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RIVERA v. HECKLER

November 26, 1984

CARMELO RIVERA
v.
MARGARET HECKLER, Secretary of Health and Human Services



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 In this Social Security action the claimant, Carmelo Rivera, appeals from a determination by the Administrative Law Judge (ALJ) denying his application for disability benefits. The parties filed cross-motions for summary judgment. United States Magistrate Peter B. Scuderi has issued a report with a recommendation that the claimant's motion for summary judgment be granted, the decision of the Secretary reversed, and the case remanded to the Secretary for a calculation of benefits. Commendably, given the record in this case, the Secretary has filed no objections to the Magistrate's Report and Recommendation. Because the Magistrate's report raised disturbing questions concerning the propriety of the ALJ's consideration of the evidence, this Court has undertaken a de novo review of the matter. For the reasons which follow, this Court agrees with Magistrate Scuderi that the claimant's motion for summary judgment must be granted and the decision of the Secretary reversed.

 The claimant is a twenty-four year old man with a sixth grade education who was born in Puerto Rico and came to the United States in 1973. At the time of the hearing before the ALJ, the claimant was married with a seventeen month old child. The claimant does not speak English, and does not read or write fluently in Spanish. Prior to December of 1979 the claimant worked as a "hand-trucker", pushing carts of scrap metal, and previous to that employment he held various jobs as an unskilled laborer. In his application for disability benefits, the claimant alleges that he became disabled on or about December 12, 1979, due to a severe back condition. In a decision dated March 17, 1983, denying the claimant's application for disability benefits, the ALJ found that the claimant has lumbar disc disease and acute lumbar contusion; that the claimant's allegations of severe disabling pain are not credible; and that although the claimant is unable to return to his past relevant work as a hand-trucker, he can "perform work-related functions except for work involving heavy lifting and prolonged standing and walking with the avoidance of bending, pushing, and pulling" (i.e., the claimant can perform sedentary work). The ALJ then applied the medical-vocational guidelines set forth in Appendix 2 of the regulations to the medical and vocational characteristics of the claimant and determined that the claimant is not disabled. The Appeals Council summarily affirmed the ALJ's decision. Because the ALJ's decision (relying in part on the opinion of a chiropractor) is not supported by substantial evidence, and because the ALJ impermissibly drew unfounded (indeed, astounding) inferences concerning the claimant's credibility from the facts in evidence, the decision of the Secretary will be reversed.

 In reviewing final determinations by the Secretary after an administrative hearing, courts are bound by the Secretary's findings of fact if they are supported by "substantial evidence," that is, such evidence as a reasonable mind would accept to form a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971).

 Recently the Third Circuit again has summarized the legal analysis applicable in social security appeals:

 
Disability determination proceedings before an ALJ involve shifting burdens of proof. The claimant bears the initial burden of proving that he or she is disabled. The claimant satisfies this burden by showing that he or she cannot return to his or her customary occupation. Once this burden is met, the burden shifts to the Secretary, who must prove that the claimant can still engage in substantial gainful activity. The Secretary satisfies this burden by showing that given claimant's age, education, and work experience, he or she can still perform specific jobs that exist in the national economy. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979).

 Podedworny v. Harris, 745 F.2d 210, slip op. at 11-12 (3d Cir. 1984). In the present case, the claimant satisfied his initial burden by demonstrating his inability to return to his former occupation. The ALJ found that the claimant has the residual functional capacity to perform sedentary work. The validity of this finding depends upon whether the ALJ was justified in rejecting (1) the medical evidence presented as to the claimant's disability and pain; and (2) the testimony of the claimant as to his disability and pain. Podedworny v. Harris, slip op. at 12.

 The claimant was injured on October 3, 1979, when a car fender fell four feet from an overhead conveyor belt and struck his lower back. He was treated as an outpatient at Jeanes Hospital without success for several weeks, and was admitted to Jeanes Hospital on October 15, 1979. At the time of his admission, claimant was unable to stand erect, and had severe lower back pain "with significant spasm of both lower lumbar and paralumbar musculature" (R. 128). The diagnosis was acute lumbar contusion. In addition, x-rays revealed intense sclerosis of the anterior inferior portion of the back on the right side, as well as end plate irregularity, osteophyte formation, and subchondral cyst formation at the L-2 and L-3 levels of the spine. These findings were diagnosed as discogenic disease with degeneration, which was believed to be unrelated to the claimant's work injury (R. 128-31). The claimant was treated with bed rest, physical therapy, and medication for pain, and discharged on October 19, 1979.

 The claimant attempted to return to work but was unable to continue because of severe pain (R. 49). He was treated by a company physician without success and finally ceased working altogether in December of 1979, when he was laid off (R. 19).

 The claimant apparently received intermittent, unsuccessful treatment for his back pain in 1980, including a back brace prescribed by a "workmens' compensation doctor" (R. 57). On December 29, 1980, claimant was examined by Dr. Krause, an orthopedic surgeon. Dr. Krause concluded that the October 1979 accident had caused a permanent and significant musculo-ligamentous sprain of the lumbo-sacral and left ilio sacral areas of the back, and that this condition would preclude the claimant from returning to his past work (R. 140). Furthermore, Dr. Krause reported that a review of the x-rays indicated the presence of a "pathology" involving the claimant's second and third lumbar vertebrae, which pathology made the claimant's prognosis "much more grave" and "limits even more" any potential for future employment (R. 140).

 In July of 1982 the claimant was hospitalized for sixteen days at Episcopal Hospital. The claimant had muscle spasms over the L-1 to L-4 region of the back and hamstring spasms. The bone scans showed osteomyelitus and disc space infection of the L-2, L-3, and L-4 vertebral bodies. The discharge diagnosis was probable tuberculosis of the spine. The claimant was started on several medications and fitted with a Knight brace "to prevent further degeneration and collapse of the spine" (R. 149). Dr. Kallish, claimant's orthopedic physician, reported that claimant would be unable to work for an undetermined period of time (R. 146).

 The claimant continued to be treated for tuberculosis of the spine at Episcopal Hospital in 1982. X-rays taken in December of 1979 showed disc loss at the L-2, L-3, and L-4 levels, although there was no evidence of "destruction" associated with a tuberculosis etiology (R. 161). Dr. Bumgardner, an orthopedic surgeon in the hospital's clinic, reported on December 22, 1982 that the claimant was continuing to receive treatment for tuberculosis of the spine (R. 157). In addition, a report from a physician prepared on October 14, 1982 for the Commonwealth of Pennsylvania's Department of Public Welfare stated that the claimant has tuberculosis of the spine; that the claimant is taking a variety of medications, including Darvocet for pain, that the claimant cannot do even light work because he has "constant pain, sitting or standing"; and that the prognosis for any improvement was "poor" (R. 163).

 In response to a set of written interrogatories propounded by the ALJ, Dr. Learner, a specialist in internal medicine, stated that in his opinion the record showed that the claimant has lumbar disc disease and acute lumbar contusion; that the claimant has chronic low back pain due to lumbar disc disease; and that the claimant would be unable to do any lifting, bending, standing, walking, pushing, or pulling (R. 152-56). Dr. Learner also stated that in his opinion, based on the record, the claimant does not have tuberculosis of the spine. Dr. Learner stated that despite the positive tuberculin test, the x-rays which showed no evidence of the ...


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