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WRIGHT v. SCHWEIKER

October 28, 1983

Samuel WRIGHT
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 This was an action brought by the plaintiff pursuant to Sections 205(g) and 1602 of the Social Security Act, as amended, 42 U.S.C. § 405(g) and § 1383(c)(3) to review a final decision of the defendant, the Secretary of Health and Human Services, *fn1" denying the plaintiff's claims for disability insurance benefits under 42 U.S.C. § 423, as amended, and supplemental security income under 42 U.S.C. § 1382. The matter is before this court on cross-motions of the parties for summary judgment. For the reasons which follow, the plaintiff's motion for summary judgment is granted and the defendant's motion is denied.

 Plaintiff filed an application for disability insurance benefits on September 17, 1979 and an application for Supplemental Security Income ("SSI") on December 13, 1979 with the Department of Health and Human Services. Plaintiff claimed that he has been disabled since July 21, 1978 because of an injured back and deteriorating discs. The applications were denied by the Social Security Administration and the Pennsylvania State Agency.

 On January 17, 1981, an Administrative Law Judge ("ALJ"), considering the case de novo, determined that plaintiff had the ability to perform minimally, sedentary work, and maximally, light work. The ALJ therefore concluded that plaintiff was not under a disability as defined in the Social Security Act.

 Plaintiff brought an action for judicial review before this court after the Appeals Council denied a request for review on May 4, 1981 thereby rendering the Secretary's denial of benefits final. On October 14, 1981 this court remanded the case to the defendant to reconsider evidence previously ignored and to generally hear new evidence and make new findings of fact. This order was affirmed on November 17, 1981, upon a motion for reconsideration by defendant.

 Subsequently the Appeals Council vacated its denial of plaintiff's request for review and remanded the case to the ALJ. The case was again considered de novo by the ALJ. In an August 17, 1982 decision the ALJ concluded that plaintiff retained residual functional capacity for light work and therefore plaintiff was not disabled for purposes of the Social Security Act. Based upon these findings the ALJ denied plaintiff's claim for benefits. After independently reviewing the record the Appeals Council adopted the ALJ's decision on March 14, 1983, thereby making it the final decision of the Secretary. The plaintiff again appealed to this court.

 The issue before this court upon the parties' cross-motions for summary judgment is whether the Secretary's final decision is supported by substantial evidence.

 Title 42 U.S.C. § 405(g) provides that the Secretary's findings as to any fact shall be conclusive if supported by substantial evidence. Substantial evidence has been defined to mean "such relevant evidence as a reasonable mind might accept 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, 217, 83 L. Ed. 126 (1938); Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). Accordingly, the sole purpose of this review is to determine whether, considering the record as a whole, there is substantial evidence to support the Secretary's findings of fact. Goldman v. Folsom, 246 F.2d 776, 778 (3d Cir.1957). However, while the reviewing court may not try the case de novo, it is similarly prohibited from abdicating its "conventional judicial function" of assuring that administrative conclusions are rational. Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S. Ct. 456, 466, 95 L. Ed. 456 (1951); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979); Goldman v. Folsom, 246 F.2d at 778.

 "Disability" is defined in the Act as "any medically determinable physical or mental impairment," 42 U.S.C. § 423(d)(1)(A), which is so severe that the claimant 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 work which exists in the national economy . . ." 42 U.S.C. § 423(d)(2)(A). This definition of disability also applies to supplemental security benefits for the aged, blind, and disabled. 42 U.S.C. § 1382c(a)(3)(A), (B).

 The Social Security Act provides disability benefits only to those individuals not capable of engaging in substantial gainful employment for the required period of time. 42 U.S.C. § 423(d). In the case sub judice plaintiff satisfactorily demonstrated the existence of medically determinable physical and mental impairments as is required by and defined in the Act. 42 U.S.C. §§ 423(d)(1)(A), (3); 1382c(a)(3)(A), (C). However, the ALJ found that plaintiff failed to show that these impairments prevent the plaintiff from engaging in any substantial gainful activity and determined that the evidence supported a finding that plaintiff was not disabled within the meaning of the Act. (Tr. 149). This court disagrees with this determination which has become the final decision of the Secretary, finding that it is not supported by substantial evidence.

 There are four elements of proof to be weighed in determining whether there is substantial evidence to support the Secretary's decision: (1) the objective medical facts; (2) the diagnoses and expert opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective evidence of pain testified to by the claimant and corroborated by family and neighbors; (4) the claimant's educational background, work history and present age. Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir.1972); Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir.1962). Through his evaluation of the evidence in the case sub judice the ALJ determined that the medical impairments from which the plaintiff suffers are not such that would preclude plaintiff from engaging in any substantial gainful activity.

 Regarding the plaintiff's physical impairments, the reports of several physicians basically are in accord as to the nature of plaintiff's back injuries, namely, a lower lumbar spine injury resulting in some reduction of motion. (Tr. 142-43, Exhibit 22.) However, there is conflict in the doctors' opinions as to the effect this type of injury has on the plaintiff's ability to function and the degree of pain and discomfort it causes. Dr. Liebenberg, an orthopedic surgeon examining plaintiff at the request of the administration, felt that although plaintiff could no longer carry out his former activities involving heavy lifting, pushing, and pulling, he did retain sufficient mobility to do work of a sedentary nature or work involving a moderate amount of ambulation. (Tr. 138-39, 142-43.) Dr. Burch, also an orthopedic surgeon, examined plaintiff at the suggestion of plaintiff's family physician, Dr. Johnson. The report submitted by Dr. Burch asserted that plaintiff suffered a decreased range of motion and leg numbness, and found that plaintiff suffered a "moderate" amount of discomfort. (Tr. 143, Exhibit 30.) Dr. Johnson, however, concluded that the plaintiff was disabled. In his latest report dated April 28, 1982, Dr. Johnson stated that the plaintiff is unable to perform any type of work because of persistent pain in the lumbosacral area of the back, mild hypertension and anxiety. (Exhibit 33.)

 Regarding the pain Dr. Johnson cites as contributorily disabling, the ALJ found it significant that Johnson's neurological examination of the plaintiff was negative, and also that he observed the claimant was not in any acute distress at the time of his examination. (Exhibit 24.) The ALJ also noted as significant the fact that no clinical evaluation as to the exact nature of the plaintiff's pain was attempted. Dr. Johnson apparently did not take x-rays beyond those done in 1978 in order to pinpoint the plaintiff's origin of pain. In addition, the plaintiff was not given a myelogram or subjected to nerve conduction studies so as to determine the extent to which the ...


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