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WHITTINGTON v. BOWEN

November 28, 1988

CLARENCE WHITTINGTON
v.
OTIS R. BOWEN, M.D., Secretary of Health and Human Services



The opinion of the court was delivered by: MCGLYNN

 JOSEPH L. McGLYNN, UNITED STATES DISTRICT JUDGE.

 I. Procedural History

 Plaintiff, Clarence Whittington, brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to review the decision of the Secretary of Health and Human Services ("the Secretary") denying Plaintiff's claims for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act ("the Act"), 42 U.S.C. § 401 et seq. and § 1381 et seq. (1983). Plaintiff filed his application on December 13, 1985. In it he claimed that he had become disabled as of April 30, 1985 due to a back condition. His application was denied. A hearing was then held before an Administrative Law Judge ("ALJ"), who on October 26, 1986 also denied Plaintiff's claim. Upon review, the Appeals Council remanded the case and instructed the ALJ to obtain additional evidence from a vocational expert. After reviewing answers to the written interrogatories submitted by that expert, the ALJ issued a second opinion on August 18, 1987, again denying Plaintiff's claims. A subsequent appeal was denied, thus finalizing the Secretary's decision.

 II. Statement of Facts

 Plaintiff is 44 years old, was educated through the eleventh grade, and is a garment cutter by trade. In December 1974, Plaintiff underwent a laminectomy. After surgery, he continued working as a garment cutter until he reinjured his back on April 21, 1985 while pushing a friend's car. Nine days later, Plaintiff was admitted to the Parkview Division of Metropolitan Hospital. His physician, J. Eshleman, D.O., treated Plaintiff with medication, osteopathic manipulative therapy, and a TENS unit. Dr. Eshleman found that the severe pain initially experienced by Plaintiff was gradually alleviated with aggressive treatment. Plaintiff was discharged from the hospital on May 5, 1985. Dr. Eshleman later submitted separate reports to the Workmen's Compensation Board ("the Board") on June 3, 1985, December 13, 1985 and July 24, 1986 in which he opined that Plaintiff was incapable of performing any work due to severe and disabling lower back pain. In his December 13th report, Dr. Eshleman, having last treated Plaintiff on October 25, 1985, stated that Plaintiff's case before the Board should be reopened, as he suffered from:

 
increasingly severe sciatic and lumbosacral pain, reduced range of motion, spasm, severely reduced ability to walk even short distances at times, reduced ability to stand or sit for extended periods of time, increasing weakness in both lower extremities
 
. . . .
 
weakness left ankle, pain sole of left foot, pain sciatic area with radiculopathy, numbness certain toes of both feet, inability to control bowels at times (anal sphincter) . . . 25% loss of sphincter tone, 60% loss of use of both legs.

 R. 164.

 In January 1986, Plaintiff traveled to Episcopal Hospital for an Orthopedic Evaluation by M. Jaffari, M.D. Dr. Jaffari noted in his report:

 
Physical examination reveals an alert, oriented man in no distress. He walked into my office with a normal gait and without any deviation. He was able to undress and get on a high examining table without any problem. He was able to walk on his toes, heels, squat down and come back to an erect position without any difficulty. Examination of the lower back reveals a small midline scar which is well healed indicating the site of previous surgery located over the L4-5, S1 area. There is no paravertebral muscle spasm in the lower back, however, range-of-motion is approximately 70 degrees . . . flexion and extension and lateral bendings appear normal. There is no point of tenderness. Range-of-motion of the hips, knees and ankles appears normal bilaterally. Deep tendon reflexes of both knees are present, symetric and appears normal, however, both ankle jerks are abolished. There is a slight weakness of the left extensor hallicus longus, but no sensory changes in the lower extremities.
 
. . . .
 
I reviewed the x-ray of the lower back which was obtained today. There is moderate osteothoratic changes of the lower back and in addition there is some narrowing of ...

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