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BURTON v. BOWEN

January 30, 1989

RICHARD BURTON
v.
OTIS R. BOWEN



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE.

 Plaintiff Richard Burton, a Social Security wage earner, filed an application for disability insurance benefits on July 10, 1984, alleging disability since March 1975. The application was denied by an Administrative Law Judge on July 1, 1985, and was subsequently denied at all administrative levels. Plaintiff filed an appeal with this Court which, by Order dated May 2, 1986, remanded the case to the Secretary of Health and Human Services ("Secretary"). On February 2, 1987, the Appeals Council vacated the ALJ's decision of July 1, 1985, in light of the Third Circuit decision in Bailey v. Secretary of Health and Human Services, 768 F.2d 547 (3d Cir. 1986). The case was remanded to the ALJ for further proceedings. Following two hearings, the ALJ, in a decision dated July 15, 1987, concluded that the plaintiff was disabled within the meaning of the Social Security Act. On October 27, 1987, the Appeals Council declined to adopt the ALJ's finding and determined that the plaintiff was not disabled. The Secretary adopted the Appeals Council's decision, thereby making it the final decision of the Secretary.

 The parties filed cross motions for summary judgment which were referred to a United States Magistrate for a report and recommendation. The Magistrate has recommended that the plaintiff's motion for summary judgment be denied and the Secretary's motion for summary judgment be granted. On December 7, 1988, plaintiff timely filed the following objections to the report and recommendation:

 
(1) The Magistrate failed to give proper weight to the disability determination rendered by another administrative agency;
 
(2) The Magistrate erred in failing to give proper weight to plaintiff's complaints of pain;
 
(3) The Magistrate disregarded medical testimony of the impact of plaintiff's use of alcohol and tobacco on the effectiveness of his medical treatment;
 
(4) The Magistrate erred by failing to take into account the plaintiff's vocational profile in determining that plaintiff was capable of returning to his past relevant work; and
 
(5) The Magistrate failed to determine that even if plaintiff were capable of returning to his past relevant work, such work would not constitute "substantial gainful activity."

 Pursuant to Local Rule of Civil Procedure 7 (IV) (b), this Court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."

 I.

 Plaintiff Richard Burton, a sixty one year old Philadelphia resident, has a sixth grade education and extremely limited reading abilities. His past relevant work history includes being a sanitation worket, a janitor, and an asphalt raker for the Philadelphia Streets Department. Mr. Burton has not worked since March 1975. The evidence of record reveals that the plaintiff has a long history of peptic ulcer disease and a work related right shoulder injury.

 An upper gastrointestinal ("UGI") series of x-rays taken in February 1971 revealed that plaintiff has chronic duodenal scarring. A follow-up UGI series performed approximately ten months later revealed a duodenal ulcer. By January 1972, the duodenal ulcer had healed but a possible small gastric ulcer was detected. An additional small gastric ulcer was detected in November 1973. Plaintiff was hospitalized in June and July 1977 for treatment of his ulcers. Treatment included antacid, milk, and a bland diet along with instructions to avoid alcohol use, smoking, and ulcerogenic agents.

 In 1970, while employed by the City of Philadelphia, plaintiff's right shoulder was crushed on an on-the-job accident. Plaintiff was subsequently found disabled by the City of Philadelphia. Plaintiff underwent an operation, the Monford procedure, consisting of excising the distal inch of the clavicle, which was partially successful in relieving plaintiff's pain, discomfort, and decreased range of motion.

 At the hearing before the ALJ, Mr. Burton testified that he experiences frequent sharp pain in his stomach which requires him to take medication and rest for a period of time. He further testified that he experiences such pain at night, thereby interfering with his ability to sleep. He testified that he is incapable of driving long distances; cannot perform any major housecleaning chores; cannot carry a bag of groceries from his car to his residence; and is incapable of walking more than one block. Finally, he testified that during the day, he watches television and naps frequently. Mr. Burton's testimony as to his pain, its frequency, and his daily limitations was corroborated by the testimony of both Ms. Annie London, who has lived with plaintiff for twenty years, and Mr. George Stanley, plaintiff's neighbor.

 Based upon the aforementioned evidence, the Magistrate concluded that the Appeals Council's determination that Mr. Burton was not disabled within the meaning of the ...


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