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May 12, 1981

Joseph A. CALIFANO, Jr., Secretary of the United States Department of Health, Education and Welfare

The opinion of the court was delivered by: LUONGO

Before me, for the second time, are cross-motions for summary judgment in this action brought under 42 U.S.C. § 405(g) seeking review of the final decision of the Secretary of Health, Education and Welfare *fn1" (Secretary) denying plaintiff disability benefits under 42 U.S.C. §§ 416(i) & 423. Because the decision of the Secretary is not supported by substantial evidence his motion will be denied. Because plaintiff improperly refused to submit to examination, his motion for summary judgment will likewise be denied and the matter will again be remanded to the Secretary.

When I first considered this case in 1978, I denied both parties' motions for summary judgment and remanded the case to the Secretary to hear and evaluate evidence pertaining to the plaintiff's psychological condition. Such evidence had not been considered at the time the Secretary rendered his decision that plaintiff was capable of doing sedentary work and was, therefore, not statutorily disabled. I did conclude that the Secretary's finding that plaintiff had the physical ability to do sedentary work was supported by substantial evidence and the remand was for the sole purpose of evaluating the effect that the newly presented psychological evidence had on that determination. Neumerski v. Califano, 456 F. Supp. 979, 980 (E.D.Pa.1978). Accordingly, I will only consider the proceedings on remand in disposing of the motions now before me. See Pope v. Weinberger, 397 F. Supp. 856, 859 (E.D.Pa.1975). *fn2"

 On July 27, 1979, the ALJ rendered his decision recommending that plaintiff not be granted benefits based on the ALJ's finding that "the record fails to clearly establish that (plaintiff's organic brain dysfunction and anxiety neurosis) was of a level of severity as of March 31, 1976 (the last date at which plaintiff met the special earnings requirement of the Social Security Act) as would either alone or in combination with the claimant's physical impairments have prevented him from performing sedentary work." (Record at 181)

 Plaintiff filed exceptions to the ALJ's report with the Appeals Council. The Appeals Council requested plaintiff to submit to an examination. Plaintiff refused to be examined without his counsel being present and, accordingly, he was not examined. On October 22, 1980, the Appeals Council denied the plaintiff's claim for disability benefits, stating "(u)pon review of the evidence presently of record, and considering the attorney's refusal to permit the claimant to undergo psychiatric and psychological examination as requested, the Appeals Council adopts the findings and conclusions in the recommended decision." This became the final decision of the Secretary. Both parties then moved for summary judgment in this court pursuant to F.R.Civ.P. 56(b).

 The test for statutory disability under the Social Security Act entails two distinct inquiries: (1) the determination of the extent of the disability and (2) the determination of whether that impairment results in inability to engage in substantial gainful activity. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). In the instant case plaintiff satisfied his burden by establishing at the initial hearing that, because of his back injury, he was physically unable to return to his former job involving heavy lifting. See Rossi v. Califano, supra; Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). It was then incumbent upon the Secretary to rebut plaintiff's showing of disability and to establish plaintiff's ability to engage in substantial gainful activity. Dobrowolsky v. Califano, supra; Rossi v. Califano, supra. The Third Circuit has warned that the Secretary's responsibility to rebut is to be "strictly construed." Dobrowolsky v. Califano, supra, at 407.

 The Secretary found that plaintiff's emotional impairment and organic brain dysfunction were not severe enough to prevent him from doing sedentary work. If that finding is supported by substantial evidence it must be accepted. 42 U.S.C. § 405(g); Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981). Substantial evidence is " "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Dobrowolsky v. Califano, supra, 606 F.2d at 406 (3d Cir. 1979), quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971).

 In his initial report, written after an approximately five hour examination of plaintiff (Record at 297), Dr. Paul wrote:

"... Because of his age, education, previous work experience, measured interests and aptitudes along with physical and emotional problems, it is my considered judgement that he cannot be re-trained to become gainfully employed. Although he has good manual dexterity, organicity contributes to a decreased attention span. Deficiencies in underlying skills of mechanical reasoning, space relations, and clerical aptitude would make it difficult for him to use manual dexterity in a competitive work setting. His emotional problems have undermined his confidence. The intensity of pain that he has experienced when he tries new situations has led to a significantly restricted pattern of daily living in contrast to his previous range of activities. As he contemplates his future, his immediate inclination is toward pessimism. This is very understandable in light of his physical and emotional problems. Thus, prospects for any rehabilitative efforts are very poor."

 Dr. Paul's second report and his testimony reiterate that conclusion. He also testified that plaintiff's emotional problems were present at the time of his back injury in 1970, and continued to the date of the hearing. (Record at 282) These opinions were based on Dr. Paul's personal observations of plaintiff on two occasions and the results of a battery of psychological tests administered to plaintiff. *fn4" Reports of psychologists are relevant medical evidence. See Martin v. Califano, Emp.Ins.Rep. (CCH) (1979 Transfer Binder) P 16,118 at 2099-20 (N.D.W.Va., Sept. 1, 1978). See also Muldrow v. Harris, 1A Emp.Ins.Rep. (CCH) P 17,207 at 1999-60 at n.1 (D.C.Cir., Aug. 26, 1980) (social worker). The ALJ's decision rejecting Dr. Paul's diagnosis and prognosis was based on the testimony of Dr. Spergel and on a number of observations the ALJ made of plaintiff during his testimony at the initial hearing. Dr. Spergel read Dr. Paul's reports prior to testifying, but he did not at any time examine plaintiff or review the actual results of the tests administered by Dr. Paul. Because of these facts Dr. Spergel's testimony as to plaintiff's psychological condition does not constitute substantial evidence in support of the ALJ's finding that plaintiff's mental impairment was minimal in light of the examining psychologist's contrary opinion. Martin v. Califano, (1979 Transfer Binder) P 16,118 at 2099-30 (N.D.W.Va., Sept. 1, 1978). See Marbury v. Matthews, 433 F. Supp. 1081, 1084 (W.D.N.Y.1971); Martin v. Secretary of Department of Health, Education and Welfare, 492 F.2d 905, 908 (4th Cir. 1974); Sower v. Califano, Emp.Ins.Rep. (CCH) (1978 Transfer Binder) P 15,672 at 2168 (W.D.Mich., Dec. 7, 1977).

  The ALJ also found that plaintiff did not establish that he "sustain(ed) ... organic brain dysfunction resulting from meningitis." (Record at 177). This finding also is not supported by substantial evidence. It was based on the ALJ's conclusion that plaintiff had failed to establish that he had had meningitis. It misstates the conclusions reached by Dr. Paul since Dr. Paul's finding of organic brain dysfunction did not rely on the fact that plaintiff had had meningitis, but rather, relied on the results of the Bender-Gestalt test administered to plaintiff in 1977. Again, Dr. Spergel's testimony that he would not necessarily have diagnosed organic brain dysfunction from the Bender-Gestalt results is not substantial evidence to support a finding that there was no organic brain dysfunction, especially where Dr. Spergel did not study the actual test results. The ALJ also cited Dr. Paul's failure to order follow-up neurological studies as a further indication that plaintiff failed to establish that he suffered from organic brain dysfunction. This does not constitute substantial evidence to support the ALJ's finding. Clearly the ALJ cannot substitute his own expertise for that of a physician or psychologist who examined plaintiff. Gober v. Matthews, 574 F.2d 772, 777 (3d Cir. 1978); Alvarez v. Califano, 483 F. Supp. 1284, 1285 (E.D.Pa.1980). There is no medical or psychological evidence in the record contrary to Dr. Paul's reports and testimony concerning the existence of organic brain dysfunction. In light of the above, the ALJ's finding of no organic brain dysfunction was speculative and accordingly it is not substantial evidence supporting the ALJ's decision. See Smith v. Califano, 637 F.2d 968 at 972 (3d Cir., Jan. 13, 1980).

 The non-psychological evidence also does not support the ALJ's finding that plaintiff's emotional and organic impairments were not severe enough to preclude him from doing sedentary work. Dr. Spergel's opinion, given in his role as a vocational expert, that plaintiff can do sedentary work is not substantial evidence for a finding to that effect unless there is sufficient evidence to support the ALJ's finding that plaintiff's impairments were minimal. See Spicer v. Califano, 461 F. Supp. 40, 47 (N.D.N.Y.1978); Brittingham v. Weinberger, 408 F. Supp. 606, 614 (E.D.Pa.1976).

 A reading of the ALJ's decision suggests that he felt that the psychological testimony was inconclusive and, to support his conclusion that plaintiff was not disabled, he placed considerable weight on the fact that plaintiff was able to drive his car. He opined that if plaintiff had a sufficient attention span and ability to perceive spatial relationships to drive he was able to perform sedentary work. An ALJ may not infer a lack of disability on the basis that a claimant engages in sporadic activity where there is uncontroverted medical testimony to the contrary. See Smith v. Califano, 637 F.2d 968 (3d Cir., 1981). In Smith the ALJ denied the claimant benefits because he had full use of his arms and legs, went shopping and, on occasion, went hunting. In reversing the district court's affirmance of this decision, Judge Higginbotham wrote:

"Disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity. Smith's activities are miniscule when compared to a plethora of cases which have held that there was total disability even when the claimant was far more active than Smith. It is well established that sporadic or transitory activity does not disprove disability.... As the court noted in Willem v. Richardson, 490 F.2d 1247 (8th Cir. 1974) "(the claimant's) sporadic and ...

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