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Marcus v. Califano

decided: December 11, 1979.

HELENE MARCUS, PLAINTIFF-APPELLANT,
v.
JOSEPH A. CALIFANO, JR., SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE .



Appeal from a judgment entered in the Southern District of New York, Charles L. Brieant, District Judge, granting defendant's motion for judgment on the pleadings and upholding a final determination by the Secretary of Health, Education and Welfare which denied plaintiff's application for disability insurance benefits. Reversed and remanded.

Before Waterman, Feinberg and Timbers, Circuit Judges.

Author: Timbers

This appeal raises the question as to what is the proper standard for evaluating claims under the Social Security Act which involve subjective pain.

Helene Marcus commenced this action in the district court under Section 205(g) of the Social Security Act as amended, 42 U.S.C. ยง 405(g) (1976), to review a final determination by the Secretary of Health, Education and Welfare ("Secretary") which denied her application for disability insurance benefits. The district court took on submission cross motions for judgment on the pleadings and, in a memorandum and order dated February 23, 1979, granted the Secretary's motion. From the judgment entered on that memorandum and order, Mrs. Marcus ("appellant") has taken this appeal.

I.

Appellant is a forty-six year old woman who lives in the Bronx with her husband and two children. She was born in France. She completed the eleventh grade in this country. For the first six years after coming to the United States she worked in a laundry. Since then she has been employed as a clerical worker, most recently with the Chemical Bank. Her work at the bank lasted for seven years, until the onset of her alleged disability; her work consisted of typing, filing and other office work. She testified*fn1 that this job required sitting, standing, and bending on her part.

Appellant claims that she suffers from persistent and intense low back pain. She testified that because of the constant pain she can sit or stand only for brief periods of time, and when she does sit she must place all her weight on her right side. She further testified that she can walk no more than half a block before the pain becomes unbearable, that she experiences pain on urination, and that because of the pain she has difficulty sleeping. The pain, she testified, never stops. Her only relief comes when she lies flat on her right side.

Appellant filed an application with the Secretary for disability insurance benefits on April 20, 1976. Her application was denied without a hearing both initially and upon reconsideration. Thereafter a hearing was held on January 13, 1977 by the ALJ. On March 8, 1977 the ALJ found that appellant was not disabled. This decision became the final decision of the Secretary on April 11, 1978 when it was approved by the Appeals Council.

In addition to appellant's testimony, a number of medical reports and records were received in evidence before the ALJ and the Appeals Council*fn2 which documented both appellant's continuous complaints of low back pain and the numerous attempts to diagnose and treat the cause of the pain. A report from appellant's treating physician, Dr. Tindel, indicated that appellant had only a 75% capacity to sit, stand, and walk; he diagnosed her as suffering from back pain, rectal bleeding, and possible Cushings Syndrome (a condition caused by any of several kinds of tumors). A later report by Dr. Tindel stated that appellant suffered from hypertension and osteoporosis of the back (a condition characterized by weak and brittle bones). He concluded that appellant was "unable to work and is permanently disabled."

A report from appellant's second treating physician, Dr. Herbstein, diagnosed her condition as a herniated nucleus pulposis (a ruptured disc), although her spinal X-ray was negative. Dr. Herbstein agreed with Dr. Tindel's conclusion that appellant had only a limited ability to sit, stand, and walk.

Further medical records were introduced from the Albert Einstein Hospital and the Hospital for Special Surgery. At the former, appellant's condition was diagnosed as low back pain and depression; a chest and spine X-ray, however, was negative. At the Hospital for Special Surgery, appellant was shuttled between the Neurology Clinic, the Hip Clinic, and the Back Clinic; the cause of her pain alternately was labeled as musculo-skeletal disease of the left hip, mild low back strain with mild sciatic irritation, and possible trochanteric bursitis. No conclusive diagnosis, however, was made.

At the hearing before the ALJ, Dr. Cohen a board-certified orthopedist who had reviewed the records in evidence but who never examined appellant concluded that appellant had osteoporosis and hypertension. In his opinion, however, the myelogram, X-rays, and other medical records did not support the extent of the physical limitations claimed by appellant. He testified that appellant might have some pain caused by osteoporosis, but that she should be able to engage in work that did not require lifting or undue bending.

Other medical records were submitted to and considered by the Appeals Council after the ALJ had ruled against appellant. One such record documented appellant's treatment at Montefiore Hospital, after the hearing, for rectal bleeding and low back syndrome. Clinical tests there proved negative. There also was submitted a report of a psychiatric examination of appellant by a Dr. Schaye. His report stated that appellant was depressed and preoccupied with feelings of hopelessness concerning her illness. In the opinion of Dr. Schaye, appellant was suffering from a psychiatric illness which, together with her chronic physical complaints, rendered her "unsuitable for gainful employment."

The Appeals Council approved the decision of the ALJ that appellant was not disabled. The decision of the ALJ thus became the final decision of the Secretary. Appellant then commenced this ...


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