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July 13, 1978

Lawrence SPICER, Plaintiff,
Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: MUNSON


This action is brought pursuant to 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health, Education and Welfare, denying plaintiff's claim for a period of disability and disability insurance benefits. 42 U.S.C. §§ 416(i), 423. Defendant moves for a judgment on the pleadings or, in the alternative, for summary judgment. Plaintiff cross-moves for summary judgment, and plaintiff's counsel seeks an award of attorney's fees pursuant to 42 U.S.C. § 406(b)(1).

 Plaintiff filed an application for disability insurance benefits on January 28, 1974, alleging that he had been disabled since December 17, 1973, due to a cervical root syndrome and a duodenal ulcer. After this application was denied both initially and on reconsideration by the Bureau of Disability Insurance of the Social Security Administration, a hearing was held before an Administrative Law Judge (ALJ). The ALJ rendered a decision on January 20, 1976, finding that plaintiff was not disabled within the meaning of the Social Security Act. This decision was vacated by the Appeals Council and remanded for purposes of obtaining the testimony of a vocational expert. After a supplemental hearing was held, the ALJ issued a second decision, denying plaintiff's claim for disability insurance benefits. This decision was affirmed by the Appeals Council on May 16, 1977.

 Plaintiff is a fifty-one year old man, has a fourth grade education, and has worked as a carpenter for approximately thirty years. Plaintiff testified that he was forced to quit working in December, 1973, because of severe pain in his back and shoulders. He indicated that he has continued to experience such pain since that time and consequently has had considerable difficulty in lifting, reaching, or pulling. Other problems which plaintiff said he experienced were the inability to stand or sit for long periods of time and numbness in his left hand. According to the plaintiff, he has not been able to do very much work around the house, because he would start aching all over whenever he tried to work. In addition, plaintiff stated that he had trouble sleeping and frequently woke up during the night because of pain. At the supplemental hearing, plaintiff indicated that he took a nap four times a day to make up for the sleep he lost at night. Plaintiff testified that the medication he took consisted of Tylenol, Butibell, and sleeping pills.

 Plaintiff's wife, who also testified at the hearing, corroborated plaintiff's complaints of pain, as well as the problems he allegedly experienced in working, sleeping, or standing for long periods of time. She indicated that her husband had become worried and depressed.

 Included in the record are reports from Dr. Richard E. Shelling, plaintiff's treating physician since January, 1974, and from several other physicians who have examined the plaintiff.

 Plaintiff was admitted to the Robert Packer Hospital on January 4, 1974, with complaints of a shoulder ache. *fn1" Dr. Shelling reported that plaintiff, at that time, was experiencing a great deal of pain in the neck as well as in the shoulders; and, after performing a physical examination, the physician noted that there was a slight limitation of movement in plaintiff's neck. In addition, Dr. Shelling characterized the trapezius muscle as very tight, but found no vertebral tenderness. Plaintiff was placed on physical therapy with intermittent traction, heat, and massage. Considerable improvement was noted in plaintiff's condition, and he was discharged on January 9, 1974, with a final diagnosis of cervical root syndrome.

 Plaintiff was readmitted to the Robert Packer Hospital on January 11, 1974, with complaints of hiccups and vomiting. His condition was diagnosed as probable duodenal ulcer. He was treated for this condition and discharged on January 17, 1974.

 In April, 1974, plaintiff was examined by Dr. William A. Steinbach, who reported that plaintiff was experiencing pain in the left shoulder and down the left arm. Dr. Steinbach stated that x-rays showed osteoarthritic changes in the cervical spine, which could account for the pain. The doctor's impression was cervical osteoarthritis with nerve root compression and ridicular symptoms. Plaintiff was told to use intermittent cervical traction at home.

 A report of an x-ray finding by the Chenango Bridge Medical Group, dated November 25, 1974, indicated that there was a straightening of plaintiff's cervical spine which might have been due to position or muscle spasm.

 The record also contains a report from Dr. James J. McGuire, dated November 29, 1974. He stated that plaintiff's examination was essentially negative. He indicated that there were no objective findings of limitation of motion of the neck, neurological signs, atrophy or demonstrable weakness of the left upper extremity. Moreover, he said that while there was a slight straightening of the cervical spine, there was not any limitation of motion of the cervical spine. He concluded that he could not confirm the diagnosis described by the patient, but believed that plaintiff should have a neurological evaluation and probably a cervical myelogram.

 Dr. George M. Raus performed an orthopedic examination of plaintiff on October 2, 1974, at the Veterans Administration Outpatient Clinic. Dr. Raus observed that plaintiff moved around easily and did not exhibit any overt evidence of physical disability or limitation. On the other hand, he stated that while there was complete cervical spine mobility in all directions, extremes of all movements were uncomfortable in the posterior cervical area. Likewise, while there was complete mobility in the shoulders, extremes of shoulder elevations were uncomfortable. X-rays of the cervical spine and both shoulders were found to be negative, and plaintiff's condition was diagnosed as chronic cervical dorsal strain, symptomatic only.

 In an entry made in the hospital progress sheet for August 1, 1974, Dr. Richard E. Shelling, plaintiff's treating physician, stated that there was paricervial muscle spasm on the left side of plaintiff's neck and a great deal of muscle spasm in the left trapezius. Extension of the neck was noted as being limited, as plaintiff had difficulty placing his ear on his left shoulder. Dr. Shelling said that plaintiff was disabled because of cervical root syndrome and was unable to do his customary occupation due to extreme pain.

 In a hospital entry, dated February 6, 1975, Dr. Shelling stated that plaintiff had tried to work a number of times, but experienced extreme pain for three or four days after doing a day's work. The doctor concluded, "I don't believe . . . (plaintiff) ...

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