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April 25, 1977.

Ernest LUPINACCI, Plaintiff,
F. David MATHEWS, Secretary of Health, Education and Welfare, Defendant.

The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

Defendant moves pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings. Plaintiff cross-moves pursuant to Rule 12(c) for judgment on the pleadings, or in the alternative, for remand for further administrative proceedings.

On December 5, 1973, plaintiff Ernest Lupinacci filed an application for a period of disability and for disability insurance benefits with the Department of Health, Education and Welfare ("HEW") alleging that he had been unable to work since December 29, 1972 due to "severe arthritis lumbar spine and hepatitis". On January 8, 1974, this application was denied. This determination was sustained upon review of his application on June 24, 1974. Following a hearing before an administrative law judge of the Bureau of Hearings and Appeals held on January 10, 1975, the administrative law judge, in a decision dated February 28, 1975, found that plaintiff was not disabled within the meaning of the Social Security Act and was therefore not entitled to disability insurance benefits. On August 11, 1975, the Appeals Council of HEW affirmed the administrative law judge's decision.

 On December 22, 1975, plaintiff commenced this action against the Secretary of HEW ("the Secretary") pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for review of HEW's denial of disability insurance benefits.


 The Secretary contends that the decision denying plaintiff disability insurance benefits should be affirmed on the ground that that decision is supported by substantial evidence in the administrative record. Plaintiff contends that HEW's decision is not supported by substantial evidence and that HEW applied an incorrect standard as to what constitutes a "disability". Plaintiff also contends that the administrative law judge did not inquire fully into the nature and extent of his impairment.

 Under the Social Security Act a "disability" is defined as the

 "inability to engage in any substantial gainful activity by reason of any medically determinable physical or metal impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

 Thus on the facts of the present case plaintiff must establish that (1) he was under a medically determinable physical impairment that (2) has lasted or can be expected to last at least 12 months, and that (3) has prevented him from engaging in substantial gainful activity.

 The administrative law judge found, inter alia, that "the evidence [failed] to establish that claimant's impairments, singly or in combination, prevented him from engaging in any substantial gainful activity for any continuous period beginning on or before the date of this decision which has lasted or can be expected to last at least 12 months" and that "claimant was not under a 'disability' as defined in the Social Security Act...."

 These findings, if supported by substantial evidence are conclusive on a reviewing court. 42 U.S.C. § 405(g). Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Cutler v. Weinberger, 516 F.2d 1282 (2d Cir. 1975); Franklin v. Secretary, 393 F.2d 640 (2d Cir. 1968).

 The evidence here consists chiefly of plaintiff's testimony at the administrative hearing and statements submitted by two physicians who treated plaintiff and by a reviewing physician for the Social Security Administration. This evidence indicates that plaintiff had an arthritic condition for which he had obtained chiropractic treatment as early as July, 1971. On or about December 29, 1972 plaintiff discontinued working at his job as a salesman of construction equipment due to increased pain from the arthritic condition. Shortly thereafter, he went to an orthopedic surgeon who diagnosed his condition as a herniated disc. After medication proved unsuccessful in alleviating this condition, plaintiff underwent spinal fusion surgery on May 24, 1973. In connection with this operation plaintiff received several units of blood as a result of which he contracted serum hepatitis. As of April 25, 1975, plaintiff had still not returned to work.

 Based on the evidence in the administrative record before the Court, it would appear that plaintiff was suffering from "medically determinable physical impairments" and has thus established the first element necessary to establish a "disability". There is nothing in the record to dispute plaintiff's testimony that he was suffering from the combined effects of a spinal condition and a serum hepatitis condition or statements of the two treating physicians to the same effect.

 The second element, that the impairment lasted at least 12 months, also appears to be satisfied here on the basis of the evidence in the record. Even if the Court views the evidence in the light most favorable to the Secretary and denies plaintiff's contention that the period of disability should be measured from December 29, 1972, the date plaintiff claims to have stopped working, the evidence clearly establishes that plaintiff was unable to work as of May 24, 1973, the date on which plaintiff underwent surgery. Although he had apparently fully recovered from the spinal surgery four months later, the statements of the two treating physicians establish that plaintiff was totally disabled by ...

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