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THOMPSON v. SCHWEIKER

June 22, 1982

Ann L. THOMPSON
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services



The opinion of the court was delivered by: LUONGO

MEMORANDUM

This is an action under 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health and Human Services (Secretary) denying plaintiff's claim for disability benefits. The magistrate, to whom the matter was referred for report and recommendation, reports that (1) there is not substantial evidence to support the Secretary's findings and (2) the Secretary was not entitled to rely on the medical-vocational guidelines contained in 20 C.F.R. Subpart P, Appendix 2 in determining that there were jobs existing in the national economy which plaintiff could perform. Accordingly the magistrate recommends that the Secretary's motion for summary judgment be denied and plaintiff's cross-motion for summary judgment be granted. The Secretary has now filed objections to the magistrate's report and recommendation. For reasons discussed herein, I will reject the magistrate's recommendation, deny the cross-motions for summary judgment, vacate the decision of the Secretary and remand for further proceedings not inconsistent with this memorandum.

 After the magistrate issued his report and recommendation, the Court of Appeals for the Third Circuit upheld the validity of the medical-vocational regulations. Santise v. Schweiker, 676 F.2d 925 (3d Cir., 1982). Therefore the question before me is whether there is substantial evidence to support the Secretary's finding that plaintiff is not disabled within the meaning of the Social Security Act. See 42 U.S.C. § 405(g). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938)).

 
The patient still has right upper anterior thigh pain and low back pain. She continues on Flexeril and Darvoset and is still unable to fully resume all of her activities. She is mostly back to all of her activities such as driving and shopping but still has pain. The patient is taking Motrin in addition to her Flereril (sic ) and Darvoset. She is appraised that her old right leg and foot pain has disappeared and that this new pain is at a level higher than expected for the disc level involved. If no resolution of her problem occurs by her next office visit, consideration for myelography will be made to ascertain the status of the nerve roots in the higher lumbar area.

 (Tr. 130). Finally, the record contains a "neurological report" dated December 17, 1980 from Dr. John W. Boor, to whom plaintiff had been referred for examination by the Social Security Administration. Based upon his examination of plaintiff, Dr. Boor's impression of plaintiff was as follows:

 
Low back pain, status post lumbar laminectomy. Lumbar strain.
 
At present her neurological examination is remarkably benign and I can find no evidence of focal weakness. Limitations for this patient at present would include any type of employment that would include heavy lifting. However, she certainly is employable working perhaps at a desk job, or perhaps something involving occasional lifting of light packages under five pounds. I can find no focal neurological causes on examination that might explain why she should be placed on disability.
 
I cannot recommend disability for this patient but can only recommend that she be limited in heavy lifting and that no heavy lifting should be done by her. Otherwise, her examination for a chronic lumbar and possible root syndrome, looks remarkably benign.

 (Tr. 133).

 In addition to the material medical evidence set forth above, the record also contains the oral testimony of plaintiff and her husband given on November 5, 1980 at the administrative hearing held to determine plaintiff's claim. According to her testimony, plaintiff's daily routine usually begins at 6:30 a.m. when she rises to fix her son's breakfast and lunch. She then drives her son four miles to the school bus, after which she returns home to rest until 10:00 a.m. After her rest, plaintiff walks her dog for 15-20 minutes, fixes herself something to eat, and spends the remainder of the morning picking up around the house and either watching television or sewing. In the afternoon, plaintiff typically spends an hour and a half writing letters and performing other light tasks in her capacity as church secretary before preparing dinner. After dinner, she watches television while resting on a heating pad until 10:00 or 11:00 p.m. at which time she goes to bed. (Tr. 40-44). Apart from her testimony concerning her daily activities, plaintiff also testified that she is able to walk only half a block without resting, and then only with a back brace. (Tr. 38-40). The testimony of plaintiff's husband generally corroborated that of plaintiff. (Tr. 49-52).

 
3. The medical evidence of record establishes that the claimant has a history of a laminectomy with excision of a bulging disc.
 
4. The evidence of record does not establish the claimant's medical condition meets or equals the level of severity described in the Listing of Impairments in the Appendix to ...

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