluded from returning to his previous work, and denied his claim (Tr. 19-32).
There is no dispute in the record as regards the objective medical data and findings of the doctors who treated and examined plaintiff. It is indisputable that plaintiff suffered a severe injury resulting in discogenic disease and that a cervical fusion of the C-5 and C-6 vertebra was performed on him. However, this in itself does not establish plaintiff's disability. The salient factor in this case is plaintiff's subjective complaint of pain. It is this pain, which plaintiff asserts to be unbearable, that is disabling. The Administrative Law Judge chose to disbelieve plaintiff. A thorough review of the record clearly shows this finding to be unsupportable.
It is quite true that pain, because it is experienced only by the person suffering from it, does not easily lend itself to objective evaluation. Yet, "even pain unaccompanied by objectively observable symptoms which is nevertheless real to the sufferer and so intense as to be disabling will support a claim for disability benefits". Bittel v. Richardson, 441 F.2d 1193, 1195 (3rd Cir. 1971); Ber v. Celebrezze, 332 F.2d 293, 299 (2nd Cir. 1964). Of course, the possibility of fabrication or exaggeration cannot be overlooked. Baith v. Weinberger, 378 F. Supp. 596, 603 (E.D.Pa.1974).
Thus, the Administrative Law Judge was quite properly concerned, as her written opinion demonstrates, with the possibility of fabrication or exaggeration by plaintiff and the potential for abuse which would result if every claimant alleging pain was to be awarded benefits. Nevertheless, such concern with the integrity of the disability benefit system must not blind the Social Security Administration or the courts which review its decisions to the merits of the individual case before them at a particular time.
This court finds the plaintiff's assertions of pain credible. Moreover, the existence of this disabling pain is amply corroborated in the record by the entirely credible and unbiased medical judgments of all of the doctors who treated and examined plaintiff. The expert medical opinions of Drs. Stein, Waltz, and Guttmann attest to the pain from which plaintiff has suffered since he was injured in 1974, and from which he continues to suffer at present. Nothing in the record indicates that plaintiff has fabricated his reports of pain or that he is faking or malingering. Dr. Waltz, who has treated plaintiff since 1976, testified as to his objective medical findings, as well as to his expert medical opinion that plaintiff was genuinely suffering from disabling pain (Tr. 263-64). Dr. Waltz testified that he had considered the possibility that plaintiff was faking, but had rejected that contention (Tr. 263-64). Plaintiff's assertions of pain are nowhere disputed or contradicted in the record. The record reveals no indication that any of the doctors who treated or examined plaintiff found his reports of pain to be in any way not credible or exaggerated.
Plaintiff has clearly established his inability to perform his former work. Plaintiff could not, as of November 13, 1975, and cannot now, return to his job as a meatpacker, nor could he work as an auto mechanic. Dr. Guttmann, who examined plaintiff at the request of the Social Security Administration, found that plaintiff was disabled from performing the type of work he had done in the past. Dr. Guttmann felt that plaintiff would be able to return to his previous work provided he received proper treatment and therapy, and should be re-evaluated at a later date to determine how much he had progressed (Tr. 207). There is no indication in the record that plaintiff was later re-examined by Dr. Guttmann or found able to work. There is thus no support in the record for the finding of the Social Security Administration that plaintiff is not disabled. Dr. Guttmann is the only one of the medical experts whose opinion even suggests that plaintiff, although disabled at the time of examination, might be able to work again at some time in the future. Yet, Dr. Guttmann did not later examine plaintiff again, and all subsequent medical evaluations by Dr. Waltz and Dr. Stein continue to attest to plaintiff's disability.
To the extent that there are any contradictions between the findings and opinions of Dr. Guttmann, who examined plaintiff on only one occasion, and Drs. Stein and Waltz, who each independently treated plaintiff on a continuing basis over a period of years, this Court chooses to rely on the testimony and reports of Drs. Stein and Waltz. The opinion of a treating physician is to be accorded greater weight than that of a doctor who has seen a claimant but once. Smith v. Secretary of Health, Education and Welfare, C.A. No. 79-816 (E.D.Pa. June 9, 1980); Rosa v. Weinberger, 381 F. Supp. 377, 380 (E.D.N.Y.1974).
The Social Security Administration has failed to show that plaintiff is capable of performing alternate gainful employment. Although the disability examiner found in August, 1977 that plaintiff was capable of certain light sedentary jobs such as car rental clerk, assignment clerk, or meat grader (Tr. 210), the record reveals no evidence to support that decision, or that plaintiff would be able to engage in any other type of work. Indeed, plaintiff in fact attempted to engage in as light a type of work as can be imagined when he was employed as a telephone researcher, but was fired as his physical condition prevented him from even sitting at a desk and speaking on the phone.
The Social Security Administration can point to nothing in the record to contradict the findings of Mr. Orr, the sole vocational expert to have examined and reported on plaintiff's vocational capabilities. Mr. Orr, the vocational expert, determined that plaintiff is completely and totally incapable of sustained job effort and is totally unemployable in any job whatsoever (Tr. 286-87). Moreover, Mr. Orr clearly stated that plaintiff would be unlikely to obtain employment without concealing his condition, and if he did find a job, he would be incapable of performing his duties (Tr. 286-87). Mr. Orr's report was not available to the Administrative Law Judge, but was considered by the Appeals Council, which affirmed the Administrative Law Judge and rejected plaintiff's request for review of the hearing decision (Tr. 5-7). The Appeals Council believed that Mr. Orr's conclusions were not supported by the record, nor were they determinative of the issue of disability (Tr. 6). This court finds that Mr. Orr's report is absolutely consistent with the medical data and opinions in the record. The medical, vocational, and other information in the record lead a reasonable mind to the conclusion that the plaintiff is disabled and has been since November 13, 1975. While we must disregard any consideration of whether plaintiff, despite his medical condition, would be hired if he applied for work, the conclusion is inescapable that Mr. Orr correctly determined that plaintiff would be unable to hold any job, no matter how light, which he might be able to obtain.
We find that the plaintiff is entitled to a period of disability and disability benefits beginning November 13, 1975.
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