not invoke this regulation, nor, we find, would a denial of benefits on that ground have been supported by substantial evidence.
The ALJ is silent as to what other "more aggressive treatment" plaintiff should have undergone. There is evidence on the record that plaintiff's symptoms had a "functional overlay," and that his fear of pain may have made him less responsive to treatment than he might otherwise have been. But these are not grounds that would permit the ALJ to disbelieve testimony and medical evidence as to plaintiff's pain. Rather, the evidence serves to explain to some extent the conservative nature of plaintiff's treatment.
Residual functional capacity. Second, the Secretary's finding that plaintiff is capable of performing the full range of sedentary work is not based upon substantial evidence. The three physicians who saw plaintiff most frequently, Dr. Reznak, Dr. Nardini, and Dr. Shankar, all concluded that plaintiff's condition rendered him disabled to do any work. Another physician, Dr. Thakarar, also noted that plaintiff could not engage in prolonged sitting or standing. This observation is corroborated by plaintiff's own testimony and by the observations of Social Security Administration interviewers. Tr. 96, 135-36. Furthermore, there is unrefuted evidence on the record that plaintiff required emergency medical treatment and was eventually hospitalized after two days of performing bench work requiring constant sitting and occasional lifting of up to ten pounds. Under 20 C.F.R. § 416.967(b), a claimant who is unable to sit for long periods of time is deemed incapable of doing sedentary work.
In addition, plaintiff is on pain medication that makes him drowsy. The ALJ, without any basis in evidence on the record, substituted her own judgment for that of plaintiff's physicians by suggesting that plaintiff could cut down on his use of pain medications. Even so, the ALJ acknowledged that drowsiness would prevent plaintiff from working around moving machinery.
Plaintiff's inability to sit for long periods and his drowsiness both diminish the number of "sedentary" jobs, if any, that plaintiff would be able to perform. "Approximately 85 percent of [sedentary] jobs are in the machine trades and benchwork occupational categories." Appendix 2 to Subpart P, § 201.00(a). This is precisely the kind of work plaintiff attempted to do, with dire results. " "A finding of disabled is not precluded for those individuals under age 45 . . . who do not have the ability to perform a full range of sedentary work." Appendix 2 to Subpart P, § 201.00(h).
Without the support of the testimony of a vocational expert, the ALJ asserted that "most jobs, even of a sedentary nature have periodic breaks when an individual can stand and walk around briefly," and that as a result plaintiff's ability to "sit, stand or walk up to two hours each in an eight hour day" meant that plaintiff has the residual capacity to do a full range of sedentary work. Were there substantial evidence on the record to support the ALJ's assertion that periodic brief breaks would be sufficient to permit plaintiff to do sedentary work, the appropriate course would be to remand this case to the Secretary to permit the taking of evidence from a vocational expert as to whether plaintiff's limitations would permit him to perform a substantial range of sedentary work. Santise v. Schweiker, 676 F.2d 925, 935 (3d Cir. 1982). We find, however, that the ALJ's assertion as to what would be adequate to meet plaintiff's needs is utterly unsupported by evidence on the record. As a result, we do not find it necessary to reopen the record to consider the views of a vocational expert.
We conclude that the ALJ's determination that plaintiff is not disabled is not based upon substantial evidence. We shall grant plaintiff's motion for summary judgment and remand this case to the Secretary for calculation and award of benefits.
An appropriate order is appended.
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED AND DIRECTED that
(1) The Secretary's motion to dismiss for lack of prosecution is DENIED;
(2) Plaintiff's motion for summary judgment is GRANTED;
(3) The Secretary's motion for summary judgment is DENIED;
(4) This case is remanded to the Secretary for calculation and award of benefits for the period beginning April 9, 1982.