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CARNEY v. HECKLER

January 31, 1985

KENNETH N. CARNEY, Plaintiff
v.
MARGARET HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: TEITELBAUM

 This is an action for judicial review of a final decision of the Secretary denying disability benefits.

 Kenneth N. Carney applied for disability insurance benefits on September 8, 1982. He alleged he was unable to work because of low back problems, back and leg pain, tiredness, depression and nervousness, and arthritis in his shoulders and fingers. The application was denied initially and on reconsideration. The matter was considered de novo by an Administrative Law Judge who, by decision dated July 21, 1983, found Carney retained the residual functional capacity for medium work and therefore was not disabled under the Act. The Appeals Council denied Carney's request for review making the ALJ's decision the final decision of the Secretary.

 Carney then commenced the present action under 42 U.S.C. § 405(g). Cross motions for summary judgment were filed. The case was originally assigned to the Honorable Edward Dumbauld and reassigned to this member of the Court the week of January 14, 1985.

 The Social Security Act limits judicial review to a determination of whether the Secretary's factual determinations are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales at 401. It consists of more than a mere scintilla of evidence, id., but may be less than a preponderance, Ginsburg v. Richardson, 436 F.2d 1146 (3d Cir.), cert. denied, 402 U.S. 976, 29 L. Ed. 2d 142, 91 S. Ct. 1680, reh. denied, 403 U.S. 912, 91 S. Ct. 2213, 29 L. Ed. 2d 690 (1971).

 Under the Act the claimant has the initial burden of demonstrating by medical evidence that he is unable to return to his previous employment, Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980). The Secretary then must establish that the claimant has the ability to engage in some other substantial gainful employment. Id.

 This case was decided under the medical-vocational regulations which require that the Secretary undertake a five step sequential evaluation of disability claims. See Heckler v. Campbell, 461 U.S. 458, 103 S. Ct. 1952, 76 L. Ed. 2d 66 (1983). In performing this sequential evaluation the Secretary must consider, in turn, current work activity, the severity of the impairment, the ability to perform past work and vocational factors. 20 C.F.R. § 404.1520.

 Carney was born August 15, 1926 and has a high school education. He previously had back surgery in 1966 or 1967. Following this surgery he worked as a finisher in drywall construction. This work required carrying buckets of drywall cement weighing 65 pounds, climbing ladders, working on scaffolding, standing eight hours per day, and constantly bending and reaching. This was described as heavy unskilled work by the vocational expert. In September, 1980 Carney injured his back in a work-related fall. Carney last worked on April 4, 1981.

 The Secretary found Carney had a severe back impairment and was unable to perform his past work, but retained the residual functional capacity to perform medium work. The finding that Carney could do medium work when considered with Carney's advanced age, high school education and history of unskilled work activity resulted in the conclusion that Carney was not disabled under the Act under Rule 203.14, Table No. 3, Appendix 2. However, had the Secretary found that Carney could do only light, as opposed to medium, work, this finding when considered with Carney's age, education and work history would have resulted in the conclusion that Carney was disabled under the Act under Rule 202.04, Table No. 2, Appendix 2. Thus a precise determination of Carney's exertional capabilities is crucial to a proper resolution of his claim for benefits.

 The applicable regulations define light and medium work. Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling arm or leg controls. 20 C.F.R. § 404.1567(b).

 Medium work involves lifting no more than fifty pounds at a time with frequent lifting or carrying of objects weighing up to twenty five pounds. If someone can do medium work, he can also do light work. 20 C.F.R. § 404.1567(c).

 The medical evidence consists of the records of a hospitalization, reports from five physicians who examined Carney and a residual functional capacity assessment completed by a medical consultant who did not examine Carney.

 The hospital records indicate Carney was hospitalized in September, 1981 for lumbar spondylosis and a lumbar laminectomy was performed.

 Harold Thomas, D.O., reported that he saw Carney in January, 1982 at which time Carney had lumbar pain radiating to the right buttock and ...


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