ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before: SEITZ, Chief Judge, SLOVITER, Circuit Judge, and LORD,*fn* District Judge
Plaintiff-Appellant, Edward Stewart, initiated this action under 42 U.S.C. § 405(g) (1974) for review of a final determination by the Secretary of Health and Human Services. The Secretary, initially and on reconsideration, denied Stewart's application for disability benefits. A hearing was held before an Administrative Law Judge on January 14, 1980. The ALJ issued a written decision on February 5, 1980 finding the appellant was not disabled as of September 30, 1978, his last day of eligibility. The decision of the ALJ became the final order of the Secretary and was approved by the Appeals Council on March 13, 1980.
Stewart appealed this decision to the United State District Court for the District of New Jersey. The court determined that the Secretary failed to establish that alternative substantial gainful employment was available to Stewart and on February 27, 1981 the case was remanded for further proceedings. Stewart v. Harris, 508 F. Supp. 345, 349 (D.N.J. 1981).
A second hearing by the ALJ was conducted on August 10, 1981. The ALJ issued a decision on October 19, 1981 recommending that Stewart be found not disabled. This decision was adopted by the Appeals Council and became the final order of the Secretary on December 23, 1981.
Stewart again appealed to the district court. The district court issued an unpublished opinion and order on September 21, 1982 that affirmed the denial of benefits. Stewart then filed a timely notice of appeal to this court.
The records of the hearings disclose the following facts. Stewart was injured in an accident at work in July, 1977.He continued to work until August of that year. He was thirty-two years old at the time, and all of his work experience involved heavy construction work.
In August 1977, he was admitted to Elmer Hospital for marked pain in his back. The diagnosis was contusion of the lumbosacral area and contusion of the base of the left lung. In September, Stewart was discharged on an out-patient basis.
Stewart's claim for disability was based primarily on his back injury and consequent pain. Conflicting medical evidence was presented on the severity of the injury and the pain. Stewart's treating physician, Dr. Otto Boysen, stated in a note dated March 2, 1979 that the claimant was "totally disabled due to lumbosacral strain." (Transcript 116). In a medical report from August 1979 Boysen detailed his treatment of Stewart's injury since 1977 and reached the same conclusion. (Tr. 128-29).
Dr. Thomas Obade examined Stewart on behalf of the Secretary on May 18, 1979. His examination revealed that Stewart had twenty-five percent of the normal range of motion in his back with a mild amount of spasm, that his hips moved well without pain, and that Stewart's legs showed no evidence of atrophy. X-rays of the lumbosacral spine revealed a minimum compression factor of L-1. Obade also stated that Stewart suffered a chronic lumbosacral strain. He concluded that Stewart was capable of performing sedentary work. (Tr. 85-88).
Stewart testified that he took three or four percodan tablets a day as well as valium (Tr. 39-40), and that if he sat too long he would be in pain (Tr. 47, 180). Stewart explained that the pain medications he used made him feel "drugged" and did not provide sustained relief from the pain. (Tr. 185-86). The medications also made it difficult for him to concentrate and impaired his memory. ...