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July 29, 1993

DONNA E. SHALALA, Secretary of Health and Human Services

The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ

 AND NOW, this 29th day of July, 1993, upon consideration of Plaintiff's Motion for Summary Judgment and the Defendant's Motion for Summary Judgment, it is hereby ORDERED that Plaintiff's Motion is GRANTED and the Secretary's decision is REVERSED. The matter is REMANDED to the Secretary for the calculation and payment of benefits. Summary judgment is entered in favor of the Plaintiff for the following reasons.



 Moyer was born on August 5, 1951. See Record at 57. He received an associate degree in electrical engineering from Spring Garden College in 1973. Id. at 29 & 42. He has performed predominately electrical-type maintenance work and some painting work. Id. at 42. He last worked in 1986. Id. at 29. Moyer was first injured in 1983 when he was working at the Philadelphia Naval Shipyard. Id. at 29-30. On his second day on the job he was injured when a 440 electrical fuse panel exploded and injured his right hand. Id. at 29-30. Moyer is right handed. Id. at 37. After that injury, Moyer underwent multiple surgeries on his right hand and was returned to work at the Naval Shipyard with restricted duty, answering telephones. Id. at 30-31.

 Moyer reinjured his right arm in 1986 while pushing a pallet. See Record at 31. Since that time, his right arm has been treated with injections, oral medications and therapy. Id. at 32. Later in 1986, Moyer was terminated from his job at the Shipyard because there was no work for someone with his limitations. Id. at 35 & 86. He receives federal worker's compensation benefits monthly. Id. at 35.

 During the Administrative Law Judge ("ALJ") hearing, Moyer described the pain in his right hand as a shooting pain from the fingers up the arm like someone has "stabbed you with a knife." See Record at 32. He further testified that his first two fingers are constantly numb and that any use of his right arm makes his pain worse. Id. at 32. Moyer can sometimes pick up a pen but only for five minutes and sometimes not at all; the problem with holding and grasping things is that his first two fingers do not close automatically and that gives him trouble with his grip. Id. at 33. Moyer testified that on a good day the heaviest thing he could lift with his right hand was approximately half a pound, which he could hold for minutes, sometimes only seconds, until he loses his grip. Id. at 33. At the hearing, Moyer was wearing a brace on his right hand that covers his arm from his palm to his elbow. Id. at 37.

 Moyer also suffers from back pain, which is a result of an injury he did not sustain at work. See Record at 34. *fn2" In October 1988, Moyer herniated a lumbosacral disc. Id. at 34. At that time, he was treated by Drs. Kim Koo and Seymour Leiner. Id. at 34. Moyer was offered surgery with a 30 percent chance that it would improve his problem and a 70 percent chance it would not; therefore, he has not had the surgery. Id. at 35.

 Moyer testified that the pain in his back feels like his back is "locking up" and that the pain is semi-constant, five out of seven days a week. See Record at 36. In addition to the pain, Moyer says he has a numbness which goes down his right and left legs and awakens him at night. Id. Moyer cannot sit for long periods. Id. Moyer is currently taking Flexeril, Nuprin and Tylenol to ease his pain. Id. In addition, Moyer testified that the pain wakes him up every night, and that he is often awake for an hour and a half to two hours during the night, which makes him tired the next day. Id.

 Moyer can sometimes write with his right hand by sticking a pen between his first two fingers but he stated that the writing is not legible. See Record at 38. At the time of his ALJ hearing, Moyer was unable to write legibly with his left hand. Id. at 42. In addition, because of his hand problems, Moyer needs help to tie a necktie or shoe laces. Id. at 38. Moyer can walk a couple of blocks before his back pain forces him to stop. Id. at 39. He can sit only 40 minutes before he must get up. Id. Moyer's wife does all of the household chores such as cooking, food shopping and loading dishes in the dishwasher. Id. Moyer's hand is too unreliable to perform these functions and he has broken too many things. Id. In addition, Moyer's wife does the dusting and vacuuming because he has trouble using that equipment with his right hand and back problems. Id.3

 Moyer is able to drive short distances, after which his back begins to bother him; he drives a car with automatic transmission using his left hand and performs whatever shifting maneuvers necessary by using his left hand. See Record at 40.

 During the ALJ hearing, a vocational expert testified that someone with Moyer's disability could work as "a coding clerk, a dispatcher of maintenance, a compiler, a telephone solicitor, inspector of components, work order clerk, sales clerk, and tool crib attendant." See Record at 45. All of these jobs are the light to sedentary exertion levels; the sales clerk, tool crib attendant and order filler being light and the rest sedentary. Id. at 46. These jobs exist in the regional or national economy at the level of approximately 10,000 such positions in the Delaware Valley. Id.

 After the expert was cross-examined, the scope of Moyer's ability to perform such jobs seemed limited. The expert was asked how many of the jobs that he had previously listed required writing more than Moyer's name. See Record at 47. The expert replied the coding clerk job would require writing one or two numbers every minute to every five to ten minutes. Id. The expert further testified that if Moyer had trouble holding a pen for any length of time in his right hand, that would pose a problem. Id. at 48-49. The expert further testified that for the record he was not assuming in his list of potential jobs that Moyer would be writing with his right hand, but rather his left hand however awkward that might be. Id. at 49.

 Regarding the telephone solicitation job, the expert testified that he was assuming the position had a headset/mouth piece for the worker so that holding the phone and simultaneously dialing the phone and ...

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