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November 17, 1976


The opinion of the court was delivered by: NEAHER


NEAHER, District Judge.

 Plaintiff has moved for summary judgment in this action to review a determination of the Secretary of Health, Education and Welfare (the Secretary) denying him disability insurance benefits under the Social Security Act (the Act), 42 U.S.C.§§ 405(g), 416(i), 423. The theory of the motion appears to be that the court may reweigh the evidence before the administrative law judge and direct judgment in accordance with its preponderance as plaintiff sees it. The court's function on review, however, is limited by law to determining whether the decision of the Secretary is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Gold v. Secretary of Health, Education & Welfare, supra, 463 F.2d 38, 41 (2d Cir. 1972). *fn1" If it does, that concludes the matter, even though the court may disagree with the result.


 Plaintiff first applied for disability benefits on November 4, 1973. After denial of his claim for benefits on initial consideration and reconsideration by the Bureau of Disability Insurance of the Social Security Administration, he sought, and was granted, a hearing before an administrative law judge. The hearing, at which he was represented by counsel, was held on January 21, 1975. The administrative law judge considered the case de novo, and rendered his decision on January 30, 1975, finding plaintiff not entitled to benefits under the Act. The Appeals Council upheld the decision on May 14, 1975, making it the final decision of the Secretary. Plaintiff timely filed his application for review in this court on June 27, 1975.

 Plaintiff was 45 years old at the time of his claimed disability in November 1969. He was born in Puerto Rico and his total education consisted of three years of school in Puerto Rico, which he left at the age of ten. He began working at thirteen and came here when he was 28 years old. He speaks only Spanish, has minimal reading capacity even in that language, and cannot write, except for his name. He worked as an agricultural laborer, as a porter in a restaurant carrying trays and washing dishes, and lastly as a floorman moving heavy boxes and cartons in shipping and receiving operations of a container manufacturer.

 On November 1, 1969, while so employed plaintiff wrenched his back in attempting to pull a defective skid loaded with heavy cartons and has not returned to work since then. He testified (through an interpreter) that he wishes he could return to work but cannot because of the pain around his waist. The record shows that in 1966 he had previously suffered an on-the-job back injury and had been unemployed thereafter for a period of 21 months because of it. He last met the earnings requirement that permits coverage as an insured individual under the Act on September 30, 1973.


 The administrative law judge in a 16-page decision reviewed in some detail the medical evidence bearing upon the question of plaintiff's "disability" within the meaning of the Act. *fn2" In the judge's view, the preponderance of that evidence failed to establish that plaintiff "has impairments of sufficient severity and duration so as to constitute a 'disability' within the meaning of the law during the alleged period." Tr. 27. Unfortunately, the judge formulated his formal findings in the conclusory language of the Act. This renders it difficult for a reviewing court to ascertain with assurance what facts were found concerning the plaintiff's ability to undertake gainful employment during the period of his insured coverage.

 The judge's discussion of the medical evidence leaves little doubt that he accepted the preponderant medical opinion that plaintiff was disabled from returning to his former laboring occupation or anything like it. This is evident from the judge's concentration on the question of plaintiff's "residual functional capacity," i.e., his ability to engage in other kinds of work prior to September 30, 1973. In resolving that question adversely to plaintiff's claim of total occupational disability, the administrative law judge relied primarily upon testimony of two doctors who appeared at the hearing and who seemed to agree that plaintiff could perform certain limited physical activities as hereafter described.

 Dr. Justus I. Kaufman, a general surgeon, who testified for plaintiff, and whose only examination of plaintiff occurred on December 12, 1974, found him suffering from a severe lumbosacral sprain, which, together with a superimposed psychogenic overlay, had produced a continuous disability since November 1, 1969. In his opinion, plaintiff's condition was worse in 1973 than it was at the time of the accident in 1969, and prevented plaintiff from engaging in substantial gainful work. Dr. Kaufman conceded that plaintiff could sit for perhaps one and one-half hours, stand for one and one-half hours, could walk five blocks, and could use public transportation.

 Dr. Herbert G. Cohen, an orthopedic surgeon, called by the administrative law judge as a neutral medical advisor, who did not examine plaintiff at all, testified on the basis of medical reports of other doctors that plaintiff had a mild arthritis which would give rise to pain from time to time. On cross-examination he conceded plaintiff had the residuals of a low back injury; that he may have had a sprain of the lower back that could indicate the tearing of muscle tissue; that he had osteoarthritis; and that a disc pathology could not be ruled out. He was also of opinion that these conditions could have existed as early as 1969, including a psychogenically derived hypesthesia. Nevertheless, it was his opinion based in part on Dr. Kaufman's testimony and the report of an examination made by Dr. Frank P. Vaccarino, an orthopedic surgeon, in February 1974, that as of September 30, 1973, plaintiff could lift and carry somewhat more than 15 pounds, stand for more than three hours, sit for more than two hours, walk for 12 to 13 blocks, climb two to three flights of steps slowly, and use public transportation, but could not engage in any occupation requiring sustained or repetitive bending.

 Neither of the testifying doctors nor Dr. Vaccarino had examined plaintiff prior to September 30, 1973. *fn3" The medical reports in evidence show that plaintiff's treating doctor was Dr. George J. Seaman, an orthopedic surgeon, who had seen plaintiff six days after his accident and treated him weekly thereafter until May 1974, at which time he concluded nothing more could be done and that plaintiff had a permanent disability and was unable to return to his former work. The New York Workmen's Compensation Board was of a similar view, finding that plaintiff had a severe unstable low back and was under a total industrial disability. This was also the opinion of Dr. Alcides C. Pomina, a neurologist, who examined plaintiff on November 24, 1969 on referral from Dr. Seaman. *fn4"

 While acknowledging that the medical evidence was "not entirely consistent," the administrative law judge relied on Dr. Cohen's description of plaintiff's estimated physical capabilities as the basis for his conclusion that plaintiff possessed sufficient residual functional capacity as of September 30, 1973, to enable him to perform other types of jobs existing in the New York metropolitan area. *fn5" For the reasons which ...

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