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April 11, 1981

Jose M. RIVERA, Plaintiff,

The opinion of the court was delivered by: BRODERICK


The plaintiff, Jose M. Rivera, brought this action under the Social Security Act ("the Act") *fn1" to review a final decision of the Secretary of Health, Education and Welfare denying his application for social security disability benefits and for the establishment of a period of disability. *fn2" After a hearing the administrative law judge held that plaintiff had failed to prove that he was disabled within the meaning of the Act on or before March 31, 1974, the last date on which he met the special earnings requirements for disability insurance coverage. The administrative law judge's decision became that of the Secretary when it was affirmed by the Appeals Council on April 7, 1977. The case is before me on defendant's motion for judgment on the pleadings and plaintiff's cross-motion for judgment on the pleadings, or, in the alternative, for summary judgment.


 In light of certain legal errors, discussed below, the Secretary's determination is reversed and the case is remanded for reconsideration and rehearing consistent with this memorandum order.


 Plaintiff is a 41 year old married male Hispanic, with two children. *fn3" He has a first grade level of education and at the time of the hearing spoke no English. From 1956, when he came to the United States at the age of seventeen, until 1968 he was employed in various unskilled manual jobs that required him to work in a standing position. *fn4"

 In 1968, while lifting a heavy object, plaintiff injured his lower back. He has not worked since, save for one month's employment at a facility for the handicapped in 1972. He did spend nine months, on an intermittent basis, attending a vocational rehabilitation program to qualify for his workmen's compensation payments, but was unable to continue because of dizziness and numbness in his hands. *fn5"

 Plaintiff spends most of his time either lying down to relieve his back condition or sleeping as a result of the effects of medication.

 The administrative law judge considered evidence of plaintiff's impairment relating to the period prior to March 31, 1974, when plaintiff last met the special earnings requirement, and the period after that date.

 1. Period prior to March 31, 1974.

 In 1968, after his injury, plaintiff was hospitalized for treatment with weights applied to his legs. He began treatment with Dr. David Graubard, a general surgeon, in 1969 and continued to see him until 1974. As early as February 23, 1971, Dr. Graubard considered plaintiff to have a permanent partial disability. On July 13, 1971, at the recommendation of Dr. Graubard, plaintiff underwent a laminectomy for removal of a herniated disc. After surgery, plaintiff's pain abated. Dr. Irving Etkind examined petitioner on November 3, 1971 and found minimal partial disability. He considered plaintiff able to return to work if he avoided heavy lifting, bending and twisting. On December 1, 1971, Dr. Young of the Workmen's Compensation Board reported that claimant had a mild permanent partial disability.

 In December 1973, and again on January 7, 1974, plaintiff was taken to the Metropolitan Hospital emergency room complaining of his back. On the latter occasion he was admitted for eleven days. Treatment consisted of pelvic traction, bed rest, and medication for pain. The plaintiff's discharge summary, prepared by Dr. Giovanelli, stated: "Range of motion limited in flexion and lateral bending. The patient has positive straight leg raising sign on the left with slight decrease of the tendon reflexes on the left. There was minimal motor weakness on the left lower extremity with deminished (sic) sensation along the entire left lower extremity." The summary also noted that "the patient was placed in pelvic traction and bed rest and showed remarkable improvement." The diagnosis was low back derangement. Plaintiff's emergency room treatment was to be followed up in the orthopedic clinic, to which plaintiff made three visits.

 On January 25, 1974, shortly after plaintiff's release from hospitalization at the Metropolitan Hospital, plaintiff's treating physician, Dr. Graubard, noted on a prescription pad headed by claimant's name that "the above named is still totally disabled." No reasons were given for this conclusion.

 2. Period from March 31, 1974 to date of hearing.

 The Workmen's Compensation Board classified plaintiff as permanently partially disabled on July 23, 1974. On September 9, 1974, after plaintiff visited Metropolitan Hospital's orthopedic clinic, one Dr. F. Baker, his attending physician, reported to the Workmen's Compensation Board that plaintiff was "still unemployable." In 1975, one Dr. Bernard informed the Workmen's Compensation Board that, among other things, plaintiff had restricted motion of the spine in all planes, limped to the left, and his toe and heel walking were unstable on the left. On March 9, 1976, an interviewer for the Department of Health, Education and Welfare observed that plaintiff was "slow in responding. It seems as if it is difficult for him to talk. He moves a lot in his chair. Opens & closes his hands a lot. Has difficulty in walking.... walks with a very marked limp."

 Plaintiff continued to be followed up by the Metropolitan Hospital orthopedic clinic. On April 7, 1976 an orthopedist observed that plaintiff had chronic lower back pain with a "strong psychiatric overlay" and was unemployable. On June 10, 1976, plaintiff's motor and sensory responses were found to be intact and he was characterized as "employable."

 Plaintiff was again hospitalized at the Metropolitan Hospital for treatment of lower back pain on August 2, 1976. He was treated with medication, placed in traction, and released after fifteen days. The discharge summary indicated his condition was improved, *fn6" but one week later at a follow-up orthopedic clinic appointment, plaintiff complained of pain.

 Plaintiff was examined twice by Dr. Arturo Pena in connection with his complaints of back pain, once in May 1976, and again in October 1976. On the first visit, Dr. Pena found that the range of plaintiff's motion was flexion 40 degrees, hyperextension 35 degrees, lateral bending to right and left 30 degrees, and rotation to left and right 35 degrees. Straight leg raising was positive on the left at 35 degrees. Dr. Pena recommended an EMG study after his initial examination. When he examined plaintiff again in October, plaintiff had not ...

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