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December 12, 1978

Henry FLORES, Plaintiff,

The opinion of the court was delivered by: CONNER


This is an action under Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to review the decision of the Secretary of Health, Education and Welfare ("Secretary") denying plaintiff Henry Flores ("Flores") disability insurance benefits. Both parties have moved for judgment on the pleadings.

The Facts

 Flores was born in New York City in 1929. He attended school through the ninth grade. When he was 15 or 16, he sustained a gunshot wound in his left leg which resulted in a fracture of the femur. He was treated initially at Harlem Hospital and later at various other hospitals in New York City. Flores underwent several operations on his left leg, including the installation of a metallic plate in his left femur. A sympathectomy was performed to sever nerves leading to his leg so as to relieve the severe pain in 1971. The operation does not appear to have been effective. In 1975, Flores was referred by Lincoln Hospital to the Foot Clinics of New York for treatment by podiatrists there. He was a patient at the clinic from June 1975 to February 1976 when he expressed dissatisfaction with his progress there and again became an outpatient at Lincoln Hospital.

 During most of this period, Flores was gainfully employed. After recovering from the gunshot wound, Flores went to work as a packer for Real Blouse. In 1963, he became a shipping clerk for Ocean Side Wire Company ("Ocean Side") and remained with the company until it laid him off due to a general slowdown in business in October of 1975.

 After being laid off, Flores applied for unemployment compensation. He received his first payment on January 12, 1976. On February 10, 1976, Flores applied for disability benefits. His application was refused and the decision reaffirmed on reconsideration. A hearing was held. The Administrative Law Judge's ("ALJ") denial of the claim was affirmed by the Appeals Council, making it the final decision of the Secretary. Flores brought suit in this Court seeking review of the agency decision.


 In order for an individual to be entitled to disability insurance benefits, he must demonstrate that he is disabled within the meaning of Section 223(d)(1), 42 U.S.C. § 423(d)(1), of the Act. *fn1" An individual is disabled if his "impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work . . ." Section 223(d)(2) (A), 42 U.S.C. § 423(d)(2)(A).

 The ultimate burden of persuasion is on the individual seeking disability benefits. Both parties agree, and by now the law is well-settled, that to meet this burden a claimant must prove that he is unable to work at his former employment due to his impairment. If he does so, the burden of going forward shifts to the Secretary who must then demonstrate the existence of available employment compatible with the claimant's impairment. See, E. g., Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974); Grable v. Secretary of H. E. W., 442 F. Supp. 465 (W.D.N.Y.1977); Talifero v. Califano, 426 F. Supp. 1380 (W.D.Mo.1977); Robinson v. Richardson, 360 F. Supp. 243 (E.D.N.Y.1973). If the Secretary meets the requirement, the plaintiff bears the burden of proving that he is unable to engage in Any substantial gainful employment.

 In assessing a disability claim, the factors to be taken into account are (1) the objective medical facts; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant and family or others; and (4) the claimant's educational background, age and work experience. Gold v. Secretary of H. E. W., 463 F.2d 38, 41 n.2 (2d Cir. 1972).

 Under Section 205(g) of the Act, the Secretary is given the initial responsibility for making findings of fact and decisions regarding the merits of a claim of disability. It is within his province as trier of fact to weigh all the evidence and resolve any material conflicts. See Richardson v. Perales, 402 U.S. 389, 399-400, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). Federal courts must accept as conclusive any finding of fact made by the Secretary, if supported by substantial evidence. Substantial evidence has been defined as " "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'." Richardson v. Perales, supra, 402 U.S. at 401, 91 S. Ct. at 1427, Citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). "However, it "must do more than create a suspicion of the existence of the fact to be established'." Kenny v. Weinberger, 417 F. Supp. 393, 397 (E.D.N.Y.1976), Citing NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S. Ct. 501, 83 L. Ed. 660 (1939). The court is bound to "scrutinize the whole record to determine whether the Secretary's findings have rational support in the evidence relied upon, and if reliance is placed on one portion of the record in disregard of overbalancing evidence to the contrary, the court may then interfere with the Secretary's conclusion." Hofacker v. Weinberger, 382 F. Supp. 572, 576 (S.D.N.Y.1974). See Talifero v. Califano, supra, 426 F. Supp. at 1387. Cf. Celebrezze v. Maxwell, 315 F.2d 727, 730 (5th Cir. 1963). *fn2"

 The record in this case includes the medical reports of three doctors who examined Flores at the request of the Social Security Administration. Dr. Herman Rothman, an internist, examined plaintiff on March 20, 1976 and found that "extremities showed marked atrophy of the left leg." He concluded that Flores is "disabled because of the vascular disease in the left foot and leg and atrophy of the left leg." Dr. Murray J. Rosenzweig, a radiologist, examined Flores and provided his report of the radiographic examination to Dr. Morton Finkel, a neurologist. Dr. Finkel examined Flores on July 1, 1976 and found that he had "marked atrophy of his left leg and weakness of his gastrocnemius muscle." He found that Flores could not "dorsiflex his toes or foot on the left," had "good hamstring and quadriceps muscles, his deep tendon reflexes were equal, except for an absent left ankle jerk," and "(h)is left ankle is held rigid and cannot be flexed." Dr. Finkel's diagnosis "was left femoral nerve injury, causing weakness of his left leg and making it difficult for this patient to walk more than two blocks or stand for more than one hour, however, he could carry ten pounds and could possibly work while seated." His conclusion was ". . . I think this patient is incapacitated at the present time. I think he should be re-evaluated for incapacity in six months." The only other medical report that is part of the record before the Court is Flores' treatment record at the Foot Clinics.

 Flores appeared at the hearing without counsel *fn3" and testified as to his physical condition and work history. He stated that had Ocean Side not laid him off, he would probably have been forced to resign as a result of his poor health. Flores stated that "even during work I was constantly complaining and it was bothering me severe." (Transcript at 27.)

"You remember I was working but I was getting, still I was working the reason I had to work because I had my kids. And then I was forcing myself, but then as the years go by I was getting constantly the pain was getting more severe and then my left foot was cold and numb, I didn't have any kind of feeling, no blood reaction was going down there to the foot, it was like ice. And I was getting constant pins and needles and every now and then all the time my left left (sic) would get, it would be I could be sitting, sleeping, walking sometimes, it would kick, the nerve would just kick it out, you know, and then it was, I couldn't I would walk a few blocks, a couple of blocks, it would bother me." (Transcript at 22-23).

 In Gold v. Secretary of H. E. W., supra, 463 F.2d at 42, the Second Circuit stated that "(t)he expert opinions of plaintiff's treating physicians as to plaintiff's disability . . . are binding upon the referee if not controverted by substantial evidence to the contrary." (Citing Walker v. Gardner, 266 F. Supp. 998, 1002 (S.D.Ind.1967)). See Walston v. Gardner, 381 F.2d 580 (7th Cir. 1967) (Absent countervailing substantial evidence, finding contrary to such medical opinions "in the realm of speculation"). See also Grable v. Secretary, supra, 442 F. Supp. at 470; Terio v. Weinberger, 410 F. Supp. 209, 212 (W.D.N.Y.1976). This principle should apply equally to the expert opinions of doctors selected by the Social Security Administration to examine a claimant. "Although doctors' opinions on the issue of disability are not binding on an ALJ, an ALJ cannot arbitrarily substitute his own lay judgment for the opinion of doctors." Grable v. Secretary, supra, 442 F. Supp. at 470. Therefore to uphold the Secretary's decision that Flores is not entitled to disability benefits, it will be necessary to find substantial evidence in the record to controvert the findings of disability made by the doctors selected by the Administration.

 The ALJ concluded that Flores was capable of performing substantial gainful activity prior to February 22, 1977, because he received state unemployment compensation benefits through that date, and by receiving these benefits certified that he was "ready, willing and able to work." (Transcript at 3, 4). The ALJ found that plaintiff's claim for disability benefits for the period after February 1977 was premature since an applicant for disability benefits must be disabled for five months to meet the Act's entitlement requirement. Section 223(a)(1)(D), (c)(2). The ALJ reviewed the medical reports and Flores' testimony and while he made no specific findings on this evidence, he did state some of his conclusions. It is unclear from his decision whether he concluded that Flores was able to perform his former occupation or that Flores was able to engage in other substantial gainful work. He stated:

"There is some evidence that the claimant cannot return to his prior work experience as a shipping clerk which required him to be on his feet for most of the day. However, there is other evidence indicating that the claimant could ...

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