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DETAMORE v. SCHWEIKER

June 1, 1983

KAREN DETAMORE
v.
RICHARD S. SCHWEIKER, Secretary of Health and Human Services



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 This action is brought under 42 U.S.C. § 405(g) and § 1383(c) (3) to review a final decision of the Secretary of Health and Human Services ("Secretary") denying the plaintiff's claim for disability benefits under Title II and Title XVI of the Social Security Act. The parties have filed cross motions for summary judgment.

 In April of 1981, the plaintiff, Ms. Detamore, applied for disability benefits. She claimed that her disability had commenced in February, 1981, when a degenerative disc disease of the lower back forced her to quit her job as a paralegal. The Administrative Law Judge ("ALJ") determined that the plaintiff was not entitled to disability benefits because her impairment "did not preclude her from performing her past relevant legal and administrative jobs for any continuous period of twelve months or longer." (Tr. 12). The ALJ based his decision on the plaintiff's law school attendance during some of her claimed period of disability. *fn1"

 The ALJ concluded that the plaintiff's ability to attend law school was conclusive evidence that the plaintiff would have been able to perform her job as a paralegal. After subtracting the periods that the plaintiff attended law school from the period of the claimed disability, the ALJ found that the plaintiff had not shown that she had an impairment which would last for a period of at least twelve months. *fn2"

 The issue before the Court is whether the decision of the ALJ denying disability benefits to the plaintiff is supported by substantial evidence.

 In reaching his conclusion the ALJ considered only the apparent ability of the plaintiff to concentrate despite her pain and failed to account for her undisputed physical impairments. *fn3" The record presents a wealth of unrebutted medical evidence substantiating the plaintiff's disability claim.

 The reports of Dr. Leonard A. Bruno, M.D., a neurosurgeon and plaintiff's attending physician for over three years, revealed that by February, 1981, the plaintiff was "unable to ambulate or do the activities of daily living" because of her back condition. (Tr. 137, 141). The condition did not improve significantly and necessitated surgery in June, 1981, from which the plaintiff began a long period of recovery. In April, 1982, almost a year after surgery, Dr. Bruno issued a report detailing the substantial limitations still facing Ms. Detamore. *fn4" He further stated that, "My opinion is that while Ms. Detamore might be able to continue with her schooling for the remainder of this calendar year with all of the special arrangements in force, I think it is unrealistic for her to attempt to perform any type of work, even if it is primarily sedentary in nature." (Tr. 174). In Dr. Bruno's opinion, it would take an additional 6 to 8 months for her to recover sufficiently to attempt sedentary work. (Tr. 175).

 Dr. Bruno's conclusions are supported by two other medical reports of record.

 Kenneth Frank, M.D., an orthopedic surgeon, assisted Dr. Bruno with the plaintiff's operation. He examined her in May, 1981, prior to the operation. At that time, he found her mobility severely limited and described her disability as "essentially total." (Tr. 147-148).

 Dr. Thakarar, a specialist in physical medicine and rehabilitation who was the Social Security consulting physician, also examined the plaintiff in May, 1981. He diagnosed her impairment as resulting from "discogenic disease and degenerative joint disease of the lumbar spine" and recommended that she "avoid prolonged sitting, standing, walking, crawling, climbing up and down steps, as well as any activity that requires bending over. She should also avoid doing any pushing and pulling, as well as lifting any heavy objects." (Tr. 152).

 In support of his decision, the Secretary offered no medical evidence to rebut the evidence of the plaintiff's treating physician. The law requires that the treating physician's opinion cannot be rejected unless contradicted by other medical evidence of record. Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979); Smith v. Califano, 637 F.2d 968 (3d Cir. 1981).

 The unrebutted medical opinion of Dr. Bruno, plaintiff's treating physician, supports her claim of disability from February 1981 because of her lumbar disc disease. (Tr. 137, 141, 174). The opinion of Dr. Bruno is clear and unequivocal and is corroborated by the other medical evidence of record. Therefore, I find that under the law of this Circuit the ALJ ...


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