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TAYLOR v. HECKLER

June 18, 1986

JAMES B. TAYLOR, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: WEBER

 This is an action for review of the Secretary's adverse decision on plaintiff's application for disability insurance benefits. 42 U.S.C. § 405(g). Plaintiff has proceeded through all phases of reconsideration and administrative appeal necessary to invoke the court's jurisdiction. In our August 1985 order directing the filing of cross-motions and supporting briefs, we alerted counsel to the fact that failure to file such materials will result in our decision being based on the existing record. On September 12, 1985 we granted defendant's motion for a seven-day enlargement of time within which to file her motion and submit her brief. No documents were filed or submitted to the court. In March 1986 plaintiff's counsel, by letter, requested that the case be decided on the existing record. The letter shows that a copy was sent to counsel for defendant. Defendant has yet to file her motion so we will proceed to decide plaintiff's motion.

 The Administrative Law Judge found that plaintiff could not return to his past relevant work but that he had the capacity to perform sedentary work. The ALJ did not consider plaintiff's testimony about pain and restricted activities credible. The ALJ did recognize that plaintiff has "severe possible myopathy," hyperthyroidism, and a chronic dysthymic disorder.

 We must affirm the Secretary if her decision is supported by substantial evidence. 42 U.S.C. § 405 (g). Substantial evidence is that evidence adequate to support a conclusion in a reasonable person's mind. We find that the Secretary's decision does not have this support in the record.

 The ALJ is bound to consider the whole record in context. He may not be selective in extracting comments from medical reports to minimize the evidence of plaintiff's impairments. In assessing plaintiff's residual functional capacity, the ALJ relied heavily on a form completed by Dr. Michael Hodgson in December 1984. Record at 21. Dr. Hodgson's evaluation is qualified throughout, but the ALJ does not acknowledge this. As to plaintiff's ability to lift, Dr. Hodgson commented: "fluctuating strength: 20 pounds at all times. 20, at least, intermittently." As to standing: "2-3 hours with pauses, long-term uncertain." As to sitting: "2-3 hours with pauses, long-term uncertain." "As to other physical functions: [plaintiff] becomes weak after working; after a first exertion he can do progressively less." Record at 194-195. Even apart from overlooking these qualifying comments, the ALJ's reliance on this form as evidence of plaintiff's capacity even for sedentary work is questionable; if anything, the figures demonstrate the limited amount of time plaintiff can spend sitting or standing. 20 C.F.R. Part 404.1567(a); Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979).

 In addition, the ALJ has drawn some inconsistent conclusions in important areas. For example, in discussing plaintiff's pain, the ALJ states that "Despite his subjective complaints, there is no objective evidence which confirms the presence of a debilitating disease process. . . . the objective findings of a debilitating disease are minimal." Record at 22. This observation is contrary to the medical evidence -- for example, the reports of Drs. Richard Stadtmiller, record at 124, 133, 183; Lawrence Kagen, record at 114, 152; Michael Hodgson, record at 156; and psychiatry professor Christopher Ryan, record at 160-65. Nor does it comport with the ALJ's own findings of severe possible myopathy, hyperthyroidism, and chronic dysthymic disorder. Record at 23. In further evaluating plaintiff's complaint's of pain, the ALJ relied on plaintiff's "recitation of activities which includes washing dishes, washing clothes, and visiting [which] reflect a residual functional capacity . . . compatible with sedentary work activity on a sustained level." Record at 22. This is a plain overstatement. Plaintiff's actual testimony from the hearing consists of the following:

 
ALJ: Do the dishes?
 
Plaintiff: Very seldom.
 
Q. Do you do the laundry?
 
A. Occasionally I wash a load of clothes. . . .
 
Q. Do you visit with neighbors, friends, and relatives?
 
A. Seldom.

 Record at 49-50.

 Plaintiff's other answers to this line of questioning include the following:

 
Q. Housework. Do you do any of the cooking?
 
A. No. . . .
 
Q. You do any sweeping?
 
A. No.
 
Q. Do any mopping?
 
A. No.
 
Q. Run the ...

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