including, inter alia, licensed physicians and osteopaths. Chiropractors are not listed among the "medically acceptable sources" set forth in 20 C.F.R. § 404.1513(a). Although the record in this case does not support the conclusion suggested by the Magistrate that the ALJ intentionally mischaracterized the evidence, the record clearly supports this Court's determination that the ALJ erred in finding that the claimant in this case is not disabled.
It is clear that no substantial evidence exists upon which to base a finding of non-disability. The claimant's treating physician from Episcopal Hospital has stated that the claimant is suffering from tuberculosis of the spine and is unemployable for an indeterminate amount of time. The claimant's treating physician's opinion is entitled to substantial weight. Wier v. Heckler, 734 F.2d 955, 961 (3d Cir. 1984); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). The physician who examined the claimant at the request of the Commonwealth's Department of Public Welfare also concurred with this diagnosis. As the ALJ recognized, a finding of tuberculosis of the spine would, under the regulations, compel a finding of disability. Claimant's consulting orthopedist, Dr. Krause, while not privy to the subsequent test results conducted at Episcopal Hospital indicating tuberculosis of the spine, nevertheless recognized from the x-rays alone that the claimant had a significant "pathology" in the lumbar vertebrae which rendered the prognosis for claimant's future employment "grave".
As noted above, Dr. Learner, who responded to written interrogatories at the request of the ALJ, disputed the diagnosis of tuberculosis of the spine. Since Dr. Learner did not examine the claimant, and evaluated the claimant's subjective complaints only on the basis of the record placed before him, his opinion must be accorded less weight than if he had treated or examined the claimant. Weir v. Heckler, 734 F.2d at 963; Cotter v. Harris, 642 F.2d at 704. Thus, this Court has concluded that substantial evidence does not support the ALJ's rejection of the claimant's physician's diagnosis of tuberculosis of the spine.
Even assuming that the tuberculosis of the spine diagnosis could be fairly disputed, the ALJ's finding that the claimant could do sedentary work is not supported by substantial evidence because of the ALJ's improper rejection of the claimant's allegations of disabling pain. In this Circuit it is well-established that pain in and of itself may be a disabling condition. Taybron v. Harris, 667 F.2d 412, 415 (3d Cir. 1981); Smith v. Harris, 644 F.2d 985, 988 (3d Cir. 1981). In fact, "even pain unaccompanied by objectively observable symptoms which is nevertheless real to the sufferer and is so intense as to be disabling will support a claim for disability benefits". Taybron v. Harris, 667 F.2d at 415 quoting Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). The Third Circuit recently has emphasized that "testimony of subjective pain and inability to perform light work should be accorded great weight, especially when it is supported by competent medical evidence." Podedworny v. Harris, 745 F.2d at 217, citing Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979). See also Weir v. Heckler, 734 F.2d at 961; Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981).
In the present case the claimant testified to severe pain at the hearing, and several times he asked permission to rise to alleviate the pain (R. 40, 44). He testified that he experiences constant, severe pain in his back which extends down his left leg; that he cannot walk any distance without pain; that he can do no lifting or bending; that he can sit still for only about five minutes without having to get up to alleviate the pain; and that he wears a backbrace and takes medication for the pain (R. 56-59). He also testified that he does not drive a car (R. 46); that he does not attend church, that he participates in no social activities, clubs, or hobbies; and that on a typical day he simply goes downstairs once a day and remains in the living room all day (R. 59). The medical evidence of record fully corroborates claimant's allegations of disabling pain. Even Dr. Learner's report acknowledges that the claimant's chronic pain would preclude him from employment requiring any exertion at all.
The ALJ, however, was not convinced. He determined that the claimant's allegations of severe pain were not credible. This Court has determined that it is the ALJ's findings, and not the claimant's testimony, which must be rejected as incredible. First, the ALJ decided that the claimant's allegations of pain associated with walking were not credible because he used "no type of assistive device to ambulate" (R. 23). However, the ALJ also noted that the claimant was assisted in walking to the hearing room by his sister-in-law (R. 40). This Court cannot conclude that one who relies upon a person to assist him in walking is somehow less credible with respect to his complaints of pain than one who relies upon a cane or crutch.
Second, it appears that almost from the outset of the hearing, the ALJ was determined to discover trivial inconsistencies in the claimant's testimony from which to draw adverse inferences regarding credibility. For example, the ALJ proceeded to question the claimant closely regarding his automobile driver's license examination and his driving history (R. 44-47). Having elicited from the claimant that he once owned a car but no longer does, and that he no longer drives a car, the ALJ, as if on cross-examination, confronted the claimant with the claimant's application for disability insurance in which the claimant's translator had written "I can drive a car for short distances". (R. 111). When the claimant, understandably puzzled, inquired as to the relevance of these questions, the ALJ replied "It goes to the credibility of your testimony that you've given so far." (R. 46). Of course, a person who does not own a car and who generally does not drive because of back pain is not necessarily unable to drive a short distance if the need arose, and thus the claimant's testimony was not inconsistent with his application. More disturbing is the ALJ's inappropriate prosecutorial style and his attempt to draw adverse credibility inferences from trivial and irrelevant inconsistencies in the record.
Third, the ALJ decided that the claimant's discomfort could not be severe because it was "not such as to require extensive medication (Darvocet) or to have indicated that he could not concentrate on or participate in the hearing other than to get up periodically during the hearing." (R. 23). The claimant, in addition to other medications, takes 100 mg. of Darvocet four times daily for pain. While it is not certain what prescribed medication (and in what dosage) would persuade the ALJ that the claimant's allegations of severe pain are believable, it is clear that the ALJ's credibility inference here was impermissible because (1) it improperly was based upon his own medical expertise, see Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983), and (2) it was based upon "the roundly condemned 'sit and squirm ' method of deciding disability cases." Id. Even the ALJ's "sit and squirm" analysis is inexplicable because in fact during the hearing the claimant requested permission to rise in order to alleviate his pain. (R. 40, 44).
Undaunted, the ALJ saved his best credibility finding for last. As noted above, at the time of the hearing (January 5, 1983) the claimant's child was seventeen months old. In a tour de force unequalled in this Court's experience reviewing social security appeals, the ALJ, on the record, counted back twenty-six months and stated that "[since] it would be about October of '80 the child was conceived, I draw the conclusion he's having relationships with his wife at least in, up until October of '80." (R. 59). When the claimant's attorney agreed that "it wasn't a test tube baby", the ALJ stated "there's certain inferences I'm going to draw from that, there is some physical activity, you know." (R. 59-60). The ALJ repeated this conclusion in his findings: "the claimant has a seventeen month old son whose conception in October 1980 or thereabouts was within the claimant's physical capacity limit." (R. 9).
It is now well-settled in this Circuit that
Disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity . . . It is well established that sporadic or transitory activity does not disprove disability . . . [It is] error [to draw] an inference from sporadic activities to a lack of disabling pain . . .
Smith v. Califano, 637 F.2d at 971-72. This Court has no hesitancy in concluding that, as a matter of law, evidence that a claimant was "having relations with his wife" some two years prior to the disability hearing does not support an inference that his allegations of severe pain are not credible. Where, as here, "all evidence as to disabling pain is favorable to the plaintiff", and "since there is no factual basis upon which the ALJ could reject [claimant's testimony of disabling pain], his subjective complaints . . . stand unrebutted." Smith v. Califano, 637 F.2d at 972, quoting Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir. 1975).
For all the reasons set forth above, the Court has determined that no substantial evidence exists to support the ALJ's finding that the claimant is not disabled. Disregarding the ALJ's improper consideration of the chiropractor's report and his unfounded inferences as to claimant's credibility, it is clear that the Secretary's decision cannot stand. Accordingly, this Court will, in its discretion, Podedworny v. Harris, slip op. at 22, reverse the decision of the Secretary and remand for a calculation of benefits beginning December 12, 1979. An order follows.
AND NOW, this 26th day of November, 1984, upon consideration of the Report and Recommendation of United States Magistrate Peter B. Scuderi, this Court having made a de novo determination of the matter pursuant to Local Rule 7(IV)(b), for the reasons set forth in this Court's Memorandum of November 26, 1984,
IT IS HEREBY ORDERED:
1. The Report and Recommendation of the Magistrate is APPROVED and ADOPTED as modified by this Court's Memorandum of November 26, 1984.
2. The motion of the defendant Secretary of Health and Human Services for summary judgment is DENIED.
3. The motion of the plaintiff, Carmelo Rivera, for summary judgment is GRANTED.
4. The decision of the Secretary of Health and Human Services is REVERSED, and judgment is ENTERED in favor of the plaintiff, Carmelo Rivera, and against the defendant Secretary of Health and Human Services.
5. This matter is REMANDED to the Secretary for a calculation of benefits beginning December 12, 1979.
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