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KECK v. BOWEN

January 13, 1987

JOHN W. KECK, Plaintiff
v.
OTIS R. BOWEN, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: WEBER

 AND NOW in accord with the accompanying Opinion, IT IS HEREBY ORDERED that summary judgment is ENTERED in favor of plaintiff and against defendant. The decision of the Secretary is REVERSED and benefits awarded to plaintiff. The Clerk is DIRECTED to mark this matter CLOSED.

 SO ORDERED this 13th day of January, 1987.

 GERALD J. WEBER

 United States District Judge

 WEBER, D.J.

 Once again we confront a Social Security Appeal in which the ALJ rejects the unanimous, unequivocal and well-supported opinions of physicians and concludes that the claimant is not disabled. For the reasons stated below, we reverse.

 Plaintiff is now 48 years old, stands 5'10", and has weighed 200 to 220 lbs. He dropped out of the 10th grade and his work experience is entirely heavy labor in mines and a foundry. He last worked in 1981 when his back pain flared.

 Plaintiff originally filed an application for Social Security Disability and Supplemental Security Income Benefits on January 22, 1982, alleging disability due to back and leg pain, beginning July, 1981. Plaintiff pursued the claim to a final decision denying benefits on September, 1982. Plaintiff appealed to the United States District Court, and the Third Circuit, both of which affirmed the Secretary.

 On October 10, 1984, plaintiff filed the application for Social Security Disability and Supplemental Security Income Benefits which gives rise to this appeal. Plaintiff again alleged disability from July, 1981 due to leg and back pain. Following a hearing on April 2, 1985, the ALJ denied plaintiff benefits and the Appeals Council affirmed. Timely appeal was then made to this court.

 We agree with defendant that the res judicata effect of the prior disability claim precludes plaintiff from asserting disability prior to September 23, 1982. Rather the Secretary was to determine whether plaintiff's condition subsequent to September 23, 1982 was disabling within the meaning of the Act.

 This does not make plaintiff's condition prior to September, 1982 irrelevant in this claim, as the ALJ seems to indicate in his opinion. Naturally, the history of the claimant's impairment is critically relevant to an assessment of his condition.

 Plaintiff first experienced back problems in 1972 when he was diagnosed as having a large herniated disc at L4-5 requiring a laminectomy. Plaintiff recovered well and continued working until 1981 when his back pain re-emerged. At that time, a second laminectomy was performed as well as the removal of scar tissue which had surrounded and infiltrated the nerve roots at L4-5.

 Plaintiff did not experience relief from his symptoms following the surgery and conservative methods have failed, so in February, 1982 plaintiff underwent the implantation of a dural stimulator. This device is implanted in the body and, in conjunction with external controls, imparts electrical impulses to the spinal cord to block the pain impulses generated by the compressed nerve roots. This ...


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